Adnan Syed’s Post-Conviction Hearing, Day 4: Chad Fitzgerald & Dave Irwin Are Back, Plus “Useless Steve” Testifies

First, just like at the hearing, I have some preliminary matters to address! On Sunday, Maryland Deputy Attorney General Thiruvendran Vignarajah had an impromptu conference call with selected members of the press. I was NOT selected for this conference call, which I am trying not to take personally. Or maybe I should, and this was my punishment for calling Thiru a garbage monster and also drawing unflattering portraits of him. Whatever, I get it. Anyway, the purpose of this call was for Thiru to read two statements, one from Hae Min Lee’s family and one from Thiru himself, however, I would venture to guess that Thiru had a hand in writing the former as well.

I haven’t written much about the Lee family, or even Hae Min Lee herself, as I’ve been writing these recaps. Hae was the victim of a horrific crime, and I’ve thought about her, oh, almost constantly while I’ve been sitting in the courtroom. I’ve thought about her family too, though they’ve chosen not to attend these proceedings. I can only imagine how horrible it must be to have lost a child, and then 17 years later, still having to relive that horror because the legal system is not done rehashing it. I feel genuinely terrible for them.

But I don’t for a second believe any of that is Adnan Syed’s fault. I don’t, as I’m sure you’ve figured out by now, believe he killed her — in fact, I think Asia McClain’s testimony on its own comes pretty darn close to proving he absolutely did not. But for 17 years, he’s paid his own price for her death; he has suffered and his family has suffered. All the while, the person who really killed her walks free. The fact that this case is still being litigated is unfortunate, but justice for Hae Min Lee does not lie in the continued imprisonment of Syed; that is false comfort to the Lee family, sold to them by a lazy and ethically bankrupt justice system, and that continues to this day.

The Lees were not present in the courtroom during Asia McClain’s testimony, yet their statement over the weekend all but directly calls her a liar – I wonder who told them that? For Thiru to use the Lee family as his own mouthpiece, to say what he cannot, is foul. Even if they are not ready to believe that someone else might be responsible for Hae’s death, there is more than enough evidence to suggest MAJOR doubt, but my sense is that the State has shielded the Lees from the facts of the case by suggesting everything that points to Syed’s innocence is just internet gossip — as if the internet hasn’t been parsing the actual case files for months now. I hope the Lees find decent legal representation. I hope they open their eyes. I hope they come to realize that the Syeds, including Adnan, are not their enemies.

I’ve encountered a handful of concern trolls over the last few days, wagging their fingers about how “we shouldn’t forget Hae and Hae’s family!” as if Adnan Syed and his family do not matter. If you’re among those who still – somehow, despite no evidence (save for a single utterly unreliable State’s witness) – believe Syed is guilty, I get that I can’t convince you to give a shit. But for the rest of you, remember that Adnan has a family too. He has a mother who gets to see her son once a month, for an hour and a half if she’s lucky. She’s been in the courtroom every day this week. She’s not allowed to even come over to his side of the courtroom to say hello. Seventeen years ago, he was yanked from his bed in the early morning, and he has not been home since. Instead, she’s watched her boy grow into a man with his hands and feet in shackles. She, and the rest of his family and friends, have the right to fight tooth and nail for his release, just as I expect the Lee family would do for their child under the same circumstances. Justice for Hae Min Lee starts with Adnan Syed, at the very least, being given a fair trial. If he is truly guilty, the State should be able to support that with real evidence. If he is innocent, and I believe he is, his family has the right to fight to bring him home.

Witness #1: Chad Fitzgeraldexpert on cell tower analysis for the State

Testimony: See Day 3.

Cross-Examination (continued): He’s baaaaaack! When we last saw Chad, he had just discovered something in one of the files he was testifying about during Justin Brown’s cross-examination. Shortly before we recessed for the weekend, Fitzgerald asked for a moment with the judge, whom he apparently told there was a “problem” with the documents he was being asked to testify to, so the judge gave him permission to discuss JUST THAT ONE MATTER with Thiru before taking the stand again.

So, on Monday, we got to find out just what that “problem” with the document actually was. To review, on Friday when we last left off, Chad — can I call him Chad? It’s much easier to type than Fitzgerald – was being asked to determine the cell tower locations for two incoming calls that came 27 minutes apart. One of those incoming calls hit the cell tower for Dupont Circle in Washington D.C., while the other pinged the cell tower on Woodlawn Drive in Baltimore. As Brown pointed out, these two locations are easily an hour away from each other. How could Syed have gone that distance in 27 minutes (unless he had a helicopter)?

Well, the big reveal on Monday was that Chad realized the document he was looking at was a poor photocopy that cut off the dates and times the calls were initiated on the lefthand side. This, he testified indignantly, made it “manipulated evidence” that Brown gave him to “mislead” him in order to “sway” his testimony.

“It’s offensive to me that you would hand me a manipulated document,” Chad testified, soiling himself in the process.

Brown resisted taking offense, and asked him if the state the document was in made it impossible for him to read it properly during his previous testimony.

“Well, I figured out what you were doing,” Chad boasted. “And you got caught in your own game.”

Brown asked him the question again — did the state the document was in make it a problem for him to properly read it?

“It’s a problem when you’re asking an expert to testify to something,” Fitzgerald said.

“Would it surprise you to know that’s the only version of that document that Cristina Gutierrez had?” Brown asked.

So yeah, it turns out that Gutierrez’s version of the file was a totally janky photocopy and she never bothered to get a better version — even the State’s version was better, and she supposedly had access to those. The irony, of course, is that Chad would be so indignant that HE, a CELL TOWER EXPERT, would be asked to testify about AN INCOMPLETE DOCUMENT, when, in fact, he has been called to testify that complete documents were not needed for the State’s original cell tower expert, Abe Waranowitz, to do his analysis.

Another thing: Chad tried to smooth over a bit of testimony from Friday that did not look so great for him or Thiru. Remember when it came out that Chad hadn’t even received the cell phone records or Waranowitz’s testimony before Thiru sent out his witness disclosure, detailing exactly what Chad would be testifying to? Well, Chad now says that he got the documents much earlier than he thought, not a week after he had his initial conversation with Thiru. Mind you, he did not actually bring copies of his emails to support this new testimony, so take that as seriously as you’d like. I just think it’s an interesting example of how certain witnesses are called to testify to the truth, but can come off like they’re testifying to please the person who called them in the first place.

Anyway, back to the cell tower discussion. Brown asked Chad if he also took the time over the weekend to research any supporting evidence for his theory about what “location” means on the AT&T fax coversheet. Chad said he had better things to do. Seriously, he really said this.

“Would it surprise you to learn that I did?” Brown asked. Crack dat whip, JB! Brown produced some AT&T documentation from recent years which make it clear that when the company refers to “location” they mean the cell towers. While these documents aren’t from 1999, they do indicate how AT&T typically uses that language.

After that, there was some back and forth about “check-in lags,” which didn’t really go anywhere, and then finally — finally! — Brown was ready to bring up Waranowitz’s affidavit.

“Would it bother you if Abe Waranowitz said that he didn’t understand the records he testified to?” Brown asked. “Would it bother you he didn’t even see the call records until just before he testified?”

Chad stammered and skirted answering directly a lot during this line of questioning, seemingly concerned that he might say something he shouldn’t. Let me be clear that it concerns ME that an expert witness from the FBI was obviously more concerned about not saying “the wrong thing” in the STATE’S view than he was about actually testifying honestly.

“If the State needed you to validate and verify the accuracy and reliability of cellphone records, and you didn’t see them until just before you testified, wouldn’t that be problematic?” Brown asked. He continued: “Is it at all troublesome to you that he saw the subscriber activity report right before he did his analysis? And that he only received a portion of those records?”

“Well, that wouldn’t bother me,” Chad testified, completely nonsensically.

“What if Abe Waranowitz HIMSELF said he couldn’t do what he was asked without those instructions?” Brown asked.

“Well, you should ask him,” Fitzgerald said indignantly.

“Can you really tell me under oath that you would not have a problem with that?” Brown asked incredulously, as Fitzgerald stammered some more. “What if Abe Waranowitz himself said he would not have testified the way he did?”

chad-lies

Fitzgerald was still under the impression that the only thing Waranowitz had backed down from was the incoming calls forwarding to voicemail. So,Brown put Waranowitz’s full affidavit up on the screen and asked Fitzgerald to read a few key paragraphs aloud, before saying he had nothing further. BOOM.

Redirect: Thiru spent his redirect going over a theory Chad had presented about how certain cell towers serve entire metro lines, trying to find a way of explaining how those two incoming calls discussed Friday could have hit Dupont Circle and then Woodlawn Drive in the span of 27 minutes.

Ultimately, though, all this seemed to confirm was just how UTTERLY UNRELIABLE this type of broad cell tower analysis is for determining location. That’s not to say ALL cell tower analysis is garbage, but the method employed in this case AT MOST just places a phone in a general area at a certain time. No one should be comfortable with something so unspecific playing a major part in putting someone away for life.

My Assessment: The most astonishing thing to me about Fitzgerald’s testimony was the way he evaded answering the defense’s questions unless his answers would have benefited the State’s case. Even the most basic questions could not get a direct response. It was glaringly obvious that Fitzgerald was asked to testify not to the TRUTH, but to what the State had already decided was true. We’re talking about an FBI agent who devotes a large chunk of his working hours to testifying in cases like this — how frequently is the content of his testimony influenced by the State’s desired outcome? Just once is enough to be utterly reprehensible. The likelihood that this has happened more than once absolutely terrifies me.

Witness #2: Dave Irwin, attorney and expert on criminal defense and Brady disclosure obligations

Testimony: See Day 3.

Cross-Examination: Just to refresh your memory, Dave Irwin was called by the defense to assess both Asia McClain as an alibi witness, as well as Cristina Gutierrez’s files in order to determine if her decision not to pursue McClain indicated ineffective assistance of counsel. Irwin testified that McClain’s testimony in this hearing showed that she was a “diamond” of a witness; back in 1999, she would have been a “diamond in the rough,” but a diamond no less. He determined that Gutierrez’s decision to never contact or investigate Asia, despite Syed’s plea that she do so, was “constitutionally ineffective.”

thiru-irwin

Thiru’s goal here was both to poke holes in Irwin’s assertion that Gutierrez failed in her duties as Syed’s attorney, as well as his testimony that McClain would have been a “game-changing” alibi witness had she testified in 1999. He began by inquiring as to how much Irwin was charging for his services, and whether or not a defense attorney has to consider what lines of defense to pursue so as to give their client their money’s worth; in other words, might Gutierrez have had some other plan and thus it would be a waste of Syed’s money to pursue an alibi she didn’t feel was worth the effort, etc.

Thiru pointed to notes in Gutierrez’s files that suggested the defense was looking into possible alibis, but Irwin cut him off to state the obvious: “She delegated a lot.”

And he’s right. The State has argued that Gutierrez gave Syed a top notch defense, pointing to paperwork as proof of her efforts — however, as many “to do” lists as there may have been in the defense files, very little of those actually resulted in anything tangible. (Remember the 83 people on Gutierrez’s alibi notice? Remember how four were actually contacted? And remember how ZERO were asked to testify as an alibi?)

Thiru quickly moved on to discussing McClain, and Irwin’s assertion that there was an “absolute” need to investigate her. “Did you really mean absolute?” Thiru asked.

Irwin sighed, the first of many throughout his cross-examination. “If your client wants you to investigate someone, you should investigate them.”

But what if — the first of many “what if” questions posed by Thiru during this cross — McClain had sent her letters to Gutierrez, and Syed hadn’t known about them? Would she still have been constitutionally obligated to investigate McClain as a potential alibi witness? The answer to this and literally every other “what if” question was, of course, yes. Irwin’s answer was yes even when McClain’s story might have contradicted Syed’s own story, because “your client might be wrong.”

Irwin even testified that if the alibi witness lived on a NASA space station at the time of the crime, Gutierrez would still be obligated to have a law clerk confirm that person was indeed “not on Earth.”

“What if this potential witness has been charged five times for giving false testimony, would [Gutierrez] have been obligated then?”

“Even then.”

“What if there’s the potential that this witness could hurt your case?” Thiru asked. “What if the witness is known for being a gossip and they might talk to people –“

Irwin sighed. “You are trying to get me to agree that there was some reason not to contact Asia McClain. But any alibi witness is worth aggressive pursuit.”

“What if a witness might be a double agent and might be considering going to the police with their story?” Thiru asked.

“Well then I’d want to talk to them first,” Irwin stated.

“Why?” Thiru asked. “So you could change their testimony?”

Both of Irwin’s hands flew up in front of his body. “STOP,” he straight up ordered Thiru.

Thiru immediately stopped speaking. There was a brief pause, and then Irwin explained that he took offense to the implication that he would tamper with a witness’s testimony and obstruct justice. It was absolutely beautiful to watch a truly decent, brilliant, moral member of the legal profession smack down Thiru like the worm he is.

Speaking of obstructing justice, Irwin responded to Thiru’s hypothetical question about the possibility that Gutierrez discovered Adnan was assisting in fabricating McClain’s alibi, saying that if that was the case, she should have amended her memos about McClain to say as much.

“But first of all, [Gutierrez] was getting most of her information from law clerks, not Adnan Syed himself, because she was spread so thin. It’s obvious she was overloaded,” Irwin testified.

But couldn’t you say the same thing about a lot of public defenders, Thiru asked?

Irwin shook his head in irritation. “She was not getting public defender rates,” he said. “And this was a case where the potential sentence could be life in prison.

Thank god, someone said it. It was infuriating listening to Thiru defend Gutierrez again and again for not doing what was CLEARLY the bare minimum for her client, as if Syed was on trial for shoplifting with a maximum penalty of a week in the clink.

Irwin went on to give Thiru a master class in being a decent defense lawyer, reiterating his previous testimony that Gutierrez had a constitutional obligation to investigate Asia McClain, regardless of a whole long list of potential hypotheticals (“You’re good at those,” Irwin condescended).

“When the facts supporting a line of defense for your client are consistent with innocence, you still should pursue all other lines of defense that are consistent with innocence,” Irwin stated. In other words, just because you have faith in your strategy, doesn’t mean you shouldn’t explore alternatives, just incase.

“What if your client thinks it might be fruitless or harmful [to pursue an alibi witness]?” Thiru asked, returning to his second favorite start to a question besides “Would it surprise you…”.

“That doesn’t apply here,” Irwin stated. “Everyone kept saying ‘Look into Asia McClain.’”

Thiru asked Irwin about Gutierrez’s lengthy alibi notice as well as her memo designating various law clerks to look into possible alibis for Syed’s contention that he had track practice and then went to the mosque on January 13, 1999.

“They produced an alibi notice, but they did not present an alibi defense,” Irwin dismissed. Later, he went on, “I’m not picking Asia McClain over anyone else. I’m saying it was mandated that [Gutierrez] interview and investigate her. You keep talking about ‘strategy.’ You’re begging the world to believe that Cristina Gutierrez has a strategy — but there was no strategy.”

Thiru then brought up one of his favorite arguments throughout this hearing — that Syed had a regular routine that involved going to school, then to track, then to the mosque, and McClain’s testimony that he went to the library on the day his ex-girlfriend was killed would be craaaaazy suspicious. Especially since — GASP! — the library he USUALLY went to, according to Thiru anyway, was the Woodlawn school library, not the public library.

“That still doesn’t change my opinion,” Irwin stated. “Someone being murdered is not routine. Someone being accused of murder is not routine. If you have an alibi witness who says they saw your client across the driveway, you have a duty to interview and investigate so you can then decide your strategy.”

(To clarify, since Thiru of course was being misleading, it was Syed’s habit to use the school library — during the school day, in between classes. Nevermind the fact that both libraries are on the school campus, not separated by thousands or even A SINGLE mile.)

Irwin went on to say that even if he disregarded McClain’s two letters to Syed about seeing him in the library, just Gutierrez’s notes about McClain alone does not change his opinion of McClain’s importance to this case. Neither does Thiru’s mysterious reference to a guy named Ju’uan, who told police that Syed told McClain to “type up a letter” for him, which Thiru suggested was an indication that the two were in cahoots to fabricate an alibi. (In actuality, and according to an affidavit the defense got on the fly, Ju’uan was actually referring to the character letters many people submitted in advance of Syed’s bail hearing.)

Irwin also testified that over the weekend he spoke with Abe Waranowitz about his conversations with Gutierrez about the cell tower evidence in advance of his 1999 trial testimony. Irwin said that Waranowitz told him that Gutierrez was impatient with him to the point that he was utterly unsuccessful in explaining his upcoming testimony to her.

Redirect: Brown’s redirect of Irwin was brief, and allowed Irwin to state that he did not enjoy drawing further attention to the way Gutierrez’s once illustrious career ended by testifying to her failings as Syed’s defense counsel. “But within a few years, she was disbarred,” Irwin said. “A few years after that, she was dead. In this trial, the jury came back in TWO HOURS. Gutierrez was constitutionally ineffective in her defense of Syed.”

My Assessment: Irwin was an absolutely invaluable witness for the defense, especially in his assessment of McClain as an alibi witness, but also in his belief that Gutierrez was constitutionally ineffective. There’s a high bar that needs to be met in order to prove ineffective assistance of counsel – Irwin’s testimony might prove to be the edge the defense needed. He was brilliant both in his direct testimony and under cross-examination, firm and composed in conveying his opinions, and utterly compelling. His ability to recall specific pages from the massive stack of files he was given to review was stunning, and watching him masterfully cut Thiru down to size had me bouncing up and down in my seat.

Witness #3: Steve, former security officer at the Woodlawn Public Library in 1999

useless-steve

Testimony: First, you are perhaps wondering why Steve, unlike every other witness, does not have a last name. That’s because, as you might recall, Steve has already been discussed during this trial — he was referenced during Michelle Hamiel’s testimony on Day 3 as one of the security guards the Woodlawn Public Library employed to watch over the students. During cross-examination, Thiru asked her if she remembered any of the security guards specifically, and she said she remembered a guy named Steve, saying that he was mostly useless, however, and she did more security than he did. Thiru then referred to him as “Useless Steve,” getting laughs from the courtroom. It wasn’t long before Twitter found out about Useless Steve, a hashtag was born, a Twitter account was created, and someone even started hocking Useless Steve t-shirts — all within the span of a few hours.

Well, it turns out, Steve was a secret witness for the State. Before testimony resumed on Day 4, Thiru told the judge that Twitter had taken to CYBER-BULLYING his witness, and for that reason, he wanted Steve to be able to testify anonymously. (Again, Thiru was the first person to actually call him Useless Steve.) The defense objected, and allowing Steve to testify under just his first name was the compromise allowed by the judge. For the record, I think this is ridiculous, though I do sympathize with Steve for inadvertently being turned into a meme.

ANYWAY. STEVE. I’ll keep this brief. The State called Steve, an older gentleman, to testify about whether the Woodlawn Public Library had a security camera, and also whether he remembered Syed being in the library on January 13, 1999, as McClain claimed. Yes, indeed, the State actually thought Steve would remember seeing a random student on a random day in January 17 years ago. The State called Steve as a witness just a day after another witness testified to him being utterly useless. Surely Steve was going to testify to something SHOCKING, right? Why else would they put him on the stand?

Well, Steve came up short. Steve apparently met with both a detective and Thiru himself on two separate occasions over the last week, and signed his name to a statement written down by the detective which stated with certainty that: A) there was no security camera at the library in 1999 and B) Syed was not in the library on January 13, 1999. However, on the stand, even during direct testimony, Steve was far less certain. To the best of his knowledge, he testified, there were no cameras in the library — but when Thiru asked, “Is it possible there was a camera?” Steve replied, “It’s possible.”

Steve was given a bunch of Woodlawn High School yearbook pages to look at and testified that he did not recognize any of the faces, and did not recognize Syed specifically as someone who came into the library. Asked if he remembered being interviewed by a defense investigator in 1999, Steve could not recall.

Cross-Examination: Asked by Brown this time if it was possible that there were cameras in the library, Steve said it was “very possible.” But what about the fact that he seemed so sure that there absolutely was not a camera in the library, according to the statement written by the detective – did the detective ask him if it was possible, even if he had no knowledge? No, Steve testified, the detective did not ask if it was possible.

Steve also clarified that, though his signed statement, as written by the detective, says that he is certain that Syed was absolutely not in the library on January 13, 1999, he only thinks he wasn’t — but given that 17 years has passed, he agreed that he probably wouldn’t be able to recognize Syed anyway.

My Assessment: Seriously. This is the best the State has got? A random security guard who can’t even testify to what they told him thought he would testify to? Steve sure did turn out to be useless for the State’s case — but that makes him pretty useful for the defense, no?

*****

On Day 4, both the defense and the State rested their cases. Day 5 was devoted to each side’s closing statements, which I will discuss in my final recap, which will be posted tomorrow.

Previously: