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 |
— |