Cristina Gutierrez’s Refusal to Speak to Jay’s Attorney & the “Magic Information”

On Friday, additional missing pages from Adnan Syed’s second trial were posted. As was the case with the prior releases, these missing pages uncover further possible errors by Adnan’s attorney, Cristina Gutierrez. The relevant pages here are 252-253:

So, Gutierrez refused to talk to Jay’s attorney about why she was possibly planning on subpoenaing her. Presumably, she was not one of the five witnesses referenced in my prior posts because I have no record of Benaroya being subpoenaed by the State, and I can’t think of a reason why the State would have wanted her to testify.

Conversely, Gutierrez desperately did want Benaroya to testify concerning the circumstances of how she came to represent Jay pro bono. To clarify, Gutierrez desperately wanted Benaroya to testify after stumbling upon a key piece of information at Adnan’s second trial. 

As noted in Episode 10 of Serial, 

[I]n the middle of the second trial, Jay says something. Something that Christina would later call, “the magic information.” It happened on the stand when she was asking Jay how Benaroya came to represent him. She asked, did anyone help provide you a lawyer?

I say that Gutierrez stumbled upon this information because she didn’t ask Jay this question at Adnan’s first trial and therefore had no way of knowing that Urick (allegedly) arranged for Benaroya to meet Jay at his office. And she had no way of knowing this information because she refused to talk to Benaroya about her subpoena. Had she simply talked with Benaroya about her subpoena, she might very well have learned about how Benaroya came to represent Jay or at least had reason to question Jay on the issue at the first trial.

After all, Gutierrez and Benaroya were apparently friends. There are at least a couple of references to this in the defense files:

Instead, like many other people in this case, Gutierrez shut Benaroya down and refused to talk to her.

Why is this important? Gutierrez concluded her cross-examination of Jay at the first trial without addressing the issue of how Benaroya came to represent him. By refusing to speak with Benaroya, Gutierrez failed to learn the “magic information” that she used to hammer away at Jay during cross-examination at the second trial. Indeed, if Adnan’s first trial didn’t end in a mistrial, we might never know about the circumstances surrounding the retention of Jay’s pro bono attorney.

Adnan’s first trial, of course, did end in a mistrial. Then, at Adnan’s second trial, Gutierrez scrambled after luckily learning the “magic information” and unsuccessfully moved to call Benaroya as a witness. The denial of this motion later became one of the grounds for Adnan’s direct appeal.

Imagine a scenario in which Gutierrez does speak to Benaroya before Adnan’s first trial and gets some inkling about how Benaroya came to represent Jay. In this scenario, Gutierrez could have drafted a well researched motion in limine, laying out the reasons why the court should allow her to call Benaroya as a witness.

Such a motion might very well have been granted by the judge at Adnan’s first trial, which would have made it very difficult for the judge at Adnan’s second trial to reach a different conclusion. Moreover, even if the judge didn’t rule on the motion at Adnan’s first trial, that motion still would have had a better chance at success at Adnan’s second trial compared to the slapdash effort that Gutierrez threw together after stumbling upon the issue while interrogating Jay.

In the end, I can’t say definitively that Gutierrez’s refusal to speak to Benaroya had a negative effect on Adnan’s chances at trial.  What I can say is that Gutierrez’s refusal to speak to Benaroya, like her refusal to speak to many other prospective witnesses, led to Gutierrez failing to give herself a chance to learn information that could have improved Adnan’s chances at trial.

-CM