Fraud at the new-trial hearing: almost 19 miles

This is Fraud 4, the fourth of the false statements my lawyers made at the hearing on my motion for a new trial. The first three, and what a lawyer owes the court, are on the 11:52 call page.

At 12:37 p.m. on February 10, 2010, my phone made a call on my home tower. One minute later, at 12:38, it made another. AT&T’s records list the cell for that second call at a location 45 miles from my home, on the far side of a mountain range, where there is no tower. Agent Boles’s map put the same cell near Lake Mathews, about 18.8 miles away, a location that appears nowhere in AT&T’s records.

My own lawyer, McGee, gave the jury the 18.8 miles. At the motion for a new trial, my other lawyer, Maline, agreed with the judge’s version, and then told him the two sets of records said the reverse of what they say.

The State said Boles’s maps were “a graphical representation of what’s in the call detail record.” (RT 4571:1-3.)

The record: The call detail record gives one location for cell 05264/41453: 33.51286, -117.26251, 45 miles from my home. Boles’s map put it near Lake Mathews, 18.8 miles away. (AT&T items 9217-9218; Jovanovic slides 119-126.)

Maline told the judge “the call tower records that we had, have that tower, Lake Matthews,” and that “Agent Boles’ records that we got, list the call 25 miles further even south.” (RT 8861:3-14.)

The record: It is the other way around. AT&T’s records put the cell far to the south. Boles’s map put it at Lake Mathews.

And the judge said the February 10 call “corroborated the idea that there could be a call from the defendant’s residence that is hitting distant towers some 19, 20 miles away.” Maline answered: “Right.” (RT 8861:16-22.)

Here is the record, so you can check it yourself.

One minute, 45 miles

Dr. Jovanovic, the defense’s own expert, laid out the two calls side by side. Slide 119, “Calls at 12:37 and 12:38PM on 02/10/2010,” shows the AT&T records for both. The 12:38 p.m. call “starts and ends on cell 05264/41453.”

The AT&T records themselves: call 9217, 12:37 p.m., on the home tower, 05267/16635, at 34.10839, -117.55625. Call 9218, 12:38 p.m., on 05264/41453, at 33.51286, -117.26251. That is the only location AT&T gives for the 12:38 call.

A phone cannot travel 45 miles in a minute, and I do not claim the records say it did. A cell record names the cell that served a call, not the exact spot where the phone was. The point is narrower and harder to get around: two calls one minute apart, one on my home tower and one on a cell the records place 45 miles away, cannot both be read as a straightforward map of where I was. That contradiction needed to be explained before anyone put this call on a map of my movements. No one explained it.

Where AT&T put the cell, and where Boles put it

Dr. Jovanovic’s slides on the 12:38 call were headed:

“Cell 05264/41453 rel. Defendant’s Residence — 45 miles from the residence!”

“Lat/Long for cell 05264/41453 wrong in Call Records!”

(Jovanovic slides, no. 121.)

“Cell 05264/41453 so far away that its ZIP was not included in the Defense’s subpoena request to AT&T”

“Location in the middle of forest, no sign of any cell tower within at least 0.5 miles”

(Id., no. 120.)

AT&T’s records assign that cell to a spot 45 miles from my home, in the Murrieta area, where there is no tower. Slides 123 and 126 show where the FBI’s map put it instead: “Cell 05264/41453 location per FBI agent’s map.” There is a real tower there, near Lake Mathews: “Cell Tower definitely exists near location given by FBI (roughly 33.858° N, 117.4403° W).” Slide 126 measures it at 18.8 miles from my home.

Boles told the jury his maps came from the call records and nothing else:

ADA Imes: “So I wanted to ask you a couple of things. The data that you were using to document these cell tower hits, that was taken from the CDRs; is that correct?”

Boles: “Yes.”

(RT 4568:11-14.)

ADA Imes: “So you are just plotting data that’s found in the CDR?”

Boles: “Correct. Creating graphical representation of what’s in the call detail record.”

(RT 4571:1-3.)

See page 4568

See page 4571

A map that is “just plotting data that’s found in the CDR” cannot put this cell at Lake Mathews. The CDR says 33.51286, -117.26251. To put it anywhere else, Boles needed some other source, and he never told the jury what it was. Either AT&T’s coordinates for this cell are wrong, or Boles’s map is not the records. Either way, the jury was not told the truth about this call.

On direct, the prosecution never asked Boles to explain the placement. It showed the 12:38 call as one more stop on its map of that day, “a cell tower connection on a tower near Lake Matthews,” and moved on. (RT 4558:27-4559:16.)

See page 4558

See page 4559

What McGee showed the jury

The 18.8 miles did not come only from Boles. At trial, McGee prepared the defense’s own map, Exhibit 910, with the call at the same Lake Mathews location. On cross-examination, he handed the number to the witness:

McGee: “Now, the distance between that tower and my client’s home is approximately how long — how far?”

Boles: “I don’t know. You showed me a map at the break, and I recall 18 miles or 17 — I don’t recall exactly what you said.”

McGee: “18.8 by Google?”

Boles: “That sounds about right.”

McGee: “That’s as the crow flies, correct?”

Boles: “Yes, sir.”

(RT 4642:27-4643:7.)

See page 4642

See page 4643

Then he built on it. He had Boles mark the azimuth of call 9218, 340 degrees, on the Lake Mathews tower. (RT 4644:6-4645:1.) He turned to the February 4 call at 9:32 p.m., call 9083, whose tower Boles placed “in the Mira Loma area,” and had Boles agree it was “exactly on the same line.” (RT 4645:3-4646:4.) Then he put up his own map: “I will publish 910 for all.” (RT 4646:8.)

See page 4644

See page 4645

See page 4646

McGee: “And that call would also have line of sight back to the house, correct?”

Boles: “It’s possible. We know that — I know there is line of sight from Lake Matthews. I don’t remember if I have seen line of sight from Jurupa Valley back to Rancho Cucamonga.”

McGee: “If there is no obstruction, is that a call, in all possibilities, could be picked up at that tower?”

Boles: “Yeah, I can’t specify where the phone was when the call was made, so, yes.”

McGee: “That would be another flier. He could have been home?”

ADA Imes: “Objection. Calls for speculation. Argument.”

The Court: “Overruled.”

Boles: “Yes, I can’t articulate where the phone was when that particular call was made, but it was somewhere in the coverage area of that tower.”

(RT 4646:9-23.)

Here is what that did, step by step. McGee prepared a map with the Lake Mathews placement. He gave Boles the 18.8 miles. He had Boles draw the 340-degree line from that tower. He tied the February 4 call to the same line. He published his map to the jury. None of it was needed to ask whether the February 4 call could have come from home. What it added was this: the jury saw the Lake Mathews placement walked through, drawn on, and confirmed by the defense itself, while the call records in McGee’s own file put that cell 45 miles away.

That is what the record shows McGee did. Why he did it, the record does not say. What I know is the result: the false placement looked legitimate, because my own lawyer vouched for it.

What Boles had testified before

McGee had something better than a map. I gave him the Pape transcripts, and he used them to confront Boles at my trial on another point. (RT 4639:1-16.) In Pape, Boles had told that jury how far a phone can be from the tower it reaches:

Question: “And is there any way to quantify, or have you conducted studies to quantify the distance, the range that the average cell phone, say in any given generation of cell phone, has to communicate back to the towers?”

Boles: “I can speak to my experience of analyzing a lot of these — hundreds of these records over the years, that I can tell you the best distance I’ve seen in my own cases is 12.5 miles.”

Question: “Okay.”

Boles: “And that was in the — the wide open desert with no — with no obstructions.”

Question: “No obstructions, no weird environmental effects?”

Boles: “Yeah. It’s very rare to get a distance that far.”

(People v. Pape, RT 1688:13-25.)

See Pape page 1688

To be exact: in Pape, Boles was describing the farthest he had seen a phone connect to a tower. At my trial, 18.8 miles was the distance from the mapped tower to my home. Those are the same thing only if my phone was at home during that call. So Boles did not contradict himself just by agreeing the tower was 18.8 miles from my house.

But that is the point McGee was making: that I could have been home. If that was the defense’s point, the 12.5 miles was the question to ask. Twelve and a half miles was the farthest Boles had seen in hundreds of records, in open desert with nothing in the way, and even that was “very rare.” McGee had it in his hands, and never asked. And AT&T’s own record put the cell 45 miles away.

What happened at the new-trial hearing

The court allowed only slides prepared before or during trial. Maline offered to remove the rest himself: “Let me — if I could just get a couple of minutes to confer which are the ones that were added since trial and then I will take those out.” (RT 8844:14-17.)

See page 8844

The slides he removed included Dr. Jovanovic’s slides on this call. But the slides did not create the problem. They illustrated it. The coordinates in them come from AT&T’s call records, items 9217 and 9218, which were in the defense’s file before trial and are part of Exhibit 794. Taking out the slides did not take the records out of the case.

Later that morning, Maline told the judge the connection was “actually farther than Lake Matthews.” (RT 8860:19.) That was true. What followed went wrong three separate ways.

First, the judge put the wrong distance on the wrong call. He described the February 4, 9:32 p.m. call, on a tower Boles placed “in the Mira Loma area… south of Interstate 60” (RT 4529:4-6), about 8 miles from my home, as “a call from his home that hit off of a more distant tower,” and said that tower was “about almost 19 miles from his residence.” (RT 8860:20-8861:2.) Almost 19 miles is Boles’s distance for February 10, not February 4.

Second, the judge relied on the February 10 call as proof that a call from my home could reach a tower “19, 20 miles away,” without anyone resolving whether that call’s tower was where Boles put it. (RT 8861:16-22.)

Third, Maline agreed with both, instead of correcting either.

See page 8860

See page 4529

See page 8861

What Maline told the judge

Maline: “Then I won’t go any further on that, because what was going to be argued was there was significant — on the new information, which I took out, the Court is correct, the — but remember, there’s two sets of records that the experts were looking at. One was a — call them the FBI records, even though Agent Boles indicated those records somehow might be originating from AT&T, as well. They are kept at a — stored with a different agency. But the call tower records that we had, have that tower, Lake Matthews.

“Agent Boles’ records that we got, list the call 25 miles further even south, so that was a pretty big discrepancy in those records, as well.”

(RT 8861:3-14.)

“The Court is correct.” Then he told the judge which records said what, and had it backwards:

And when the judge said February 10 “corroborated the idea that there could be a call from the defendant’s residence that is hitting distant towers some 19, 20 miles away,” Maline answered: “Right.” (RT 8861:16-22.)

What Maline knew

The question is not only whether Maline’s statement was wrong. It is whether he knew it was wrong when he said it, or was simply confused about two sets of records. Here is what the record shows he had and knew that morning:

• He had the slides. He chose which ones to remove, and the ones on this call were among them (RT 8844:14-17). They state, in headings, “45 miles from the residence!” and “Lat/Long for cell 05264/41453 wrong in Call Records!”
• He knew the call was beyond Lake Mathews. Minutes earlier he told the judge it was “actually farther than Lake Matthews.” (RT 8860:19.)
• He knew there were two locations. He described “a pretty big discrepancy in those records” himself. (RT 8861:13-14.)
• He had heard where the February 4 call was. At trial, Boles placed it in Mira Loma, about 8 miles from my home, not 19 (RT 4529:4-6).
• He had a reason not to press it. As I see it, arguing 45 miles would have meant showing the court that the defense itself, through McGee and Exhibit 910, had put the 18.8-mile placement in front of the jury.

Then he agreed with the judge twice, and told him the sources in reverse.

Why it mattered

The February 10 call was one stop on the State’s map of my movements that day (RT 4558:27-4559:16), and the judge used it at the new-trial hearing as proof that a call from my home could reach a tower nearly 20 miles away, to explain away the February 4 call. Either way, it was a call the records could not support as presented: AT&T put its cell 45 miles away, Boles put it somewhere else, and no one ever told the jury or the judge which was right, or why they differed.

The new-trial hearing was the place to fix that. Instead, the judge merged the two calls, and my own lawyer agreed with him and gave him the records backward.

Decide for yourself

A misstatement to a court can be a mistake. A knowing, material misrepresentation to a court, by a lawyer who has the documents that show the truth, is something else. The record above shows what Maline had, what he knew minutes before, what he said, and what he had to gain by not correcting it. I believe that is fraud.

The records, the slides, the trial testimony and the hearing transcript are all above. Read them and decide for yourself.

Sources

Reporter’s Transcript (RT), People v. Merritt, San Bernardino County Superior Court, Case No. FVI1404194:

• RT 4529, 4558-4559, 4568, 4571: Agent Kevin Boles, direct examination by Mr. Imes.
• RT 4639, 4642-4646: Agent Boles, cross-examination by Mr. McGee; defense Exhibit 910.
• RT 8844, 8860-8861: hearing on motion for new trial (Mr. Maline; the Court).

Other records:

• My AT&T records, Trial Exhibit 794, items 9217 and 9218 (posted on The records).
• Dr. Jovanovic, defense expert slides 119-126.
• People v. Pape, RT 1688:13-25 (Agent Boles).

Where I describe giving McGee the Pape transcripts, I state what I know personally.