The “Two Hour Lividity” Case Handled by Gutierrez is Much Worse Than I Imagined

Yesterday, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), the “two hour lividity” case handled by Cristina Gutierrez, the same attorney who handled the Adnan Syed case. It turns out that the Nicolas is much more troubling than I initially imagined for a few reasons.

In Nicolas, Richard A. Nicolas, an EMT, called 911 from a Texaco gas station at approximately 9:57 P.M. on July 26, 1996 and said that his two year-old daughter had been shot. Nicolas later told police that, after taking his daughter to see “Pinocchio,” another driver bumped his car, resulting in a heated argument and the other driver fatally shooting his daughter about twelve minutes before the 911 call.

At trial, the State developed the alternate theory that Nicolas killed his own daughter at approximately 7:45 P.M. “in order to cash in on a life insurance policy and then attended a movie in order to create an alibi.” This theory was corroborated by

the expert testimony of Dr. Dennis Chute, the Medical Examiner, who testified that the lividity (or pooling of blood) in [the daughter]’s left side and back indicated a time of death two hours earlier than Petitioner claimed.

Gutierrez neither cross-examined Dr. Chute about whether lividity could be fixed within two hours after death nor called her own expert witness to refute this timeline. After Nicolas was convicted of murder, he appealed, claiming, inter alia, that he received ineffective assistance of counsel in connection with the lividity evidence; his appeal was finally rejected by the Court of Appeals of Maryland two days before Gutierrez started representing Adnan.

Thereafter, Nicolas filed a habeas petition with the United States District Court for the District of Maryland. In this petition, Nicolas once again raised the lividity issue. That court did not find ineffective assistance by Gutierrez despite

letters written by the prosecution team to Dr. Chute, the lividity expert, and to Officer Hannah, the police officer at the scene of the crime. The Dr. Chute letter stated that lividity was “the whole case” and that the prosecutors were “100” certain that his testimony won the case….The letter to Officer Hannah stated, “It is only because you did move [the daughter’s body] that the Medical Examiner saw the fixed lividity on her left side and her back when the autopsy was done. This fact was the whole case.”…The prosecution further states, “We learned from an unimpeachable source that the defense did not spot the significance of Dr. Chute’s findings before we raised the issue in open court.”

The court primarily rejected Nicolas’s ineffective assistance claim because (1) Gutierrez claimed that, after hearing Dr. Chute’s testimony, she consulted her own forensic pathologist despite not calling him as a witness; and (2) Gutierrez pointing out that it takes more than two hours for lividity to fix would have further contradicted Nicolas’s claim that his daughter was killed at about 9:45 P.M.

Nicolas also claimed that the State violated the Brady doctrine by failing to turn over two statements made by witnesses staying at a Holiday Inn close to the shooting on on July 26, 1996. One witness “said that she heard a loud popping sound like a gun shot around 9:45 p.m.,” and the other witness “told police that he heard a loud sound like a car backfiring or exploding while in the hotel parking lot…at about 10:00 p.m.” Finding that the statements corroborated Nicolas’s timeline of the case, the court granted him a new trial.

So, what’s important about the Nicolas case?

Can Lividity Fix in Two Hours?

Dr. Leigh Hlavaty said on this post and in Undisclosed that lividity doesn’t fix until 8-12 hours after death, which is consistent with what other experts have told me. So, how could Dr. Chute testify that lividity became fixed a mere two hours after death? Does lividity fix earlier in a 2 year-old than a 20 year-old?* 

I decided to look into other cases handled by Dr. Chute. After serving as a medical examiner in Baltimore for around 11 years and teaching pathology for a few years, he became the Deputy Medical Examiner for Duchess County, New York in 2005. In 2007, he was the medical examiner in a case involving the death of a twenty-one month old child, who was found on her back despite having fixed frontal lividity. “According to Dr. Chute, the frontal lividity indicated [the victim] was lying on her stomach for eight to twelve hours before being turned over. (A258). Brief of Respondent (the State), People v. Santiago, 2013 WL 8211696 (N.Y. 2013) (emphasis added).

Again, this 8-12 hour time frame is entirely consistent with everything I’ve been told about lividity. So, how did Dr. Chute testify in 1997 that the victim’s lividity fixed in two hours? At that point, he had been a medical examiner for 5-6 years. Was this a mistake? Was he pressured by the police or the prosecutor? I don’t know, but there’s clearly something off about Dr. Chute’s testimony from Nicolas, and the letters written by the prosecutors to Dr. Chute certainly give me pause.

Who is the Unimpeachable Source? 

According to the prosecution, “[w]e learned from an unimpeachable source that the defense did not spot the significance of Dr. Chute’s findings before we raised the issue in open court.” Okay, so who was this source? Did someone from the defense team talk to the prosecution about Gutierrez’s failure to grasp the significance of the lividity evidence? That would have been highly improper.

Was there a prosecution mole in Gutierrez’s office? Okay, this one might sound a bit crazy, but last month I posted an entry about a case in which the Maryland State Attorney General’s Office planted a mole in the office of a defense attorney being investigated for improprieties. Given that Gutierrez had a record number of client complaints brought against her, this is not beyond the realm of possibility.

Was the source someone not on the defense team? I guess that’s possible, but how would someone outside the defense team know Gutierrez’s grasp on the lividity evidence? Moreover, if this person gained this knowledge through legitimate channels, why wouldn’t they be named?

So, why is this important for Adnan’s case? Through whatever channel, the same prosecutor’s office handling Adnan’s case learned that Gutierrez didn’t understand lividity evidence. I’ve always wondered why the State propounded a theory of the case at Adnan’s trial that could so easily be contradicted by the lividity evidence. Did the State do this because it learned in Nicolas that Gutierrez didn’t understand lividity evidence? Is this why the State dragged its feet in turning over Hae’s autopsy report and allowing Gutierrez to view the burial photos: to prevent her from getting up to speed?

Did Gutierrez Learn About Lividity Evidence During/After Nicolas?

Of course, Gutierrez’s claim was that she consulted with a forensic pathologist during the Nicolas case after hearing Dr. Chute’s testimony although she didn’t call him at trial. This leaves us with three possibilities. First, Gutierrez could have been lying. Given what we will disclose about Gutierrez’s behavior in dozens of other cases during this same time frame, this is certainly a possibly to consider. 

Second, Gutierrez could have talked to a pathologist and yet still not grasped the significance of lividity evidence. The question here is whether you buy that it was possibly sound trial strategy for Gutierrez not to question Dr. Chute’s conclusion about lividity fixing within two hours after death. The court hypothesized that this could have been strategy because an earlier time of death further contradicted Nicolas’s claim that his daughter was killed at about 9:45 P.M.

On the other hand, without contradicting Dr. Chute’s conclusion, the jury was left with the impression that the forensic evidence matched the State’s theory of the case and contradicted Nicolas’s theory of the case. This is probably why the prosecutor was convinced that Dr. Chute’s testimony sealed Nicolas’s fate.

Now, let’s look at the other possibility. If Gutierrez presented evidence that lividity fixes 8-12 hours after death, this would have contradicted Nicolas’s version of events,…but it also would have contradicted the State’s theory of the case. Would that have been enough for reasonable doubt? I suppose it depends on the way that Gutierrez would have pitched it to the jury. It seems like Gutierrez would have been best served calling into questions all of the lividity evidence based upon the obvious incorrectness of Dr. Chute’s “two hour lividity” claim, rather than trying to claim that the victim died much earlier in the day (unless Nicolas had an alibi). If Nicolas is re-tried, it will be interesting to see if this is the strategy that his new counsel employs.

So, it’s possible that Gutierrez failed to grasp the importance of the lividity evidence.

The third possibility is that Gutierrez did grasp the importance of the lividity evidence but failed to contradict Dr. Chute’s “two hour lividity” claim for strategic reasons. If this is the case, however, how did Gutierrez miss the key lividity issues in Adnan’s trial? As Dr. Hlavaty has said, the lividity evidence in Adnan’s trial contradicts the claims that (1) Hae was “pretzeled up” in the trunk of her Sentra for 4-5 hours; and (2) buried on her right side in Leakin Park in the 7:00 hour. Drawing these points out on cross-examination and/or Gutierrez calling her own pathologist only could have helped Adnan. And yet, somehow she dropped the ball.

Were there Brady Violations in Adnan’s Case

It was pretty disturbing to learn that the State in Nicolas failed to turn over two key witness statements that corroborated Nicolas’s theory of the case. I’ve written before about certain witness statements being “lost” in Adnan’s case and the oddity of other key witnesses not (officially) being interviewed. At some point, will we learn that someone made a key statement to the State in Adnan’s case that was never turned over? We’ll see.

We’ll also see what happens to Nicolas. It’s possible that he killed his own child, which is possibly the worst crime in the world. But it’s also possible that he’s innocent man who has lost years of his life in prison due to the failures of his attorney and the misconduct of the State of Maryland.

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*I just got feedback from one of my medical experts: “I wouldn’t expect” lividity to fix more quickly in the 2 year-old because “it’s more due to just gravity and position vs. the amount of fluid.” “[T]he time it would take for both to be fixed would be the same.”

[Update: I had been trying to make sense of the fact that Nicolas apparently had an expert on appeal saying that lividity should have fixed 4-6 hour after death, i.e., in half the time of the usual 8-12 hour estimate. This made little sense to me, especially given that the first expert I consulted (who is just starting as a medical examiner) said that he wouldn’t expect lividity to fix more quickly in a two year-old. Then, however, I got this helpful comment from Dr. Hlavaty:

While rough time frames exist for estimating time of death based on lividity and rigor mortis in temperate conditions in adults, no such time guidelines exist for children and infants.  The sources all agree that infants and children go through these changes quicker than adults, but there have not been published and universally accepted studies to form the basis for such estimates. So, medical examiners form such opinions based on their experiences. Based on my experiences, in temperate conditions infants and children can go through these changes in about half the amount of time as adults.  And if the temperature is warm, these changes appear and disappear even faster.

This is very interesting and could explain why Nicolas’s expert on appeal claimed that lividity should have become fixed between 4-6 hours after death.].

-CM