EvidenceProf Blog

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

Monday, February 27, 2017

My 1st Take on the State's Brief of Appellant in the Adnan Syed Case

Today, the State filed its Brief of Appellant in the Adnan Syed case. As I noted in my post last Wednesday, my biggest question was whether the State would cite to any cases other than Maryland. v. Kulbicki on the issue of whether Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert. In this post, I will discuss one of the two cases that the State cited.

That case is United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991). Berkowitz is a case out of the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin. As a result, Berkowitz is persuasive precedent, which the Court of Special Appeals of Maryland could apply or ignore.

In Berkowitz, Marvin Berkowitz was convicted of obstruction of justice and stealing government property. After he was convicted, he appealed, claiming that he received the ineffective assistance of counsel. At trial, the prosecution's contention was that Berkowitz stole a number of files from a United States Attorney's Office in Chicago. At trial, however, Berkowitz 

testified that a number of the documents found at the time of his arrest were his own, not the government's, thus casting (or attempting to cast) doubt on the government's contention about how many documents he took.

This defense, however, was unsuccessful, and, on appeal, Berkowitz claimed that this was because his trial counsel, William Huyck was ineffective based upon failure to properly examine the documents before trial. The Seventh Circuit pretty easily turned this argument aside, concluding that

The only evidence Berkowitz cites concerning Huyck's preparation is a statement in a new trial motion, prepared by Huyck, that he did not seek copies of the records the government had seized. But the motion states only that Huyck did not ask for copies; it does not state that Huyck did not inspect the government exhibits. Furthermore, there are indications in the record that Huyck spent considerable time reviewing records and preparing for trial.

In the State's brief in the Adnan Syed case, the State cites this last line in support of its claim that Cristina Gutierrez rendered effective assistance of counsel with regard to the cell tower evidence:

Screen Shot 2017-02-27 at 8.47.03 PM

So, what, according to the State are the "indications in the record that [Gutierrez] spent considerable time reviewing [the cell tower] records and preparing for trial"? According to the State:

Screen Shot 2017-02-27 at 8.52.11 PM

Screen Shot 2017-02-27 at 8.52.54 PM

The problem with this line of argument is that it is based on assumptions. Gutierrez was "noting deficits in the State's production..." Gutierrez "complained that she had not received materials..." "Gutierrez had an opportunity to view the State's files."

But did she actually review the key cell tower evidence and exhibits? Luckily for the defense, we have a clear answer to this question. And that's because it was the basis for the mistrial being declared at Adnan's first trial. I did a whole post on this back in October 2015

The mistrial was declared because a juror overheard the judge at Adnan's first trial call Gutierrez a liar. And he called her a liar because Gutierrez said that she had not read or even seen the cell phone records in the case. In response, the judge called Gutierrez a liar. Gutierrez took umbrage to this label and responded that she was telling the truth. According to Gutierrez, she had not read the cell phone records because...she just didn't care:


Notably, this exchange took place in December 1999, after all of the events cited by the State. And this exchange clearly reveals that Gutierrez hadn't even bothered to look at the cell phone records in the case. Now, as Gutierrez noted, it's possible that other members of her team looked at the records, which might explain some of the writings referenced by the State. But Gutierrez herself never read them.

Therefore, Adnan's case is the antithesis of Berkowitz. Unlike in that case, where the record indicated that trial counsel spent considerable time reviewing the records, in Adnan's case, the record indicates that Gutierrez didn't look at the cell phone records at all.



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Can the state just argue that the judge was right, she was lying?

Posted by: Michael Byrnes | Feb 27, 2017 6:39:49 PM

Michael: They could make the argument, but it's tricky to try to argue that defense counsel was lying to the judge in a case in which the defendant has claimed ineffective assistance of counsel. If we can't believe what defense counsel said to the judge, how can we believe anything they said they did?

Posted by: Colin Miller | Feb 27, 2017 7:18:49 PM

If she openly admits to disregarding evidence, isn't that proof enough that she was ineffective in her defense? Enough to replace counsel, which she did anyway

Posted by: Rose medina | Feb 27, 2017 7:42:29 PM

I never understood that colloquy that led to the mistrial. I gather that it was about some sort of stipulation about admissibility of evidence, but I never understood the context or rationality of Guttierez' statements. Also, this gets complicated by the apparent way the xeroxes were prepared that disguised important details of the document, including the disclaimer. The truly shocking thing to the layperson (me) however is that the appeals court has to consider the song and dance about whether or not Guttierez say or read the disclaimer. The cell phone evidence should have been inadmissible on the face of it if the disclaimer were known. Frankly, this case, and others, has offered terribly sobering insights into a system corrupt at its foundations; nationally, not only in Baltimore. Factual evidence of misconduct and innocence should matter at some stage for the prosecution in both practice and theory. If not, there is no civil society, no limits respected through common consent, only gangs increasingly armed with automatic weapons. I grew up in the Ozarks, which never truly recovered from the internecine guerrilla warfare, assassinations, etc., of the Civil War. Society is truly very fragile; and when society becomes convinced that legal justice is literally impossible, then this system could easily dissolve in blood/violence. But I've strayed too far already from Adnan's, and truth's, plight.

Posted by: Hal | Feb 27, 2017 8:42:44 PM

But this was the first trial, not the trial that Adnan was convicted in !
So Christina said she hadn't looked at the cell records at a PREVIOUS trial......

Posted by: ben | Feb 27, 2017 9:01:13 PM

But isn't the point that even if she did review the records that key information was withheld in the form of the fax cover sheet and therefore she couldn't have known that location data is not reliable when reviewing the incoming calls?

Posted by: Kali Tulett | Feb 27, 2017 9:08:58 PM

Rose: Judge Welch found that she did ignore Asia and the fax disclaimer. We’ll see if the Court of Special Appeals agrees.

Hal: Gutierrez said that she stipulated to the admission of the cell tower exhibit without reading the exhibit because she didn’t care to look at it; it just didn’t interest her.

ben: Right, but the Berkowitz case is all about whether there is evidence on the record that defense counsel spent considerable time reviewing the records. Every piece of record evidence cited by the State regarding Gutierrez allegedly reviewing the cell phone records came from October-November 1999 before Gutierrez made her statement about no reading the cell phone records at the 1st trial in December 1999. Is it possible that she then read the records between the mistrial and the second trial? Sure. Is it possible she was lying? Sure? But those are both just possibilities. Gutierrez’s statement on the record in December 1999 was that she hadn’t read the cell phone records, and there’s nothing on the record after this statement to contradict what she said.

Kali: Judge Welch found that Gutierrez had the AT&T disclaimer and should have understood its importance. I don’t know that I agree with that conclusion, but it’s the conclusion that now applies in the case.

Posted by: Colin Miller | Feb 28, 2017 2:50:14 AM

The state's appeal argues the court abused its discretion and rebuts the ineffective assistance claims with regard to the cell tower evidence/fax sheet, but does not address the ineffective assistance claims with regard to the failure to contact an alibi witness. This was surprising to read as I was under the assumption that the primary post-conviction argument was failure to contact the alibi witness.

Posted by: Alex | Feb 28, 2017 6:19:08 AM

Alex: The State will address that issue in its brief responding to Justin's brief.

Posted by: Colin Miller | Feb 28, 2017 9:14:15 AM

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