2017 State COSA Appendix

Appendix to the State’s Cross Appellee and Appellant Reply Brief, submitted to COSA prior to the June 2017 Appeals hearing.

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State’s “Cross Appellee” Appendix

This file was posted online by the Court of Special Appeals media unit for the hearing on 8th June 2017. It is the State’s “Appendix of Cross Appellee” and, although only containing documents which are officially “on the record” for the Court, some of the files had not previously been publicly released. The Appendix was compiled by the State to support the arguments in both parts of their combined Cross Appellee Brief and Reply Brief. The original file can be read or downloaded here, and the individual component files are linked in the table below.

Only 43 of the 148 pages were new to the public, the majority were memos to file recording the work of Chris Flohr, one of Adnan’s attorneys in the first months after his arrest. Also a partial phone log for Flohr, the “previously missing” final page of a bill from Gutierrez’ offiice, and 3 extra notes from Gutierrez’ clerks, which actually demonstrate the team’s failure to locate and serve subpoena’s on the Track Team and which we had already seen 5 slightly different versions of.

Limitations of the COSA 2016 Appeals

Only evidence that was presented at trial or which was presented (or debunked) at the PCR hearing in 2016 is on the official record. The COSA judges cannot consider any of the other issues that are now known about the trial evidence (such as those featured on Undisclosed Series 1) because they have not yet been presented to a Circuit Court Judge or Jury. Each side gets to present Briefs and Appendices of those files which particularly support the Briefs, but the Appeal Judges can look go beyond that and look at anything from the official record.

Similarly the specific points which can be argued about are limited.

The State’s Appeal (against the Post Conviction Relief of granting a new trial) only covered:

1) whether Maryland law should have allowed Judge Welch to raise the cell phone issues at the 2016 PCR hearing (COSA had ordered “the a circuit court may… conduct any further proceedings it deems appropriate”.

2) whether Adnan had “waived” his complaint about Gutierrez by not raising it earlier.

And 3) whether Judge Welch was wrong that Gutierrez was constitutionally ineffective for not cross examining Abe Waranowitz properly about the AT&T instructions (although Waranowitz was only asked about incoming calls).

Adnan’s Cross Appeal only covers

4) Gutierrez’ failure to even contact Asia McClain as an potential alibi and

5) Judge Welch’s failure to consider the cumulative effect on the jury of the multiple problems with the evidence now exposed.

Adnan’s original ALA and Appeal for Post Conviction Relief also covered

6) Gutierrez failing to pursue a plea agreement with the State. This issue is carried forward using the same 2015 filings. The COSA judges could have (but didn’t) ask questions about it at the Oral Arguments (listen to the audio file here).

COSA are only able to overrule legal issues with Judge Welch’s opinion, but his factual findings e.g. his decisions about the credibility, or lack of credibility, about the witnesses he heard are not in their scope of review.

“Missing” documentation

Altogether four new Briefs were submitted to COSA in 2017 (1 2 3 4), and from the references used, each does appear to have an 100+ page Appendix. Only one Appendix was published, which relates to the State’s combined Reply (to it’s own Appeal) and Appellee brief (latter part is to Adnan’s Cross Appeal). It is unclear why COSA decided to selectively publish only the record extracts intended to favor the State’s case. Maybe it was a mistake, given the State’s confusing mis-naming of that same brief as”Reply Brief and Appendix of Cross-Appellee” (the appendix was in a separately labelled and bound file), some evidence of the confusion is that the COSA “Highlighted Cases” web page mistakenly links (still, 4 months later!) to that same State’s Brief where it should link to Adnan’s (Cross Appeal) Reply Brief, so Adnan’s brief is not published by COSA at all. This State’s brief and appendix presented new “facts” which have not currently been judged by the Circuit Court so it is not clear to what extent COSA will be able to make any judgements that relate to them, except if they choose to refer the case back to the Circuit Court, although that request had been made earlier and separately by the State.

Within this State’s Appendix there is another possible mistake, or maybe a deliberate withholding of pages. There is an unexplained four page jump in the file between App-111 and App-116 (pdf page numbers 115 and 116).

Key to Index of individual documents

There are 104 documents included (or pages extracted from documents) in the Appendix.
New pages or files are highlighted, otherwise the links will open another copy of the same file, as duplicates have not been uploaded. If our version of the document was longer, the pages used in this Appendix are shown in the final column.
The App-xxx style references are page numbers, and were used in the COSA briefs in 2017-2018.
The A-xxxx and B-xxxx references are from the Binders submitted in evidence at the 2016 PCR hearing.
Approximate transcriptions of the handwritten Flohr memos and the Track Team notes by Gutierrez’ team have been appended so the contents are now searchable.

Index of individual documents

Orig. page Reference
used here		 PCR2 reference Description and link Date (doc. or subject) Any New Pages?
1 — — Front cover and Table of Contents 01 May 2017 —
5 App-001 — State’s Conditional Application for Limited Remand 22 Aug 2016 —
44 App-040 — Asia McClain’s first letter, handwritten 01 Mar 1999 —
46 App-042 — Asia McClain’s second letter, typed 02 Mar 1999 —
49 App-045 A-0008 Urick Disclosure letter to Gutierrez 08 Jul 1999 p2 of 2
50 App-046 A-0150 Memo from Ali to Gutierrez. Interview with Adnan’s brother 21 Aug 1999 p1 of 3
51 App-047 A-0153 Memo from Kali to Gutierrez. Interview with Adnan 25 Aug 1999 —
52 App-048 A-0154 Adnan- account of Jan 13 1999. Not dated but this note is mentioned above, the 25 Aug Kali memo 25 Aug 1999 —
53 App-049 A-0191 Memo from Kali to Gutierrez. Interview with Adnan 12 Oct 1999 p3,4 of 4
55 App-051 A-0234 Memo from Kali to Gutierrez. Interview with Adnan 01 Jan 2000 —
57 App-053 A-0261 Defense task list. Typed and dated 4 Sep, multiple copies with additional handwritten notes 04 Sep 1999 —
63 App-059 A-0353 Davis record of first interview with Stephanie. Also see App-135 03 Oct 1999 p3 of 3
64 App-060 A-0359 Davis note of interview with Jay Wilds 03 Sep 1999 —
65 App-061 A-0360 Davis notes about Haes memorial service 11 Mar 1999 —
66 App-062 A-0369 Billing for Cristina Gutierrez and Mark Martin, attorneys. Dated August but covers April to June 1999 08 Jul 1999 only p3 is new
69 App-065 A-0374 Billing for Andrew Davis, Private Investigator. Work under Colbert and Flohr. Covers March 1999 31 Mar 1999 —
70 App-066 A-0516 Phone log covering 2-10 Mar 1999. Chris Flohr’s handwriting 02 Mar 1999 new to public
74 App-070 A-0520 Memo, Flohr to file. Visit to Adnan 19 Mar 1999 new to public
76 App-072 A-0522 Memo, Flohr to file. Transcript order 01 Mar 1999 new to public
77 App-073 A-0523 Memo, Flohr to file. Processes to appeal a Bail refusal 02 Mar 1999 new to public
78 App-074 A-0524 Memo, Flohr to file. Investigator Frank Napfel 02 Mar 1999 new to public
79 App-075 A-0525 Memo, Flohr to file. Calls to a defense attorney and a private investigator 02 Mar 1999 new to public
80 App-076 A-0526 Memo, Flohr to file. Information about Psych Evaluations 03 Mar 1999 new to public
81 App-077 A-0527 Memo, Flohr to file. Listening to Bail Review tape 04 Mar 1999 new to public
82 App-078 A-0528 Memo, Flohr to file. Visit to Adnan 04 Mar 1999 new to public
83 App-079 A-0529 Memo, Flohr to file. Juvenile Issues – including Motion to Transfer Jurisdiction to Juvenile Court 05 Mar 1999 new to public
84 App-080 A-0530 Memo, Flohr to file. Calls about Adnan’s medication 05 Mar 1999 new to public
85 App-081 A-0531 Memo, Flohr to file. Visiting Adnan 06 Mar 1999 only p2 is new
87 App-083 A-0533 Memo, Flohr to file. Bail Re-Review, record of calls made. 09 Mar 1999 new to public
88 App-084 A-0534 Duplicate of A-0534 – App-083. Not added to wiki 09 Mar 1999 —
89 App-085 A-0535 Memo, Flohr to file. School records. 10 Mar 1999 new to public
90 App-086 A-0536 Memo, Flohr to file. Calls about Adnan’s medication 11 Mar 1999 new to public
91 App-087 A-0537 Memo, Flohr to file. Calls about Adnan’s medication 12 Mar 1999 new to public
92 App-088 A-0538 Memo, Flohr to file. Visit to Adnan 12 Mar 1999 new to public
93 App-089 A-0539 Memo, Flohr to file. Call to Saad Chaudry. 12 Mar 1999 new to public
94 App-090 A-0540 Flohr’s Notes of the Police Search of Johnnycake Rd 20 Mar 1999 new to public
95 App-091 A-0541 Memo, Flohr to file. Calls about Adnan’s medication 26 Mar 1999 new to public
96 App-092 A-0542 Memo, Flohr to file. Home Detention 29 Mar 1999 new to public
97 App-093 A-0543 Memo, Flohr to file. Calls about Adnan’s medication 29 Mar 1999 new to public
98 App-094 A-0544 Memo, Flohr to file. Judge Mitchell’s request for Adnan’s DOB 29 Mar 1999 new to public
99 App-095 A-0545 Memo, Flohr to file. House Arrest 29 Mar 1999 new to public
100 App-096 A-0546 Duplicate of A-0542 – App-092. Not added to wiki 29 Mar 1999 —
101 App-097 A-0547 Memo, Flohr to file. Postponement. Call to Asst State Atty 29 Mar 1999 new to public
102 App-098 A-0553 Memo, Flohr to file. Receipt of Records – Production of Defendant. Record of dealings with Judge Mitchell 31 Mar 1999 new to public
103 App-099 A-0554 Memo, Flohr to file. Call to Saad Chaudry. 31 Mar 1999 new to public
104 App-100 A-0555 Memo, Flohr to file. Calls to Nisha and family, Chaudry family, and other attys 01 Apr 1999 new to public
106 App-102 A-0557 Memo, Flohr to file. Videotape of 31 March Bail hearing 01 Apr 1999 new to public
107 App-103 A-0558 Duplicate of A-0554 – App-103. Not added to wiki 01 Apr 1999 —
108 App-104 A-0559 Memo, Flohr to file. Transcripts of hearings 05 Apr 1999 new to public
109 App-105 A-0560 Memo, Flohr to file. Calls about Adnan’s medication 06 Apr 1999 new to public
110 App-106 A-0561 Memo, Flohr to file. Minutes. Call to Kenneth Norris 06 Apr 1999 new to public
111 App-107 A-0562 Duplicate of A-0560 – App-105. Not added to wiki 06 Apr 1999 —
112 App-108 A-0563 Memo, Flohr to file. Visiting Adnan 07 Apr 1999 new to public
113 App-109 A-0564 Memo, Flohr to file. Calls about Adnan’s medication 08 Apr 1999 new to public
114 App-110 A-0565 Memo, Flohr to file. Court appearance on 14 April. 14 Apr 1999 new to public
115 App-111 A-0598 Handwritten note. P2. Defense strategy, post-bail hearing. No date or title. Must must be after 31 March but before 14 April as ASA Vicki Wash’s bail arguments about Pakistani men attributed to “Marshall” are mentioned but Harry Marshall’s identity has not yet been clarified. April 1999 new to public
— App-112
to App-115		 — There appear to be four pages missing from this copy of the Appendix. — —
116 App-116 B-0138 Detective Ritz notes of Nisha interview 01 Apr 1999 p1,3 of 7
118 App-118 B-0191 BPD notes of Inez Butler Hendrix interview 23 Mar 1999 p1 of 6
120 App-120 B-0247 BPD notes V Madison, school library 24 Mar 1999 —
122 App-122 B-0251 BPD notes C Metzger, school library 24 Mar 1999 —
123 App-123 B-0293 Cover sheet Ja’uan interview 20 Apr 1999 —
124 App-124 B-0294 Handwritten notes, Ja’uan interview 20 Apr 1999 —
125 App-125 B-0295 Hand drawn map BestBuy and parking area (presumed to be drawn by Ja’uan) 20 Apr 1999 —
126 App-126 A-0004 Letter from Gutierrez to Judge Quarles on Urick’s failings in discovery 07 Jul 1999 —
129 App-129 A-0007 Amended state’s disclosure date stamped 8-7 and 10-7 (response to 7-7 letter from CG) 08 Jul 1999 p1 of 2
131 App-131 A-0189 Memo from Kali to Gutierrez. Interview with Adnan 12 Oct 1999 —
135 App-135 A-0350 Davis record of first interview with Stephanie. Also see App-059 10 Mar 1999 p1 of 3
138 App-138 B-0133 Typed BPD interview with Ja’uan 20 Apr 1999 —
139 App-139 A-0195 Defense attempts to contact and subpoena Track Team. Multiple copies of typed memo (Kali to Gutierrez) with undated handwritten notes. 16 Oct 1999 only p1,7+8 of 8 are new
147 — — Back cover 01 May 2017 —