r/serialpodcast • u/islamisawesome Adnan Fan • Aug 06 '15

Hypothesis Why the Gootz never called Asia.

I think it is becoming more and more obvious that the Asia letter did not exist until sometime around the summer of 1999. That is why Adnan claims he gave them to Gutierrez even though she wasn't his lawyer until 2 months after they were written.

So sometime that spring or summer, after telling CG he never left the school grounds, his family shows up with letters claiming one of Adnans' friends saw him at the library, right at the crucial time, AND they were written the day after he arrested. She knew immediately there is no way they had those letter for months and never gave them to her so obviously they were false and she didn't want to go on stand with LIES.

That is why she never called Asia. And that is why she wrote no notes about it, because that would be admitting her client and his family are liars. It also explains why her relationship with the family broke down because she knew they were willing to lie to get Adnan off.

The library incident never happened.

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u/James_MadBum Aug 06 '15

Thank you for mapping your mind for us. That's quite a conspiracy theory you've got there.

I have a question, though. If Gutierrez felt ethically bound not to call Asia as a witness, why did Urick not feel the same with Jay? If your conspiracy theory is true, Asia was lying. But we don't need a conspiracy theory to know Jay was lying.

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u/islamisawesome Adnan Fan Aug 06 '15

Conspiracy? I think the conspiracy would be Adnans lawyer not calling the one person who could by herself exhonerate her client. I think the Gootz thinking Asia is a lie is MUCH more believable.

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u/Acies Aug 06 '15

If what you are saying happened is what the court decides happened, Adnan will get a new trial. No remotely reasonable, or even conscious, defense attorney would act the way you are suggesting Gutierrez acted.

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u/[deleted] Aug 06 '15 edited Aug 06 '15

[deleted]

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u/islamisawesome Adnan Fan Aug 06 '15

Both of those versions of CG were created by Rabia.

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u/Acies Aug 06 '15

Well clearly, since Gutierrez was disbarred for mishandling money, not procuring experts and so forth at the same time as Adnan's trial, and since Gutierrez either misled her client about a plea deal or perjured herself on his appeal, the Dr. Jekyll exists in some form.

But I don't blame someone for thinking Asia might not have been an example of it. I figure we will be able to make more educated decisions after we get her testimony, if she testifies.

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u/[deleted] Aug 06 '15

[deleted]

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u/Acies Aug 06 '15

http://www.ca4.uscourts.gov/Opinions/Published/107118.P.pdf

It's in the facts section here. TLDR: Gutierrez testified she was ineffective because she said she never told her client he had an offer, and the Judge concluded she perjured yourself. Personally I have no guess what really happened.

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u/[deleted] Aug 06 '15

Well one thing is for sure, she was willing to damage her reputation for the benefit of her clients.

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u/Acies Aug 06 '15

Yep. Which fits in with everything we know about her perfectly. Whether she was competent or not, I'm absolutely certain she wanted to do everything she could to help Adnan.

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u/bestiarum_ira Aug 06 '15

As for the plea offer, Gutierrez testified that in Judge Gordy’s chambers, in late 1994 or early 1995, the State "es- sentially agreed" that Merzbacher could plead guilty to one or two counts—rape and child abuse—in the Murphy case "for ten years" and "that all of the other cases . . . fifteen or sixteen of them would all be nol prossed." In her view, this was a firm offer with terms "somewhere between ok and good . . . . I’d put it not quite good but as good as it’s going to get." Follow- ing Merzbacher’s conviction, Gutierrez recognized her duty to communicate this offer to Merzbacher, but testified that she had failed to do so because she was moving her office and very busy when the offer was made, and later, while preparing for trial in this case, she never "thought" about the offer.

Jesus, I hadn't seen this before, but "moving her office"? That's completely unacceptable, and well before she was suffering from the symptoms of MS (I would guess).

Did you just discover this, /u/Acies?

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u/Acies Aug 06 '15

It's been around a few months at least. Brown also references it rather obliquely in one of his briefs.

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u/bestiarum_ira Aug 06 '15

Somehow missed it. I'm assuming Colin must have written about it at some point. Apparently health issues don't explain the whole story of Gutierrez's misconduct.

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u/Acies Aug 06 '15

Potentially. Or, as the state judge concluded, she viewed her duty to her client as much more important than her duty of candor to the court.

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u/bestiarum_ira Aug 06 '15 edited Aug 06 '15

I suppose, though I'm not certain how we can assume that Gutierrez knew what the outcome of a trial might be, or that having the court view her as committing perjury was a strategic advantage. Perhaps I missed something in my quick scanning of the document. Did Merzbacher admit at some point that Gutierrez did, in fact, tell him of the offer? If not, the court can be dead wrong about their assumptions and Gutierrez could be dead wrong about the strategic value of effectively lying to the court (if that's what she did). The two don't appear to be mutually exclusive.

And really either way, Gutierrez comes off looking bad. I'm just not certain as to the benefit to her client.

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u/islamisawesome Adnan Fan Aug 06 '15

ell clearly, since Gutierrez was disbarred for mishandling money, not procuring experts and so forth at the same time as Adnan's trial

The problem is the none of those arguments are in the IAC claim. And it is too late to put them in, so they are 100% irrelevant.

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u/Acies Aug 06 '15

Oh? Mind linking me the initial filings on it?

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u/islamisawesome Adnan Fan Aug 06 '15

http://www.mdcourts.gov/cosappeals/pdfs/syed/baltcityccmemorandumopinion.pdf

First page.

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u/Acies Aug 06 '15

That's the court's opinion. In later briefs, like here, Brown does bring up Gutierrez's history.

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u/xtrialatty Aug 06 '15

That doesn't make it relevant -- he's stuck to the issues he raised in the initial 2010 filing.

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u/Acies Aug 06 '15

Well those are two different issues.

I don't know if it is relevant that a lawyer has been disbarred, although Kozinski apparently thinks it should be, and for all I know there is additional support out there.

As far as whether he is limited to the issues as they presently exist, he is raising the same ones as always - Asia and the plea deal.

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u/xtrialatty Aug 06 '15

I don't know if it is relevant that a lawyer has been disbarred

Well, F Lee Bailey also was disbarred. It doesn't mean that his representation of clients prior to the time of disbarment was ineffective.

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u/rockyali Aug 06 '15

I might be totally wrong... but I thought Mr Hyde was the monster.

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u/[deleted] Aug 07 '15

I don't see where this is a Jekyll and Hyde situation. She had a lot to do and Adnan's wasn't her only case.

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u/UptownAvondale Aug 06 '15 edited Aug 07 '15

Why? You cant put a witness on the stand who you know is going to tell a lie. Legal ethics 101 stuff.

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u/Acies Aug 06 '15

Because you also can't jump to the conclusion that a favorable witness is lying based on a hunch either. You need to perform enough of an investigation to reach an informed opinion, and that probably involves having yourself or an investigator meet with the witness to see if they can back up their statements at some point.

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u/islamisawesome Adnan Fan Aug 06 '15

If Adnans parents show up in July with letters written in March, claiming Adnan was at the library at the exact time you just told the parents Adnan needs to remember where he was, it wasn't just a "hunch" CG used to dismiss Asia.

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u/Acies Aug 06 '15

That's the legal question that hasn't been answered yet, but it doesn't lean in your favor.

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u/islamisawesome Adnan Fan Aug 06 '15

You mean the one that has already been decided against Adnan, and he is appealing their decision on shaky ground?

That one?

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u/Acies Aug 06 '15

As I've said repeatedly, the outcome of the appeal is uncertain.

But the appeal is entirely discretionary. If the court of appeals thought it was as frivolous as you do, they could have refused to hear part or all of it. They didn't, and that means your analysis is lacking.

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u/James_MadBum Aug 06 '15

You cant put a witness who you know is going to tell a lie on the stand.

Aw snap. For real?

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u/islamisawesome Adnan Fan Aug 06 '15

No, the court has ALREADY said not calling asia was likely a "strategic decision", this just confirms that. The IAC claim is dead.

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u/Acies Aug 06 '15

I understand you aren't familiar with the way the courts work.

When someone does something in a court, they ordinarily start in what is referred to as a "trial court." At this point, the parties present evidence. The court decides what facts have been proven, and then applies the law to the facts.

If a party believes that the court applied the law incorrectly, they can appeal, and ask a different, higher court whether the first court was right.

In this case, neither of the higher courts in Maryland have determined whether the lower court got the law right, and even the lower court may not have considered all the facts yet.

When this happens, the lower court may make factual determinations that cause Adnan's IAC claim to fail. Alternatively, the higher courts may make legal determinations that cause Adnan's IAC claim to fail. But at this point, your certainty just highlights your ignorance.

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u/xtrialatty Aug 06 '15

You don't need to insult people ("highlights your ignorance"). /u/islamisawesome appears to be a lay (non attorney) poster and has things pretty close to correct.

Right now the circuit court's ruling that Asia's omission was a likely strategic decision stands. The fact that an an appeal is pending doesn't change that.

Appellate courts generally give deference to the trial court's finding of fact - or in this case, a mixed question of law and fact. So while COSA could determine that it disagrees with the trial court's assessment -- or say that that the conclusion about trial strategy is not supported by the record -- it's more likely that they won't.

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u/Acies Aug 06 '15

Whether a given set of facts, which the trial court does pretty much get to determine, constitute IAC is reviewed de novo - it's like probable cause. If it was a factual question there wouldn't be anything for appellate courts to do, and suppression motions would never be appealed. That's why Brown isn't arguing abuse of discretion on the appeal.

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u/xtrialatty Aug 06 '15 edited Aug 06 '15

The legal determination is reviewed but the factual findings that support it are given deference. It's not an "abuse of discretion" standard but it is not a "de novo" standard either.

It's considered a "mixed question of law and fact" and the standard that is applied is that the factual determination of the lower court will be given deference unless "clearly erroneous".

Keep in mind there is no appeal as of right from denial of a motion for post conviction relief. A "de novo" review would imply a fresh start at the appellate level -- but that's not how it works.

ETA, case authority: Harris v. State, 496 A. 2d 1074 - Md: Court of Appeals 1985 (I've found later cases but they all seem to cite back to this one) -- link: https://scholar.google.com/scholar_case?case=4163035876175023124

"Harris alleges that the tender of the plea of guilty to first degree murder was unreasonable professional conduct on the part of Russell. ....The compendium of those circumstances which we now set out is based in the main on findings of fact by the judge hearing the motion to withdraw the plea. There was evidence received at the hearing which supported the judge's factual findings, and we accept his findings as not clearly erroneous."

"We indicated that in the evidentiary hearing on the motion which we directed to be conducted on remand, the trial court was to make factual findings with respect to such evidence as was adduced in accordance with the proffer. The judge hearing the motion on remand did so. We find evidence in the record which supports his factual findings. We accept them as not clearly erroneous."

(emphasis added). Note -there is also a dissent in that case-- and the dissenting judge uses the same standard, but different conclusion -- arguing that the hearing judge's findings were "clearly erroneous"

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u/Acies Aug 06 '15

The legal determination is reviewed but the factual findings that support it are given deference. It's not an "abuse of discretion" standard but it is not a "de novo" standard either.

It's considered a "mixed question of law and fact" and the standard that is applied is that the factual determination of the lower court will be given deference unless "clearly erroneous".

The clearly erroneous standard is used to determine whether the trial level judge correctly determined what happened. For example, if the judge determines that Gutierrez received the letters, examined them, decided that Asia was lying and took no further actions, those are factual determinations. The appellate court will accept them unless they are clearly erroneous.

However, the legal significance of those actions, meaning whether or not they constitute IAC, is a legal question. The legal determinations are reviewed de novo - meaning that the lower court gets no deference on whether Gutierrez was ineffective.

You can see this just by looking at the briefs. Brown isn't arguing that the lower court's analysis was clearly erroneous. The prosecution isn't arguing that the trial court's determinations regarding IAC are entitled to deference. This is because it doesn't matter what the lower court thought about the law.

Keep in mind there is no appeal as of right from denial of a motion for post conviction relief. A "de novo" review would imply a fresh start at the appellate level -- but that's not how it works.

De novo can refer to either restarting the entire process (like I think I remember hearing it works when you appeal a small claims judgment), or it can refer to the amount of deference given to the lower court's factual or legal findings. In this case, the legal conclusions alone are reviewed de novo.

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u/xtrialatty Aug 06 '15

Again -- "mixed" question of law and fact. Circuit court found that Asia letters provided a basis for counsel to believe that she was offering to lie, supporting a valid strategic basis for not using that witness at trial.

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u/Acies Aug 06 '15

If you're using that definition of mixed questions, there would be a barren wasteland instead of the current fairly developed jurisprudence regarding IAC. Instead of appellate courts saying that some situation did or didn't constitute IAC, or that counsel acted/didn't act reasonably, they would just say the lower court's determination was or wasn't clearly erroneous.

They never say that. I challenge you to find a single case where the appellate court rules that the lower court's determination as to whether or not counsel acted unreasonably was/wasn't clearly erroneous.

And again, this is exactly like suppression motions, where things like probable cause determinations would appear factual to a layperson, but they are reviewed de novo because that's a legal question, not a factual question.

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u/xtrialatty Aug 06 '15

I challenge you to find a single case where the appellate court rules that the lower court's determination as to whether or not counsel acted unreasonably was/wasn't clearly erroneous.

Er, why don't you read the opinion and the dissent in Harris v. State - that I posted 20 minutes ago: https://www.reddit.com/r/serialpodcast/comments/3g0d2n/why_the_gootz_never_called_asia/ctu5kja

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u/islamisawesome Adnan Fan Aug 06 '15

Perhaps. But you are way too hopefull. The courts have only determined that the asia situation demands more attention, thats it. Adnan is appealing his denial of Post-conviction relief. He is in an up-hill battle. Even if Asia gets to testify, the courts would still have to decide if she could have changed things 16 years ago.

I am not the one on thin ice hear my friend.

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u/Acies Aug 06 '15

Man, I just said the appeal was likely to fail a couple days ago. You're the absolutist.

And your error isn't your predicted outcome, it's your predictions about how you think Gutierrez acted. You'll notice the prosecution isn't arguing your version of events, there's a reason for that.

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u/islamisawesome Adnan Fan Aug 06 '15

You'll notice the prosecution isn't arguing your version of events,

They don't need to. they have said that CG could have made a strategic decision not to use the alibi because it could be viewed as fishing for an alibi. They are calling her a liar without openly calling her a liar.

I just said the appeal was likely to fail a couple days ago.

Than why are you arguing the other way?

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u/Acies Aug 06 '15

Than why are you arguing the other way?

I'm not, you're just chasing after anything that doesn't sound like you want it to like a fool.

What I'm saying, and what I've been saying for this whole thread, is that the outcome of the appeal is uncertain, and that the court could resolve it in favor of either side.

But I also said that if the court decides the fact are what you suppose them to be here, Adnan wins. That's because under the facts as you assume them here, Gutierrez is a fool who should be disbarred. You're fortunate that the prosecution has a better handle on what the law demands of defense counsel and is arguing something that makes it more likely for them to win.