EvidenceProf Blog

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

Wednesday, February 22, 2017

A Preview of the State's Appellate Brief in the Adnan Syed Case

It's currently five days before the State's first brief is due in the Adnan Syed appeal. The State is appealing the portion of Judge Welch's order concluding that

Syed's trial counsel's failure to challenge the State's cell phone location data evidence, based on the cell phone provider's "disclaimer," violated Syed's Sixth Amendment right to the effective assistance of counsel

My biggest question is whether the State will be able to cite to any case other than Maryland. v. Kulbicki to support its position. And that's because I don't think Kulbicki is especially helpful to the State's case.

In Kulbicki, James Kulbicki was convicted of murder based upon allegedly shooting his 22 year-old mistress in the head at pointblank range.

At Kulbicki’s trial, commencing in 1995, Agent Ernest Peele of the FBI testified as the State’s expert on Comparative Bullet Lead Analysis, or CBLA. In testimony of the sort CBLA experts had provided for decades, Peele testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain; a similarity of the sort one would "expect'" if "'examining two pieces of the same bullet.'"...He further testified that a bullet taken from Kulbicki’s gun was not an “exac[t]” match to the bullet fragments, but was similar enough that the two bullets likely came from the same package.

After he was convicted, Kulbicki filed for postconviction relief, claiming, inter alia, that his defense attorneys were ineffective for failing to question the legitimacy of CBLA, which had fallen out of favor since his trial. Kulbicki lost on this claim and later abandoned it, but it was resurrected by the Court of Appeals of Maryland, which found ineffective assistance, concluding that trial counsel "should have found a report coauthored by Agent Peele in 1991 that 'presaged the flaws in CBLA evidence.'"

The United States Supreme Court disagreed. It concluded as follows:

The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA....

At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003....As the Court of Appeals acknowledged, even 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....Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.

That is especially the case here, since 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 statement 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 compilation of forensic studies that included the report was “distributed 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? And had they found it, would counsel really have combed through the entire compilation, and have identified the one (of many) findings in one of the reports, the disregard of which counsel would have recognized to be “at odds with the scientific method”? And then, would effective counsel really have brought to the attention of the jury a report whose conclusion was that CBLA was a valid investigative technique in cases just like Kulbicki’s? Neither the Court of Appeals nor Kulbicki has answers. Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any needle there.”... The Court of Appeals demanded something close to “perfect advocacy”—far more than the “reasonable competence” the right to counsel guarantees.

So, the problems that the Supreme Court found with the finding of ineffective assistance by the Court of Appeals of Maryland were as follows: (1) there's no guarantee that even a pretty diligent search by defense counsel would have found the 1991 report; (2) while the 1991 report raised some questions about CBLA, it ultimately concluded that CBLA is "a valid and useful forensic tool to match suspect to victim;" and (3) an ineffective assistance claim is based on what was known/knowable at the time, and defense counsel couldn't have predicted that CBLA would later fall out of favor.

Courts most often cite Kulbicki for this last conclusion. See, e.g., United States v. Vyner, 2017 WL 382371 (D.C.App. 2017) ("The Supreme Court applies the rule of contemporary assessment in evaluating claims of ineffective assistance of counsel."...see also Maryland v. Kulbicki"); Robinson v. Miller, 2016 WL 6496270 (N.D. Ohio 2016) "(As recently restated by the Supreme Court, in order to combat the “natural tendency” to speculate as to whether another strategy may have been more successful, the reasonableness of counsel's challenged performance is to be judged as of the time of counsel's performance. Maryland, v. Kulbicki, 136 S.Ct. 2, 4 (2015).").

So, why do I think Kulbicki isn't especially helpful to the State's case? Let's look at the three conclusions in Kulbicki. First, defense counsel in didn't have the 1991 report and might not have found it even with due diligence. By way of contrast, Judge Welch found in his opinion that "[t]he disclaimer and the subject page were found in trial counsel's file, and the State disclosed these documents as part of pre-trial discovery and conveyed its intention to introduce these records at trial." Therefore, there's no question about whether Cristina Gutierrez could have/would have found the AT&T disclaimer. Judge Welch found that it was given to her.

Second, the 1991 report raised some questions about CBLA but ultimately found it valid and useful for the specific purpose of "match[ing] suspect to victim." By way of contrast, the AT&T disclaimer specifically said that "[a]ny incoming calls will NOT be considered reliable information for location." So, while the 1991 report in Kulbicki supported the State's use of CBLA, the AT&T disclaimer specifically contradicted the State's use of incoming calls.

Third, the Supreme Court found that CBLA falling out of favor after Kulbicki's trial was irrelevant because ineffective assistance is judged at the time of trial, without any time of hindsight-is-20/20 analysis based upon new information. In Adnan's case, the situation is reversed. In 1999/2000, the AT&T disclaimer stated that incoming calls were NOT reliable for location status. Subsequently, this disclaimer was dropped, but this has no relevance to reliability and ineffective assistance back in 1999/2000.

Therefore, all of the points cutting against ineffective assistance in Kulbicki support a finding of ineffective assistance in Adnan's case. And that's why I wonder whether the State has any better precedent lined up for its brief.



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It is infuriating to lay people that the facts of Adnan's conviction are clearly false. How can we have faith in a justice system that fights a new trial despite this?

Posted by: Bruce Asam | Feb 22, 2017 11:02:35 AM

Why was the AT&T disclaimer later dropped? Isn't that important? Say it was dropped because AT&T discovered the disclaimer had never been necessary, or discovered it was inapplicable to the type of records the State used at trial. Wouldn't that be "relevan[t] to reliability ... in 1999/2000"? I'm not saying there's any reason to believe any of that (I don't know the case well enough, which is why I'm asking), but it's hard to understand why the disclaimer drop isn't relevant without knowing what was behind it.

Posted by: Sam | Feb 22, 2017 11:13:24 AM

Bruce: In an adversarial system, this result (the State fighting the appeal), is usually inevitable.

Sam: But the Court’s point in Kulbicki is that this doesn’t matter, albeit with the facts being reversed. In Kulbicki, it was irrelevant that CBLA was later found to be unreliable because this couldn’t/wouldn’t have been done at the time of Kulbicki’s trial. The reverse applies in Adnan’s case. We ask “What would have happened if Gutierrez effectively used the AT&T disclaimer back in 1999?” Even if it was later found that incoming calls were reliable for determining location status, this wouldn’t have had relevance to Adnan’s trials in 1999/2000.

Now, in both cases, the later discoveries would be hugely factually relevant. But legally…not so much.

Posted by: Colin Miller | Feb 22, 2017 11:19:54 AM

Thanks. Just to satisfy my curiosity, why *was* the disclaimer dropped? (It'll surely come up if this case gets retried, no?)

Posted by: Sam | Feb 22, 2017 11:49:53 AM

So if there is a new trial does this mean the incoming calls will be considered reliable and used?

Posted by: Abby C | Feb 22, 2017 1:05:41 PM

I know you couldn't know entirely, but then does he really have a chance at a retrial? With all the information in Undisclosed it seems there's almost too much evidence on his side. Coudlnt imagine if he's not granted a retrial.

Posted by: Ryan | Feb 23, 2017 9:38:33 PM

Sam: I'm assuming that they fixed the glitch, but I'm not sure.

Abby C: Based on the Bulos Zumot case, it looks like this was an issue with incoming pings that was later fixed. Therefore, the incoming pings would be inadmissible to prove location status on retrial.

Ryan: It's tough to see Adnan being convicted after a retrial.

Posted by: Colin Miller | Feb 26, 2017 4:35:42 AM

Sam: Internal evidence in the bill (impossible locations) apparently supports the lack of validity of incoming calls for determining location at that time (1999?). The billing records for AT&T had various problems during this period, and I have a vague memory of an unrelated civil suit complaining of (perhaps inadvertent) systemic overcharges in that region about then. The evidence in question was captured, apparently, by the billing records and did not accurately reflect engineering realities. I would think it almost certain that the billing system was revamped soon afterwards. If so, I have no idea if this would have affected the concerns that lead to the inclusion of the disclaimer on the cover sheet, but it’s possible. I take it that Colin’s point about the cell phone evidence is that it’s important in getting a new trial. At retrial it is self-evident that the cell phone evidence would be irrelevant—impossible timeline—but that conclusion calls on lividity evidence testimony, etc., not currently before the appeals court. Like you, however, I am very curious what AT&T’s explanation is.

Posted by: Hal Porter | Feb 26, 2017 12:46:48 PM

I'm confused by why they expended so much effort and energy carrying on about what Fitzgerald said and Judge Welch's failure to take it into account. Isn't that finding-of-fact territory?

Posted by: pluscachange | Feb 27, 2017 5:00:46 PM

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