In his opening Justin was concise and clear. There were only two issues to consider: whether it was ineffective assistance for Gutierrez to fail to contact Asia McClain, and was the failure of the inclusion of the fax cover sheet with the cell phone records either a Brady violation by the State or ineffective assistance of counsel by Gutierrez.
An important thing to understand about the standard of ineffective assistance is that it’s not enough that Gutierrez failed to do what a reasonable attorney would do; we also had to demonstrate that her failure had a material impact on the outcome of the case.
Justin made a succinct argument that both issues could have changed the course of the trial.
The judge turned to Vignarajah and asked him to proceed. Vignarajah turned, looked straight at me, and then said to the judge that he had a preliminary matter to first attend to—he wanted all potential witnesses sequestered. Namely, me.
Justin objected, saying I was not a potential witness; he had no intention of calling me. Vignarajah, however, apparently did. He argued that he reserved the right to call me as a witness and as such I could not be present during the hearing. Judge Welch agreed.
I rose slowly, staring daggers into Vignarajah’s back. I knew he wasn’t going to call me; this was personal, a cheap ploy to get me back for what I’d written about him.
I walked past rows of friends, family, and community, all frowning at this new development, and took a seat outside the courtroom at the end of a long, marble hallway. I wasn’t there alone, though. About an hour after I got kicked out of the courtroom Asia walked past me, holding her husband’s hand.
She was as beautiful as I remembered her. Tall, immaculately dressed, bright, bold red lipstick, pregnant and glowing. We looked at each other and she smiled warmly. I wanted to hug her but instead smiled and looked away, tearing up a bit as the importance of the moment hit me, and then I watched her walk far down the hall and sit next to the courtroom to wait to be called.
After a bit of moping I headed across the street to a Dunkin’ Donuts. By the time I settled in with some coffee and a donut, I had hundreds of tweets and messages waiting for me.
“Rabia got kicked out!”
“Why were you sequestered, what does that mean?!”
The media had reported it, so people were confused and many were as angry as I was at this dirty move. But I had gotten over it pretty quickly because I figured that not only could I do more damage to the State outside the courtroom, where I could use social media, but my presence wasn’t going to make any difference to Adnan’s case anyway, and that’s what mattered.
When I had left the courtroom, Judge Welch had instructed me not to talk to any other witnesses. But he hadn’t said anything about staying off of social media.
So I kept my eyes peeled for media reports. While they couldn’t report directly from the courtroom, they could sprint down to the media room to tweet updates, which they did.
I also had the bright idea that if there was anyone who could find case law to get me back into court, it was Colin. And like clockwork he found Maryland case law that should have allowed my presence in the courtroom, so Justin renewed his objections repeatedly, offering Colin’s findings. The judge didn’t buy it.
I spent the next four days following the hearing from a corner in Dunkin’ Donuts, but I knew exactly what was going on with each witness, thanks to nearly in-time tweets. The hearing couldn’t have gone any better for us, or much worse for the State.
* * *
After Justin’s opening, Vignarajah laid out his case, and it was no surprise.
He argued that Gutierrez was not ineffective in her representation of Adnan because she strategically decided not to contact Asia. It was not an oversight; Gutierrez felt that Asia would damage her case. How on earth could she do that? Well, he argued, Gutierrez’s “intuition” would have alerted her to the shadiness of Asia’s letters, the discrepancies in them, even how they contradicted Adnan’s own accounts of his day. They were “red flags” to Gutierrez, a seasoned defense attorney who would have avoided contacting such an unreliable witness.
Framing the failure to contact Asia as a tactical decision was an important argument, because it was essentially what the judge had stated in his previous denial. The distinction is important; under the law a court cannot second-guess a lawyer’s strategy. If Vignarajah could convince the court, again, that the failure to contact Asia wasn’t a mistake but a choice, he would win on that issue.
On the fax cover sheet he argued that this issue simply had no merit. There was no Brady violation; how could there be when Gutierrez clearly had the fax cover sheet in her files? And he had the files, all of them, because he had won a motion in court to get them. Normally defense files are privileged, protected, confidential information, but because they had been shared with Susan, Colin, and me, Adnan had waived privilege. So Vignarajah got to sort through them.
None of this mattered, though, he said. Because in the end there was overwhelming evidence to convict Adnan of strangling Hae “with his bare hands” and burying her “in a shallow grave.” He had a great lawyer, but even a lawyer as competent as Gutierrez couldn’t overcome the evidence against her client. Adnan was convicted not because he got a poor defense but because “he did it.”
After both sides opened, Justin called his first witness, Phil Dantes.
Dantes was a long-time friend of Gutierrez but even more importantly, he was her lawyer, both when she was fighting for admission to the bar and then many years later when she was disbarred. Vignarajah objected to nearly everything Dantes was there to testify to, namely Gutierrez’s health and her disbarment, arguing that it was irrelevant. Over his many objections to Dantes’ trying to explain how sick Gutierrez got, including the odd assertion that bringing up her health issues “attempts to prey on the stigma that attaches to illness,” Judge Welch decided he would give Dantes’ testimony the “limited weight” it warranted.
Gutierrez’s declining health and the financial issues that led to her disbarment seem to me directly relevant to her condition when representing Adnan, but Vignarajah was successful in keeping out most evidence of these things, including her record with the Attorney Grievance Commission.
On cross, Vignarajah asked Dantes if he was aware that Gutierrez was hale and hearty enough to cross-examine Jay Wilds for a week. Dantes responded with “the shorter the better,” indicating that a week-long cross-examination was actually an indicator of her incompetency.
Next to the stand was Bill Kanwisher, an unwilling witness whom Justin compelled to appear.
Kanwisher was hired as Gutierrez’s assistant in 1997 and they later became close friends. While he had eventually left the firm because he couldn’t deal with her increasingly erratic behavior, saying she was “hard to work with, hard to deal with,” he still loved and respected her. It wasn’t easy for him to revisit that time.
But, over many frequent objections by Vignarajah, he did. Kanwisher testified to Gutierrez’s decline, how he saw she was in pain, that she often shoveled tremendous amounts of work at him and others, and that she was managing the firm’s finances badly. On Asia, he stated firmly that there could have been no tactical decision by Gutierrez to leave her off the alibi notice given to the State before the trial.
Vignarajah objected and the court sustained, striking Kanwisher’s testimony about Asia.
At this point the prosecution moved to submit two binders, A and B, into the records. The binders were the State’s collection of defense files, and Justin hadn’t seen them before. He had no idea what documents they contained and didn’t know how they were organized, so he objected. The court withheld making a decision on the objection, though, and they continued with the cross-examination of Kanwisher.
On cross, Vignarajah asked Kanwisher if an attorney would avoid notifying the State of “bad witnesses.” Kanwisher responded yes. Vignarajah then asked a series of questions illustrating the many reasons Gutierrez may not have contacted
Asia: that she put the defendant in a location that implicated him, that her letters contradicted Adnan’s statements, and that perhaps cameras at the library showed Adnan wasn’t there.
But Kanwisher pushed back on all of those reasons, saying that he would still investigate the alibi before making a determination that a witness is good or bad, and that witnesses (and clients) sometimes get things wrong or forget, but it doesn’t mean you don’t even contact them.
Vignarajah ended by asking Kanwisher if he was being paid to testify.
Kanwisher responded no, that he’d rather not be there at all.
Then, at the end of day one, the witness everyone had been waiting for was called to the stand—Asia McClain.
From every report I was able to glean in the outside world, Asia radiated credibility. Journalist Amelia Parry noted in an article on TheFrisky that Asia “was poised, endearing, funny, smart, and very, very clear about what she has known and SAID for the last 15+ years.”
Asia recalled January 13, 1999, and its aftermath as she always had: seeing Adnan in the library, visiting his family with her ex-boyfriend Justin Adger after Adnan was arrested, then reaching out to him through two letters but never hearing back. Justin went through her letters line by line, asking her to explain what she meant, what the clip art meant, and why she wrote what she wrote. She recounted my visit to her, and that I asked her if she would mind writing down what she remembered in an affidavit. She also testified to her conversation with Urick, the one she had after our private investigator had contacted her prior to the first PCR.
As luck would have it, Asia is an incredibly fastidious person. She saves, as she said on the stand, “everything.” Including a hall pass from high school, which she brought to court with her to show exactly how carefully she kept track of things. And she had kept track of her call with Urick too, having taken notes during it, which were entered into evidence.
She had initiated the call because she wanted to find out what really happened in the case. She felt the prosecutor would be an “unbiased source, the good guy, the white hat.”
She had lots of questions for him and wrote down all his answers. The notes read, “Bunch of witnesses ready to testify that he was @ mosque backed down after cell records. Brown is BS. Adnan lawyer not incompetent despite health issues ← No case. Plea bargain → Jay helped bury the body & testified. *Cell phone records @ time came from burial area of body.”
She also wrote down a direct quote from Urick, “If I had had any doubt that Adnan didn’t kill Hae, it would be my moral obligation to see that he didn’t serve any time.”
Asia explained that Urick told her Justin Brown was trying to “play” and “manipulate” the court system in order to win an appeal, because Adnan had exhausted all other avenues. “He killed that girl,” he told her. And she believed him, which is why she never contacted the defense team.
But after hearing Serial, she was “in shock.” She was confused by what she heard and it “weighed heavily on her heart,” because she realized for the first time that her recollection of January 13 had a direct impact on the case, and that her failure to show up at the initial PCR hearing allowed Urick to misrepresent her. While Urick had said in his Intercept interview that their conversation lasted five minutes, she said it lasted thirty-four minutes because she had the bill. He had spent a considerable time convincing her of the strength of the case against Adnan, never once mentioning the importance of her testimony to the case.
Once she realized the gravity of the situation she contacted Justin Brown, retained her own attorney, and prepared a new affidavit for the court.
On cross-examination, which spilled into the next day, Vignarajah opened up by asking her about Sarah Koenig.
“Serial’s pretty good, right?”
“Sarah Koenig’s good at what she does, right?”
“It’s entertainment, right?”
He then went over her letters as Justin had, line by line, attempting to point out discrepancies about the timing of the letters, about how she had the information she had when she wrote them. He was implying that Asia could not have written the letters in the immediate days after Adnan’s arrest—she had too many details. He asked what the name of the jail in Spokane, where she lives, was called. Asia responded, “I don’t know … I believe it’s called jail?”
Vignarajah was referring to the fact that she had used the words “central booking” in her second letter to Adnan in 1999, and was questioning how she would have known what the jail where he was being held was actually called.
The prosecutor spent a considerable amount of time asking about minute details of January 1999, getting Asia to say “I don’t know” or “I don’t remember” repeatedly.
He brought up my testimony from 2012, during which I recounted meeting her at the library. Asia, however, remembered my meeting at her house. Vignarajah asked if she was surprised that I had testified to a very different account of our meeting and she said yes.
My brother also remembered that we met at her house, but I have no recollection of it. It could be that we met there and then drove past the library on the way to getting her affidavit notarized. We were probably remembering different parts of the meeting, whatever stood out most to us. It was understandable that we weren’t recalling it exactly the same, considering how many years had passed. After all, Asia didn’t even remember that my brother was with us when we met.
After asking her what her conversation with Adnan had been in the library that day, he asked, “Would it surprise you to know that friends said Hae described him as overprotective? That friends had expressed concern over his possessiveness? Did you know that she wrote in her diary that he called her a devil?”
Asia said no, she didn’t know what was in the diary. Vignarajah pressed on, over Justin’s continuous objections, asking if she had read the diary or transcripts. He asked if she would be surprised to know that it was Adnan’s routine to go to the school library and not the public library after school, a new tactic—suggesting that Asia had in fact seen Adnan at the public library, but it was nefariously and deliberately out of his normal routine, and she was just a pawn in his plan. Interestingly, he was doing what Urick had done in their phone call—implying there was much that Asia didn’t know about the case.
His tactic throughout the cross switched between trying to show that her memory was weak, that she had made up an alibi to help Adnan, that she had written the letters to please Adnan or his family, or that her memory was correct but damaged Adnan’s case, because if he was at the library around the time she saw him, he could have flagged Hae down, who would have driven past the library after leaving school. No one had ever testified to how Adnan allegedly got in Hae’s car, but now Vignarajah was raising this scenario as a possibility.
On a number of occasions Asia was brought to tears as she recounted learning of Hae’s death. Vignarajah did, by all measure, put her through an exhaustive and exhausting cross-examination, pushing her emotionally, attacking the veracity of her testimony from all sides. It was no surprise that she ended up crying on the stand.
On redirect Justin asked Asia to revisit all the details in her letters that the prosecutor implied she couldn’t know. Then he slapped a number of Baltimore Sun articles, written before her letters had been sent to Adnan, onto the overhead projector. In one article about Adnan’s arrest, the words “central booking” loomed large.
Justin bellowed, “How could someone have known the words CENTRAL BOOKING?” He was clearly exasperated that every detail in her letters was already public information, and that Vignarajah was grasping at straws to make the letters appear suspicious.
The rounds of redirect, re-cross, re-re-direct, and re-re-cross went on, but they ended after Justin asked whether Vignarajah had ever contacted Asia to talk about what she knew, to which she responded that her attorney had made it clear she was available for questioning but the prosecutor never contacted her.
Vignarajah came back with
a single question.
“Isn’t it true the last time you spoke to a prosecutor, you issued an affidavit calling him a liar?”
Despite the tenacity of Vignarajah’s cross-examination, the only thing that mattered was what Asia did know for certain: on January 13, 1999, she was with Adnan at the public library until roughly 2:40 p.m.
Having presented Adnan’s alibi witness to the court, Justin switched gears and moved to the cell phone evidence. He called Jerry Grant, an expert in cellular phone forensics and historical cell site analysis who works with the Innocence Project.
Before testifying, Grant had reviewed the testimony of Abe Waranowitz, the State’s closing arguments from 2000, including all of the cell records, both those introduced and not introduced into evidence during the trial, and he had also spoken to Waranowitz before the hearing.
On direct examination Grant testified about how the cell evidence was used during the trial. He explained that the State had used the cell tower coverage areas to determine where Adnan’s phone was; in other words, they relied on the entire sector covered by a cell tower that was pinged and placed Adnan in a location inside that sector.
Justin asked Grant to take a look at Exhibit 31 from the trial, five pages long, consisting of an “authentication” document from AT&T, the last page of a fax from AT&T noting the account details, and three pages of Adnan’s call records from January 12 and 13, 1999, with cell site information visible.
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