Adnan’s PCR Hearing: Day 3

[Listen on Audioboom]

February 5, 2016

[0:00] Susan Simpson: I’m Susan Simpson with Undisclosed, and we’re with day three of Adnan’s PCR hearing. We are currently at the courthouse again. I’m trying to see how fast I can possibly shut down two glazed donuts. Uh, thanks to our fans who uh sent goodies to our new home base, Dunkin’ Donuts. Um, I mean, yesterday was a big day. Today will be a big day. I’m hoping we can finish. I’m a little bit skeptical, but it’d be really nice if we could get through everyone—it’s not going to happen. I shouldn’t get my hopes up. Um, but we do have—well, we know from yesterday we’ll have the State’s cellphone expert up today, but I know that the defense has a few more witnesses left to go, so… yeah, it’ll be a good day.

 

[0:45] Susan Simpson: Brief update from the mid-morning break on day three. Um, we just had Sean Gordon, the defense investigator, testify. And on direct he gave brief testimony, said he took the alibi notice, the list of 86 names, and contacted as many as possible to find out, um, if they’d ever been in touch with the defense. Um, turns out three names were repeats, so there’s 83 names together. Of those, he talked to 41. Um, of those 41 names on the list, only four of them had ever heard from Gutierrez, and none of those four had ever been asked about being an alibi. Um, he then presented maps showing that 1801 Woodlawn Avenue was, in fact, Woodlawn High School in 1999, which happens to be the same address that eight people, or seven people, on the alibi notice shared. Those were the track team members. Um, the defense investigator also showed a copy of the Woodlawn High School yearbook, um, which we have discussed on Undisclosed before and Colin’s discussed in great detail on his blog. Check it out.

 

Um, essentially, the defense took its alibis for the track, um, track time period straight copy-and-pasted from the yearbook. Um, there are like 30, 40 people on the track team. That’s just boys. Only eight are in the yearbook, and that’s the top eight athletes. To top it all off, the summary of the State’s—or the defense’s position was, she’d listed 83—86… 83 names; um, only talked to four; um, none of them were asked to be an alibi; and the track team members, they were just the random people that happened to be in the yearbook.

 

Then it went to cross. And… the State got away with everything. Um, this was a very limited witness. He was just used for this purposes [sic] to talk to the people on the alibi notice list and compare with the people who had been contacted to be alibis by the defense. That was his sole purpose. And remember, the State had started out by saying, ‘Oh, look, she is so diligent. She listed 86 people on the alibi notice. Look how hard-working she is. Look how great and thorough she is.’

 

So, of course, today, their thing’s changed entirely. They’re like, ‘Oh, that 86 names? Uh uh. That’s just, like, that was—they were just trolling the State. Those 86 names mean nothing. The real names that matter are in these other files that are really nonspecific and don’t show what’s going on, but you didn’t review those, did you?’

 

Um, and of course Justin and Chris are like, ‘Objection. Scope. Objection. Scope. Objection. Scope,’ because you cannot cross a witness on a topic they were never brought in to testify about in the first place.

 

But the judge allowed it, and uh… so Thiru got to do a wide-ranging cross, where he had lots of things to say, like, ‘Look at this December 15th notice. Would it surprise you that the defense contacted several witnesses to be alibis before the first trial?’ Uh, December 15th is the last day of the first trial. The last day. And Thiru’s up there going, ‘Oh, look, she talked to all these people before trial!’ and apparently does not even realize that that was, like, the end of the trial. Not to mention, the original trial date was in October. She hadn’t talked to anyone, and she was ready to go to trial without ever having contacted anybody at all—not even just useless people, like no one.

 

Um, so, the State is like, ‘Oh, look, she contacted people!’ and they put all these memos on to show how much she contacted people, but if you noticed how Thiru was doing it, he uh… he like has a little overhead projector, and he keeps sliding the memo up, so you don’t see the date on the memo. All you see is, like, the notes. And you don’t see the fact that they were all in December and November, so weeks before trial and weeks after the actual trial date was originally scheduled, she tries to contact eight useless alibi witnesses. And Thiru made a great case. He did. I mean, I’m not saying it’s true, but he did put on a great case trying to argue that Gutierrez was very diligent in contacting these eight track team people.

 

Okay, good work, State, because those eight people are meaningless. There’s no reason those eight would’ve been more likely to see Adnan than anyone else. They were just the eight people that the law clerk pulled off the yearbook, so… I’m sure that got lost in the cross, but like it doesn’t… like, all that work he just did to show that she contacted the track team? No. All she did was—and here, wait, let’s back up a bit. Here’s the thing, she didn’t even contact them despite those notes because she tried to call some of them. Um, but look at the subpoenas. They’re all issued to 1801 Woodlawn High School, so even if she did contact them, she never got a valid address. She just served them at the high school… or attempted to. Um, in fact, one track team member was served. He went to the courthouse not knowing why he was there, and no one ever called on [inaudible] testified. Um, Sean Gordon, the investigator, did talk to him, and he said that other than that he’d had no contact.

 

But, of course, Thiru puts on a memo that says they tried to reach him and couldn’t, and it has a little notation up there, says like ‘20 minutes l-a-t-’ or something, and he’s like, ‘Oh… oh, look. Did this witness say that Adnan was 20 minutes late to practice?’

 

No, no, that’s not what it says at all. He was just throwing shit at the wall. Um… ’cause that guy’s already talked to the investigator. It was very clear. He never spoke to the defense. He had no idea why he was subpoenaed. Um… and despite, uh, the State’s very creative piecing together of random notes—he wasn’t piecing together so much as he was just making up very dark-sounding questions and pretending there was a factual basis, like saying, ‘Oh. Look at this memo from the, from the defense, talking about Gerald Russell and talking about what he remembers of the track practice and how they didn’t take a roster and the—what he said during an interview. Doesn’t that show that they were concerned about Adnan not actually being at track?’

 

That is a memo summarizing the State’s interviews. It was a summary from the law clerk to CG saying, ‘Here’s a summary of everything the State’s handed to us.’ That was not something that they’d done. That was not something they were even—it was not about the alibi. It was just a summary typed up of State notes, and Thiru presents it as if it was actually a defense interview record that undermined the alibi strategy, so they moved away from it.

 

I’m annoyed at the judge for allowing it because that just wasn’t… I can just imagine—when you have a witness that was brought in for a very specific purpose, they’re there to testify about that only, and suddenly the judge is like, ‘Go crazy. Go ask them about the,’ uh, ‘the thoughts and feelings of a random person 20 years ago that you’ve never met,’ and it’s allowed? I mean… it’s not much you can do at that point, um…

 

Sso, I am not particularly impressed right now with the State because they are abusing the fact that they don’t have to actually have stuff, um, challenged. They are simply misinterpreting notes and not calling witnesses, but um… I suspect that that will backfire at some point.

 

[7:45] Susan Simpson: We are at lunch break for the day three, and I’ll just note that it is harder than I expected to do this podcasting-on-the-fly thing, especially with like all the other cameras and people going around. So… if I’m not as organized as I’d like to be, I apologize. I try and take, like, outlines during the bench conferences. I’m like, here, next time we record I’m going to hit points A, B, C and then I get to, like, C and the bench conference is over and… back to notes.

 

So… free-form associations about today. Um… a bit of backstory, on Monday, we had news that there would be a secret witness for the prosecution. Um… and there was kind of—I couldn’t hear it, but there was kind of reference to this, him being afraid to come forward or something. And I was like, well, who’s the secret witness? Um, well, spoiler: the secret witness is a security guard named Steve. But he may or may not be coming out now because the defense just called the best librarian on earth. She’s the same librarian from Serial, and she was there to say, ‘Uh, no, there were library—there were cameras in the library,’ um, ‘in 1999 in January.’

 

Um… so he asked her, like, on cross and direct, yeah: ‘Would it surprise you to learn that there were no cameras there in January ’99?’

 

And she’s like, ‘Well, it would.’

 

Um, so he left that hanging as if, like, he had information that showed she was a liar, but he never introduced it. Well, that backfired because now it’s shown that, in fact, he did not have information that he was pretending to have. There were cameras there, and… Asia was right. Whoever she called at the library would’ve known that, yeah, there were cameras. They told her right. She testified truthfully.

 

Um… so after the camera thing was a big flop for the State, they move on to security guard Steve. And they try and set up the—his affidavit testimony, saying like, ‘Oh, so Steve worked at the library. He worked inside the library. He would’ve seen students at the library.’ And the big reveal they’re going for is that in March of ’99, the defense investigator for Adnan’s team did talk to Officer—or secur—officer [laughs] security guard Steve. And Thiru was going to say, ‘Oh, look, it’s proof it was a diligent investigation. They talked to security guard Steve, and security guard Steve ruined their case because he said something that destroyed the Asia alibi, and that’s why Asia was never contacted because of the diligent investigation that determined that it wasn’t correct.’

 

Well, no. According to the librarian, Steve was goofy and useless. And… she made a convincing case for why that is and that, like, well she did more security work than they did. They had no authority to do anything. They just stood there and, you know, tried to look intimidating. Or goofy, depending on who you were. There were a few points they made, like, the fact that security guards didn’t start working at 11, like useless Steve was going to claim. Um… and Chris Nieto had the cross and had questioning this time, and he did a great job of pointing out that there were a hundred-plus students coming through that library between 2 and 4 p.m. And the fact that you didn’t see someone that day would never be satisfactory proof or even, like, satisfactory evidence that someone hadn’t been there that day.

 

So, if that’s what Thiru was banking on to destroy the Asia alibi, um… they’re in trouble right now. Yeah, it looks like this will not be the last day at all, for sure, so we’ll go back in today, get done what we can. Hopefully, we’re coming back sooner rather than later.

 

[11:19] Earnest Kellogg: Hi, how you doing? My name is Earnest Kellogg. I’m originally from Elizabethtown, Kentucky, out here to see and hear the Adnan Syed case. And I’m telling you I was amazed after listening to, uh, the testimony from both sides, and uh today, the defense totally squashed everything that the prosecutor had to say and his, uh, so-called um “expert witness”. It was just unbelievable to hear and how he tried to dance around the fact that it was complete nonsense. I’m amazed and after 21 years in the military and being around a lot of uh good stuff, that was, that was complete, complete garbage. Awesome job by the prosec—uh, the defense. So, yeah, I’ll be here Monday, absolutely. I’m already, like, ecstatic. My girlfriend’s going to be amazed that I, you know, I got to be here and she didn’t, but you know, I’m representing so… Thank you so much! Thank you, guys, for bringing attention to this. It’s amazing, the voice that you’ve created and I, I’m just thankful that we have you guys around to, to do this, so…

 

[12:23] Saad Chaudry: I’m Saad Chaudry, and this is the third day, or this is right after the third day, of Adnan’s PCR hearing. Uh, basically, my takeaway just coming out of this was the fact that when you relate it to football, is when a team is about to score on you with a minute left, and they’re marching down the field and you know that you’re about to lose the game, that you’ll do anything to stop it. So, you’ll fake an injury. And it seems like they faked an injury, and they basically called a timeout and they’re going to have to now wait ’til Monday to start over again. So, it’s awesome because of the fact that the truth is here, and they’re calling them out.

 

[13:00] Susan Simpson: So… we are just outside the court in Dunkin’ Donuts from day three of the PCR hearing. We did not finish. We’ll be back here Monday. I, hopefully, will be back here on Monday. I’ll see if I can make it work.

 

So, we had uh the CAST agent, the FBI agent, come on the stand. The defense has not finished up. There are more defense witnesses to come, but because of timing issues, they put on the State cell expert this afternoon ’cause he couldn’t be available on Monday, but obviously, he’s going to be now. Um… he was very arrogant, I think everyone would agree. I think that’s a, that’s a fairly safe assessment. I feel like that’s unbiased. Um, I don’t think anyone in the room would disagree with that. He clearly had not read the files. He pretended he had and that—right off the bat, I was like, “This is going to be good,” because he was like, ‘The only thing Abe Waranowitz didn’t do was drive testing.’

 

Like, well yeah, he very clearly did and explained how he did, and there were maps showing his drive test results. So if you don’t think he drive tested… His—his exact words were: ‘I didn’t see an indication, I did not see any indication that he’d done drive testing.’

 

Yeah, no… that dude has not read the files at all. He’s probably looked at the one page of cell records, maybe skimmed some testimony, but he clearly had no idea what was going on. It was pretty great.

 

Um, and it bit him in the butt because he decided to go on the record with Thiru’s theory of what the fax cover sheet applies to. Um, Thiru’s idea is that it applies only to the February 17th fax, which is the fax that was partially redacted or had the cell sites redacted, um, because some of the stuff on the cover sheet applies to that one but not others. Never mind that, like, the whole time zone thing applies to all the documents. Um, other stuff applies to all the documents. Um, Thiru likes this theory. He came up with it for the uh brief, the same brief in which he claimed that Exhibit 31 was not a subscriber activity report. Shock and surprise, the expert’s opinion agrees with that.

 

So, we get to cross, and Justin points out right away that, uh, ‘When’s the date that you first talked to the prosecution in this case?’

 

He’s like, ‘Oh, January 5th.’

 

‘Huh, that’s the exact same date that Thiru submitted his expert designation in which he said what you were an expert in. And you were an expert in all kinds of things, like an expert on that Abe’s testimony was fine, that all these records were fine, but you didn’t get the records until a week after you talked to Thiru, you just said.’

 

He’s like, ‘Oh, I had, I had some documents before from people.’

 

And Justin’s like, ‘Whoa, just to be clear, that is not what you said five seconds ago.’

 

And Thiru—or, sorry, not Thiru—um, the expert tries to backtrack a bit, and he’s like, ‘Oh, uh… I got ’em, I got ’em after I talked to Thiru.’

 

And Justin breaks out with, ‘You’re under oath, Agent!’

 

Thiru objected, rightfully, and the Judge sustained it, rightfully, but it was still pretty funny. So, the whole time, the agent is sticking by this theory, which to his credit, he did admit, like, it’s what he believed. He’s like, ‘Oh, I talked to some buddies, and we all agree it’s probably what it was.’ But he did admit that’s all he did; he wasn’t claiming he actually had any knowledge. He’s just saying he talked about it and was like, ‘Ah, this is probably what it is.’

 

So then Justin pops up one of the calls—two of the calls, actually—um, from January 16th, one of which happens—oh, I don’t even know the exact time—but it happens at a time, and then 27 minutes later, there’s an incoming call. The first call, the outgoing one, was made from L651A, which is Woodlawn, um, and the second call, 27 minutes later, was made from not too far from Dupont Circle, which is… a little bit more than 27 minutes away.

 

Um, as Justin put it, ‘Agent Fitzgerald, are you aware, uh, whether the owner of this cellphone owns a helicopter?’ I don’t think he did. I’m not sure, but I’m pretty sure Adnan didn’t have one at the time. Um, and I live very close to Dupont, and I’ve been driving up here for the hearing, so I can guarantee there is no chance in hell that you are going to get from Dupont—or from Woodlawn to Dupont in 27 minutes. I’d be much happier if you could. He’s just kind of sitting there like, ‘Well, I would have to do more research to figure out what is going on.’ Y—you could just see him; he’s like, ‘What did I walk into? What did I agree to get involved with?’

 

And, uh… then as, um, things were getting pretty good, suddenly we’re out of time, and uh… ‘Don’t you think it’s better to take a break?’ So… they’re going to have the weekend. And I fully expect by Monday, they’ll have a totally new theory to explain why all the other records are accurate, even if this particular record—even if that particular record from January 16th was not accurate, they’ll have an explanation for why all the ones that do matter—A.K.A., all the ones that make Adnan guilty—are accurate. But that theory will necessarily contradict all the stuff that Agent Fitzgerald was claiming today. So… you know what? Good luck. Have a fun weekend. Come up with some new crazy idea to explain records that you don’t understand, and you’re not going to understand because you’re not part of AT&T’s billing department, and uh, then come back to court on Monday and try to explain why you’re giving an entirely different opinion, one that once again just happens to agree with the State’s theory of the case and yet is totally contradictory from the opinion you gave confidently on Friday. I’m looking forward to it.

 

[18:12] Colin Miller: Hi, this is Colin Miller down in South Carolina, reporting on day three of the reopened post-conviction review proceedings in the Adnan Syed case. I’m recording at about 4:30 p.m. Eastern time, and so far we’ve had testimony by three and-a-half witnesses.

 

The first witness this morning was Sean Gordon. He is a current private investigator for Adnan, and the principal part of his testimony, as far as I can tell, is that he got that alibi notice that Gutierrez turned over to the State back in 1999. That was an alibi notice with 83 names. And according to Gordon, he reached out to and was able to contact 41 of the alibi witnesses on that list, and according to him, all but four of those witnesses were not contacted by the defense back in 1999. And of those four witnesses who were contacted, none of them were actually asked about providing an alibi for Adnan. So that’s pretty damning. That’s pretty strong circumstantial evidence about failures of the defense team.

 

To my understanding, the Deputy Attorney General presented some evidence from the defense files about potential contacts or attempts to contact certain witnesses, and that’s fine as far as it goes, but for instance, there was evidence presented—and I’ve talked about this on my blog—about how the memo given to Gutierrez that had eight track team members was basically a law student going into the Woodlawn yearbook and getting a very small percentage of the actual track team into that memo. And in fact, the key witness, Will, the track teammate who was mentioned in the ride-along notes for Jay, he told Sarah Koenig he was never contacted by the defense. So, overall, it seems a pretty spotty performance by the defense based upon the testimony by Gordon. There’s a question in there. There was some type of mention on Twitter about something potentially significant with a track teammate. I’m looking into it, and if I find more about that, I’ll report about it.

 

The next witness, as far as I can tell, was Michelle Hamiel, who was a librarian at the Woodlawn Public Library back in 1999. It seems to be she did two things: first, she confirmed that there were surveillance cameras back in 1999, which is consistent with what Asia said about there being surveillance cameras that could have recorded her interaction with Adnan on January 13th; and also, if I’m reading this correctly—I’m not 100% sure, but I think some of the Tweets said that she indicated no one from the defense team reached out to the library and asked about surveillance video tapes.

 

Now, we know from Serial that those tapes would have been recorded over by the time that Gutierrez was hired, so it would have been futile, but if we’re looking at the reasonable versus unreasonable performance by the defense, then certainly this falls strongly on the side of unreasonable because easily this could have confirmed the alibi defense.

 

And speaking of ineffective assistance, the third witness today was David Irwin, a very respected criminal attorney in Maryland, and he gave really pretty compelling testimony about the Strickland standard for ineffective assistance of counsel. It has two prongs: unreasonable performance and, secondly, prejudice. In terms of unreasonable performance, to my understanding from the Tweets, that Irwin not only said that Gutierrez fell below that standard, but that she fell well below that standard. And in terms of prejudice, he said from what he saw of Asia McClain, she was a terrific alibi witness and was, quote-unquote, a “game changer”. And in terms of prejudice, you’re looking at: ‘Did this have a reasonable probability of changing the outcome? Does it undermine our confidence in the jury’s verdict?’ Certainly very powerful evidence given by David Irwin.

 

As I’m recording now, we’re in the middle of testimony by FBI space—Special Agent Chad Fitzgerald. He is being called to rebut Grant, the defense expert who testified about the unreliability of the incoming pings based upon the disclaimer sent along by AT&T and the overall Brady claim. Interestingly, even if you take Fitzgerald and his testimony at their face, I think it proves that basically with the disclaimer, Gutierrez could have had the incoming pings deemed unreliable and therefore inadmissible. It’s my understanding from looking at the testimony of Fitzgerald, that he’s saying the disclaimer was included because if the recipient’s phone was turned off and a phone call went directly to voicemail, that would ping the tower of the caller as opposed to the person receiving the call. And what that means is, incoming pings can be unreliable.

 

And if you look to the Frye standard, the general acceptance standard that applies in Maryland, in order for expert evidence to be admitted, you have to establish both that expert and the evidence was based upon reliable principles and methods, and that those principles and methods were reliably applied in this case. And so, for instance, in this case, even if Fitzgerald is saying that disclaimer didn’t apply here, it’s sort of like a situation with a lie detector test. In fact, the very first case, the Frye case that led to the standard, was a polygraph case with a lie detector. And if you look at why lie detectors are found to be somewhat unreliable, it’s because, well, on the one hand, some people are sociopaths and you have false negatives; on the other hand, you have people who have either white coat syndrome: they’re stressed out like Mr. S., and you can have false positives.

 

Well, you could have an expert come in and say, ‘None of those problems existed in this case. We had a person who is a normal person. There was no excessive stress. This result in this case is reliable.’

 

Of course, any jurisdiction, including Maryland, is going to say, ‘That fails the expert evidence standard, and therefore the evidence can’t come in.’

 

It seems to me Fitzgerald is saying, ‘Yes, incoming pings can be unreliable, but in this case, they’re reliable.’ Well, that’s not good enough. That would fail the Frye test, and if Gutierrez used the disclaimer, the evidence could be deemed inadmissible.

 

The other thing—and I’m looking for this in the tweets; I haven’t gotten an answer yet—is how, or if, Fitzgerald was able to determine that Adnan’s phone was on at the time of incoming pings, like the 7:09 and 7:16 pings. Because the interesting thing is—and I wrote about this in my blog today—is that in the the Bulos Zumot case, there was testimony by a radio frequency engineer for AT&T, and what he said was if you have a call from an AT&T subscriber to an AT&T cellphone, the tower that shows up in the records as being pinged is the tower of the caller. But also, even with that phone call going to voicemail, it shows up as a connected call in the call record. So, it’s quite possible that Fitzgerald’s testimony could be correct and, in fact, it applies to Adnan’s case because even though on his records it looks like certain calls that are incoming are received, in fact, based upon this glitch in AT&T, those calls that show up as connected could be calls that went to voicemail because Adnan’s cellphone was turned off.

 

So, nothing conclusive yet. I’m relying upon tweets about Fitzgerald’s testimony, but it seems there’s a decent argument at this point that even if we take Fitzgerald at his word and say, ‘Grant’s wrong. There are other issues with incoming pings,’ there’s a decent argument here that Frye was not met, and therefore there’s a Brady violation.

 

[25:37] Tanveer Syed: Hello. My name’s, uh, Tanveer Syed. We’re across the street from the Mitchell Courthouse. I’m Adnan’s older brother. Um, they just took Adnan out from the courthouse and loaded him up into the pre-trial detention services van to take him away. There’s a group of people out here, um, just trying to, you know, see Adnan and wish him, you know—and say hi to him or to give him salaams. When he drove by, he yelled, “Assalaam alaikum” really loud. Um, we could all hear that. It was nice seeing Adnan, to see him outside, you know, coming out. I mean, it was—I haven’t seen him in a long time and, you know, even just to see him outside, not behind those bars, even though he’s shackled, um…

 

But overall, I think it was a positive day. Justin did a great job of, you know, questioning, getting the, um—the best part of the day, I think, was when they had two calls that were 27 minutes apart. And then Justin was like, ‘Okay, well, this cellphone call came from what tower? Dupont Circle. This cellphone call was Baltimore. So, are you telling me unless—that he made it from Baltimore to D.C. in an hour?’ And like, ‘Unless Mr. Syed owned a helicopter…?’

 

That was, like, the most memorable moment of the day, was just like, ‘Okay, you know.’ The FBI expert, you know—just the same way we believed the prosecution 18 years ago, it was like, you know, FBI expert. Used to think FBI stands for “truth and justice”, but in this case, seems like the FBI expert’s just doing whatever the prosecutor wants him to do.

 

[26:48] Shamim Rahman: Um, my name is Shamim Rahman, and I’m Adnan’s mom. Oh yeah, he was, you know, he was coming out. He was just waiting. It’s freezing outside, but thanks God, you know, he saw us, and he was very excited. And we couldn’t talk to him, but you know, when he was leaving—when he sit in the van, he said, “Assalaam alaikum.” This make all of us happy.

 

We are so happy because everybody was there, and everything is good. And, you know, it’s like more hopeful today. And yesterday. You know, I don’t know how to thank to the, ah, the community and… You know, especially Rabia, she’s like a daughter to us, you know. So, she brought everything, you know. Like right now, we are here because of Rabia. She’s always there, you know.

 

[27:32] Rabia Chaudry: Hi, guys, this is Rabia, and today is day three of the PCR appeal, and I have spent most of my day at Dunkin’ Donuts, as usual. Today, I actually didn’t even go into the courthouse because I didn’t see the point. Um, I know that there have been some excellent defense witnesses on the stand, and, uh… I also heard that the State presented their cellphone expert, which I had really been looking forward to, and I was also looking forward to Justin, um, really decimating him on the stand, and I heard that he did. So I’m really excited about that. I think it’s going to be continued into Monday, Tuesday.

 

People keep asking the same question about whether the judge is going to rule immediately. No. That only happens in the movies, although I’m not saying it cannot happen. I mean, it would be ridiculous and very odd, but it could happen. Um, generally speaking, in the last PCR, it took about four months to get a ruling. It can take longer. Right now, the judge is retired. So we—I’m assuming it’s going to take one to two months before we get a ruling. Uh, it could be faster; it could be later. But, you know, two to four months is like really fast in legal time, so, uh… you have to hold tight.

 

In the meantime, as we’re waiting for the judge’s ruling, there’s still going to be a whole lot of stuff happening. There’s still investigation ongoing. Susan, in fact, next week is traveling out to start working on, um, the new season. I mean, she’s already started working but to interview some more witnesses. So there’s a lot coming your way, and um, there’s more evidence that we’ve unearthed that we’re eventually going to get around to telling you guys about.

 

Dunkin’ Donuts. I have to give a shout out to the Dunkin’ Donuts on whatever this street is right in front of the, um, courthouse. Is it Calvert? No, it’s not Calvert. It’s on the corner of Calvert and something. But first of all, the management’s been amazing. They’ve literally let us just park here for like three or four days. I’m sitting here, and people keep coming by. And people know I’m at Dunkin’ Donuts and I’m tweeting. And also people in the courtroom are telling people ’cause when they ask, ‘Where’s Rabia?’ they’re like, ‘Oh, she’s at the Dunkin’ Donuts.’

 

So all kinds of people who’ve, like, come from Philadelphia, come from New York, come from different parts of, um, the state to see the hearing are popping in to say, “Hi,” introduce themselves. And we are being lavished with Dunkin’ Donuts, um, gift cards and actual donuts. This morning, um, we had a listener, a supporter, send us like a two dozen donuts and a box of joe, which we’ve been like munching all day. We’ve gotten over $160 worth of gift cards from Dunkin’ Donuts. So we, um, appreciate it so much, you guys. Don’t send any more Dunkin’ Donuts gift cards—although if you do, we could always, like, give them to charity or something, which would be wonderful. But, um, we are well, well covered, mm, for the next couple of days for donuts and coffee. But thank you, guys, so much. It’s amazing. But in the meantime, hopefully, we will check in with you on Monday, and have a good weekend.

 

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Adnan’s PCR Hearing: Day 2

[0:00] Susan Simpson: Hi, this is Undisclosed podcast live in Baltimore at Adnan’s PCR hearing. This is Susan Simpson, and I’ll be here with uh Rabia, and Colin will join us remotely today for our second episode, um, covering the hearings in Baltimore.

So, it is day two of Adnan’s PCR hearing. I am outside the courthouse. So, you know, yesterday went well. It was very interesting. A lot of stuff came out. And today I’m sure we’ll have more of the same. I don’t know what to expect other than more of Asia’s cross, um, but you know, I think it’s going to be an interesting day. Um, I’m looking forward to it.

 

[0:41] Susan Simpson So, it’s the first break of the day at the PCR hearing. We are back outside the court, back outside the blue lines. Um, I don’t even know what time it is, ‘bout 10-ish, 11? I don’t know, it’s probably 11-ish by this point.

Um, anyway, it’s been a very eventful morning so far. Um, there’s a lot to cover, but I guess the highlight is Asia’s on cross, um… I guess, one follow-up point is that yesterday the State was doing a lot of crossing on Asia about this whole basketball issue, saying: ‘So, you were on the basketball team…’ and she’s like, ‘Well, I was a cheerleader that became a basketball player, and they called me “ballerina” because I was really bad.”

And, uh, he kept trying to hit this point, which I was a little bit confused, not really concerned, but I wasn’t sure what he was trying to go for, um, because it seemed like he was trying to say that… so, there was a—so, the Woodlawn basketball team, the girl’s team, did have, play a basketball game on the 13th. It was at 6:30 p.m. It was at Parkville, actually, I think. Um and so, I was wondering if, like, he was going to have some surprise evidence that Asia was at the basketball game that night, which didn’t make sense based on what we knew. Um… and, and no, I don’t know what he was trying to go for, but Asia played junior year. She misspoke yesterday. And so he kind of abandoned that.

He then, he then tried the “snow versus ice” debate. So, in um Asia’s letter, or that Asia—sorry, in Asia’s affidavit to Rabia, she said that she remembered it because of the two snow days. Um, on the 13th, it was a Wednesday, that’s uh… that evening the ice storm came in, and Woodlawn High School was closed Thursday and Friday. Um, there was another snow storm, albeit a much smaller one, not as big of a deal, not hardly any news about it, and it did close the school down for one day. Um… so, Thiru was trying to say, ‘Oh, it could’ve been that day,’ and um, but Asia’s ironclad. She’s like, ‘Well, it’s the two days I recall,’ like, ‘That’s why I know this.’

And as a Georgian, I have always found this funny because if it’s, like, even like just a tiny sprinkling of frozen stuff, we’re calling it a “snow day”.

Um, and she had some other good, like, just conversations about like how she… how she remembered this, and she said when they found Hae’s body, all the students were discussing… with… they were all discussing when and whereabout they last saw Hae. And she said, well, she couldn’t remember when she last saw Hae, and that was kind of bothering her, but she did remember talking to Adnan about Hae on the 13th. And so that, on February 9th or 10th when she found out about Hae’s death, that’s when she recalled this conversation, and that’s why she was thinking about it. And, uh, so that would be why when she found out about Adnan’s arrest, she instantly knew, ‘Wait, I saw you on the Hae disappeared’ because she had been thinking about it a couple weeks… before she had any idea that Adnan would ever be a suspect on this case.

I don’t know where Thiru’s going. I think that’s why he called a break… because he’s not scoring any hits. Oh, that’s not true. He did score one hit, um, and that is over Rabia. So, Rabia at the PCR hearing last time testified… or no, no, no, no. She testified that she met Asia at a library or something, at a library next to Woodlawn, um, High School and then they went to the check cashing place and notarized an affidavit.

Asia says what she recalls is Rabia showing up at her house, um… and talking—Rabia knocking on the door, talking to Rabia on the porch about this, and her being kind of irritated because she was on the way to see her boyfriend, but she felt it was important so she agreed to write a quick letter with, um, stay with Rabia and write the letter out, and then go to the check cashing place, which isn’t very far away at all—um, I’ve been there with Rabia; I’ve drove past it—um, to get this notarized to make it official. Um, so we have Rabia saying they met somewhere at, at the library and then went to the check cashing place, and then Asia saying something else, um…

So, anyway, this whole time I’m sitting next to Saad in the courtroom, and Saad’s like poking me, going, ‘Susan, Susan, I was there. We went to her house.’ So, I guess, Saad agrees with Asia, too. He thinks that they were—went to her house. So, we do have a mix-up here. Um, I’m probably more inclined to believe, um, Asia’s memory of what happened. Um, uh they might call Rabia to the stand now. I’m thinking they might do it. Maybe. I don’t know. I don’t think it really gets them that far because they’re going to gain a little ground on it maybe but not enough to undermine the defense case, um, because Asia’s rock solid. Um, Asia is very, very good about saying when she does not recall and, like, she will not specu—well, she’ll be like, ‘Oh, well, since you’re asking to speculate, I’ll speculate now,’ but she always, like, clarifies when she’s trying to guess at a memory, which is excellent in a witness, what you need, um, ’cause so many witnesses are just like, ‘Well, I think it probably happened this way, so I’ll just keep talking.’

 

[5:14] Rabia Chaudry: Hi, this is Rabia, and welcome to day two of Undisclosed, reporting from the Baltimore City Circuit Court. I got here a little bit late today, around 10:30. I figured, what’s the point? I’m sequestered anyways, and I was just kind of waiting outside of the courtroom down the hall to, um, just see, you know, the family and friends when they got out. They had a little break, um, but I know that, uh, you know, they’re not supposed to talk to me about what’s going on. I know that Asia’s on cross-examination, and uh, I know that any testimony I would offer would be in relation to Asia, um, basically, how I got the affidavit from her. Um, I mean, that’s really the only relevance I have to the entire case. Um, so there is a possibility that I would be called, and so nobody can talk to me. Everybody basically is coming out and saying, ‘We can’t talk to you.’ [laughs] So I just ask for a thumbs-up or thumbs-down. That’s all I want. I mean, I mean, it’s a—it’s nerve-wracking in a different way not to be inside. But, anyhow, so in a way it’s kind of a small mercy that I’m not inside, um with my blood pressure rising. So, um, I might be called. I’m just going to hang out at the courthouse and, uh, tweet and write and, you know, see what happens today. Thanks for listening.

 

[6:25] Susan Simpson: So, we are once again outside the blue lines of the courthouse. We’re at the end of our lunch break. Um, we just finished up Asia’s cross, and Thiru had all morning where he tried to beat up Asia, um, and she-e was destroying him. It was kind of fun to watch, and uh, it was. It was a really sloppy, cross, though, like he was just like, I don’t know… like, I mean, there’s the whole rule, like, you don’t ask a question you don’t know the answer to on cross, and that’s not true. You… like, there’s times to break that, for sure, but he was just a-asking these really open-ended questions that she’s like, ‘Well, I have a very obvious and easy answer for that, which I’m going to give right now.’

And then at the end he, his gotcha moment, the only thing he could like try and do, he started asking Asia: ‘Well, would it surprise you to learn about what Ju’an, your classmate, said in an interview?’

And she’s like, ‘Well, I… I don’t know what the hell he said in the interview.’ Only she used nicer words ’cause… I did like it when she was… she was trying to talk about when the Sprint representative called her a “bitch”, and she was like, ‘She called me a female dog.’ [laughs] Off-topic.

Anyway, so, um, they’re talking about the Ju’an police notes from his 4/7 interview. Um, we’ll get into those more on redirect, I’m sure, so I can explain it more later but, basically, the prosecution is taking some like sketchy, sketchy-ass notes taken during an interview about a classmate that’s talking about bail letters and requested for them to be typed up, which was circulated among all the students, um…

[7:53] Karen Turner: Bail letters from…?

[7:55] Susan Simpson: Bail letters for the bail hearing that just happened about a week before Ju’an’s interview. Um, and we know from other interviews with other students that, like, like… Someone’s like, ‘Well, Ju’an was chosen to type one.’ So, clearly, this… [inaudible] letter that Ju’an’s talking about is not the Asia letters. It’s the freaking bail stuff.

Um, so, hopefully on redirect that’ll get explained because, um apparently, Thiru felt no need to actually put that evidence into evidence, so no one really knows what he’s talking about right now, and it would be nice to clear that up.

 

[8:31] Susan Simpson: We are once again in, um, Undisclosed home base, Defcon 1, which is Dunkin’ Donuts, actually. Um, you know, it’s an upgrade from our spot by the blue line of the courthouse. So, we’re done with the second day of the PCR hearing, um, and it was a exciting day.

Yeah, so we started up with finishing up the cross of Asia, and then we had the redirect of Asia, which Justin pwned. It was pretty cool. Um… I was saying earlier, like, I really respect and like, uh, Justin’s a great trial attorney. He’s got a great trial manner. Um, he’s very comfortable and. like, he has such an easygoing manner.

When I first met him, I did not appreciate the wily bastard that he is. Um, but he’s just, you know, he’s so, he’s, he’s a really nice guy. He really is. He’s a great guy, very friendly, very like… [inaudible] surface.

But, like, at points today, if looks could kill… um, well, if looks could say “fuck you”, they did. [laughs] Probably edit that out. [laughs] Sorry.

Um, he um, was just very in control, and the State was throwing out so many… just, like, crazy-ass things, like attacking Asia on all kinds of grounds that are not relevant, are not true—mostly not even true and like all over the place, like, throughout the entire morning. I mean, I had started keeping a list and then I again lost track but there’s, like, five or six things that were just blatantly untrue. And Justin did object to the ones that were like blatantly, blatantly untrue, and every time it got overruled so whatever. Um…

Rather than going through piece by piece and explaining why each one was wrong, he just said, like, ‘Look, Asia. Thiru just talked to you and said, “Oh, you’re a liar” because your entire letter came from the search—um, the affidavits for the search warrants, which were done two weeks after your letter—um, three weeks after your letter, so obviously your letter is a fake. It was not written the day it says it was written.’

Um, and Justin was like, ‘You just got challenged by Thiru about—that how could you possibly have known that Adnan was in Central Booking? How could you know such a thing?’

And, uh, he then puts an article on the overhead, and it’s like March 1st, and it says: ‘Adnan Syed arrested, taken to Central Booking.’

So, like: ‘So, Asia, how could you possibly have known… why Adnan—that Adnan was in Central Booking?’

Um, and he pointed out a few others, and like, the whole way I was, like, “I know four other examples that you could easily disprove—”

He’s like, ‘It’s cool.’ [laughs] ‘We’re just going to hit a few of them. There’s no need to like…’ [laughs] ‘explain every one.’

But, like, the car stuff… Like, so go to Episode 15 of Undisclosed, maybe like two minutes in. There’s a clip from a news broadcast played um… on March 1st, talking about Adnan’s arrest, and it says Hae’s car was found next to Leakin Park.

So, that whole time when Thiru’s going, ‘How could you have known the car was found in Leakin Park?’ well, one, it wasn’t found in Leakin Park, but two, news—the news said it was. So the fact that the same day the news said it was found in Leakin Park, and Asia knew it was found in Leakin Park, that’s not a coincidence. That’s not a conspiracy. That’s really fucking obvious.

Um, I mean, I’m being mean and sarcastic, but like there was a lot of floundering today on that—on the, the cross. Like it was not… it just wasn’t pretty for a crossing. Like, I’m sorry, Thiru, I know I sound like I’m being harsh to you, but like… you—that’s not how you do a cross, come on! Um, that was really mean… but you can leave it in.

 

[12:07] Susan Simpson: So, we were a little bit boisterous, and we decided to go outside from Dunkin Donuts and now, um, standing on the side of this lovely street somewhere near the courthouse. So, the Asia stuff, like, went well. Um, he… tried to lay some, like, insinuating questions down to suggest that Asia had, like I said, forged her testimony. So he did that. I was wrong. I thought he wouldn’t dare go there ’cause… really? But he did.

Um, like, it really felt like when he was, like, questioning Asia, it felt like a cross-examination of a defendant in a criminal trial. Like, the way he was questioning her, it was like how you would approach—not just an adverse witness, but like the defendant themselves. And to the extent the judge could even follow what he was trying to say, I don’t think it really is going to make a difference. Um, plus he didn’t even put any of his sources in the record, which is still driving me crazy. He’s just trying to lay suspicion down by—like ’cause he had—if those notes actually supported his position, he would have introduced them. But he knows that if he actually shows what he’s talking about, it’s going to be like, ‘Well, that’s a big piece of nothing.’

Um, so, he preferred to leave his like suggestive questions out there without the context, um, the context being, of course, that it’s not about the fucking Asia letter. It’s about the bail letters that everyone was asked to write and everyone’s asked to type up, um, which the other witness statements make very clear.

Justin was on fire. Justin had a lot of really great quips. Um… [laughs] so, my favorite one of the day was definitely the, uh… when he kind of called out the judge. So, during the cross, Thiru was asking and answering the same question over and over. And it was absurd. It really was. I kind of have to criticize the judge for doing it ’cause it was… it was just not… it… I, I really have a hard time understanding his mindset in that, that instance because that’s just… it was, it was really blatant. And I, I feel bad and I probably shouldn’t be questioning a judge in an active hearing, but like that…

Thiru got to ask the same exact question, like, 30 times, and Asia would say, ‘I don’t know.’ And then he’d ask again, and she’s like, ‘Well, I don’t know, but I can like guess. Do you want me to guess?’ And that kept going on and on.

So, when the redirect happened and Justin gets to ask questions to Asia again, um, he gets up there and says, ‘Do you remember this morning when,’ um, ‘Thiru was asking you the same questions over and over again?’

She says, ‘Yes.’

And: ‘When I was here, and I was,’ um, ‘objecting to ask and answer over and over again?’

And she said, ‘Yes.’

‘And the judge was over there doing—well, I probably shouldn’t say that.’

And, uh, the courtroom laughed. The judge smiled. He wasn’t quite laughing. I’m not sure if he found this funny as everyone else did, but… he was uh, he had a lot of comments today.

So, after Asia, they brought on the cellphone, um, expert, who was Jerry Grant. He often consults for Innocence Network, um, which is how Justin got in touch with him through Barry Scheck and the Innocence Network. Um, and he testified—like, Justin kept his testimony directly on point. And he was, like he said in his opening, this is not, I mean, it is, this is a complicated area, a technical area. But at heart, this is a really simple issue. And the issue is that necessary information about what evidence before the court was not provided when it should have been, which is exactly what he showed. Um, he showed that the, through the expert, that the cover letter from AT&T that says how to read subscriber activity reports does, in fact, apply to the document it was sent with that is titled “Subscriber Activity”.

So, Thiru had a challenge there. Like, how do you challenge that? I mean… a company sends you a document. It says: “How to Read XYZ Document” and then it has a document with it that says “XYZ” at the top. Thiru’s trying to claim that the instruction on how to read XYZ does not apply to the document called XYZ, which… I mean, that’s… that’s… if I was in his shoes, I maybe would’ve done what he did because I don’t know what else you’re going to do.

Um… you just try to cast doubt instead: ‘Well, is it possible you’re misreading this? Is it possible that the reason this did not come up before is ’cause you’re just totally wrong here and don’t know what you’re talking about?’

And the expert’s like, ‘No, that’s not the case.’

But what I loved when Justin brought out was, uh, the true… the ultimate consequence of Justin’s argument, um, because Thiru was trying to say, the… when the, the subscriber activity, um, how-to-read message says, um, ‘Outgoing calls only are reliable for location status,’ he’s trying to say that applies to a column on one of the sheets that says “Location1” and that only that is unreliable.

Well, Justin—through the expert—points out, if that’s the case, the records are even worse than we’re claiming because the “Location1” column just shows what network and what city, um, you’re calling on. In this case, all the records mostly say “Baltimore-Washington”, which is the, the specific network, the switch that, you know, the calls were going on—for obvious reasons. Um, so if in fact, it’s the “Location1” column that is wrong, we don’t even know what, like, geographic region that those calls are in. They’re not even in, like, DC-Baltimore. They could be anywhere like on earth, apparently, which isn’t the case because that, that, that column is correct. Um, it has to be correct because if that column’s not correct, then the cell site’s not correct.

It’s literally just like—this is a terribly analogy: so a Labrador Retriever is a type of dog, but if you’re a Labrador Retriever, you’re always a dog. Um, if you’re in cell site L6-51A, you are always going to be in the DC-Baltimore switch, but you can be in the DC-Baltimore switch without being on L6-51A. You can be on a different tower in that network. So, according to Thiru, actually we can’t even tell that much. We don’t even know what switch we’re on. We could be like on a switch in like California, um, and that’s his best defense. But what are you going to do? It’s a pretty hard argument to go up against, so he did what he could.

And I’ve already ranted about this, but the ending was pretty spectacular because Thiru lost his cool again, kind of like during the Asia-cross, but he was like throwing his pen around, like, “Raaaahr!” [sound of pen hitting ground] I just re-enacted it. So that’s what he did, um… when he, when Asia’s cross was like going badly for him.

He asked a question of Jerry Grant, the expert, and the question was so out of scope of anything that had come of Justin. It should’ve been, like, it should not have been admissible. The question should not have come in. Strategically, we didn’t want to go there yet. Um, and judge is like: ‘Overruled. I will allow you to ask a question that was never asked on redirect.’ You can’t do that. Um, but you know, the judge can actually, so you can do that.

Um, and Jerry Grant starts to answer, and the answer was not good for the State, so Thiru cuts him off and says, ‘Are you going to be here tomorrow?’

And the expert is thinking, like, ‘Oh, you want to continue this cross tomorrow or the next day so, like, you want to make sure I’m here so you can finish up the cross of me or something?’ He’s like, ‘Well, I can be. I don’t have plans yet.’

And then Thiru gets very aggressive and says… He said, ‘What is your best explanation for why the incoming calls are considered unreliable? Or why the fax cover sheet says incoming calls are unreliable?’ And Grant started to answer, and then Thiru cuts in and says, ‘Do you want to know what the actual answer is? Then be here tomorrow and listen to our expert from the FBI.’ Mic drop. I guess. [laughs]

So… that didn’t go well for him. And you know what, who knows? Maybe he’s got some, like, rabbit up his sleeve. Um, I’m skeptical but I’m open-minded, and we’ll see what he, what this expert’s got from the FBI. Um, he’s—I’m already, my skepticism is ’cause, ’cause this guy is from the CAST group, which I think is responsible for a lot of the misinformation that surrounds the use of historical cell site analysis. Um, and we know that they have a very… aggressive view on how accurate this stuff can be, um… So, hey, maybe he’s got something. I’m curious, but… his little tantrum at the end wasn’t very reassuring.

If you actually had good evidence, you would like smile slyly and wait and, like, know you can launch on the opponent. You don’t lose your cool and, like, tell the other expert, ‘Be here tomorrow to learn the truth.’ So, all in all, it went well today.

 

[20:29] Colin Miller: Hi, this is Colin Miller. I’m checking in at about 4:50 on the second day of the reopened PCR proceeding. It seems to me from what I’ve read that today consisted of cross-examination and redirect of Asia McClain and then testimony by the defense’s cell tower expert, Gerald Grant.

We start first with Asia McClain. From what I’ve read on Twitter, it appears that the Deputy Attorney General was trying to accomplish two things: the first was to show that, possibly, based upon the content of the letters, Gutierrez could have been justified in not contacting her as a potential alibi witness. The problem for the State, in that regard, is that’s not a legitimate ground to refrain from contacting an alibi witness.

I’ve written about a few cases like this in my blog. One of them was a case out of the 7th Circuit Court of Appeals, and actually this is a case that was cited by both the 4th Circuit and the Court of Appeals of Maryland. The case is Montgomery v. Peterson. It’s actually a case in which defense counsel did contact 12 alibi witnesses, but they didn’t contact the 13th. And, specifically, the information here that was given by the defendant to his attorney was a receipt from Sears.

And, according to the attorney, quote: “I was just given a receipt. I wasn’t given a name, so I didn’t know who to interview until I found out who the witness was, but at that point I simply didn’t believe the defendant, so I didn’t think it happened.”

So, in other words, this is a case where the State tried to claim lack of ineffective assistance based upon disbelief by the attorney. Well, here was the court’s response:

“Nor can we say the defense counsel’s conclusory statement that he did not believe his client was an adequate basis for ignoring such an important need. Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client’s veracity.”

So, in other words, no way, no how can Gutierrez look at these letters, think: “This might be an unreliable witness; I’m not going to contact them.” Pursuant to well-established ineffective assistance standards cited by Maryland courts, the attorney in that case would have to contact the alibi witness to make their own assessment of veracity.

From social media, again, it appears that part of the Deputy Attorney General’s strategy was to try to claim that the second letter written by Asia McClain dated March 2nd might, in fact, have been written later. I saw, in particular, on Twitter that he appeared to be hammering her over how she knew that he was in “Central Booking”, that those were odd words for a teenager to use.

Well, I found, actually, the Baltimore Sun article—this is from March 1st, 1999—reporting the arrest, and it says:

“Sgt. Scott Rowe, a police spokesman, said Adnan Musud [sic] Syed was arrested about 6 a.m. at his home in the 7000 block of Johnnycake Road in Woodlawn, Baltimore County, and taken to the Central Booking and Intake Center, where he was charged as an adult with first-degree murder.”

So, in other words, very easily Asia’s knowledge of Central Booking could have come from this article from the Baltimore Sun the day before her let—letter was written.

Uh, second part was that, apparently, the Deputy Attorney General questioned how Asia had knowledge about certain parts of the investigation in the case as of March 2nd. Well, my understanding is that Justin actually showed a news clip from before March 2nd where, basically, people from the State were talking about various details about the case.

More importantly, from my perspective, this is from, actually, an interview in late March with Debbie, and she’s talking with Detective MacGillivary. And, basically, she’s saying that at first she didn’t believe that Adnan was guilty and then that it changed her mind based upon Adnan being arrested.

And here’s the exchange:

MacGillivary: …er, reason other than the fact that police have arrested him?

Debbie: Right.

MacGillivary: Okay.

Debbie: And it does, um, when Ann told me, um, a sergeant got even more afterwards, um, I guess that’s the real…

[Debbie’s statement, March 26, 1999]

And, basically, what we know in this case is that on March 2nd, the very same day that Asia second letter was dated, there were interviews of Ann, Aisha, and Debbie. What we also know is, the notes from those interviews were never turned over. What seems clear to me from Debbie’s statement in late March is, is that on March 2nd, the police who were at the school were conversing with students such as Ann, and they were telling them details about the case—that, specifically, this sergeant gave her even more information about the case, and so, it seems to me completely consistent with Asia’s claim that in this case she had the additional information as of March 2nd and included it in a letter sent to Adnan.

And turning next then to the cell tower expert, Gerald Grant, uh unfortunately, I haven’t been able to find too much about what happened during the direct and cross-examination. I hope to find some more detail later.

But it’s my understanding from looking through Twitter that, basically, Grant testified that he talked to Abe Waranowitz, the expert who testified at trial; that similar to what he said in his affidavit, Waranowitz said that he basically was shown Exhibit 31, the cell tower exhibit, right before he testified at trial; that Urick didn’t show it to him before; that that exhibit did not contain the disclaimer saying that incoming calls are unreliable for determining location; and that, basically, Waranowitz said he wouldn’t have testified as he testified without first checking into why this disclaimer was there.

And it’s my understanding that Grant has basically testified that, yeah, that this disclaimer establishes that incoming calls could be unreliable. As such, he would not have relied on them to do a drive test and make conclusions about incoming calls and what tower they would ping.

Now, you might recall we discussed on the podcast the standard in Maryland is the Frye Test, and the Frye Test basically says that: A, evidence of an expert nature is inadmissible unless it has general acceptance in the relevant expert community; and then there’s also Maryland Rule of Evidence 5703, which says an expert cannot rely upon unreliable evidence in forming an expert opinion.

So, I mean, this is just the defense expert. I expect there’ll be a battle of the experts, and we’ll see what the State’s expert has to say. I think that Justin, Adnan’s attorney, has definitely some ammunition that he can use on cross-examination.

But, at least, at this point, it appears the defense has established that in this case, if the defense were aware of the disclaimer, they could’ve used it to have the incoming calls deemed inadmissible. And, again, that’s either a nature of ineffective assistance if Gutierrez knew about this disclaimer and failed to use it, or as I think is more likely, a Brady claim, that the exhibit in this case did not include the disclaimer and, therefore, by the State’s own admission, it was unclear that the exhibit was the subscriber activity report. As such, it was unclear the disclaimer applied to it. But, certainly, it appears based upon the affidavit from Waranowitz and the testimony by Grant, in this case, there was some type of violation, which would justify a new trial. And we’ll have to wait and see what happens when the State calls their own expert.

 

[27:55] Susan Simpson: So, this is Susan Simpson from Undisclosed: Live, day two of the uh Adnan Syed PCR hearing. We’ll be back tomorrow for day three and, hopefully, the final day um at 9:30 a.m. Thanks for listening and thanks for following, and come back tomorrow to learn more about how the hearing goes.

Adnan’s PCR Hearing: Day 1

[Listen on Audioboom]

February 3, 2016

[0:00] Rabia Chaudry: Hi, and welcome to a little live update of Undisclosed. We are at the Baltimore City Circuit Court. Um, I’m here with Susan Simpson and Bob Ruff. Colin Miller is not with us. Adnan’s family, his mother, brother, my brother, um, uh a lot of people who have come out to support Adnan…

And I was sequestered after, um, Adnan’s attorney gave his opening remarks, so I haven’t been able to see the other witnesses. But I’ve been just kind of, uh, waiting to see what the outcome is and, um, Justin might—our attorney might renew the, uh, objection. Colin is amazing. We reached out to Colin. He immediately found some case law that should help me get back into court because nobody’s going to call me as a witness, um, but the prosecutor just used it as an excuse to get me out of the courtroom just to demoralize us. So, you know, Justin’s going to try to get me back into the courtroom and let’s see what happens.

[0:57] Susan Simpson: Hi, this is Susan Simpson. I am sitting at the Royal Plaza… Royal Carryout… Royal Some-kind-of-fried-food-place outside the Baltimore City Circuit Court. It’s about, I don’t know, one… 1:15 p.m.? We had, um, got to court house this morning. Um, good crowd. The courthouse is not full, um, but it’s pretty crowded. Um, so Sarah was here, Sarah Koenig, um… and Rabia was, like, was talking how long it’s been and how we wouldn’t be here if someone hadn’t taken interest. I mean, of course, none of us would be here if Rabia hadn’t been insane for 17 years and pushing a losing cause against all odds, um, but Sarah Koenig and her team got this ball rolling and we would not be here today.

Justin gave a very strong, simple, straightforward opening, exactly what it needed to be. His opening was just, there’s two issues here: we’ve got Asia, and we’ve got the cell site evidence. Both of them on their own independently are enough, and they prove by themselves that Adnan did not get a fair trial and entitle him to a new trial, one that’s fair and has the evidence fairly considered.

The State’s theme has been that CG was an awesome attorney, that he has been harping the whole time about how confident and how capable and how awesome Gutierrez was as an attorney. Like, that was his theme. He was like: ‘She was so diligent. I’ve seen the files, the defense files. She was a monster in the court. She was, she was a pit bull on the pant leg of justice, and she did amazing things for Adnan’s case. She just couldn’t help it because he was guilty, guilty, guilty.’

Um, but then he goes and starts objecting, literally, every single question about Gutierrez’s decline, her health, her failures. Um, he didn’t even want any evidence in about the fact she was disbarred. Um… and nah-ah, it’s a good strategy if you hadn’t shot yourself in the foot by making your whole [inaudible] case that Gutierrez was so competent.

They also pretty—I think that by, they were a little cagey about it earlier, but by the second witness, they were pretty much saying: ‘Asia’s lying. She constructed this in order to, um, help out a friend.’ Um, they weren’t being subtle about it. They didn’t say it in those many words, but the questions strongly implied that was what was going on.

So, we had two witnesses. Um, our, uh… the first one was Phillip Dantes. He was the attorney that represented Gutierrez both, um, at the start of her career when she was trying to get into the Bar—um, because she had lied in some, like, her law form, law school application and on her bailiff application. He also represented her at the end of her career when she was disbarred for her, um, epic number of violat—[laughs] like her, she had I think 36—at last count—clients who filed complaints against her. So he, um, represented her in that. And she, ultimately, did not contest the disbarment.

Um, so he knew about how she started, and he said that she was, she was great. She was hardworking, she was diligent, she was strong. And he watched her decline. Um, not all of that—most of it, probably—didn’t even get into the, into the record because, um, the State objected to any evidence about her decline and the Court sustained most of those objections.

And so, yeah, okay, and then we had, um, Bill Kanwisher, who worked with Gutierrez, um, up until ’97 and was friends with her at a certain point. But he talks about how it was, the reason he left the law firm where we worked with Gutierrez was ultimately because of Gutierrez because she was—oh, how did he put it? She was very hard to work with. She was very hard to deal with. There were massive financial issues. He often, at least on one occasion, he just didn’t get paid. Like, she just missed the paycheck.

But then he went and talked about the alibi notice, and he talked about how the fact that, basically, the fact that Asia was not on the list of alibis in the alibi notice and the fact that Asia shows up in her notes, he could not reconcile that. And he wasn’t sure… um, to him it was inexplicable.

Yeah, I was just realizing, I still haven’t actually seen Adnan yet because there’s a, uh, computer monitor sort of set up in the middle of the court. Like, so I’ve seen the back of his head, but I have yet to actually see Adnan’s face. So… I mean, he’s the defendant in the case. He’s just going to sit there. He’s a bump on a log for the next three days, but… yeah.

[5:27] Saad Chaudry: My name is Saad Chaudry. I’m best friends with Adnan Syed, and I’ve been, um, following this case for the last 17 years. So, when I saw Adnan, it’s emotional ’cause, you know, he’s escorted out in handcuffs, and he even sat down wearing handcuffs. And, you know, as a free man, where I can cross my legs and I can lean back and I can lean forward, he has to really sit stiff as a board. And as friend, I was watching him, and that kind of like… kills you. You know, it makes you really upset, but… as the hearing itself, I’ve never been to hearing that I’ve felt as positive or I’ve felt as [at] peace with what’s going on and that the truth will come out and things will be favorable for Adnan.

The courtroom, you know, the mood of the courtroom was definitely a lot of excitement. You could feel a lot of energy in the air. Um, on the left side was media, through the middle was Hae’s family and her loved ones, and on the right side was Adnan’s family and Adnan’s loved ones. I actually leaned over to Adnan’s mom, and I was like, “Remember the last PCR hearing?” It was just Adnan’s family in the first two roo—first two rows of those bleachers, and the rest of the place was empty. So, it was a big difference from last time, which was cool.

[6:49] Susan Simpson: Oh my gosh… We are now in one of the nicest Starbucks I’ve ever seen, actually. It’s uh, it’s a few blocks from the courthouse. Um, it’s raining still, so when we left the court, we were, like, kind of scrambling to find somewhere to sit where it was dry and where they—could not get wet. And, um, it’s been a long day. It’s been a good day, but… I’m a little bit tired now. [laughs] Um, but it was a really good day. We had a lot of, uh, we got through three—well, two and-a-half witnesses.

Um, so, Asia McClain testified after lunch. She, um, is I think, like, five months pregnant, which is actually kind of why this, this hearing was scheduled now because other available dates were later on past her, like, no-fly… no-fly time, whenever that is. So, that’s why they were like, ‘Whelp, got to get it in now.’ Um, and she was good. She was, she was nervous as hell. And she was, um… I mean, she got better as it went on. She was, she started off like, really, you could hear her voice about to break just trying to act normal. But she was very sincere and very genuine, and… I know the prosecution is trying to press for a “She’s lying” theory and that “Oh, she’s doing this as a favor for a friend” or something, but they may back away from that now and go more towards a “She’s wrong” angle ’cause, I mean, they’re going to have a hard sell calling her a liar. They can call her wrong and call her mistaken and mixed up, for sure, but they were making some, to me, what sounded like some very strong indication that they were going for a “She’s lying” theme, and I’d be a little bit surprised if they kept going for that because she, she was very sympathetic. Just on paper, like, you don’t want to be seen as bullying the, um, nervous, friendly, sincere pregnant lady. Um, it just doesn’t look good [inaudible].

Um, but she didn’t ever know that she was important. She made that very clear. She’s like, ‘I had no idea until Serial that whatever I was saying was actually that important.’

So Kevin Urick was the prosecutor at the original trial—at both original trials. Um, and when Ju—Adnan was going through his first PCR, Justin sent out an investigator to go talk to Asia out in Washington, the state, and uh, and she immediately goes online to try and find out what’s what. And she manages to find one old Baltimore Sun article, um, that says Kevin Urick was the prosecutor. So she googled his number and called him that same day, and she took notes about what Kevin Urick told her.

And, uh, he basically said: ‘Oh, he’s guilty with all this proof. We have all this evidence. Everything’s ironclad. Don’t get involved in something that’s, like, just them trying to manipulate the court system.’

And she was like, ‘Well, yeah. I mean, there’s no point if he’s that guilty. Why get involved?’ So, when she then learned that Kevin Urick said that he had a conversation with her and that everything Asia McClain said wasn’t true, um, and it was only because she had somehow been pestered into doing, or pressured into doing it, by the Syed family, she was—and my notes say very, all caps, “EMOTIONAL”, nearly crying. And she said that she was, quote: “In shock.”

Quote: “Angry at myself for letting my thoughts and opinions be represented by a third party. I was fairly bothered by it, and I don’t like it when people put words in my mouth. I did not believe that time I spoke to Urick that I was of any importance, or that my testimony was of any importance. After Serial, like Sarah said, maybe it was important what I knew. It placed a weight in my heart, and I felt like for justice and for… both sides needed to have the evidence and have the evidence be evaluated.”

She seemed so truthful, like, she… that was her memory. So, of course, that doesn’t mean that she’s… right. It just means she’s not lying.

From the testimony in the first half of the day, I was thinking they were going for a “Asia is a knowing liar”, um, defense and I think after hearing her, they are going to tactfully back away from that and go with a “Asia is mistaken argument” instead.

Most excited about for tomorrow? Um, I mean, hearing the rest of what Asia has to say. And then, of course, because it’s me, I’m excited to hear the,uh, cell phone evidence part and get into that. Um, that’ll be good. And… and then, well, it’s probably day three, I’m curious to see what the State’s going to come back with.

[11:18] Colin Miller: Hi, this is Colin Miller. Obviously, I’m not up in Baltimore watching the proceedings, so with the caveat that my impressions are based upon second- and sometimes third-hand information, here are my takeaways from the first day of the re-opened PCR proceedings:

Number one, precedent across the country holds that an attorney cannot make a strategic decision against calling an alibi witness at trial without someone from the defense team first contacting that alibi witness. It seems to me that the Deputy Attorney General is trying to argue against that precedent in two ways: the first is to claim that the Asia library alibi story conflicts with what Adnan told the police. The problem with that is, it’s not a new argument, and it’s not an argument supported by the documentary evidence in the record.  If you look at all the State’s briefs, they cite to the testimony by Detective O’Shea. Problem is, Detective O’Shea’s testimony does not support the notion that Adnan told a contradictory story. Here’s the testimony:

Question: And what, if anything, did the defendant say at that time?

Answer: We basically discussed his friendship with Hae Lee and the fact that they had dated at one time. I also asked him about whether or not he had seen Hae Lee the day of the 13th, the last day she was seen. He said he was in class with her that day from, I believe, it was 12:50 p.m. to 2:15 p.m. He did not see her after school because he had gone to track practice and, basically, that school was closed the rest of that week—would’ve been Thursday and Friday—due to bad weather.

So, basically, the State’s claim is Adnan told police he had remained at Woodlawn High School after school, which conflicts with the story that he went to the Woodlawn Public Library between the end of school and the start of track. Well, as you can see from the testimony, Adnan never said that. He simply said he went to track after school. He never said he remained on the school campus.

And that’s even taking it for granted that the two are distinct locations, the high school and the library. We know that Krista has submitted an affidavit in this case, and that affidavit says Woodlawn students consider the public library part of the campus.

Putting that aside, though, the key in this case, in these proceedings, to me would be: can the Deputy Attorney General produce any documentary evidence or testimony indicating that Adnan’s story to the police was in any way inconsistent with seeing Asia at the library on January 13th?

The second argument the Deputy AG seemed to try to make against the alibi argument is that, he said recently he was able to see the defense files. In there, there was a document showing Adnan’s email address and password. Adnan’s story is that he saw Asia at the library while he was checking his email, and so the Deputy AG is trying to claim, basically: well, she had the password, she had the email. She could’ve checked it, and if there were no activity that would contradict the alibi story.

Couple of responses: first, despite the claim by the Deputy AG, this is not a new document. This was included all the way back in 2010 in the initial post-conviction review petition by Adnan’s attorney. The notes being referenced are those notes taken on July 13th by Gutierrez’s law clerk-slash-student when he visited Adnan in jail, and… sure, it’s possible that Gutierrez checked the email and saw no activity. That said, I have questions about whether she actually ever saw the clerk’s notes. If she did, based on the nature of her investigation, or lack thereof, in this case, including witnesses like track teammate Will never being contacted, serious doubts about whether she checked the email.

Even if she did, though, the lack of activity on the email account, that certainly would not be evidence enough to obviate the need to have someone on the defense team contact Asia McClain. And that’s a big part of what happened in the testimony this morning. There were a couple of witnesses who were called. William Kanwisher, he worked for Gutierrez and left the law firm in early 1999. He basically testified consistent with what we said in the “Tina” episode of Undisclosed, that Gutierrez’s performance started declining in the mid-to-late 90’s. She was dropping a lot of balls. She was late on a lot of work.

And, according to Kanwisher, the fact that Asia McClain was not on the alibi notice means that Gutierrez didn’t investigate her. And, according to Kanwisher as well, consistent with case law, it couldn’t have been a strategic decision for Gutierrez to fail to contact Asia McClain. You can’t make that decision not to call an alibi witness without first having someone on the defense team contact that alibi witness.

[16:12] Rabia Chaudry: Hi, it’s Rabia again. So, I spent much of my day just kind of wandering around the halls of the circuit court because I was sequestered and spending some time at Dunkin’ Donuts. Um, but I was on social media, as many of you could see, so I kind of got to follow what was happening in a way because of, um, the media that was, uh, being able to tweet and share stories of the different witnesses that were testifying.

So I do kind of know what happened, and obviously, um, you know, I’m with family and friends, and without particulars, they’re kind of telling me that things seemed to go well and Asia McClain is… did very well on direct, but on—and now she’s being crossed, but they’re going to pick it up tomorrow morning. Um, I’m just very happy. I cried a lot of happy tears to know that she did do very well. She was solid. And, you know, all these years we waited for her to take the stand has been worth it, I hope, because people can see, um, how credible she is and how she’s stood by her story.

So, um, we look for—I look for—I’m still going to be here for the next couple of days, and apparently, what happened was, Justin raised, um, an objection to having me sequestered. Uh, the judge did not rule on it. He tabled it, so it’s still possible that maybe after Asia testifies, the judge will allow me back into the courtroom. That will be great. If not, I am still going to be here. I’m not going anywhere. Um, and we’re going to continue to update you live every single day… uh, on this special little broadcast of Undisclosed. Thanks for joining us.