EvidenceProf Blog

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

Wednesday, April 6, 2016

The Similarity Between the Brady Violations in the Breakdown/Justin Chapman Case & Adnan's Case

Today, I'm recording an interview with Bill Rankin, the host of the Breakdown Podcast. The interview will be a special episode of Undisclosed that will premiere on April 18th. In the interview, we will cover a variety of topics, including Breakdown, Undisclosed, and the death penalty in Georgia. The second season of Breakdown, covering the Justin Ross Harris case, premiered recently. I think the second episode of the new season is the best episode of the podcast's entire run.

In this post, though, I want to focus upon one of the Brady violations found in the case that Breakdown covered in its first season because it is very similar to the Brady violation being alleged in Adnan's case in that it involved a misleading disclosure of a faxed document.

As noted in Danforth v. Chapman, 771 S.E.2d 886 (Ga. 2015), "Justin W. Chapman was convicted of arson and felony murder regarding a 2006 fire that was intentionally set outside the front door of his duplex apartment, resulting in the death of a resident who lived on the other side of the duplex." Joseph White, a jailhouse snitch, was one of the chief State's witnesses against Chapman, and he "denied seeking any type of assistance with his then-pending charges in exchange for testimony in Chapman's case."

During pre-trial discovery, the prosecutor faxed the defense a document that contained a copy of an addressed envelope, a one-paged cover letter, and a five-paged statement in which White set forth what he purportedly knew about Chapman and the fire. White had sent the cover letter and statement to his pastor. Unknown to the defense, the second page of the cover letter was missing from the facsimile sent to her by the prosecutor. It was not readily discernible that the page was missing because the first page of the cover letter ended with a complete sentence. At trial, the prosecutor admitted the original document, containing both pages of the cover letter; but he proffered it through the testimony of an investigative officer after White's trial testimony and after White had been released from his trial subpoena. Defense counsel assumed the document admitted at trial was the same document that had been produced to her via fax and did not closely examine the trial exhibit when it was proffered by the prosecutor. During the habeas proceedings, it was shown that the missing second page contained the following statement written by White: “Hold off on giving my statement to police. I want to see what's going on for a few days.” This evidence contradicted White's trial testimony that he went to police immediately with details about the arson, as well as undermined his testimony that he was not seeking help from authorities with his own charges. Again, had defense counsel been aware of this statement at the time of White's trial testimony, she could have used it for the purposes of impeachment.

Since White was the only witness who said Chapman confessed to arson, the evidence described above, which impeached and/or cast doubt on White's credibility, was material to Chapman's defense....Accordingly, the habeas court did not err when it awarded Chapman habeas relief pursuant to Brady and Giglio.

In other words, the Brady violation sustained in Chapman was the inverted image of the Brady violation violation alleged by Adnan. In Chapman, the prosecution sent the defense an incomplete version of White's statement during discovery before introducing that full statement at trial, with defense counsel not realizing what had happened and therefore not making proper use of the full statement at trial. In Adnan's case, the prosecution sent the defense the full Subscriber Activity Report that it got from AT&T, but its trial exhibit -- Exhibit 31 -- left off the AT&T disclaimer and the page identifying the exhibit as a Subscriber Activity Report, with defense counsel not realizing what had happened and therefore not making use of the disclaimer at trial.

This makes both the Chapman and Syed cases very different from the case that Thiru apparently referenced ad naseum in his PCR closing: Maryland v. Kulbicki. As I noted in our final PCR episode, the Court of Appeals of Maryland had held that the defendant in Kulbicki received ineffective assistance of counsel based on failure to track down a 1991 report co-authored by FBI Agent Ernest Poole that presaged the flaws in Comparative Bullet Lead Analysis (CBLA) evidence. According to the Maryland's highest court, this failure was constitutionally deficient because Poole offered incriminatory CBLA evidence at the defendant's 1995 trial. 

The report at issue, however, was not part of discovery, which makes it fundamentally different from the misleading documents in both the Chapman and Syed cases. And, indeed, in finding that a new trial was not warranted in Kulbicki, the United States Supreme Court found that 

there is no reason to believe that a diligent search would even have discovered the supposedly crucial report. The Court of Appeals offered a single citation in support of its sweeping state- ment that the report “was available” to Kulbicki’s counsel in 1995—a Government Printing Office Web page accessed by the Court of Appeals, apparently conducting its own Internet research nearly two decades after the trial....The Web page indicates that a compila- tion of forensic studies that included the report was “dis- tributed to various public libraries in 1994.”...But which ones? And in an era of card catalogues, not a worldwide web, what efforts would counsel have had to expend to find the compilation?

This makes Kulbicki very different from the Chapman and Syed cases, where the key documents were actually turned over to the defense, albeit in a way that was misleading and confusing. 

Finally, the other key difference between Kulbicki and Adnan's case is that 

the 1991 report itself did not question the validity of CBLA, concluding that it was a valid and useful forensic tool to match suspect to victim.

This puts the 1991 report in Kulbicki in a different category than the AT&T disclaimer, which flatly stated that incoming calls were unreliable for determining location instead of noting potential problems with incoming pings while affirming their reliability.



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I agree that the second episode of Season 2 of Breakdown was very strong. Rankin did an excellent job of systematically presenting and then finding holes in the State’s case, through solid investigative/legal reporting. I’ve read comments elsewhere by listeners who claim they have tuned out because the accused is too creepy and unlikeable for them. In my view, those people are missing Rankin’s point. Central to his thought-provoking podcast is the notion that every individual, no matter how flawed we might consider that person to be, deserves justice.

Posted by: streetwriter | Apr 6, 2016 9:14:08 AM

My question relates to the many (reddit) commenters who insist that since CG had the fax cover sheet in her files, there was no problem. As a non-lawyer who has never served on a jury, I was under the impression that jury was intended audience of the oral arguments and exhibits in a trial. Isn’t the fact that the jury did not have the information contained in the cover sheet (either via CG’s arguments or inclusion in the exhibit) the important point?

Posted by: louise | Apr 6, 2016 9:21:28 AM

(Just a quick comment to say I'm glad your Adnan-related post cessation lasted all of 24hrs - thanks!)

Posted by: Cupcake | Apr 6, 2016 9:31:16 AM

streetwriter: It’s the reason why there’s such a strong aversion to character evidence.

louise: For a Brady violation, the question is what was turned over to the defense. In Chapman, the entire White statement was in the trial exhibit, but a page was missing for the State’s discovery disclosure. In Adnan’s case, the entire Subscriber Activity Report was in the State’s discovery disclosure, but the AT&T disclaimer and the page stating “Subscriber Activity Report” were missing. Is that a meaningful difference? We’ll see.

Cupcake: Don’t want to get your hopes up. In my post three days ago I said I’d do a final post about two cases from the final PCR episode. I just broke down that post into two posts, one about Toomer, and one about Kulbicki.

Posted by: Colin | Apr 6, 2016 9:55:04 AM


Isn't the bigger problem that the prosecution did not include the cover sheet in the
information they gave to their own expert witness. This caused him to testify before the jury in a way which would have been completely different if he had seen the cover sheet

Posted by: jantu | Apr 6, 2016 10:21:33 AM

There might be a strong aversion to character evidence, but Rankin estimates the State is very likely to put considerable emphasis on it anyway. Moreover, the purpose of doing so seems painfully obvious: to sway a jury, in a manner that is not so different from how the State framed Adnan’s ethnic background as an influential factor.

Posted by: streetwriter | Apr 6, 2016 10:26:23 AM


Isn't the real problem that the state never provided their own expert witness with the cover sheet?. This caused him to testify before the jury in a manner completely different than if he had seen the cover sheet disclaimer.

Posted by: jantu | Apr 6, 2016 10:26:52 AM

The problem is that the state seems to have intentionally clipped and obscured the pages that went into making exhibit 31, with the obvious intent to mislead everyone that the fax cover sheet instructions were attached to those documents. By this they for one, didn't include the instructions provided. Second, they clipped columns, headers, etc to make the record look substantively different on its face from what it looked like originally. Third, even in 2016, in one of their briefs the state again tried to claim that exhibit 31 wasn't the same as the document which it actually came from--continued to try mislead the court.

Posted by: Paul | Apr 6, 2016 11:54:35 AM

And we know this did mislead not just the defense, but their own expert witness a trial. Both are problems.

Posted by: Paul | Apr 6, 2016 11:56:49 AM

Given that Brown's own "expert" witness was unwilling to say incoming ANSWERED calls are unreliable for determining location, and that AW did not say that either, and that the State's witness confirmed the disclaimer did not apply to the pings that were used to convict Adnan, how does the fax cover sheet meet the definition of "exculpatory?"

Posted by: Seamus_Duncan | Apr 6, 2016 1:55:40 PM

jantu: That certainly goes to the prejudice prong of Brady.

streetwriter: Right, but the State would claim that it’s using the evidence to prove motive, not bad character.

Paul: It’s very much like the Sykes case I previously cited:


Seamus: The question is: “What would have happened if Gutierrez tried to use the disclaimer to have the incoming pings deemed inadmissible at trial.” Maryland case law holds that expert testimony is only admissible if it is reliable and that cell tower records are only admissible though the testimony of an expert witness who confirms that the pings are reliable. Waranowitz, the State’s expert at trial, submitted an affidavit indicating that he would not have affirmed the reliability of incoming pings if he were shown the AT&T disclaimer. Grant concluded that the disclaimer applied to Exhibit 31, meaning that incoming pings could not be deemed reliable. Fitzgerald…I don’t know. Seemingly, he claimed at various points during his testimony that (1) the disclaimer applied to some subscriber activity reports, but not the subscriber activity report contained in Exhibit 31; (2) the disclaimer did apply to Exhibit 31, but it only would have changed Waranowitz’s testimony about the 5:14 voicemail call; (3) the disclaimer was talking about the Location1 column; (4) the disclaimer applied to incoming calls that went to went to voicemail because the cell phone was turned off; and (5) things such as check-in lag mean that incoming pings can be less reliable than outgoing pings.

Some of these claims were apparently based upon guesses made by Fitzgerald and his friend at AT&T, with Fitzgerald misrepresenting his friend’s job. It’s impossible for me to say conclusively how the court will rule, but Fitzgerald’s testimony easily could fall into the “analytical gap” problem identified by Court of Appeals of Maryland, If that’s the case, there’s a good chance Adnan gets a new trial.

Posted by: Colin | Apr 6, 2016 3:52:01 PM

"Grant concluded that the disclaimer applied to Exhibit 31, meaning that incoming pings could not be deemed reliable."

That's not what Justin Fenton said:

"But Grant's testimony didnt address whether after such followup incoming call records might've in fact been accurate in the end"

And this claim of yours is just an outright lie:

"Waranowitz, the State’s expert at trial, submitted an affidavit indicating that he would not have affirmed the reliability of incoming pings if he were shown the AT&T disclaimer."

Posted by: Seamus_Duncan | Apr 6, 2016 4:16:20 PM

Seamus: 1. "Grant concluded that the disclaimer applied to Exhibit 31, meaning that incoming pings could not be deemed reliable." 2. As Fenton reported, Grant acknowledged that follow-up with AT&T back in 1999 could have led to the conclusion that the incoming pings at issue are reliable. The problem, of course, is that this wasn’t done back in 1999.

2. From Waranowitz’s second affidavit (http://i.imgur.com/limgQAr.jpg):

“Had I seen the fax cover sheet and legend, I would not have testified that State’s Exhibit 31 was accurate.”

Posted by: Colin | Apr 6, 2016 5:02:05 PM

Wow Seamus, just wow. Even I, who cannot recall the facts without reading them a million times remembers that statement from Warnowitz.
You certainly owe Colin an apology.

Posted by: NavyMom | Apr 7, 2016 10:34:03 AM

NavyMom - Yes, he does owe Colin an apology but he'll never give him one unfortunately.

Posted by: SallySmith | Apr 7, 2016 2:22:45 PM

“Had I seen the fax cover sheet and legend, I would not have testified that State’s Exhibit 31 was accurate.”

That sentence means absolutely nothing. It certainly does not mean what you claimed, which was "he would not have affirmed the reliability of incoming pings." You just made that up.

Why couldn't Brown get Waranowitz or Grant to submit an affidavit saying "Incoming ANSWERED calls are unreliable indicators of location because ________________."

Posted by: Seamus_Duncan | Apr 7, 2016 2:25:51 PM

Seamus: “Had I seen the fax cover sheet and legend, I would not have testified that State’s Exhibit 31 was accurate.”

“Had I seen the fax cover sheet and legend, I would not have affirmed the reliability of incoming pings."

I’m not seeing the distinction you’re trying to draw. Are you saying that “accurate” is meaningfully different from “reliable”?

Posted by: Colin | Apr 7, 2016 5:05:19 PM

Here I go, even though I acknowledge the futility of attempting a rational discussion with Seamus. Abe Waranowitz was asked by Justin Brown if his testimony at Adnan’s 2000 trial would have been different if he had seen the fax cover sheet. Remember this is one of the two prongs of the PCR Hearing. Abe answered that had he seen it, he would have testified that State’s Exhibit 31 was not accurate. To you, this means absolutely nothing. To be fair, to you and Chad Fitzgerald it means nothing. You, like Chad, choose to tie yourself up in knots about the Location Columns and answered vs unanswered calls and calls that go to voicemail. To you and Chad, this is clear and definitive. To the rest of us and, more importantly, to Abe Waranowitz, it is “ambiguous”. So, the rest of us read the fax cover sheet in its entirety and in sequence. After the descriptive sentences about columns and answered calls and unanswered calls and voice mail, there is a conclusive sentence which follows these descriptions.
“Any incoming calls will NOT be considered reliable for location.”
Any incoming calls. Answered, unanswered, going to voice mail. All of them. Any of them.
So if ANY calls are unreliable for location, why would the affidavit use your words of “Incoming ANSWERED calls…”?
You can keep saying Abe’s affidavit means absolutely nothing, Seamus, but for the rest of us who can read, we understand exactly what Abe is saying.

Posted by: FarFarAway | Apr 7, 2016 6:30:53 PM

Seamus - you might try looking the evidence without your "Adnan is guilty" filter on. You might be amazed at what you see.

Posted by: Eric Wolff | Apr 8, 2016 4:11:36 AM

Has anyone met Seamus? Im convinced it is Thiru. I am very offended that you get on this post and call Colin a liar. He is much too classy to treat you as he should, but the rest of us will defend him. He has done nothing but answer your questions honestly. Seamus you are officially voted off the island. BYE FELICIA!

Posted by: Shi | Apr 8, 2016 7:23:34 AM

“I would not have testified that State’s Exhibit 31 was accurate” has no meaning. What exactly would he have said was inaccurate about the exhibit? Why doesn’t the affidavit include specific references to specific parts of his testimony that would have changed?

We have the two experts consulted by Serial and Chad Fitzgerald saying that answered incoming calls are a reliable indicator of the phone’s location. Justin Brown could not present a single witness who said “Incoming answered calls do not indicate location because ___________.” Someone needs to explain to me why they think Adnan’s phone pinged a random tower twice in a span of 7 minutes. Give me a scientific, technical explanation for why the phone is pinging that tower randomly.

Posted by: Seamus_Duncan | Apr 8, 2016 9:29:20 AM

FarFarAway: Right. I don’t understand the argument that Waranowitz’s affidavit means nothing. You might disagree with the affidavit, but what he says seems pretty clear.

Seamus: It seems pretty clear what Waranowitz would have said was inaccurate about Exhibit #31. In his affidavit, he notes that, while ambiguous, the AT&T disclaimer about incoming calls being unreliable for determining location applies to Exhibit #31. Therefore, he would have said that the towers listed for incoming calls were not reliable for determining location.

As for the experts contacted by Serial, here’s what Sarah Koenig had to say (https://serialpodcast.org/posts/2015/10/waranowitz-he-speaks):

“Finally Dana ran the disclaimer past a couple of cell phone experts, the same guys who had reviewed, at our request, all the cell phone testimony from Adnan’s trial, and they said, as far as the science goes, it shouldn’t matter: incoming or outgoing, it shouldn’t change which tower your phone uses. Maybe it was an idiosyncrasy to do with AT&T’s record-keeping, the experts said, but again, for location data, it shouldn’t make a difference whether the call was going out or coming in.”

Well, that actually puts them in agreement with testimony by AT&T RF Engineer Lawrence Velasquez at the Bulos Zumot trial (http://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):

“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.”

So, it might (just) have been a problem with AT&T’s record keeping, but that wouldn’t help the State because incoming calls, even those that show up as connected, wouldn’t be reliable.

Posted by: Colin | Apr 8, 2016 10:07:40 AM

A quiz for Seamus:

1. I am on Briarclift Road, which is just southwest of the burial site in Leakin Park, and I just received an incoming call. What tower did it ping?
2. I just received a call from tower L648C. Where am I?
3. How far is tower L648 from Briarclift Road?
4. How far is L689 ("Leakin Park" tower) from Briarclift Road?
Extra credit: Am I burying a body?

Answer key:
1. L648C
2. Briarclift Road
3. 2.5 miles, minimum
4. 4000 feet, minimum
Extra credit: No. No, I am not.

The State's own disclosure states that Briarcliff [sic] road triggers L648C or L689B. Is that scientific proof enough for you?


Posted by: carnotbrown | Apr 8, 2016 11:50:21 AM

PS Feel free to point out that those were outgoing calls, that's even worse for you.

Posted by: carnotbrown | Apr 8, 2016 1:17:42 PM

carnotbrown: Good points. We can go all the way back to Serial to recall that the significant majority of Jay's testimony was not corroborated by the cell tower pings.

Posted by: Colin | Apr 9, 2016 3:15:52 AM

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