Grant was asked if cell companies generally send instructions on how to read cell phone records along with the records themselves, and he responded yes, explaining that instructions varied between companies and also changed with time. He testified that as an expert he relied on such instructions.
Justin then showed Grant another set of cell records from the case file, which included a fax cover sheet from AT&T that stated incoming calls were not reliable for location status. The cover sheet was attached to a set of records titled “Subscriber Activity Reports.” The title appeared on the first page. The last three pages of the document, which did not have the title, were the same three pages that appeared in Exhibit 31.
In 2000, when the State had given Waranowitz Exhibit 31 to examine right before he testified, they had not only removed the fax cover sheet but also removed the first page of the cell records that showed these were “Subscriber Activity Reports.”
That was how Gutierrez also had them. Neither she nor Waranowitz had any way of knowing that this particular instruction on incoming calls and location status applied to the records the State was using to make their case against him.
Waranowitz had already submitted an affidavit that, had he seen the fax cover sheet, it would have impacted his testimony. What the State didn’t know was that on day two of the hearing Waranowitz was on his way to Baltimore, ready to testify to this exact fact.
Grant testified that had he been given the instructions in the fax cover sheet, they would have factored into his analysis and he could not have plotted the calls without more information from AT&T. With the records in evidence, you simply could not pinpoint the location of the phone.
On cross, Vignarajah attempted to raise doubts about the cover sheet in every way imaginable. Susan, who took copious notes throughout the hearing, wrote, “Thiru went everywhere. Thiru tries to emphasize that AT&T is somehow a magical, unreliable unicorn.”
Vignarajah tried repeatedly to point out that never before had instructions on a fax cover sheet been used to rebut the usage of records at trial, that such a claim had never been raised by an attorney before, not realizing that Maryland courts had actually granted a new trial in a 2014 case, State v. Payne, in which instructions had similarly been withheld from the cell expert.
Justin, on redirect, simply asked Grant if he had ever heard of an expert not being provided instructions on how to read their data. Grant said no, never.
On re-cross Vignarajah asked Grant if he knew of any reason why incoming calls wouldn’t be reliable for location, and as Grant began to give an answer, he was abruptly cut off by the prosecutor, who proclaimed, “Do you want to know what the actual answer is? Be here tomorrow to hear our witness, and THEN you’ll find out!”
Justin breathed a sigh of relief, because Grant had narrowly avoided spilling the beans on evidence Justin was planning to use to nail the State’s cell phone expert, who would be testifying the next day.
* * *
Day three began with brief testimony by Justin’s private investigator, Sean Gordon, who had been tasked with contacting every person on Gutierrez’s 1999 alibi notice that she had given to the State, to find out if she had actually been in touch with any of them.
Gordon was able to contact forty-one out of eighty-three, and only four had ever been contacted by Gutierrez’s defense team. Not a single one had been asked to be an alibi witness. A number of them had been members on the track team, which Justin showed Gutierrez’s law clerk had pulled directly from the yearbook roster, a number of whom had been subpoenaed. The problem was that Gutierrez had sent the subpoenas to the school, and most of them had already graduated from Woodlawn by the time of the trial. The only one to get the subpoena actually went to the court on the date he was summoned but was never called to testify. He told Gordon he wasn’t ever asked a thing, and he had no idea why he was on the witness list at all. In fact, all the track members Gordon was able to contact told him the same thing—they had never been contacted by Gutierrez.
On cross, Vignarajah pointed to memos from the defense files, noting the names of potential witnesses, but Gordon responded that just because their names were mentioned doesn’t mean they were actually ever contacted. And like Kanwisher, he was asked if he was paid for his work and how much he was paid, which drew two objections, one from Justin and one from his partner Nieto. The judge called them to a bench conference, and after a few minutes they returned to the hearing.
Vignarajah again asked, “How much were you paid for your work?” and Justin loudly objected, saying, “We just talked about this, your honor!” The objection was sustained and the prosecutor moved on.
On re-direct Justin showed Gordon a twenty-four-page spreadsheet for Gutierrez’s defense witnesses. Of all the witnesses listed on this spreadsheet, only a single name on that list appeared on the alibi notice she had given to the State—my brother, Saad. Neither the spreadsheet nor the alibi notice included Asia. And the spreadsheet oddly contained the names of Kevin Urick and State’s Attorney Patricia Jessamy, neither of whom was called by the defense at trial, of course.
Gordon’s testimony clearly showed that Gutierrez’s trial preparation was disastrous.
Next on the witness stand was former Woodlawn public library manager, Michelle Hamiel.
She established that in 1999 the library did indeed have a video surveillance system, and as a matter of routine the video tapes were changed every morning, with one tape for each day of the month. At the end of the month the tapes were re-used. The video camera system was important because, according to Asia, she had inquired at the library about them after Adnan was arrested and confirmed they existed. There was no evidence in the defense files that Gutierrez had ever attempted to contact the library about the footage.
Hamiel was also asked if the library had security guards and she responded affirmatively, saying that there was a lot of chaos at the end of the school day when dozens of students would rush over. There was a “constant stream” between two and three o’clock, and the guards were supposed to help keep order.
Vignarajah’s cross attempted to establish that she may have been wrong on the dates that the library had installed cameras. Hamiel stood firm. The cameras were her charge; she managed them. She knew for a fact that in 1999 cameras existed in the library.
Next, the prosecutor made a move he probably immediately regretted—he asked her about the security guards. Hamiel caused laughter in the courtroom when she responded that the guards were mostly a deterrent, so useless they were called “two-and-a-halves” because police were called “five-o’s.” She particularly remembered the single guard who worked there in January of 1999, who she dubbed “Useless Steve” because she did more security work than he did.
On re-direct Nieto referred to “Useless Steve” a couple more times, asking Hamiel if she knew whether he had been questioned in the case in 1999, to which she responded, “No.”
At the time, none of the court spectators knew that Useless Steve would soon be called as a State’s witness. Vignarajah could not have been pleased with the way his witness had already been undermined.
Justin then called his final witness, attorney David Irwin.
Irwin is a legend in the Maryland criminal defense world. A former prosecutor in Baltimore City and County, he had gone on in private practice to represent defendants in high-profile cases, including Linda Tripp, the woman who had secretly recorded White House intern Monica Lewinsky’s conversations.
Judge Welch, it seemed, knew and respected him too, engaging in friendly banter when he first took the stand.
Irwin was there for one purpose, to testify as a legal expert that Gutierrez had made a fatal decision in failing to contact Asia, and that under no circumstance was her failure a legal strategy.
Irwin had watched Asia’s testimony, since experts don’t have to be sequestered, and he was floored by it. He recounted when he once lost a case because his client’s alibi witness wasn’t credible.
&n
bsp; Since then, he said, he had been looking for an Asia McClain.
He testified that attorneys have a duty to “promptly investigate to the best of their ability” every single potential witness. Only after investigating could an attorney make a strategic decision about whether to call a witness to trial or not. There was simply no way a strategy could be decided before every witness was contacted and interviewed.
Irwin had reviewed all of Asia’s documents and said he found them “powerfully credible.” He said her memory would have been even stronger in 2000, and that if she was a diamond now, she would have been a diamond in the rough back then.
At that point, the State made the unusual move of requesting to cross-examine Irwin the following week. It was Friday, and the State had their own very important witness to present, who wouldn’t be available the following week.
Justin and the court agreed, and Vignarajah called his first witness, FBI cell phone expert Chad Fitzgerald, to the stand.
As part of the FBI’s Cellular Analysis Survey Team, Fitzgerald has testified in dozens of cases involving this technology, most infamously in the trial of Dzhokhar Tsarnaev, one of the “Boston Bombers.” In that case he testified that he could track the exact cell phone locations using past data, but this claim was roundly shot down by other cell experts who said no such thing was possible, some critics calling it pure “junk science.”
Fitzgerald was here to bolster the State’s claim that Adnan’s cell phone could have been tracked using the data provided to Waranowitz in 1999, and that the fax cover sheet was irrelevant to the case.
First, though, he explained how he had prepared to testify. He had spoken to Vignarajah for two hours previously, and in the past two days they had spoken for twenty minutes. He’d also reviewed the cell phone records in the files and said he was familiar with the fax cover sheet and the three pages attached to it, which he called a CDR, or a Call Detail Record. He said he didn’t pay much attention to fax cover sheets; they were mostly identical, and he had stacks of them.
He had also reviewed Waranowitz’s testimony and came to the conclusion that his analysis in 2000 had been “fully thorough,” that it was “pretty good work.” He saw no errors in the cell tower locations and agreed with Waranowitz on which towers were pinged by the phone.
Then the prosecutor asked what the fax cover sheet applied to, and Fitzgerald responded that it did not apply to CDRs, the documents in Exhibit 31; instead it applied to a different set of records AT&T had supplied on February 17, 1999.
Vignarajah pulled out a number of massive foam boards with partial call records blown up and asked Fitzgerald to highlight portions as he testified about them.
He went through the instruction sheet key, which has various instructions on the different columns in a subscriber activity report, and made the case that the instructions don’t match up to the CDR. They match up to the February 17, 1999, records, which are subscriber activity reports.
Vignarajah then asked him why the words “subscriber activity report” appear on one page of the documents he is referring to as CDRs, and if that changed his opinion.
Fitzgerald responded no, you couldn’t match up the cover sheet to the documents in Exhibit 31. In essence, the fax cover sheet was irrelevant, so even if Waranowitz had seen it before testifying it wouldn’t have made a difference.
But then what, asked Vignarajah, did the language on the fax cover sheet mean? This was the moment he had told Grant to wait for, the answer to the vital question.
It had nothing to do with cell towers, Fitzgerald said. It had to do with the location of regional network “switches,” and not the location of the phone. When a phone was shut off and had traveled out of its “home” area, an incoming call could hit the “home” tower and not a tower where the phone had traveled to. This was the first time such a theory had ever been floated in the case, but it still meant that the incoming call information couldn’t help pinpoint a phone’s actual location.
Justin caught this when he cross-examined Fitzgerald and he also caught something else. He led Fitzgerald to testify that he had first spoken to the prosecutor around January 4 or 5 and received the cell phone records a week later. But the State had filed its “expert disclosure,” a statement telling the judge what their expert was going to testify to, with the court before Fitzgerald had ever seen the documents.
He admitted he had not written the disclosure or even reviewed it, and then, flustered, said that he had a pretty thorough conversation with Vignarajah and agreed with what he told him Waranowitz had testified to. Again, Justin emphasized, this was before he had ever seen any of the cell evidence.
Was it possible, Justin asked, that the disclosure was not his opinion but Vignarajah’s opinion, and he had been asked to go along with it? Fitzgerald said no.
Justin moved on to catch Fitzgerald in another bind: he asked him what, if anything, Waranowitz got wrong in his testimony. Fitzgerald responded that Waranowitz had mistaken Adnan checking his voicemail with an incoming call that went to voicemail on January 13.
The rub here is that Waranowitz got that detail wrong because he didn’t have the fax cover sheet, which clearly indicated how to tell when a subscriber is checking voicemail.
In other words, Justin got Fitzgerald to admit the saliency of the fax cover sheet to understanding the phone records.
Then a rather unbelievable exchange took place. Justin told Fitzgerald that the title of the records in Exhibit 31 was “Subscriber Activity Report,” meaning the fax cover sheet applied to it. Fitzgerald responded that it was a CDR. Justin then pulled up a sheet that had been missing from the Exhibit itself, the first page of the cell records that should have been right after the fax cover sheet, and the sheet had written across the top: “Subscriber Activity Report.”
He asked Fitzgerald to read it out loud.
Fitzgerald wouldn’t do it.
Over and over Justin asked Fitzgerald to read the top of the page. But Fitzgerald wouldn’t budge. The judge could have ordered the witness to answer the question but didn’t. Frustrated, Justin moved on to the issue that Grant had almost spilled during his testimony.
He pulled up a page from Adnan’s phone records that showed two incoming calls, twenty-seven minutes apart. The first call pinged a tower in Baltimore and the second one pinged a tower in Dupont Circle in Washington, D.C. They are forty-three miles apart, and from Dupont Circle it takes a good thirty minutes just to get to the outskirts of the capital and head to Maryland.
How, asked Justin, could Fitzgerald explain these two towers pinged twenty-seven minutes apart? Did Adnan have a helicopter? he asked.
Fitzgerald floundered and said he didn’t know, maybe it was a switch issue again, maybe the phone pinged a subway tower, but he would have to do some research. He wasn’t about to give Justin the answer he was looking for.
As objections flew from Vignarajah, and Fitzgerald refused to answer Justin’s questions, the unhappy-looking witness suddenly raised his voice and made a dramatic declaration.
“I just found something! I want to speak to the judge!”
Judge Heard, probably tired of the theatrics, called it a day.
* * *
I was following it all online, and when the hearing adjourned on Friday I rushed over to the courthouse. The group looked a bit shell-shocked.
We gathered outside the courtroom, quietly buzzing. Susan looked alternately angry and frustrated. I was dying to pick her brain, but I knew they had been told not to speak to witnesses about the case.
Inmates who were brought for proceedings were led into the basement of the courthouse from an entrance on the right side, catty-corner to the Dunkin’ Donuts where I had been camped out. We knew a van would pull up and Adnan would be quickly escorted out of the building and into the waiting vehicle. We wanted him to see us all there for him, so we huddled together in the cold across the street from the door where he would come from, waiting.
Media crews were also there,
and after almost an hour Adnan finally appeared in the hallway behind the door. Everyone began waving, calling his name. He could hear us before he even came out.
The guards were kind. They let him walk out slowly so he had a chance to see us all. It was the first time I had faced him outside of a prison since the last PCR hearing. His face lit up and he smiled broadly, raising one shackled hand in a small wave to all of us.
Yusuf, hyper from the day’s craziness, yelled, “Do you have a helicopter, Adnan?” as the guards helped him into the van. When it drove away, we heard him bellow, “Asalaamalaykum!”
We left then, and spent the weekend wondering what on earth Fitzgerald had found.
Monday began with Vignarajah complaining to the court that his upcoming witness, security guard Steve Mills, had been lampooned online all weekend. The phrase “Useless Steve” had become a meme, and someone online had begun selling T-shirts imprinted with the phrase, the proceeds of which she pledged to Adnan’s legal fund, though we had nothing to do with the production of the shirts. Vignarajah claimed to the court that defense was selling the T-shirts, that his witness was being cyberbullied, and that his name must be kept confidential.
It was unheard of for a witness to testify anonymously. Justin vigorously objected, pointing to the hypocrisy of a press conference Vignarajah gave over the weekend in which he publicly attacked Asia’s credibility.
Nonetheless, Vignarajah got the court to agree to allow his witness to appear on the record only as “Officer.” The prosecutor also raised the issue of Fitzgerald and his discovery. His witness, he said, was “concerned and frankly a little indignant.” He wanted a chance to address something of utmost importance.
Fitzgerald took the stand again.
Right out of the gate, he came at Justin.
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