Adnan Syed’s Post-Conviction Hearing, Day 3 (Part 2): The State’s Fancy FBI Cell Expert Totally Goofs

Amelia McDonell-Parry | February 6, 2016 - 11:15 am

I’m down in Baltimore for Adnan Syed’s post-conviction trial hearing and am posting daily recaps of proceedings. You can also follow me on Twitter at @xoamelia for short updates from the courthouse.

Phew! So yesterday was an action-packed day of testimony at Adnan Syed’s hearing, with a number of really interesting witnesses taking the stand. I already recapped the testimony of defense witnesses Sean Gordon, Michelle Hamiel and Dave Irwin, but I was saving the best for it’s very own post. Doing things little out of order, the State asked to call their own cell site expert early because of scheduling issues, so the defense’s case was put on pause so Chad Fitzgerald could take the stand. Maryland Deputy Attorney General Thiruvendran Vignarajah — BTW, do yourself a solid and Google him to find out just how sleazy he is — also trotted out some extra-large, impossible-to-read foam-core displays for his testimony.

Witness #4: FBI Special Agent Chad Fitzgerald, expert on cell tower analysis for the State

Testimony: Chad Fitzgerald works for the FBI’s Cellular Analysis Survey Team (CAST) and has experience analyzing different type of cell phone records. In preparation for his testimony, he reviewed the 1999 testimony of the State’s then-cell site expert, Abraham Waranowitz, all of the relevant reports sent by AT&T, watched Grant’s testimony from yesterday, and spent about two hours conferring with the State.

First, Fitzgerald testified that, in his expert opinion, Waranowitz’s analysis of the cell tower data in 1999 was “fairly thorough” and that he would have reached the same conclusions.

Now, as you’ll remember from Grant’s testimony and Waranowitz’s 2015 affidavit, the defense is arguing that the cell site data should not have been used to determine Syed’s phone’s location when incoming calls were received, due to the fact that the instructions for reading Subscriber Activity Reports explicitly state that incoming calls are not reliable for determining location. These instructions were not provided to Waranowitz when he was given Ex. 31 to analyze in his testimony, and in his 2015 affidavit, he said he does not stand by his testimony as it pertains to the incoming calls, most notably the two incoming calls that the State used to place Syed in Leakin Park when he and Jay Wilds were allegedly burying Hae Min Lee’s body.

Fitzgerald, however, put significantly less weight on these instructions, which were included at the bottom of the fax coversheet that AT&T sent with Syed’s phone records to the police and the State in 1999. Perhaps that is because Fitzgerald was insistent that only the report with the redacted columns is a “subscriber activity report,” whereas the AT&T document with less columns but an un-redacted cell site column is called a “cell data report.” He determined that the instructions on the fax coversheet apply only to the redacted subscriber activity report, because it has all of the “type codes” listed in the instructions, whereas the un-redacted document, which he calls a “cell data report,” does not have any of those type codes, so therefore the instructions do not apply.

urick-att-cover-page1

To illustrate the differences between these two reports, and to show what he believes the various details in the instructions refer to, the State trotted out some huge displays of the “subscriber activity report” and the “cell data report,” as well as the instructions, with Fitzgerald highlighting where the type codes listed in the instructions appear on either report. The only thing he highlighted on the un-redacted “cell data report” was a call which began with # (hashtag); an explanation for how that that # (hashtag)  should be read appears in the fourth paragraph of the instructions. So, according to Fitzgerald, the instructions do not apply to the cell data report … unless there’s a call listed with a # hashtag in front of it. Or something.

So, again, Fitzgerald testified that there is a difference between a “subscriber activity report,” with its redacted cell site data, and a “cell data report,” which shows the cell site data — and the instructions only apply to the former but not the latter. That means that, according to Fitzgerald, Waranowitz did not need these instructions to accurately read the cell site data in Ex. 31 at the 1999 trial.

So, PRAY TELL, what are the instructions referring to, then, when they say in the fifth paragraph, “Outgoing calls only are reliable for location status. Any incoming calls with NOT be reliable for location”? What does “location status” refer to on what Fitzgerald considers to be a “subscriber activity report”? He testified that the instructions are referring to a column called “Location 1,” which lists the calls’ switch number. He testified that in order to analyze the cell site data on what he called a “cell data report” — that is, the un-redacted AT&T records — you don’t need instructions, and that the cell site information listed on the “cell data report” is reliable for both incoming and outgoing calls. His insisted that Waranowitz read the cell site data correctly, and that his testimony placing Syed in Leakin Park on the evening of January 13, 1999 was accurate.

The fact that the fax cover sheet with the instructions was sent to the Baltimore police with BOTH reports doesn’t matter, Fitzgerald testified.

(I know. This is confusing.)

Fitzgerald then testified that he has never seen a distinction made between incoming and outgoing calls when it comes to cell site locations. It’s worth noting that Fitzgerald did not seem to be aware Waranowitz has since said that he does not stand by his 1999 analysis of the incoming calls. I suspect this is because the State did not want to tell him that their last expert bailed on the part of his testimony that Fitzgerald is now confirming to be accurate.

So one more time, just to review, here’s how Fitzgerald defines the two “types” of AT&T phone records in question, even though the actual phone calls listed are the same on both:

1) Subscriber Activity Report: Syed’s phone records that have A) columns corresponding with the type codes listed in the instructions and B) redacted cell site columns

2) Cell Data Report: Syed’s phone records that A) do not have columns corresponding to the type codes and B) don’t black out/redact the cell site data.

The instructions, according to Fitzgerald, apply to #1 but not #2.

My Assessment (of Direct Testimony): Before going into cross-examination, my hunch was that Fitzgerald was straight up wrong in his analysis, while Grant was right in his. But nevertheless, my concern was that this difference in opinion between two experts in the field of cell site analysis would not be about who was right and who was wrong, but who the Judge found more credible. Grant was more convincing to me for multiple reasons, but I admit to being “biased” in the defense’s favor. I also don’t believe that an expert is somehow more credible by virtue of being in the FBI, as Fitzgerald is — in fact, I frankly consider the FBI to be less credible, as they’re just another arm of our broken justice system. But I digress…

Cross-Examination: Before even delving into Fitzgerald’s analysis of the records, Brown started with a gut punch. He produced the State’s disclosure about Fitzgerald being a witness, written by Vignarajah, which described what he would be testifying to at the hearing — namely, that Waranowitz’s 1999 analysis was accurate.

Brown asked Fitzgerald when he actually received the documents he needed to review — Waranowitz’s 1999 testimony, the cell records and the instructions — in order to give his testimony on the witness stand. And LO AND BEHOLD, Fitzgerald did not receive any of the documents until days if not a full week after Vignarajah had already written his disclosure about what Fitzgerald would be testifying to. In other words, Fitzgerald’s analysis was determined before he had done any actual analyzing!

Fitzgerald was flustered and said that he and Vignarajah talked on the phone, and that he agreed — based on what Vignarajah told him about the cell phone records — that Waranowitz was correct in his 1999 testimony. So did Fitzgerald at least READ Vignarajah’s disclosure before it was submitted? No, Fitzgerald said, he did not.

WELP.

Moving on! Next, perhaps because he was flustered and trying to prove that he wasn’t just testifying to what the State wanted him to say — bringing to mind the State’s FBI expert in the Steven Avery trial, no? – Fitzgerald made a critical error. He told Brown that he didn’t agree with ALL of Waranowitz’s 1999 testimony.

Oh? said Brown. “What didn’t you agree with?”

Fitzgerald said that there was an incoming call that Waranowitz said was the user (Syed) calling to check his voicemail. This call was one of those I mentioned before with the # in front of it. Fitzgerald said Waranowitz was wrong there — that incoming call was actually someone LEAVING a voicemail message. Brown moved fast, reminding Fitzgerald that the instructions for “how to read a subscriber activity report” had a line about how an incoming call with a # (hashtag) in front of the number is a “call that was not answered and forwarded to voicemail,” therefore, if Waranowitz had been given the instructions in 1999, he would have been able to analyze that call correctly.

Fitzgerald must have realized he had fucked up big time, and he did everything he could to worm his way out of that one, returning to his whole claim about there being a difference between a “subscriber activity report” and a “call data report.” They went back and forth over this for at least five minutes. At this point, I’m pretty sure I have a look of extreme, giddiness and delight plastered on my face, because I just knew Brown had Fitzgerald exactly where he wanted him.

Brown kept pushing Fitzgerald, asking him, “Don’t you think that if Waranowitz had these instructions he would have analyzed that call correctly?”

“I don’t know,” Fitzgerald said, clearly realizing that if he said anything more he would fuck up the State’s case even more. “You’d have to ask him.”

And here’s where things got REALLY interesting, because with that comment, Fitzgerald opened the door for Brown to introduce a whole new exhibit – an email Waranowitz sent to Brown that stated he was mistaken about the voicemail call because he did not have the instructions for properly reading it.

“Yeah, but, but, he doesn’t say anything about being wrong about the cell site locations and incoming calls,” Fitzgerald stuttered, continuing to insist that Waranowitz’s analysis of the cell site data was still correct and the instructions don’t apply. 

“Well, let’s talk about those incoming calls,” Brown said, pulling up a page from Syed’s unredacted subscriber activity report/cell data report [for the record, if you haven’t caught on by now, they are versions of THE SAME FUCKING THING].

Brown focused in on two incoming calls received 27 minutes apart and then asks Fitzgerald to cross-reference the cell site code to determine where Syed’s phone supposedly was when each call was received. One call, Fitzgerald said after leafing through the Maryland cell site list, was traced to a cell tower on Woodlawn Drive in Baltimore. And the other? The DuPont Circle cell tower in Washington, D.C.

Brown pointed out that it takes well over 27 minutes to drive between Woodlawn Dr. and DuPont Circle, so how on earth could the incoming cell site data be accurate?

“Do you know if Mr. Syed has a helicopter?” Brown asked. “How else might this be possible?”

“[This] would cause me to do more research,” an obviously very flummoxed Fitzgerald said.

Brown is not done with Fitzgerald by a long shot, so the hearing will resume on Monday with the FBI “expert” back on the stand.

My Assessment: I’m not going to mince words here. Fitzgerald, while perhaps not outright lying, was absolutely being deceptive and intentionally misleading with his testimony. Testimony, BTW, that he agreed to give before actually even doing any analysis! What a goddamn idiotic garbage monster Vignarajah is for sending out that witness disclosure DAYS before the relevant documents for the witness’s testimony were even received. Watching Brown catch both Fitzgerald and Vignarajah red-fucking-handed was absolutely THRILLING to watch, but so depressing as well. It was a blatant example of how fucked up the system is.