Fraud at the new-trial hearing: the 11:52 call

In September 2018, before my trial began, my own defense expert put in writing that the prosecution’s reading of a key February 6, 2010 call could not be right. The call lasted 35 seconds. In that time, he wrote, a phone could travel about 0.6 miles, and there was no stretch of road where it could have started on one cell and ended on the other. He also named a possible cause: antenna cables cross-connected at the cell site.

The jury never heard him.

At my motion for a new trial, my trial lawyer, James McGee, testified under oath that the expert had not called it an impossibility, and that he had said “that’s definitely somebody moving.” The expert’s report says otherwise.

My other lawyer, Rajan Maline, knew it. A month before the hearing, he had written to the expert himself that the call “WAS IMPOSSIBLE.” When McGee testified the opposite, Maline did not offer the report to correct him. Minutes later, the judge sustained an objection to calling the call impossible, because it “assumes facts not in evidence.”

This was the hearing where my lawyers’ failures at trial were supposed to be exposed. One of them testified about his own work. The other questioned him. And the expert whose findings contradicted them was never allowed to testify.

My lawyer told the court: the expert “didn’t say it was an impossibility.” (McGee, RT 8916:25-8917:1.)

Their own records: “It is impossible to find a section of this length on I-15, or any other road in this area, where the phone could have been to start the call on cell 11095 and end it on cell 03483.” (Jovanovic report, Sept. 17, 2018, p. 25.)

My lawyer told the court: the expert said “that’s definitely somebody moving.” (McGee, RT 8916:13-15.)

Their own records: “The most likely scenario for the observed pattern is that the phone was reasonably close to the ‘15 Fwy and Palmdale Rd’ site in the West Victorville, but was redirected.” (Report, pp. 25-26.)

My lawyer told the court: cross-connection “was never discussed because it wasn’t known at the time.” (Maline, RT 8857:11-16.)

Their own records: “But the same effect can also be caused by cross-connecting the antenna cables at the cell site.” (Report, p. 27, n. 38.)

My lawyer told the court: the defense “did not point out the timing and location of the ending call.” (Maline’s motion, p. 9:4-6.)

Their own records: At trial, McGee asked Boles about “the total call time of the 35 seconds, and the change from towers” from the start of the call to its end. (RT 4677:27-4678:3.)

My lawyer wrote: the 11:52 call “WAS IMPOSSIBLE.” (Maline to Jovanovic, Dec. 16, 2019.)

At the hearing: McGee denied the expert said so, and when Maline used the word, the objection was sustained. (RT 8916-8918.)

Here is the record, so you can check it yourself. This page covers the first three false statements. The fourth is on “Almost 19 miles.”

The call that could not have happened as recorded

The prosecution put me near the graves on February 6, 2010, using calls on the 85° sector of the Quartzite tower, cell 11095, the sector that points east. The 11:52 a.m. call started on that sector and, per the records, ended 35 seconds later on a different tower, at “15 Fwy and Palmdale Rd” in West Victorville, about 8.5 miles away.

In September 2018, my defense expert, Dr. Vladan Jovanovic, delivered his report, “Geolocation of Calls,” to the defense. On that call he wrote:

“…the record corresponds to the phone moving southbound along I-15, but the problem is that the call lasted for 35 sec (Seizure Time = 26 sec and Elapsed Time = 9 sec). Assuming the speed of 60 mph, a mobile phone can traverse a path only 0.6 miles long…”

“It should be fairly obvious that it is impossible to find a section of this length on I-15, or any other road in this area, where the phone could have been to start the call on cell 11095 and end it on cell 03483 based on the proximity criteria only.”

(Jovanovic, Geolocation of Calls, Sept. 17, 2018, p. 25.)

“…the most likely scenario for the observed pattern is that the phone was reasonably close to the ‘15 Fwy and Palmdale Rd’ site in the West Victorville, but was redirected to a cell on the ‘Quartzite’ site which was a second or third strongest server there…”

(Id., pp. 25-26.)

And on what else could produce the pattern:

“But the same effect can also be caused by cross-connecting the antenna cables at the cell site. This is an unusual but not extremely rare error in practice…”

(Id., p. 27, n. 38.)

To be exact about what this says: the expert did not find that the call never happened. He found that the call could not have happened the way the prosecution’s reading of the records put it, with my phone moving from the east side of the Quartzite tower to the Palmdale Road tower in 35 seconds. His most likely explanation put the phone near Palmdale Road, on the west side, not near the graves. And he named cross-connected antenna cables as another possible cause. That he named it does not prove it happened. It proves the possibility was known to the defense, in writing, before trial.

Fraud 1: McGee’s sworn testimony about his own expert

At the motion for a new trial, McGee testified as a witness, under oath:

McGee: “Yes, so that was an area of discussion and that caused a lot of issues — especially the fact that he said that’s definitely somebody moving. That was one thing that was very clear.”

(RT 8916:13-15.)

Maline: “Did you ever have a discussion with him about that call being an impossibility, meaning the way it was?”

McGee: “He didn’t say it was an impossibility, the more difficult it was, the impossibility of trying to place them of where they could possibly be.”

(RT 8916:25-8917:1.)

Maline: “Now, did the topic of the 85-degree azimuth as a potential, I guess, cross-antenna come up?”

McGee: “No. Well, I shouldn’t say that. There was a question of whether or not there was an incorrect reading from that. We were thinking it could have, maybe, been another tower, but that was speculative. We didn’t have any evidence to support that.”

(RT 8917:2-7.)

See page 8916

See page 8917

Side by side

He had the report

McGee testified that the cell evidence and the expert were his responsibility. (RT 8909:8-15.) He testified that Jovanovic gave him “a bunch of points and questions to address the issue before Boles was even called to testify.” (RT 8917:24-26.) McGee was my counsel of record. He received the expert’s reports, and at the motion for a new trial he testified about what that expert had concluded. (RT 8916:13-8917:7.) The report’s slides appear in the defense’s own written motion.

See page 8909

What it accomplished

Minutes later, Maline asked a question premised on the call being impossible. The prosecution objected that it misstated the testimony, and the court agreed:

Maline: “Did you ever think of the prospect that since that call was impossible that, perhaps, Chase could not have been in the 85-degree azimuth because it was malfunctioning in some way or —”

ADA Daugherty: “Object. Misstates the testimony.”

The Court: “Sustained. Also, assumes facts not in evidence.”

(RT 8918:9-14.)

See page 8918

The court did not find that the expert was wrong. It found that, at that point in the hearing, nothing in evidence supported calling the call impossible. McGee had just sworn that the expert never reached that conclusion. The expert’s written report expressly did, but Maline did not use it to confront McGee or to lay the foundation for his question. So the objection was sustained, and McGee’s description of the expert stood uncorrected in the testimony. The one finding that undercut the prosecution’s account of February 6 was kept out of the hearing by my own lawyer’s description of it.

And it covered his own conduct. At trial, McGee had asked the prosecution’s expert whether the phone on that call was “likely moving,” and Boles agreed: “it’s likely that phone moved, at least enough to where there was coverage from that secondary tower.” (RT 4677:27-4678:9.) Movement is the explanation his own expert’s report had ruled out. By swearing that his expert said “definitely somebody moving,” McGee made his trial question look like the expert’s view, rather than the opposite of it.

See page 4677

See page 4678

He had the report. He swore to the opposite of what it says, about the one finding that mattered. That is fraud.

What Maline knew: his own e-mails

At the hearing, Maline himself told the court what the expert had concluded:

Maline: “…Mr. Jovanovic had indicated that it was an impossible call…”

(RT 8847:2-3.)

He had known it for at least a month. His e-mails to the expert, in order:

“Hi Vlad

“I have a few questions I would like to talk with you about

“…

“2. why did everybody miss the fact that the 11:52 AM call that supposedly started in the 85° azimuth on the Quartzsite tower and ended on a different tower 30 seconds later WAS IMPOSSIBLE ?”

(E-mail, Rajan Maline to Vladan Jovanovic, Monday, December 16, 2019, 1:03 PM, “Re: Bill.”)

“WAS IMPOSSIBLE,” in capitals, in his own words, a month before he stood in court. Four days later, he told the expert he would be calling him, and pressed the same point:

“Hi Vlad

“I’m going to need you for testimony January 17.

“Also your emails leave me a bit confused when I compare them to your reports

“How is it that on the February 8th 1:33pm call, you indicated that there is a likely database error with the antenna 14591, because as you know it would have been impossible for Chase to have hit that antenna considering the surrounding phone calls.

“Why does that same logic not apply to the 11:52am call on February 6th, why is it not also a database error? Specifically, concerning the 85 degree azimuth on the Quartzite tower? If the 85 degree azimuth is a database error on the 11:52am call, wouldn’t it be logical that the 11:30-11:34am calls would also be errors?”

(E-mail, Rajan Maline to Vladan Jovanovic, Friday, December 20, 2019, 3:04 PM, “Merritt heading 1-17-20.”)

Two weeks before the hearing, he wrote again:

“The 85 degree azimuth has to be an error or displaced, because the 11:30 -11:34 could not have been made from the 85 azimuth (East side) of the Quartzsite Tower. As we discussed when you were here, the likely scenario would be that the 85 deg azimuth was crossed with the 325 azimuth on the Quartzsite tower.”

“From a practical standpoint Merritt could not have been on the East side of the Quartzsite tower hitting on the 85 Az on the 1152 call and then 30 seconds later hit 8.5 miles away on the Palmdale / 15 fwy Tower at 330 Az. Your own graph shows that Merritt could have only travelled .6 miles in 30 seconds and therefore could NOT have made it to that sector hitting at 330 Az. No amount of directed retry could possibly explain the 1152 call.”

“d. The claim and your opinion is and has been that Chase could not have been on the east side of the Quartzsite Tower near the gravesite.”

“f. The last area would be your communications with McGee as to why your materials were not used in the trial. Your reports seem to impeach Boles testimony and should have been used.”

“Your reports already document what Chase is saying.”

(E-mail, Rajan Maline to Vladan Jovanovic, January 3, 2020.)

Set that against the hearing he ran two weeks later:

He knew every one of these things before he walked into court. He wrote them down himself. Then he called McGee, who swore the expert “didn’t say it was an impossibility.” (RT 8916:27.) When the objection to “impossible” was sustained as “assumes facts not in evidence” (RT 8918:9-14), the report that supplied those facts was in Maline’s own file, and its slides were in his own motion. He did not use it to answer McGee.

Maline knew the report contradicted McGee’s testimony, because he had discussed that very point with the expert in writing. He left the testimony uncorrected anyway. Whether he expected McGee to say it, or simply chose not to correct it once it was said, the result was the same: the court was left with McGee’s account instead of the expert’s written conclusion.

Fraud 2: Maline’s written motion

Maline’s motion for a new trial told the court, in writing, that on the 11:52 call the defense “did not point out the timing and location of the ending call,” when it had. And he presented to the court, as the true tower, a record he had just told the court contradicted AT&T’s own.

“Did not point out the timing and location”

“Unfortunately, the defense did not cross examine Boles on the 11:52 call to the extent needed. The defense at the time did not point out the timing and location of the ending call. However, the court did.”

(Notice of Motion and Motion for New Trial, filed January 17, 2020, p. 9:4-6.)

See motion page 9

The underlining and handwritten notes are my marks. The yellow highlighting is in the motion as filed.

At trial, with Maline at the defense table, McGee asked Boles about exactly that:

McGee: “Would the total call time of the 35 seconds, and the change from towers from the beginning, or initiation of the call to the termination of the call, would it be reasonable to conclude that the cell phone was — was likely moving?”

(RT 4677:27-4678:3.)

The timing: “the total call time of the 35 seconds.” The ending call: “the change from towers… to the termination of the call.” Then, at the hearing on his own motion, Maline drew it out himself:

Maline: “Then at trial, do you recall whether or not you dealt with the issue of that eight-and-a-half-mile trek in the call — the 11:52 call starting at the 85 azimuth and ending at 330 down in — on the Palmdale tower?”

McGee: “Yes, I do.”

Maline: “Did you — and that was cross-examination of Boles?”

McGee: “Correct.”

(RT 8917:14-20.)

Two separate things should be kept apart here. Whether McGee’s cross went far enough, and explained what the 35 seconds meant, is a fair question; I say it did not. But the motion did not say the cross was too weak. It said the defense “did not point out the timing and location of the ending call.” That sentence, read as written, is false, and its author was at the defense table when the cross happened. What it hid was what the cross produced: “it’s likely that phone moved, at least enough to where there was coverage from that secondary tower.” (RT 4678:7-9.) The court was told the defense had failed to ask. It was never told the defense had asked, and handed the prosecution the answer it needed.

The record he vouched for

At the hearing, Maline told the court that the two records of the Quartzite tower did not agree:

Maline: “…If the Court remembers, Agent Boles testified it was a six-sided tower.

“However, according to the call tower records for AT&T, you have five sides here. So AT&T’s records only indicated five sides. There’s one missing. …

“And those records were pretty important. Why? Because those records that the FBI had access to did have the sixth side and that was at 280 degrees…”

(RT 8847:17-8848:3.)

See page 8847

See page 8848

He knew AT&T’s records and the record Boles printed disagreed. In his written motion, he reproduced the record Boles printed and built his argument on it as the true configuration of the tower:

“Cross connection of the 85-degree antenna could only occur with another antenna that shares the same frequency. Therefore, we only have to look to the FBI/AT&T Records.”

(Motion, p. 9:18-20.)

The excerpt that follows on page 10 is the printout: the 2.5G cells at the 3G coordinates, and cell 11093 at 280°. Maline told the court that record was the tower. He never told the court why it contradicted AT&T’s own table, or that it carried values AT&T’s records never had. (See the Boles page, “The altered record.”)

He knew what the cross had asked, and he knew the two records disagreed. He told the court otherwise on both. That is fraud.

Fraud 3: “It wasn’t known at the time”

At the hearing, the judge said he understood the arguments about the 11:52 call and had reviewed the trial testimony. Maline answered:

Maline: “That was reviewed, your Honor, but in context of cross-connection, which is apparently what happened here. That was never discussed because it wasn’t known at the time. There was no way for anyone to know at that time, except, of course, perhaps, the FBI, who would have had those records, that kind of shed some light on the issues.”

(RT 8857:11-16.)

See page 8857

In September 2018, before trial, the defense expert’s report on the same call had said:

“But the same effect can also be caused by cross-connecting the antenna cables at the cell site. This is an unusual but not extremely rare error in practice…”

(Jovanovic, Geolocation of Calls, Sept. 17, 2018, p. 27, n. 38.)

When Maline asked his own witness, McGee, at the same hearing whether the topic had come up, McGee answered “No,” then backed off:

McGee: “No. Well, I shouldn’t say that. There was a question of whether or not there was an incorrect reading from that. We were thinking it could have, maybe, been another tower, but that was speculative. We didn’t have any evidence to support that.”

(RT 8917:4-7.)

My point here is not that cross-connection was proven. It is that Maline told the court the possibility had not been known, when the defense’s own expert had put it in writing before trial began. “Never discussed” and “no way for anyone to know at that time” were false. Maline knew it when he said it. He had the expert’s reports, and wrote to the expert that they “already document what Chase is saying.” Two weeks earlier, he had written: “As we discussed when you were here, the likely scenario would be that the 85 deg azimuth was crossed with the 325 azimuth on the Quartzsite tower.” (E-mail, Jan. 3, 2020.)

The visit Maline refers to, “when you were here,” happened because I asked for it. I was the first to see that the 85° sector was likely cross-connected, and after the verdict I asked that Dr. Jovanovic be flown to California so I could show him. He misunderstood part of what I told him at that meeting, realized it later, and corrected it in his memo of October 23, 2019. Maline’s own e-mail records whose argument it was: “Chase argues that it is the 325 azimuth is bouncing back and forth with the 10 azimuth, so the 325 and 85 are the ones that are switched.” (E-mail, Jan. 3, 2020.)

The visit and the e-mails came after the verdict. They are not what made cross-connection known at trial; the expert’s footnote did that. They show that Maline knew all of it when he spoke. His statement explained why the defense never raised cross-connection at trial, without admitting the defense had it in hand. That is fraud.

The expert who never testified

The motion for a new trial was heard on Friday, January 17, 2020. The transcript opens with a notation:

“(Conference held in chambers, not reported.)”

(RT 8836:14.)

See page 8836

Maline then told the court he was “taking my cues from the Court, based on our chambers discussion.” (RT 8838:15-17.) He began by distancing himself from the very evidence the motion was about:

See page 8838

Maline: “In terms of the cell tower evidence, I wasn’t really involved in that, other than watching it. So I didn’t know the intricacies of what an azimuth was and so forth and — that was Mr. McGee. So as the testimony went on, I listened and wasn’t the best participant in that part of it.”

(RT 8839:7-11.)

See page 8839

He told the court that at trial, the expert had watched Boles testify and had wanted to testify about what he heard:

Maline: “…our expert was also in the courtroom during the testimony of Agent Boles, the People’s expert. … our expert had heard that — I mean, was listening to the testimony and heard various things that were being said, which he knew were not accurate, correct, they were not — and some of them were misleading. And want — as he sat and watched, one of the issues was, you know, what can we do — I mean, I would like to testify about that, that would be something that he felt he could contribute.”

(RT 8839:11-26.)

Then he told the court the expert would testify now, and what he would say:

Maline: “It turns out that — and we’re going to hear — I expect the testimony now from Vlad. That’s his testimony.

“Because the 11:52 call, when it was made, the most likely interpretation of where Mr. Merritt’s location was made when that call was made was actually the west side of the tower, which is where he said was all along.”

(RT 8840:25-8841:2.)

Maline: “So the Court’s going to hear evidence from our expert in regards to how — even though he hit on 85, which is what the records say, he actually wasn’t there. That’s — that’s primarily, at least, a major part of his testimony.”

(RT 8841:14-17.)

See page 8840

See page 8841

The court had already decided otherwise:

The Court: “As I indicated, I would permit you to mark your expert’s report as an exhibit for the motion and any PowerPoint that he had prepared during the course of either — prior to or during the course of trial, could also be marked as an exhibit to the motion, and the Court would review that, but I don’t think we need additional testimony.”

(RT 8843:18-23.)

See page 8843

“As I indicated.” The ruling had been made in the unreported conference. Maline protested briefly, “I think the testimony part is the crucial part, your Honor” (RT 8843:24-25), and the court ruled:

The Court: “Okay. I’m not going to permit the testimony. I will permit the report and slide presentation that was prepared, either prior or during trial, to be marked, and the Court would review those.”

Maline: “It’s probably going to be easier to take out slides. I don’t know how many were added since the original ones were there. 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 8844:9-17.)

See page 8844

So the expert who, by Maline’s own account, had wanted to testify at trial, whom Maline told the court to expect at this hearing, and whose conclusion was that I was on the west side of the tower, never said a word at either. His work since trial was taken out of the motion by my own lawyer. That afternoon, Maline’s own witness swore that the same expert had concluded “that’s definitely somebody moving.” Maline had just told the court the opposite.

The lawyers judging their own performance

A defense lawyer owes two duties that matter here: honesty to the court, and loyalty to his client. Both are written into California law.

“It is the duty of an attorney… To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (Bus. & Prof. Code § 6068(d).)

“A lawyer shall not: (1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” (Cal. Rules of Prof. Conduct, rule 3.3(a)(1).)

And when a witness the lawyer called gives false evidence:

“If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal, unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6.” (Cal. Rules of Prof. Conduct, rule 3.3(a)(3).)

A lawyer who testifies does so under the same oath as any other witness.

A lawyer also may not represent a client when there is a significant risk that his own interests will materially limit the representation, unless the client gives informed written consent and the lawyer reasonably believes he can still represent the client competently and diligently. (Cal. Rules of Prof. Conduct, rule 1.7(b), (d)(1).) On a motion about what trial counsel did and failed to do, the client’s interests and the lawyers’ point in opposite directions: the more the court learns about their conduct, the better for the client and the worse for them. Those are the State Bar’s rules. Whether the conflict also violated my constitutional right to conflict-free counsel is a separate legal question, with its own standards.

Here is what happened:

• McGee’s performance was one of the things the motion challenged. He had already asked to withdraw because of my allegations. (RT 8856:13-8857:1.)
• Maline had been co-counsel at the same trial. His own conduct was in question too.
• He had writings in hand, his own e-mails and the expert’s reports, that contradicted key parts of what McGee would testify to.
• Before the hearing, I told Maline I wanted the fraud in Boles’s record exposed, and McGee’s failures with it.
• I never signed a written waiver of the conflict.
• At the lunch break, I told Maline I no longer wanted him as my lawyer. He told the court: “I don’t feel in good conscience based on what I have been told, that I could go forward.” (RT 8869:16-23.)
• The court held a closed hearing, sealed as pages 8871 through 8889 (RT 8870:4-6), and kept him on: “The request to relieve Mr. Maline has been denied.” (RT 8890:2-4.)
• That afternoon, Maline called McGee as his witness.

See page 8856

See page 8869

See page 8870

See page 8890

When the court reminded Maline of McGee’s earlier request to withdraw, Maline said it “would be news to me,” and “that’s neither here nor there.” (RT 8856:13-8857:1.)

The court’s order kept Maline on the case. It did not resolve the underlying question: how could a lawyer whose own trial performance was in question independently argue his client’s claims against that performance? I had not given informed written consent, and Maline had told the court himself that he could not continue in good conscience. Two lawyers whose own work was on trial controlled the hearing that was supposed to judge it.

What the false statements accomplished

They kept my lawyers from being exposed. Before trial, the defense had its own expert’s finding that the 11:52 call could not have happened as the records were read, his footnote that cross-connected antenna cables could produce the same pattern, and his conclusion that AT&T’s site table and call records “cannot be used for geolocation purposes.” (Jovanovic, AT&T Cell Site Table Problems, Sept. 14, 2018, p. 28.) They used none of it. Instead, McGee got the prosecution’s expert to agree that “it’s likely that phone moved.” (RT 4678:7-9.) The prosecution knew the jury had been promised that expert, and used his absence in closing: “you heard in opening statement that some fancy Russian cell expert named Vlad was going to come and debunk all of this evidence, but you never heard from? No.” (RT 8218:3-5.)

See page 8218

They kept the 85° record alive. The prosecution put me at the graves with the 85° sector of the Quartzite tower, the sector that points east. In closing, the prosecutor told the jury:

ADA Imes: “…you probably didn’t think when you were standing at those graves to turn around 180 degrees and look at that big mountain behind you and see the cell phone towers on top of that mountain, within eyesight of those graves. Within eyesight of those graves, the defendant’s phone is pinging.

“Important is one of those — two of those calls in particular, where it pings off the sector of that — that tower that points due east, not south into the town Victorville, not southeast into the town of Apple Valley, due east, not north towards Barstow, due east, not to the west.”

(RT 8217:10-20.)

See page 8217

Maline knew what followed if the 11:52 call could not have happened as recorded. He wrote it to the expert himself: “If the 85 degree azimuth is a database error on the 11:52am call, wouldn’t it be logical that the 11:30-11:34am calls would also be errors?” (E-mail, Dec. 20, 2019.) If the court had heard the expert’s finding, it would have had to decide whether the one record that put me on the east side could be trusted at all. It never had to.

They kept the call records from being questioned at all. The February 10 call showed most plainly that AT&T’s call records could not be taken on their face for location; the only location they give for that cell is 45 miles from my home, where there is no tower. At trial, McGee put Boles’s 18.8 miles in front of the jury instead, and at the motion, Maline gave the judge the records backward. (See “Almost 19 miles.”) If the records were wrong about one call, they could not be taken on their face about any other, including the 85° record used to put me at the graves.

Every false statement on this page protected my lawyers, and every one protected the prosecution’s case. None of them served me.

Puppets?

Self-protection explains the motion for a new trial. By then my lawyers had their own failures to hide, and every false statement on this page hid them. It does not explain the trial. At trial, they had nothing yet to hide. So the question is what they did at trial.

Before trial, the defense had its own expert’s reports. They said the 11:52 call could not have happened as the records were read, that cross-connected antenna cables could produce the same pattern, and that AT&T’s site table and call records “cannot be used for geolocation purposes.” (Jovanovic, Geolocation of Calls, Sept. 17, 2018, pp. 24-27; AT&T Cell Site Table Problems, Sept. 14, 2018, p. 28.)

At trial:

• The jury was promised that expert in opening statement. He never testified. (RT 8218:3-5.)
• He sat in the courtroom through Boles’s testimony and, by Maline’s own account, “felt he could contribute.” (RT 8839:11-26.) None of his findings reached the jury.
• McGee asked the prosecution’s expert whether my phone was “likely moving,” and Boles agreed: “it’s likely that phone moved, at least enough to where there was coverage from that secondary tower.” (RT 4677:27-4678:9.)
• McGee handed Boles the 18.8 miles: “18.8 by Google?” “That sounds about right.” (RT 4642:27-4643:7.) His own defense map, Exhibit 910, put the February 10 call in the same place.
• No one asked Boles a single question about the record he printed. The motion to strike his testimony was never ruled on. (See the Boles page.)

Afterward, McGee described the result: “we achieved better than we had ever hoped with Boles.” (RT 8922:11-16.)

See page 8922

The prosecution closed on exactly what the defense left standing: the due-east sector “within eyesight of those graves” (RT 8217:10-20), and the expert “you never heard from” (RT 8218:3-5).

Every one of those choices helped the prosecution’s cell-phone case. None of them helped me. The record does not say who, if anyone, was pulling the strings. It shows which way they pulled, every time. So I ask the question the record raises: were they my advocates, or the prosecution’s puppets?

Decide for yourself

A lawyer can be wrong in court without lying. What makes a false statement fraud is knowing it is false when you say it. For each statement on this page, the record shows what the lawyer said, the document in his own file that says otherwise, and proof that he had that document when he spoke: the expert’s report, the trial transcript, and Maline’s own e-mails. Read them, and decide for yourself whether these were mistakes.

More to come

These are the first three. The fourth is on “Almost 19 miles.” More instances, each documented the same way, will be added.

Sources

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

• RT 4642-4643, 4677-4678: Agent Kevin Boles, cross-examination by Mr. McGee.
• RT 8217-8218: closing argument, Mr. Imes.
• RT 8836-8922: hearing on motion for new trial, January 17, 2020 (Mr. Maline; Mr. McGee testifying; the Court). Pages 8871-8889 are sealed.

Documents:

• Dr. Vladan Jovanovic, “Geolocation of Calls,” September 17, 2018, pp. 24-27.
• Dr. Vladan Jovanovic, “AT&T Cell Site Table Problems,” September 14, 2018, p. 28.
• Dr. Vladan Jovanovic, memo of October 23, 2019.
• E-mails, Rajan Maline to Vladan Jovanovic: December 16, 2019; December 20, 2019; January 3, 2020.
• Notice of Motion and Motion for New Trial, filed January 17, 2020, pp. 9-10.
• Bus. & Prof. Code § 6068(d); Cal. Rules of Prof. Conduct, rules 1.7 and 3.3.

Where I describe the expert’s visit, what I told him, and what I told my lawyers, I state what I know personally.