The evidence he had been given to examine on the stand, he said, had been manipulated. There were “a lot of missing things.” He was accusing Justin of cross-examining him using documents that had been tampered with, not a slight charge against an attorney in the middle of a hearing.
“You were trying to sway my testimony,” Fitzgerald seethed.
Justin, calm as ever, said, “Right, right,” and asked him if he thought the document was useless. Fitzgerald evaded answering and instead said he was offended that Justin had handed him manipulated evidence to try and trick him.
“I think you got caught in your game,” he said to Justin.
Justin ignored the insults and instead went round and round with him, trying to pin him down into admitting the document was a mess, nearly impossible to understand because it was missing information. Finally he landed his blow.
The document given to Fitzgerald was the same document the State had given to Gutierrez in 1999. The manipulated documents, which had entire columns of data chopped off, weren’t created by Justin. They were created by the State.
On re-direct by Vignarajah, he got Fitzgerald back to the helicopter call problem, and Fitzgerald began fleshing out the subway theory he had raised on Friday. Vignarajah asked if it was possible that someone could drive from Baltimore to drop a friend off at Glenmont, the last stop on a line that ran through Dupont Circle (which happened to be closer to Adnan’s home), in twenty-seven minutes and ping the Dupont Circle tower. Fitzgerald responded that it was theoretically possible, though in reality it is not because (surprise) there weren’t any AT&T towers in the D.C. subway system until the early 2000s.
After another round of re-re-cross and re-re-direct, Agent Chad Fitzgerald was finally released from his misery.
David Irwin got back on the stand to start where he had left off, being cross-examined by the State.
On cross, Vignarajah engaged in a lengthy game of hypotheticals. He asked Irwin about dozens of different scenarios in which an attorney may or may not have a duty to investigate a witness—whether he would contact a witness who may be a gossip, may be weak, may be damaging to your case, may be lying, may be “playing both sides”—on and on it went.
Finally, out of frustration, Irwin responded that if there was a witness on a space station who said they saw his client in a library, he wouldn’t be constitutionally mandated to call NASA, but he’d at least get his law clerk to verify the witness wasn’t on Earth. The courtroom erupted in giggles.
Irwin went on, saying he had been with the FBI for twelve years but wasn’t like “that last witness was with Brown.” He was going to answer all of Vignarajah’s questions but he wasn’t going to give him the answer he wanted, because no matter how many scenarios the prosecutor threw at him, the answer was always yes, you still must contact the witness. At one point, as the hypotheticals kept coming at him, Irwin said, “Stop. I said stop.”
A number of other exchanges made it clear how annoyed the men were getting with each other. Vignarajah asked him to put “theatrics aside,” Irwin shot back with “your theatrics, not mine,” and Vignarajah responded with “my theatrics, you’re just funny.”
“Right,” said Irwin.
Finally, Irwin had enough. He launched into a soliloquy, saying it was mandatory for the defense team to speak to Asia, a credible, unbiased alibi.
“You keep talking ‘strategy.’ You’re begging the world to believe that Cristina Gutierrez had a strategy, but there was no strategy. You can’t have a strategy without information. A strategy is a course of action. I’m saying there was no strategy.”
Vignarajah attempted to cut him off, and Irwin shot back, “Are you finished? Tell me when I can talk.”
On re-direct Justin went over his own set of scenarios in which he asked Irwin if he would have been prevented from contacting Asia. No, absolutely not, he said. He then asked if Gutierrez was still an exceptional lawyer at the time of Adnan’s second trial.
“The jury came back in two hours. From what I reviewed, the nicest way to put it is this: she was ineffective. And constitutionally so.”
The last witness of the hearing was called to the stand after Irwin, State’s witness Steve Mills.
Despite Vignarajah’s vigorous argument to keep his name anonymous, the very first thing Mills, a stately older gentleman, did on the stand was identify himself with his full name. Officer Mills was apparently oblivious to all the concerns the prosecutor had.
A statement written by Mills a week before the hearing had been submitted to the court. Mills had spoken to Vignarajah first and then met with a detective, who showed him photos from a yearbook. He was shown Adnan’s picture as well. In his statement he said that he did not see Adnan Syed at the Woodlawn public library on January 13, 1999, and that there were no security cameras in the library either.
The prosecutor asked him if there were cameras at the public library and Mills responded, “No.” But then in his very next response he said it was possible there were cameras inside he wasn’t aware of. He also didn’t remember being questioned in 1999 about the case.
Nieto made quick work of his cross-examination. He asked about the statement, and Mills admitted he had not written it. He had only signed it. He also admitted that while the statement said otherwise, it was possible there were cameras he wasn’t aware of.
Nieto then asked him about the yearbook pictures he had been shown. They were photocopies, according to Mills, and he didn’t recognize any of the kids.
Mills is then asked, “In your statement, you told the detective that you can say for certain that Mr. Syed was not in the library on January 13, 1999, seventeen years ago. Can you say that for certain?”
“No, I can’t,” Mills responded.
Officer Steve Mills turned out to be much more useful than Hamiel had suggested after all.
At the end of four days, the PCR hearing was finally over. Justin had presented seven witnesses: Dantes, Kanwisher, McClain, Grant, Gordon, Hamiel, and Irwin. Vignarajah had presented two: Fitzgerald and Mills.
After being sequestered for four days, I was allowed to attend the fifth day of the proceedings, the closing arguments.
Justin’s closing was succinct, but he began with apologizing to the court for how heated the hearing got at times. He realized he also had gotten rather emotional and thanked the court’s indulgence and patience. Justin then walked behind Adnan and put his hands on his shoulders.
He was proud, he said, of representing Adnan. He was proud of how he had comported himself throughout the hearing with quiet dignity, not even asking for his restraints to be removed. He was proud of how Adnan had carried himself for as long as Justin had represented him.
He then made a striking illustrative point about the hearing: that two witnesses were emblematic of the entire procedure—Ms. Hamiel and Officer Mills. On one hand, like other defense witnesses, Hamiel had testified to what she exactly knew from her personal knowledge. In contrast, the State offered up Officer Mills, who could testify to nothing with certainty.
The State, Justin said, spent the entire time trying to fit square pegs into round holes, offering no facts, instead hammering away in futility.
Justin then began his substantive arguments and methodically reiterated the issues at hand: ineffective assistance at failure to contact Asia, and a Brady violation on the part of the State for the way Exhibit 31 was presented to Waranowitz, a fact that hadn’t been discovered until the previous October. He went over his witnesses and addressed the legal standards they were required to meet, citing a long list of case precedent that supported his issues. His closing lasted about an hour and was fairly concise.
Vignarajah’s closing, on the other hand, took hours, stretching from the morning into the late afternoon.
He started out of the gate tackling what he must have thought was the biggest hurdle—the publicity and public support for Adnan. He said the case shouldn’t be treated differently because of the attention it received
, and that while the State “sees the wisdom” in the higher court decision to remand the case, it was really just to “clarify” the record. He said it was hard for the State to say what it believed, that Adnan was convicted based on overwhelming evidence, because the State “is aware that this is not the most popular position.” The position Judge Welch took two years ago, he urged, was correct. Still, he said, the public hearing now could help restore faith in the system, so the public could see how fairly Adnan was convicted. He cynically applauded the support Adnan had, saying, “It is inspiring, even for the State, to see so many people come together behind the defendant. And what we see now, your honor, is that the intuitions you had, the conclusions you reached, have not been diluted by the broader record. It was reinforced.”
I was aghast. He was basically saying that COSA and the State were simply humoring the public, as if we had waited all these years to put on a show.
The arguments Vignarajah wanted the court to focus on were that there was no Brady violation, that there was no ineffective assistance of counsel for failing to raise an argument no attorney has ever raised before (again, mischaracterizing the case law on the fax cover sheet), and that there was no failure to investigate Asia.
Despite asking the court to focus, the prosecutor himself meandered throughout his closing, going from fierce defense of Gutierrez’s abilities, to suggesting I had manipulated the defense files, to accusing Chris Flohr of helping Adnan try to solicit alibi letters, to accusing Adnan’s team of smearing Gutierrez’s name, which he said categorically wasn’t fair and wasn’t “based on the record before us.”
I thought to myself, Oh, you mean the record that exists because you fought to keep out all evidence of her illness, financial conditions, and attorney grievance commission complaints?
He said that this case didn’t just turn on a witness or two, or a piece of forensic evidence or two (or none, as the record actually shows), but on a stack of evidence that convicted Adnan. He went through a recital of the “facts” of the case as he saw it, with the same spin that his earlier briefs contained, arguing that it was much more than Jay and the cell phone records that convicted Adnan. He cited the anonymous call pointing toward Adnan, the ride he asked for, and he said Hae’s diary proved that there was interpersonal violence (IPV) in their relationship.
It was all so familiar. He was not only raising the same arguments that trolls and “guilters” made on Reddit, he was even using the same language.
He said Gutierrez knew that the “offer by the alibi was not credible, in fact it was risky.” He said Gutierrez was considering the fact that some witnesses had seen Hae leave the school at 3:00 p.m. and Asia would have hurt her client, putting him at a location that Hae drove past. I marveled at this, because we all knew full well that not only did Gutierrez never see those witness statements, but also in the first trial the State had already established their timeline, that Hae had left the school immediately after dismissal.
He tried to bolster his strategy argument by putting a defense memo on the projector with Adnan’s recollections of January 13, 1999, which didn’t mention the library, and arguing that Gutierrez knew putting him at the public library was “out of routine” because Adnan never mentioned it here, and that was dangerous. It was suspicious of him to suddenly pop up at the public library on the day of his ex-girlfriend’s murder.
He also read out loud from another memo in which Hae and Adnan’s sex life was described, saying it was “relevant.” Vignarajah knew, again after all these years, how uncomfortable it would be for Adnan to have those details read in front of his family and community.
Vignarajah repeated his “Central Booking” claim and alleged that Chris Flohr attempted to help Adnan solicit an alibi through his friend Ja’uan, knowing full well that Ja’uan had submitted an affidavit to Judge Welch saying no such thing ever happened. He argued that Gutierrez was so effective and dogged that she issued dozens of discovery requests to the State while at the same time arguing that the State had an open-file policy in which they held no documents back. Susan rolled her eyes, furiously writing down notes that said Gutierrez needed to make so many discovery demands because the State refused to give her anything.
He went on for so long, again pulling out the large foam boards and reiterating there was never a problem with the cell records to track location, and there certainly was no Brady violation, that the judge asked, “Are we getting close?” pushing him to finish his closing already.
Vignarajah ended with a line that he must have regretted, laying out all the different reasons Asia’s letters were unreliable and then saying, “Asia McClain is a charming woman and there may be a kernel of her story that is credible … because the defendant may have gone to the library and met up with the victim there. I don’t know, it’s a theory.”
Justin stood up to deliver his rebuttal, forcefully reminding the court of why they were here, which wasn’t because of “dumb luck or a popularity contest.” The court wasn’t there to rubber-stamp previous decisions and somehow “restore faith in the system” as Vignarajah claimed. The court had to make determinations on real issues.
He pointed out that Urick wasn’t called to testify and rebut Asia about their conversation, and he wondered why. Then he held out a piece of paper and said here was the entire State’s arguments about Asia in a nutshell: “I don’t know, it’s a theory.”
Justin argued that none of Vignarajah’s claims came from witnesses; they came only from him.
He then slapped the July 1999 memo written by Gutierrez’s team, saying Vignarajah had just told the court that going to the library was a break in Adnan’s routine. He then read from the July memo, “Asia and boyfriend saw him in library 2:15-3:15. Went to library often.”
Justin was livid, pointing out how the prosecutor was trying to obscure and falsify facts, literally attempting to the pull the wool over the court’s eyes. Vignarajah had the entire defense file, but he picked the one defense memo that didn’t mention Asia or the library.
It was the perfect way to end the five long days.
The court thanked the parties graciously and adjourned the proceedings, saying he would issue a written opinion.
We headed to Justin’s office, where he and Nieto were holding a press conference. During the closing arguments Adnan had been hand-writing a statement, with difficulty in his shackles, to be read at the conference.
Justin’s conference room was packed with media and cameras as he read Adnan’s statement:
“I’m incredibly grateful for the opportunity to present new evidence to the court. I’m incredibly grateful for the love of my family and friends who stood by me all this time. I’m thankful for all the support and encouragement I’ve received from people all over the world. The events of the past sixteen months have filled me with a great sense of hope and I intend to keep fighting to prove my innocence.”
Abe Waranowitz, who had arrived in Baltimore the day before, sat away from the crowd, back in Justin’s office. It wasn’t until after the press had cleared out that we finally got to meet him. Though he’d flown all the way from the West Coast to testify, the court had asked Justin to have him submit another affidavit instead. It was understandable. The hearing should have taken three days but went on much longer.
I had seen Waranowitz’s trial testimony from sixteen years earlier, and in person he was as soft-spoken and unassuming as he seemed to be in the videos. He joined us for dinner on the Baltimore harbor a short while later, after we all shed some tears and gave our thanks to Justin, Nieto, and their other legal partner, Lylian Romero, for the tremendous work they’d done.
As we gathered around a table at the restaurant, Waranowitz, seated next to Aunty Shamim and Yusuf, began apologizing.
He was clearly shaken. He said he was so sorry, he had no idea that his testimony helped wrongfully convict Adnan. He looked back and forth at all of us and seemed on the verge of tears. Yusuf, Aunty, and I immediately stopped him through our
own tears, assuring him it wasn’t his fault. None of us blamed him, and we were deeply grateful for all he had done.
Now we just had to wait for Judge Welch’s ruling.
CONCLUSION
We sent aforetime our messengers with clear Signs
and sent down with them the Book and the Balance,
that men may stand forth in Justice.
Holy Quran 57:25
Here is what I think happened:
On January 13, 1999, Adnan Syed went to school and arrived on time. He left before the lunch break to go give Jay Wilds his car so Jay could get Stephanie a gift. People who knew Jay were used to him borrowing their cars. Adnan asked that Jay drop him back at school after lunch time and then pick him up after track practice, around 5 p.m. that afternoon. Adnan had just gotten a new cell phone, which he wasn’t allowed to take to school, so he left it in the glove compartment. He had shown it off to Jay and Jay was eager to mess around with it, so after dropping Adnan off he used it to make some calls. After school Adnan headed to the library; if he had his car he may have gone off campus for a bit. Because he didn’t, he thought he’d check his email at the library as he often did. There he saw and chatted with Asia until her boyfriend and his friend showed up and she left with them. Adnan then headed to the locker rooms to change, and swung by the guidance counselor’s office to pick up his letter of recommendation. There he saw Debbie and they briefly talked. He arrived at track practice around 3 p.m. and warmed up until the coach arrived at 3:30 p.m. He told Coach Sye that it was Ramadan and explained it to him, also telling him that he would be leading prayers the next day, something he was excited about. After track practice Jay picked him up and Adnan immediately checked the messages on his cell phone; after all, he had given all his friends and family his number the day before, someone may have tried to contact him. It was nearing the time to break his fasting so he and Jay went to McDonald’s and ate. Jay had been useful during the day; he had gotten some weed. Adnan smoked some pot with Jay, and they hung out for a bit, and then he had to drop Jay off at home because it was time to head to the mosque for the nightly Ramadan prayers. He arrived at the mosque shortly after 8 p.m. and between prayers made some calls from his shiny new toy. After prayers he headed home and went to sleep.
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