Friday, March 3, 2017
In order to find ineffective assistance of counsel on the cell tower issue, Judge Welch needed to find (1) unreasonable performance; and (2) prejudice, i.e., a reasonable probability of a different outcome at trial if Gutierrez had cross-examined the State's cell tower expert with the AT&T disclaimer at trial. In its Brief of Appellant, the State spends a good deal of time arguing against unreasonable performance, but it doesn't spend much time arguing against prejudice. The State's prejudice argument is about a page and a half: one paragraph on page 34, all of page 35, and one paragraph on page 36.The heart of the State's argument is as follows:
So, is the State correct that the time, duration, sequence, and dialed numbers on Adnan's call log reinforce the veracity of Jay's testimony?
I'm not going to do an exhaustive post on each call; instead, I'm going to focus on the six calls from the critical period between 2:36 P.M. and 3:59 P.M.:
Let's start with time. This is from the February 4, 2000 trial transcript (page 129):
So, according to Jay, (1) he was at the Pusateri residence until "like 3:45;"* (2) he then left to go over to Jeff G.'s house; (3) he arrived at Jeff G.'s house, but Jeff G. wasn't home; and (4) as he was leaving Jeff G.'s street, he got the "come and get me" call from Adnan at Best Buy. Then, (1) Jay drove to the Best Buy; (2) there was the trunk pop; (3) they drove to the Park & Ride, where Adnan shifted things around in the car; (4) they started driving to the Forest Park Golf Course; (5) there was the 3:21 call to Jenn; (6) there was the 3:59 call to Patrick; and (6) there was the 3:32 call to Nisha.
Comparing this with Adnan's call log, it becomes clear that the that the times of the calls do not reinforce the veracity of Jay's testimony; instead, the times of the calls undercut the veracity of Jay's testimony. Under the timeline established by Jay's testimony, (1) neither the 2:36 nor the 3:15 call can be the "come and get me" call; (2) the calls to Jenn, Nisha, and Phil would have taken place before Jay even got the "come and get me" call, let alone before he ever met up with Adnan; and (3) there's no way that the Patrick call occurred when he said it occurred (after the "come and get me" call, the trunk pop, and the trip to the Park & Ride). Therefore, the time of none of these calls coheres with Jay's timeline.
Jay doesn't even mention the 3:21 call to Jenn, The Nisha Call, or the Patrick call in his first recorded interview. In his second recorded interview, he places The Nisha Call before the Patrick call, but Adnan's call log shows that the call to Nisha was at 3:32 while the call to Patrick was at 3:59 P.M. Furthermore, Jay never says that there was an incoming call at 3:15 P.M., and he never gives a description of the call to Phil or any call between The Nisha Call and the Patrick call. Therefore, the call log shows that Jay's sequence of calls is wrong and that Jay has omitted two calls during this critical timeline, three if we're concluding that neither the 2:36 call nor the 3:15 call was the "come and get me" call.
If we're working with the State's claim that the 2:36 P.M. call was the "come and get me" call, a 5 second call is insufficient for Adnan to communicate to Jay that Hae is dead, that he is at Best Buy, and that Jay needs to come and get him. Again, Jay never describes the 3:15 P.M. call, and Judge Welch has found that this couldn't be the "come and get me" call. According to Jay, the 3:21 call was him asking Jenn if Patrick was home; I don't think he ever described the duration of that call.
As for The Nisha call, Jay initially says it was 7-8 or 10 minutes. Of course, this conflicts with the 2:22 duration of the call. Later, at trial, Jay implies that the phone call was shorter, but I don't think he ever states a specific duration.
Again, Jay never describes the Phil call, so he is never asked about the duration of that call.
Finally, as for the Patrick call, Jay says,
Um, the machine it a'll ring 4 or 5 times before the machine a 'll pick up. There' s a long song on there. Um, then his sister comes on, maybe like 4 minutes.
Four minutes is not close to a match to the 25 second duration of the call.
In his first recorded interview, Jay doesn't identify any of the four outgoing calls during this key period of time. In his second recorded interview, after being shown Adnan's call log, he does identify the recipients of three of the outgoing calls during this period, but he never identifies the recipient of the Phil call.
The State's argument here doesn't withstand scrutiny. And you don't need to take it from me. In finding lack of prejudice on the Asia/alibi issue, Judge Welch concluded,
In other words, Jay's testimony diverged from Adnan's cell phone records at most/all critical points, except for his testimony about the burial, which converged with the Leakin Park pings.** This is why Judge Welch found that those pings were the crux of the State's case, and this is why Judge Welch found prejudice and granted a new trial.
*This 3:40ish timeline is roughly consistent with the prior statements by both Jay and Jenn.
**The story in Jay's Intercept interview is another matter.