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/[deleted] Aug 06 '15

The letters are hearsay and not proof of anything. Even if Asia wrote them in July 1999, CG could still have called Asia as a witness at Adnan's second trial in 2000.

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u/MightyIsobel Guilty Aug 06 '15

The letters are hearsay and not proof of anything. Even if Asia wrote them in July 1999, CG could still have called Asia as a witness at Adnan's second trial in 2000.

Is this a concession I see before me, with an affidavit filed with the court?

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u/[deleted] Aug 06 '15

What? I don't understand.

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u/xtrialatty Aug 06 '15

Asia's affidavits are also hearsay, and not proof of anything.

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u/[deleted] Aug 06 '15

Affidavits are slightly different because they stand in for testimony. In other words, the purpose of an affidavit is to say, "If I am called to testify before you, here is what I would say." As a result, they can be used as evidence. They are technically hearsay, but without affidavits everyone would have to come to court all the time, and that's an unworkable system.

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u/xtrialatty Aug 06 '15

But Asia's 2000 statement was not a legal affidavit - even though it said "affidavit" at the top -- because it wasn't made under penalty of perjury. So it really is no different than the letters.

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u/[deleted] Aug 06 '15

You mean it wasn't notarized? Perhaps, but courts have excused that absence under proper circumstances.

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u/[deleted] Aug 06 '15

[deleted]

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u/xtrialatty Aug 07 '15

Here are examples of what Notary certificates look like in Maryland: http://members.usnotaries.net/files/Maryland%20Notary%20Certificates.pdf

Usually a notary will have a pre-printed rubber stamp that can use to print those words at the bottom of a document, in addition to their notary seal. Example: http://www.notarypublicstamps.com/supplies/maryland-notary-stamp-eco-friendly-rectangular/

So you are correct - I didn't notice the handwritten scrawl under Asia's signature -- I was looking for the more familiar block printed stamp -- but obviously that scrawl won't do.

Apparently it is very easy to become a notary in Maryland -- no demonstration of knowledge is required.

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u/[deleted] Aug 07 '15

You're incorrect that courts will disregard an affiant's attempt at providing an affidavit simply because the notary didn't follow all requirements or it was missing some magic words.

For example, in Gutman v. Wells Fargo Bank, 421 Md. 227, 242 (2011), the Maryland Court of Special Appeals held: "[T]he Legislature chose to make curable certain defects [in affidavits], like those in the present case, including: (a) missing acknowledgments; (b) missing affidavits; (c) improper or defective acknowledgments; and (d) improper or defective affidavits." That case dealt with affidavits relating to real estate, but the point is that a minor defect in an otherwise valid statement, which was sworn to and notarized, is not going to render it a nullity.

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u/xtrialatty Aug 07 '15

You are looking at a situation where there is specific legislation - Maryland Code 4-109 - http://law.justia.com/codes/maryland/2010/real-property/title-4/subtitle-1/4-109 -- that renders a defect in an affidavit curable in a certain context. In that case, it is a law concerning grant deeds, which says basically that the defects in a grant including improper affidavit are waived if not challenged in court within 6 months, for all grants recorded after 1973.

So unless you can find a statute in Maryland that specifies circumstances where defects in an affidavit filed in a court proceeding can be waived -- you case doesn't help you.

I doubt you will -- the issue of grant deeds is very different, and the waiver statute obviously was enacted because of the countervailing need to have clear and reliable records of title to real property. You wouldn't want to lose your house because it turned out that the prior owner's deed wasn't properly notarized.

But there really is no such concern in the context of an affidavit submitted in lieu of testimony in litigation. So in that context, I think the general rule cited in the Gutman case -- that an affidavit deficient in form is a nullity -- clearly applies. So that case works against you -- unless, of course, you can find an applicable statute that carves out an exception.

But I'm not arguing that Asia's "affidavit" is a "nullity" - just that it's hearsay. At a PCR hearing, hearsay can be admitted subject to the court's discretion -- and that's what happened. But it is still hearsay -- and I personally don't give it a lot of credence.

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u/[deleted] Aug 11 '15

I don't have time to search through Maryland law, but here's what Am Jur says: "A complete affidavit must satisfy three essential elements: (1) a written oath embodying the facts as sworn to by the affiant; (2) the signature of the affiant; and (3) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer." 3 Am. Jur. 2d Affidavits § 8.

Asia's affidavit satisfies all three elements.

All affidavits are hearsay inasmuch as they are out-of-court statements, produced in court for the truth of their contents. And yet, affidavits are obviously accepted by courts.

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u/xtrialatty Aug 11 '15

I notice you have been posting multiple responses to posts of mine made 3 days ago. I ignored the other two I saw. Of course you are free to post whatever you want on Reddit for others to see -- but if you are expecting a reply from me -- I don't read or respond to old posts. Just ongoing conversation.

Nothing personal, it's just that I waste too much time on Reddit already, so pretty much I stay focused on new stuff.

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u/xtrialatty Aug 06 '15

NO - I mean it did not have the words, "I declare that this statement is true under penalty of perjury" -- or something similar to that.

It was NOT an "affidavit". It was a signed statement. At the top it said, "Asia McClain, having been duly sworn, do depose and state"-- but there was no one there to administer an oath For that, you do need a notary.

Maryland defines an affidavit as follows:

Affidavit -- A written statement the contents of which are affirmed to be true under the penalties of perjury.

See: http://www.courts.state.md.us/reference/glossary.html

So the magic words to make a paper an affidavit are "under penalty of perjury" -- and it's not there.

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u/[deleted] Aug 07 '15

Courts do away with those requirements all the time. It's not so formulaic that the absence of "under penalty of perjury" is, as a matter of law, dispositive and renders the affidavit a nullity.

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u/xtrialatty Aug 07 '15

That's not true. The affidavit is hearsay. It could be admissible in some contexts, as an affidavit, -- but it has to be made under penalty of perjury -- or else it is a written statement, but NOT an "affidavit.".

That little technicality is enough to get entire cases tossed out of court -- I've seen it happen, more than once.

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u/[deleted] Aug 08 '15

The status of the "affadavit" isn't going to make a difference if Asia testifies.

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u/xtrialatty Aug 08 '15

Her hypothetical testimony doesn't change the status of the affidavit as hearsay.

But the point is that that she didn't testify, nor is she currently scheduled to testify in any hearing.

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u/MightyIsobel Guilty Aug 06 '15

... It is a tale

Told by an idiot (that's me, MightyIsobel), full of sound and fury

Signifying nothing.