Tuesday, November 17, 2015

Following up on yesterday's post, this post will explore how Cristina Gutierrez handled all of the potential alibi witnesses at B trial.

1. Becky: Becky tells the police that, on January 13th she saw Adnan and Hae walking in opposite directions at the end of school, with Hae telling Adnan that she couldn't give him a ride because she had "something else" to do. At trial, Gutierrez calls Becky as a defense witness and elicits testimony from her that she saw Hae heading to the door that led to her car seconds after school ended, with Hae saying that she had somewhere that she needed to be after school and that she had to leave. Somehow, Gutierrez does not elicit from Becky at trial the vital information that Hae was heading to the door that led to her car (1) after telling Adnan that she had "something else" to do; (2) as he was walking in the opposite direction.*

2. Asia: Asia writes Adnan two letters which indicate that she recalls seeing him after school in the Woodlawn Public Library on January 13th. Those letters also state that there were two other individuals with her in the library who could have corroborated this alibi defense; one of the letters has Asia's phone number. Adnan tells Gutierrez about Asia, prompting her to write an undated note [Exhibit 4]; Adnan also tells Gutierrez's student/clerk about Asia, prompting him to write a note on July 13th [Exhibit 3]. Asia says that she was never contacted by anyone from the defense team.

3. Debbie: In her March 26th police statement, Debbie initially says that she's positive she saw Adnan at the guidance counselor's office at 2:45 P.M. on January 13th and talked to him about track practice. Upon prodding by the detectives, she says that it could have been the day before or the day after, but there was track practice on neither of those other days (1/12 was a track meet, and school was closed on 1/14). At Adnan's first trial, Gutierrez gets Debbie to testify that she remembered telling the detectives that she saw Adnan at the guidance counselor's office at 2:45 P.M. on January 13th. At the second trial, Debbie tells Gutierrez that she does not remember telling the detectives that she saw Adnan at the guidance counselor's office at 2:45 P.M. on January 13th. Gutierrez makes no effort to refresh Debbie's recollection with her March 26th statement and makes no effort to admit the statement as an exhibit despite the fact that it qualifies as nonhearsay under Maryland law.

4. Coach Sye: Coach Sye tells the detectives that he recalls talking to Adnan at track practice toward the end of Ramadan on an unusually warm day in January where the temperature was in the 50's; Sye also remembers Adnan arriving and leaving on time on the day in question. A quick check of the weather reveals that this day only could have been January 13th. Gutierrez calls Sye as a defense witness at trial. At trial, Sye indicates that he has no way of knowing whether he saw Adnan at practice on January 13th. Gutierrez makes no attempt to use signposts (days of Ramadan, January weather) to establish that Sye recalled seeing Adnan on January 13th.

5. Track Teammates: Gutierrez tasks a student/clerk with compiling a list of Adnan's indoor track teammates. That clerk looks at the Woodlawn yearbook and creates an October 16th memo with eight indoor track team members who had medaled at a certain event. The memo fails to include dozens of other track teammates and fails to identify Adnan's track buddy Will as a senior. As a result, Will's subpoena is sent to Woodlawn High School despite the fact that he had already graduated.** Because there is no follow-up, Will is never contacted by the defense. I have no idea whether any other teammates were contacted by the defense; I know, at a minimum, that several other teammates were not.

6. Bilal: Bilal was Gutierrez's former client and testified before the grand jury that he recalled Adnan preparing with him at the Mosque on the night of January 13th for prayers that he would lead on January 14th. There's even a document in the defense files that consists of notes that Bilal and Adnan went over in anticipation of the prayers on January 14th:

Excerpt from prayer notes

At trial, Bilal is not called as a witness after he was first arrested and later disappeared. Maryland has a counterpart to Federal Rule of Evidence 804(b)(1), which allows for the admission of "former testimony" by an unavailable declarant/witness as long as the party against whom it is offered had an opportunity and similar motive to develop his testimony. Because the State called and questioned Bilal before the grand jury, this exception should have applied, but Gutierrez made no attempt to admit Bilal's former testimony as an exhibit.

7. Adnan's Father: Adnan's father was called by Gutierrez and did testify that he remembered seeing Adnan at the Mosque on January 13th. It's kind of hard to see the ball being dropped on this one. That said, familial alibi witnesses aren't usually given much weight, so it's easy to see the jury not placing much importance on his testimony.

8. Other Mosque Members: Adnan's alibi notice lists 70+ other Mosque members. This wasn't a list generated by the defense; it was a list provided by Adnan's family. Many of these Mosque members have indicated that they were never contacted by the defense. I would love to do an accounting one day of how many of these Mosque members actually were contacted by the defense. I bet that I could count the number on one hand (maybe two).

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*When Becky was shown her statement to detectives by Sarah Koenig, she said, "Okay. Yeah that sounds right. It kind of all comes back a little bit." Krista could have corroborated Becky's statement, but the defense sent her subpoena to the wrong address and zip code. Aisha also ostensibly could have corroborated Becky's statement, but the defense apparently never asked her what Hae said to Adnan at the end of school.

**A subpoena for an assistant coach was also sent to the wrong place, but I don't think he had any recollection of whether he saw Adnan on January 13th. The defense notes also imply that another assistant track coach who could have been an alibi witness was never contacted.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/11/following-up-on-yesterdays-post-this-post-will-explore-how-cristina-gutierrez-handled-all-of-the-potential-alibi-witnesses-a.html