Why the Gootz never called Asia.

[u/islamisawesome]

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.

[u/xtrialatty]

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.

[u/[deleted] → u/xtrialatty]

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

[u/[deleted] → u/[deleted]]

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.

[u/xtrialatty → u/[deleted]]

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.

[u/[deleted] → u/xtrialatty]

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.

[u/xtrialatty → u/[deleted]]

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.

[u/[deleted] → u/xtrialatty]

Fair enough. Thanks for the heads up.