EvidenceProf Blog

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

Thursday, March 2, 2017

Refuting the State's Claim That Gutierrez's Strategy Was to Undermine All Cell Records

According to the State's Brief of Appellant in the Adnan Syed case:

Screen Shot 2017-03-02 at 11.36.55 AM

This is probably the most facially compelling argument in the State's brief. It is well established that appellate courts will find ineffective assistance based upon omissions and not based upon choices, assuming that those choices involve some modicum of strategy. Judge Welch found that Cristina Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert was an omission warranting a new trial.

Conversely, in its brief, the State tries to recharacterize Gutierrez's decision as a choice based upon strategy. The AT&T disclaimer, of course, stated that

Screen Shot 2017-03-02 at 11.41.22 AM

The State's contention, then, is that Gutierrez's strategy was to attack the reliability of all pings and that use of the AT&T disclaimer would have tended to confirm the reliability of incoming pings. But there's a huge problem with this argument.

As first reported in the Route Talk episode of Serial, the prosecution only used calls that pinged four cell towers as evidence of the location of Adnan's cell phone on January 13, 1999 "[b]ecause the rest of them, didn’t really help their argument." As the testimony of the State's cell tower expert makes clear, these were the calls that pinged towers (1) L654C; (2) L689B; (3) L655A; and (4) L608C:

Screen Shot 2017-03-02 at 11.44.49 AM

Screen Shot 2017-03-02 at 11.45.31 AM

Screen Shot 2017-03-02 at 11.46.15 AM

The references to lines 10-11, 14-16, and 20-21 are references to the numbered calls on Adnan's call log:

Screen Shot 2017-03-02 at 11.48.42 AM

As you can see, the calls on lines 10-11, 14-16, and 20-21 were all incoming calls, including the "Leakin Park pings" on lines 10-11. 

In other words, the State only used incoming pings as evidence of cell phone location at trial and did not use outgoing pings as evidence of cell phone location at trial because those pings did not match Jay's description of where those calls occurred (e.g., The Nisha Call). Thus, there would be no reason for the defense to want to challenge the reliability of outgoing pings. Those pings contradicted Jay's story, meaning that the defense would have preferred that those pings be reliable for determining location.

On the other hand, the State claimed that the incoming pings corroborated Jay's stories about (1) where he went after he dropped off Adnan at track practice; (2) where Adnan and he went after track practice; and, most importantly (3) the burial in Leakin Park in the 7:00 hour. It was those pings that the State defense wanted to attack, and the AT&T disclaimer was clearly the best way to attack them. And, more importantly, to the extent that the disclaimer would have tended to establish the reliability of outgoing pings for determining location, this fact would have helped and not hurt the defense.



| Permalink


It was those pings that the State wanted to attack,

Possible typo. Think you meant Defense wanted to attack.

I love the elegance of this argument. Thanks Prof.

Posted by: Anonymouse | Mar 2, 2017 9:52:23 AM

Are you ever concerned that the state reads your blog and obtains information they can use in their claims? If I was them, I would be devouring everything you write.

Posted by: NavyMom | Mar 3, 2017 7:19:34 AM

Anonymouse: Thanks.

NavyMom: Not really. If anything I wrote has any merit, the defense will probably include it in their brief, so the State would see it anyway.

Posted by: Colin | Mar 3, 2017 10:54:14 AM

You missed the calls which were outgoing calls to Jenn's pager at 8:04 pm (L653C) and 8:05 pm (L653A), which Jay testified to were made "while going up 40 in Adnan's car."

The prosecution addressed these outgoing calls at 8:04 pm (L653C) and 8:05 pm (L653A) with AW.

"Q Now, if there were testimony that someone were in a car traveling westbound on Edmondson Ave and that two calls were made on an AT&T Wireless subscriber phone and you found cell records that had first 653A then a moment, minute or two later a call originating 653C, would that functioning of the network be consistent with the testimony?

Ms Gutierrez: Objection.

The Court: You may answer as only it relates to an Erickson piece of equipment cell phone.

Mr Waranowitz Yes that would be consistent."

Posted by: Nine9fifty50 | Mar 5, 2017 12:41:02 PM

Nine9fifty50: A few thoughts: (1) As far as I can tell, AW never did test calls for these calls. Here’s the Disclosure discussing his testing: https://undisclosed.wikispaces.com/file/view/Undis_E08_Amended_State_s_Disclosure9_Oct_1999_Drive_Test_Results.pdf/566641469/Undis_E08_Amended_State_s_Disclosure9_Oct_1999_Drive_Test_Results.pdf. The testing at Route 40 at Cook’s Lane was for the 3:21 P.M. call (and did not match Jay’s testimony regarding location. Therefore, I think Serial was accurate in saying that that testimony regarding test calls for only 4/14 towers was introduced; (2) As a result, there doesn’t seem to be any basis for AW’s testimony, which could be further IAC by CG; (3) Unlike in the examples I provided, AW wasn’t asked about these specific calls – the calls on lines 8 and 9; and (4) This is likely because there wasn’t a specific location for these calls to test. Indeed, at trial #1, Jay testified that they actually happened at the mall. This is in contrast to the calls in connection with the 4 towers mentioned in this post.

In conclusion, then, I think that what happened with the calls on lines 8 and 9 strengthen the defense’s claim of IAC. But maybe I missed something: (1) Were there test calls for these 2 calls; and (2) Did the prosecutor ever direct AW to the calls on lines 8 and 9? I don’t think so, and it helps explain why Serial wouldn’t have included them.

Posted by: Colin | Mar 5, 2017 3:39:52 PM

The above quote is Urick questioning AW, during direct on day 9 of the trial (2/8/00), about the calls at 8:04 pm and 8:05 pm, after having Jay testify about those specific calls on day 8 of the trial (2/4/00). This shows that the prosecution did use the time and location for outgoing calls to corroborate an element of Jay's story and to call into question Adnan's mosque alibi. Adnan's father testified he and Adnan drove together to the mosque for prayers at 7:30 pm. Adnan's father testified he did not have enough days to take off work, so he did not spend the night at the mosque, and instead broke fast at home that year (contradicting Adnan's explanation on the Serial podcast that he brought food to his father at the mosque). The outgoing calls were made on Adnan's cell at 8:04 pm and 8:05 pm, from a location inconsistent with being at home or at the mosque, but consistent with Jay's description at trial. Jay says he made these calls while he and Adnan were driving to the mall after which Adnan drives Jay home. Then there is a call made by Adnan at 9:00 pm to Nisha followed by calls to Krista, and other calls until 10:30 pm. The timing and location of the 8:04 pm and 8:05 pm calls seems to have been used by the prosecution to directly challenge Adnan's 7:30 pm alibi.

Posted by: Nine9fifty50 | Mar 5, 2017 5:23:55 PM

Nine9fifty50: Right, but my point was that there was no basis for AW to give that testimony. As SK noted on Episode 5 of Serial (and as AW noted at trial), AW went to 14 of the most important spots in Jay’s story and made test calls to determine whether they pinged the same tower as the tower listed in Adnan’s call log. Here is the list of test calls that AW made:


So, he never did a test call for the calls listed in lines 8 and 9. As noted, the test call at that pinged L654C was the test call for the call at 3:21 P.M., and it was not a match for Jay’s testimony. And AW never made a test call that pinged L653A. Therefore, there was no basis for him to testify that the outgoing pings at 8:04 and 8:05 P.M. were consistent with Jay’s story, which shifted between trials 1 and 2.

That’s why I said in my prior comment that this is more evidence of IAC by CG. What it’s not is evidence that the State used outgoing pings to determine location.

Posted by: Colin | Mar 6, 2017 3:44:25 AM

Post a comment