An opinion on the State's Application for Leave to Appeal: the cell tower evidence

Here's my thoughts on the State's position w/r to the cell tower evidence.

Basically, the State outlines 4 reasons it is appealing:

As set forth in greater detail below, the State respectfully submits (1) that the court erred in reopening the post-conviction proceedings to consider this particular claim of ineffective counsel; (2) that this argument could have been, but was not, raised by Syed on direct appeal or in his original post-conviction petition and therefore was waived; (3) that Syed’s defense attorney, Cristina Gutierrez, was not ineffective for failing to raise a novel challenge to cell site evidence based upon a disclaimer whose relevance remains a subject of expert dispute; and (4) that the supposed error was not — in the face of overwhelming evidence of guilt — prejudicial.

I'm not going to go into the specific legal arguments, there are much more qualified people on here for those opinions.

 

At the bottom of the AT&T fax cover sheets was a technical legend titled “How to read ‘Subscriber Activity’ Reports,” and both the full and condensed reports had the term “subscriber activity” at the top of at least one page. The disclaimer in question, listed second-to-last among a series of instructions in the boxed legend, reads: “Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.” The question that is now the subject of expert dispute is whether this disclaimer refers to data in the “Location1” column on the full subscriber activity report or whether it applies to cell site data in the “Cell Site” column on the condensed report, three pages of which were entered at trial as Exhibit 31.

It should also be noted that the fax cover sheet was used for every fax AT&T sent w/r to this case. It seems to be their standard fax cover sheet for all responses. Three years later, in the Scott Peterson case, the standard fax cover sheet no longer included the disclaimer, even though 1) the faxes were from the same office that responded to the inquiries in Adnan's case and 2) the AT&T networks nationwide had not changed in functionality to justify removal based on any "fix" to incoming calls.

 

At the post-conviction hearing conducted in February 2016, experts steadfastly disagreed on whether the 1999 disclaimer about “location” applied to data contained in a column titled “Location1” on the full subscriber activity report that had all the columns and markers referenced in the technical legend, or whether the disclaimer referred to codes in the column titled “Cell Site” on the condensed report, which lacked many of the columns and markers referenced in the legend.

I think the State correctly calls into question the claim that "location" referred to the "Cell Site" based on the observation that the condensed report "lacked many of the columns and markers referenced in the legend". It is much more obvious from semantic reasoning that "location" would refer to the "Location1" column of the full report. This "Location1" column is 1) a column that contains a physical location by name (a switch, typically with a city name) and 2) has been proven to be unreliable in both Adnan's records and Scott Peterson's.

 

Syed’s expert, Gerald Grant, Jr., interpreted the disclaimer to refer to cell site codes on the partial report, reasoning that those codes, once cross-referenced with the index of addresses, provide a kind of location information.

The State acknowledges here that one cannot interpret location from the cell site in the report. 1) A secondary report of the physical locations of the cell sites and 2) the facings of the antenna of each cell site are needed to make any location interpretation.

 

In contrast, based upon his own experience working in 1999, careful inspection of the content of the reports, and after consulting with other experts and AT&T employees working in the field back then, the State’s expert witness, Special Agent Chad Fitzgerald (FBI), concluded that the “location” disclaimer applied only to data in the “Location1” column of a full subscriber activity report and did not bear at all on the reliability of cell site information presented at Syed’s trial.

While I think Fitzgerald is correct in this interpretation. I did speak with a Private Investigator who also worked on cases in the late 1990s, early 2000s, he said the following w/r to the disclaimer:

There was a time in the past, when incoming calls, and especially through AT&T, if they went straight to voicemail, registered the sending tower.

I explained this further with the Dupont Circle call and also in how to read voicemail calls in these reports.

 

Abe, of course, had his own take on the disclaimer in his affidavits, which the State summaries as:

Abe Waranowitz, the prosecution’s expert in 2000 who had provided an affidavit to defense counsel in October 2015 stating he was unaware of the disclaimer when he testified, executed a second affidavit for Syed on February 8, 2016, stating he found the fax cover sheet legend “ambiguous” and that, contrary to Grant’s and Agent Fitzgerald’s opinions, he believed it “most likely” applied to both reports.

Of course, Abe didn't state much of anything in his affidavits. They basically amounted to a shrug of "I don't know". This ambiguity lead the State to conclude that if three experts can't agree on the meaning, how can the Court find that a cross examination of Abe on this disclaimer would have resulted in anything meaningful enough to rise to the level of "substantial possibility" to change the jury's verdict.

Personally, I think the State is correct. There is nothing in Abe's original testimony that would have been impacted by his acknowledgement of the cover sheet disclaimer and expressed ambiguity. A call from that part of Leakin Park is still consistent with using the Cell Site L689B regardless of any "unreliability" in the network w/r to incoming calls. To have it happen twice within 7 minutes of each other makes the likelihood that anyone would consider it odd even more questionable. That the two Leakin Park calls are bookended by two outgoing calls just West of the Park and then two outgoing calls to the East and South of the Park make it doubtful there was any "unreliability" issue.

 

The State entered an affidavit from Special Agent Richard Fennern (FBI), with whom Special Agent Fitzgerald had consulted in relation to this case.

I found this interesting. I haven't seen this affidavit.

 

Both experts agreed, however, that even though Gutierrez was one of the first to confront this new form of forensic evidence, defense attorneys have continued to use the very same strategies and lines of cross examination in state and federal courtrooms across the country that Gutierrez pursued in 2000. Both experts were also unaware of any attorney in any case in the past 20 years who had used the line of attack that Syed today claims is constitutionally imperative.

I find this argument not very convincing when we consider the disclaimer seems to have been removed by 2002, the time of the Scott Peterson case.

 

The State goes on to explain how Abe's testimony was effectively cross examined by CG and all the objections and limitations she raised.

 

The State then goes on to call out all of the information in the Defense file as evidence that CG's team thoroughly investigated the cell tower evidence for weeks/months. This is likely why Adnan was not able to call any of CG's clerks or attorneys to testify about this issue.

 

There is also indication in the defense file that Gutierrez’s private detective (Drew Davis) had, independent of the State, contacted AT&T and was told that he could obtain with a subpoena “information as to which cellular phone tower Mr. Syed’s cell phone was in during several calls that were placed on the requested dates.”

Even Drew Davis was investigating the cell tower evidence. Of course, he also passed away before this issue was raised before the courts. I wonder how he would have testified.

 

What [Waranowitz] handed me is first of all, a Federal Express receipt or air bill rather which is his sender’s copy for the — when he mailed the large overlay map to Ms. Gutierrez. That was mailed on October 8, 1999. The second thing is a copy of a fax that he sent to Ms. Gutierrez on December 7th, it’s a nine page fax. Page one is his resume, page two are a list of seven cell sites with the site name, addresses, the latitude and longitude for those sites. Page three are the error call report from that date. Page four is a copy of what we entered as State’s . . . Forty-five. The next one is a copy of State’s 44 and then there’s four pages of cell sites along with their frequency plan which is technical data relating to the cell sites. So, Ms. Gutierrez not only had an opportunity to observe and copy this stuff in our office, she actually had the materials faxed to her. (T. 2/9/00 at 4-5).

The State references this with the footnote:

A copy of the airbill confirming the FedEx from Waranowitz to Gutierrez on October 8, 1999, was left in the Court file and is included as Attachment 10.

I didn't see this in my initial read through of the February 9th testimony, I'm not sure it's in the pages we have from that day. It confirms that AW pulled the error call report for 1/13, which means that the Defense and State would have known if there were any unique issues occurring on the network that day that would have called any of the cell tower evidence into question.

 

To be sure, in the context of the voluminous evidence presented at Syed’s trial, there are no doubt gaps and discrepancies that are amplified, or at least remain unresolved, by Syed’s cellphone records. As the State said in its opening brief to this Court, “witnesses sometimes presented testimony that did not fit neatly into the State’s timeline.” Appellee’s Brief at 25. This summary of cellphone- related evidence does not purport to identify or resolve these tensions; it is meant to illustrate the varied ways in which Syed’s cellphone evidence was used by the State, which included references to cell tower locations that is the subject of the State’s request to appeal, but was hardly limited to that facet of the records.

The State does eventually mention that incoming calls and cell sites were only part of the call records information used at trial. Many times the existence of the call, time, duration and phone number dialed were used to corroborate other evidence. This usage would not be subject to the disclaimer.

 

TL;DR: The State doesn't take a position on the "reliability" issue. They explain that the 3 experts called in this case disagree, therefore how can any determination that the disclaimer would have impacted the original verdict be seen as a "substantial possibility".

cc u/equidae2 here you go!