EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 5, 2016

Thoughts on the 2nd Day of Adnan's Reopened PCR

Last night, we had another special minisode of the Undisclosed Podcast based on the second day of the reopened postconviction review proceedings in the Adnan Syed case. In this post, I will expand upon some of the topics I covered in the minisode. First, however, I will touch upon the key cell tower testimony by Gerald R. Grant, Jr.

The Cell Tower Testimony

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The case Jessie is referencing is the Bulos Zumot case. We discussed it on the Ping episode of the Undisclosed Podcast. Here is a discussion of the cell tower testimony in the case:

Although it is not known to be true of all companies, it was established in this case that, according to AT&T records, if a call is placed from one cell phone to another and the call goes into the recipient’s mail box, the AT&T call shows as connected. However, the tower reading will reflect the tower from which the call originated. In this particular case, the defendant’s private investigator noted that a call was placed on an unrelated day a week before the incident when the defendant was, again, known to be in the San Jose area. 

The defendant’s cell tower records showed an incoming call placing the defendant near a tower in Lahaina, Maui, and within nine minutes of that call, a previous call placed the defendant in Palo Alto. Because of this “flaw” in AT&T’s system, by all rights, the defendant received the first call from a tower on the island of Maui, some 3,000 miles away. The prosecution’s expert was then asked under oath, “Can you get from San Jose to Maui in nine minutes?” Again, their “expert” replied, “It depends on your mode of travel.” A valuable lesson in how not to choose an expert. (emphases added).

Indeed, there is no dispute on this issue. This comes from Zumot's opening appellate brief, People v. Zumot, 2012 WL 2395582 at *22 n.9 (Cal.App. 6 Dist. 2012)

At trial, however, Lawrence Velasquez testified for the defense. (19 RT 1908.) Velasquez was an ATT radio frequency engineer. (19 RT 1907.) He explained that when an ATT customer calls another ATT customer and it goes to voice mail, the site tower listed on both customers' records is for the location of the caller only. (18 RT 1912-1914.) The calls from Mr. Zumot to Ms. Schipsi -- which went to voicemail -- between the hours of 2:56 pm and 7:45 p.m. show Mr. Zumot's site tower location on both records not because the phones were together in Mr. Zumot's possession (as the state theorized), but because Mr. Zumot (an ATT customer) was calling Ms. Schipsi (another ATT customer) and the calls went directly to voice mail. (18 RT 1912-1914.) The state presented no rebuttal to this evidence. (emphasis added).

Meanwhile, here is the corresponding language in the Respondent's Brief by the State, People v. Zumot, 2012 WL 5990589 at *22 (Cal.App. 6 Dist. 2012)

Lawrence Velasquez, an AT&T employee, testified that when two parties subscribe to AT&T, a call which goes to voice mail only pings at the calling person's location. (18 RT 1914, 1921.) In addition, one phone call could simultaneously ping off multiple cell phone towers in order to give customers increased reliability in service and to avoid dropped calls. (18 RT 1916.) Pings at multiple towers did not necessarily mean that the phone was moving in the vicinity of all those towers. (18 RT 1918.) (emphasis added).

The takeaway from this testimony is clear: For any incoming call on Adnan's call log that showed up as "connected" and pinging a certain tower, the call could in fact have been an unanswered call that went to voicemail, with the tower listed being the tower pinged by the caller. This includes both the incoming 7:09 and 7:16 P.M. calls that pinged the L689B tower. This also provides a clear explanation for the AT&T disclaimer:

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I saw it mentioned on Twitter that the State might try to claim that "location" on the disclaimer refers to the "Location1" column on a different type of cell phone record than the one included in Exhibit 31: 

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But that makes no sense when you read the above two sentences from the disclaimer together. The statement that outgoing calls are reliable for "location status" while incoming calls are not reliable for "location" clearly means that you can't use incoming calls to determine the "location status" of the phone, not that you can't trust the data in the "Location1" column.

So, Grant's testimony seems pretty clear: The disclaimer meant that incoming calls could be unreliable and therefore shouldn't have been admitted or served as the basis for Waranowitz's testing without further explanation from AT&T. This is consistent with what Waranwitz said in his affidavit

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Now, we know the answer that Waranowitz would have been given if he spoke to a knowledgeable AT&T radio frequency engineer such as Lawrence Velasquez: The disclaimer was issued at least in part because, in the records, the tower pinged by incoming calls was sometimes the tower pinged by the caller

Today, Special Agent Chad Fitzgerald of the FBI will be called as a cell tower expert. Normally, this would set up what's known as a "battle of the experts" between the defense and the State. But the battle isn't simply between Fitzgerald and Grant; it's Fitzgerald vs. Grant and two AT&T radio frequency engineers (Waranowitz and Velasquez) over the interpretation of AT&T records.

The Reliability of Asia and Her Letters

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The Deputy Attorney General engaged in a vigorous cross-examination of Asia McClain that seemingly tried to accomplish three goals. The first was to try to establish that Asia's second letter was written after March 2nd, the date written on the letter. These questions were pretty easy to parry, and it seems as if Adnan's attorney did just that with newspaper articles and a news clip. 

How did Asia know to write "Central Booking" in her second letter on March 2nd? The March 1st Baltimore Sun article on his arrest noted that "Adnan Musud Syed was arrested about 6 a.m. at his home in the 7000 block of Johnnycake Road in Woodlawn, Baltimore County, and taken to the Central Booking and Intake Center." 

How did Asia know Adnan's inmate number on March 2nd? Maybe she called Central Booking, or maybe Adnan's family told it to her when she visited their house on March 1st. After all, Adnan was given his inmate number basically right after he was arrested.

How did Asia know Hae's body was found in a shallow grave? It was in several news clips. How did Asia know about some of the forensic evidence in the case? This is from Debbie's March 26th interview with police:

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The redacted name is Ann's name. We know that Ann, Debbie, and Aisha were interviewed by police on March 2, 1999, the same date as Asia's second letter. Debbie's interview certainly implies that the police told Ann about some of the evidence in the case on that date, and Debbie herself talks about the fingerprints that were found. Asia testified yesterday that the information in her second letter was based upon gossip at school. If that gossip weren't merely idle speculation, it easily could have come from information given by the police. Of course, the notes for these March 2nd interviews are "missing" from the State's files.

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The second thing that the Deputy AG tried to do was establish that Asia and Rabia had different recollections of how they met up in 2000 when Asia wrote her initial affidavit. This seems like a pretty trivial point given that Asia reaffirmed that the affidavit wasn't written under pressure. It's not hard to imagine Rabia (in 2012) and Asia (in 2016) having different recollections of where they first met back in 2000.

Indeed, as I noted in a post last week, an Illinois judge recently granted a new trial based on failure to contact an alibi witness, even though that witness's recollection of the actual circumstances of the alibi differed from the recollection of other witnesses:

Trivial

Given that the variations about the actual alibi in the Illinois case were not "overly problematic," it's hard to imagine some "decade later" variations about how Asia and Rabia met up are anything other than trivial.

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The third thing that the Deputy AG tried to do was to establish that Gutierrez might have read Asia's letters and made the strategic decision not to contact her based upon their content. Asia explained what her 17 year-old self meant with certain language, but that still leaves the question of how Gutierrez might have interpreted them. Luckily for Adnan, Gutierrez's interpretation of these letters couldn't relieve her of the obligation to contact Asia.

Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988) has been cited with approval in  In re Parris W., 770 A.2d 202 (Md. 2001), and Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992). It's the case in which defense counsel not only contacted but also called twelve alibi witnesses. That said, defense counsel did not contact a thirteenth alibi witness, a Sears clerk, because he doubted the reliability of that alibi. In finding ineffective assistance, the Seventh Circuit concluded:

Nor can we say that defense counsel's conclusory statement that he did not believe his client was an adequate basis for ignoring such an important lead. Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity.

In other words, an attorney can't trust her gut in failing to contact an alibi witness based on the belief that the alibi isn't credible. That's because actually talking (or having someone talk) to the alibi witness could make the attorney view the alibi more favorably. Over the last two days, Judge Welch has had just that opportunity to assess Asia McClain's veracity. I can only rely on what I've heard reported on her testimony, but it seems to me like that process has gone well.

-CM

https://lawprofessors.typepad.com/evidenceprof/2016/02/last-night-we-had-another-special-minisodeof-the-undisclosed-podcast-based-on-the-second-day-of-the-reopened-postconviction.html

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Comments

You are a boss.

Posted by: ap | Feb 5, 2016 3:52:29 AM

Hi Colin, thanks again for the summary. I'm intrigued to know the extent to which both Adnan's attorney and the DDA/State keep on top of your research and that of the rest of the Undisclosed team, not only prior to the hearing but also as it unfolds. Do you know? Thanks, Alex.

Posted by: alexjb | Feb 5, 2016 4:46:01 AM

I don't understand how the state could argue strategy in not ever contacting Asia once... How many questions did the prosecution ask her to try and get a better understanding of what she had written? Dozens? Yet they will argue that it was reasonable for Gutierrez to have never contacted her and asked her even one??

Posted by: Anon | Feb 5, 2016 5:22:13 AM

Hi Colin, do you think the judge is giving the state more leeway? Seems to be more sustaining of their objections, and more overruling of defense's.

Posted by: KC | Feb 5, 2016 5:55:38 AM

"Of course, the notes for these March 2nd interviews are "missing" from the State's files." It is appalling what the State can get away with while a man’s life hangs in the balance. Our justice system is seriously screwed up.

Posted by: Indira W | Feb 5, 2016 6:15:09 AM

Doest the fact that the same judge is leading this PCR have any effect on the course of it?
I understand that the reason to assign the same judge is to avoid duplicative judicial effort, but can it have a (negative) influence on the type of information allowed?

For example, the health issues of CG were kind of swept aside as old news, but in this PCR case there might be reasons to focus even more on this topic, since it is one of the two main topics. (cell phone & ineffective counsel)

Another more psychological point: is the fact that the judge has to overturn his previous decision (even though new information is on the table) not a disadvantage?

Or in other words, what is your opinion on assigning the same judge, and can it have negative influence on Adnan's case.

Posted by: Martin | Feb 5, 2016 7:13:58 AM

Thanks, as always, for this excellent and detailed analysis. One question about the cell phone evidence - you say: "The takeaway from this testimony is clear: For any incoming call on Adnan's call log that showed up as 'connected' and pinging a certain tower, the call could in fact have been an unanswered call that went to voicemail, with the tower listed being the tower pinged by the caller. This includes both the incoming 7:09 and 7:16 P.M. calls that pinged the L689B tower."

Am I right to interpret this as saying that either the person with Adnan's phone was in Leakin park, or the person who called Adnan's phone was in Leakin park? This would indicate to me that the killer is someone Adnan knows, and not a serial killer.

Thanks!

Posted by: Emma | Feb 5, 2016 7:22:50 AM

AP: Thanks.

Alexjb: I’m sure that Susan is keeping Justin apprised.

Anon: Right. Doesn’t the cross-examination just reveal what Gutierrez should have done?

KC: Impossible for me to tell without being in the courtroom.

Indira: Some jurisdictions are better than others.

Martin: It can work both ways. He has more familiarity with the case, but he also ruled against Adnan before. I could see it going either way.

Emma: That is just one possible issue where there is testimony. There are other issues, such as check-in lag, etc. Also, the range of the L689B tower extended well past Leakin Park. All of which goes to say that the cell tower records tell us little.

Posted by: Colin Miller | Feb 5, 2016 7:31:03 AM

So the prosecution focused on whether or not CG would not have called Asia as a strategic decision and/or if her testimony would have helped. But as you've pointed out, neither of that is the issue at hand, its was CG negligent for not contacting her at all. Why does this point seemingly get overlooked, particularly by the judge? All this time spent on a point that's not relevant to the argument at hand?

Posted by: E | Feb 5, 2016 7:55:59 AM

This is a bit unrelated but didn't a new law come out a couple of weeks ago that is retro active that allows people that committed crimes under the age of 18 to have their cases looked at and then be resentenced. I know you would rather get Adnan off, but it seems like an option!

Posted by: Lindy Crain | Feb 5, 2016 12:25:19 PM

Colin, you mentioned this earlier. Can you talk about certain jurisdictions that are better than others. For instance, I know Bob Ruff is currently focusing in on Tyler, Texas.

My question is, if a jurisdiction is notoriously bad does the justice department have to step in to remove people from certain posts.

-Gman

Posted by: Gavin | Feb 5, 2016 1:38:36 PM

"Central booking" seems to be a generic enough term that it wouldn't even be indicative of inside knowledge even if it hadn't been used in the media. I'm Australian and have never had anything to do with the US legal system directly but I would use 'central booking' to generically describe the place arrested people go just because I have seen many thousands of hours of American police TV shows and read many books in the same genre. Even 17 year old me, 20 years ago, would have recognised what it meant.

As an aside, I actually did jury duty last week and they showed us a video of how what would happen in court, what our role was etc which literally said "forget everything you have learnt from American TV shows ...."

Posted by: Amanda | Feb 5, 2016 5:18:35 PM

Hi Colin! Could you answer a sort of off-topic question: If Adnan is found Not Guilty, in the end of all of this, what happens to the investigation of Hae's death? Does it open again?

Posted by: RGoose | Feb 5, 2016 6:31:10 PM

E: I think it comes down like this:
Defense says, CG was negligent, because Asia was a potentially powerful witness, and no responsible attorney would not even contact her.
State says, Asia was not that powerful of a witness, and CG knew that, and not contacting her was a strategic choice vice negligence.

So, the State focuses on how important it should have been to CG to consider Asia, while the State tries to show the many ways that CG could have determined Asia was not usable before even reaching out to her. Make sense?

Posted by: RGoose | Feb 5, 2016 6:34:56 PM

It seems that the prosecution is being given a lot of latitude in Susan's point of view. I know that you're not there Colin- but do you get the impression that the defence is getting the same latitude?

Posted by: Gypsy | Feb 5, 2016 8:49:37 PM

E: I don’t think it will be overlooked. The big problem at the first PCR proceeding was simply that Asia didn’t testify. Now, she’s testified.

Lindy: That only applies to sentences of life without the possibility of parole. Adnan technically could receive parole.

Gavin: Some jurisdictions, including some in Texas, have taken steps in this direction.

Amanda: And apparently it’s commonly used in Baltimore.

RGoose: It would be reopened.

Gypsy: It’s impossible for me to say without being there.

Posted by: Colin Miller | Feb 6, 2016 4:54:34 AM

Hi Colin, thank you for the update as usual. I'm not sure if you already addressed this but what are your thoughts on the Ja’uan Gordon interview piece? I was listening to Serial's continuation episode on Day 2 hearing and this was brought up as a concern against the credibility of Asia.

Posted by: Bwu | Feb 6, 2016 9:02:55 AM

The "Leakin Park" calls don't appear to be voicemail calls - unless there would be a reason AT&T don't log all voicemail calls as such?

Posted by: Cupcake | Feb 6, 2016 9:53:15 AM

Might be a dumb question. Are tapes/recordings of this week's hearings going to be made public? Thanks, your work is incredible!

Posted by: Nicole | Feb 6, 2016 11:33:32 AM

Hi Colin - At some point it would be great if you can help us understand more about what goes on for the judge after the the PCR proceeding is done before he issues his ruling. I think it was Rabia who said it's hard to know how long it would take, but these types of things tend to take months. For someone who isn't in the legal profession, that just seems like so long -- especially when so much of the relevant cases were already referenced in the briefs (would the judge have read up on that before the PCR or wait until after?). I think a lot about how there is a petition with Judge Duffin (I assume it's still with him) related to Brendan Dassey's case and I just can't believe how long it has been -- and how much every single day would matter to someone in jail. Can you help us understand why it takes so long?

Posted by: Jodi | Feb 6, 2016 4:45:47 PM

Can you provide some insight onto the use of cell phone evidence in other trials? Specifically, if a cell phone can be used to locate a person at all times like the prosecutions FBI witness/expert then who needs DNA or eyewitnesses in any crime? To me this seems like a crazy, but maybe I am missing something here.

Posted by: Alison | Feb 8, 2016 6:51:49 AM

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