James McGee and Rajan Maline: advocates or puppets?

Opportunity

The State alleged I had the opportunity. It argued that on the evening of February 4, 2010, my phone was “off the grid for three and a half hours” (RT 8212:26-8213:21), and that on February 6, “within eyesight of those graves, the defendant’s phone is pinging” (RT 8217:10-20). These are the things my own lawyers did, or failed to do, that helped the State make that claim or weakened my answer to it. Each section ends with a link to the full record.

The graves (February 6)

What they did

The 11:52 call: got the State’s expert to say the phone was likely moving.

Mr. McGee asked Agent Boles whether the phone on the 11:52 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).

Why it mattered: The defense’s own expert had written that “it is impossible to find a section of this length on I-15, or any other road in this area,” and that “the most likely scenario” was that the phone “was reasonably close to the ‘15 Fwy and Palmdale Rd’ site in the West Victorville” (Jovanovic, Geolocation of Calls, Sept. 17, 2018, pp. 25-26). Movement is the explanation his own expert’s report had ruled out.

What they did

The new-trial hearing: swore the expert never called the call impossible.

Testifying under oath, Mr. McGee said the expert “didn’t say it was an impossibility” (RT 8916:27-8917:1).

Why it mattered: When Mr. Maline then asked a question premised on the call being impossible, the court sustained the objection: “assumes facts not in evidence” (RT 8918:9-14).

What they did

The new-trial hearing: told the court cross-connection “wasn’t known at the time.”

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

Why it mattered: The defense expert’s report had raised it in writing before trial: “the same effect can also be caused by cross-connecting the antenna cables at the cell site” (Jovanovic, Geolocation of Calls, Sept. 17, 2018, p. 27, n. 38).

What they failed to do

The expert: never called the witness promised in opening.

The jury was promised the defense expert in opening statement. He never testified.

Why it mattered: The State 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).

The call records (February 10)

What they did

The 12:38 call: handed the State’s expert the distance.

At trial Mr. McGee asked Agent Boles, “18.8 by Google?” and Boles answered, “That sounds about right” (RT 4642:27-4643:7). At the new-trial hearing, Mr. Maline told the judge, “the Court is correct” (RT 8861:3-5).

Why it mattered: AT&T’s records give one location for that cell: 33.51286, -117.26251, 45 miles from my home. The expert’s slide said so: “Lat/Long for cell 05264/41453 wrong in Call Records!” (Jovanovic slides, no. 121). The jury never heard it.

Home that night (February 4)

What they failed to do

The calls when we were both at home: never showed them to the jury.

Mr. McGee testified that I kept saying Cathy and I “would call each other from home, but they would show up on different azimuths during the call,” and that he told me it “would be a fruitless venture” (RT 8920:19-8921:1).

Why it mattered: The jury never saw those calls.

What they failed to do

Phone off: let it stand for February 4.

Mr. McGee confronted Agent Boles with his own testimony from the Pape trial, and Boles conceded it was “possible that the phone was on” (RT 4654:17-21). Then Mr. McGee stopped at January 31, with “I have dozens more” (RT 4655:19). He never put a February 4 call to Boles. The prosecution did, on redirect. Asked what the six calls indicated, Boles repeated “off the network, off on airplane mode,” then said he would “like to confer with AT&T to give a more accurate answer” (RT 4695:5-8). Mr. McGee did not take those calls up on recross; he asked about February 3 instead (RT 4712:3-25). For the night that mattered, the jury was left with “off” or “airplane mode,” from a witness who said he needed AT&T to be accurate. Ruling on the motion to dismiss, the court said my phone “may not even have been on” (RT 4999:18).

Why it mattered: In closing, ADA Imes told the jury: “The only reasonable interpretation is that the phone was powered off or in airplane mode” (RT 8199:7-13).

What they failed to do

Riverside: no objection.

No one objected when the prosecutor asked my daughter about my phone “pinging off of a tower in the Riverside area” (RT 5248:28-5249:9).

Why it mattered: The recordings contain no such conversation. The one call that reached a distant tower that night hit a tower “in the Mira Loma area” (RT 4529:4-6).

More coming soon.

Decide for yourself.