The e-mail that says it all
Vladan Jovanovic served as the defense’s cell-tower expert in the 2019 trial. He was never called to testify. This page presents correspondence in his own words, reproduced verbatim. A telephone number has been redacted for privacy; nothing else has been altered.
What my own defense expert saw from inside my trial, in his own words. Read his account first. Below it, his key statements are set beside the sworn record: what my lawyer told the jury, and what he later told the court.
The correspondence
The exchange below is between Taylor Jarvis — my daughter, then a law student, long after my conviction — and Dr. Jovanovic. In it, “Jim” is James McGee, my lead trial lawyer; “Raj” is Rajan Maline, my other trial lawyer and my only lawyer at the hearing on my motion for a new trial; “Jacob” is Jacob Guerard, an attorney in Mr. McGee’s office; and “Boles” is Kevin Boles, the FBI agent who presented the State’s cell-tower evidence.
Dr. Jovanovic wrote two reports: one on where my phone could have been, and a second on errors in the “Site Table,” AT&T’s own list of its towers’ locations and directions. The second report is the one he says was kept “in his back pocket.”
Taylor Jarvis to Vladan Jovanovic
Hello Mr. Jovanovic,
I do not know if you remember me, but my name is Taylor and I am the daughter of Chase Merritt– a case that you worked on and served as a cell tower expert on in 2019. I actually had lunch with you and Raj Maline one day during the trial, if you recall. Raj gave me your contact information, as I am in law school and aiding my father in assembling his arguments for the appeal process. I am a court-approved member of the defense team.
I want to thank you for your extensive work on my father’s case. I think your reports give a lot of insight into the mistakes of the phone records, and hopefully will be very helpful in proving his innocence (although it may be a long process).
I was wondering if you know why you were not called to testify in the original trial? Was it your choice? I know Raj attempted to call you to testify during the motion for a new trial, but at that point it was too late. Obviously, one of the things we are focusing on in my father’s appeal is that the discrepancies in the phone records were never fully explained to the jurors, which played a large part in his conviction. I am just trying to get a full understanding of the case and what happened during the trial, so that I can best help my father in any way that I can.
Thank you for your time,
Taylor Jarvis
Loyola Law School | J.D. Candidate Class of 2022
redacted
Vladan Jovanovic to Taylor Jarvis
Hi Taylor:
I do remember you, people my age don’t forget lunches with young ladies as pretty as you (sorry, too old to be PC by present standards), but as I remember it was with Jim, nor Raj.
Re Jim, I am not sure what he had in mind generally – it turned out that all my interactions with the law office of then Jim and Raj went through Jacob Guerard, I did not realize that he was only some kind of the Jim’s junior partner there. I worked a lot with him on all levels for this case, but very little with Jim and Raj directly. I believe that we had one conference call at the beginning only. Looking now, I received several hundred emails from Jacob, more than 200 for sure, only 3 from Jim, and they were very short, with the specific questions about the FBI agent’s testimony.
When I arrived to monitor agent Boles on the stand, the first major surprise was that Jim did no appear to be up to speed with what I was doing with Jacob, I presumed they were collaborating much more closely. Second was that he did not forward my other report to the Court at all, the one about Site Table problems, he said something to the effect that he was keeping it “in his back pocket”, which I just could not understand – I still believe that that was at least 50% of the case I was to make, still beyond me.
It was a very frustrating experience for me even beyond that. I prepared several other documents on how to grill agent Boles and Sy Ray if he was called, which Jim refused not only to discuss but to even to acknowledge (although he did ask Boles some questions I suggested, more likely that he read them than not, presumably that just did not fit into his plans).
He did not answer repeated emails and phone calls while I was there either, we met briefly in the evening before he was to question Boles and instead of planning for it with me I realized that he made a long set of slides disproving what the records looked like when the phone was off, which I don’t believe they ever asked me about. When I got in he was actually making a map himself for that call a minute or two after the first one, forgot the date/time, two calls the second of which connected to that cell 20 miles to the SW – they never asked me to look at that one, I would have done it quicker than him even from the hotel room there, not to mention that when I looked later, the FBI put that cell at different location on their map than what Call Records showed, which would have been very hard for him to figure out without the Site Table anyway.
Jim and I had several other conversations during the breaks and in the car, he was chauffeuring me around quite a bit for some reason. I do not remember what was exactly said when and where, but I believe that the biggest reasons why Jim did not call me to testify was that I was not ready to state that those calls around noon could not have been made from the High Desert – my point was that they were very contradictory and that they could have been made from Victorville area too, but was not willing to exclude High Desert categorically. Remember, if I was to testify about the Site Table, my belief was that nobody would have trusted the azimuths on that “Quartzite” sites were really as reported in the Call Records by the time we came to these calls.
Other point was that 9:32PM call, remember the time but not the date. Don’t know if you are aware, but the DA actually approached me during one of the breaks and asked specifically about that call, if it could have been made from the residence. Jim fumed when he learned, it was prosecutorial misconduct bla bla and I even made a note about that conversation but neither Jim nor Raj ever mentioned it again nor used it that I know. Anyway, I avoided to answer about that call, but – if I remember correctly now — it is not likely I could have testified that it could have been made from there, and DA seemed eager to grill me on that, that was likely the second reason.
Third reason was possibly that agent Boles came extremely well prepared this time around. First time at the Preliminary he was all over, but this time FBI got my detailed report (while we got only the maps with no explanations whatsoever), and Boles was very well coached by some brain trust over there how to dispute some of the stuff I argued – drive test data use, directed retry, things that I remember now, possibly something else. Some of that was meaningful, but I still believe that large chunk was made up (e.g. justification why he plotted only the start cells). Jim chose not to question Boles’s repeated “I was told so” and “I learned since” justifications, which made me fume behind him and send notes that he did not follow up on. I even had a rather agitated discussion with him during one of the breaks about letting Boles get away with the hear-say, but I am not sure that he understood what it was about and why it mattered.
Anyway, at some point while I was there Jim told me that he might not call me to stand, and given how things went I did not think it was unreasonable myself. When I realized that the Defense can present the slides of their own during the cross (never saw that in courts before), I suggested to Jim to pull some of the slides from my material to grill Boles about them, if memory serves me now I prepared a deck of my slides that night for him to use on cross, basically like 7-8 pulled out of my big PPT with some explanations and annotations on the side.
I actually thought that Jim did rather well on cross in spite of everything. The only value my testimony could have really added at that point was about the inconsistencies and errors in the Site Table, but then Raj did not go there on appeal hearing either. What do I know, lawyers know better what can fly in the court I guess.
Not sure if this can really help you in any way, and I am still not senile but my memory was not great even when I was much younger. Any case, if you have anything specific you need to know, I can look into the files, have a huge folder from that case.
Whatever you are doing, hope Raj is not involved, I am quite upset with him. He did not pay me for that appeal work until he tried to engage me for another trial last fall, now he is not paying me for that work either, sitting on my bill since November. I sent a query last Monday and not hearing anything back, I am about to file a formal complaint about his office.
Regards,
Vladan
P.S. Just remembered as I was to press SEND, there was a big question about admissibility of the Site Table that we got via Jerry Grant’s subpoena from ATT, because Jacob could not find anybody from ATT to testify about it. He even asked for my help to find an ATT engineer from your area, ATT was willing to send a person to testify about Call Records only. Ouch, remember now, it was only later, must be on appeal that I found a cover letter from ATT that came with the Site Table in a pile of files Raj sent me, with the name of the person who sent the file and could have been called to testify about it, Jacob could not find that one. Either way, when I raised the question about the admissibility of the Site Table without anybody from ATT to testify about it for the appeal, Raj was saying that it did not make any difference because the Site Table was entered into the evidence already, I believe that is exactly what he said. And then he did not mention anything on Site Table problems when he gave his speech to justify why I should testify, go figure.
Taylor Jarvis to Vladan Jovanovic
Hello Vlad,
Thank you so much for your thorough and thoughtful response. I really appreciate your taking the time to explain some of these issues to me. I really empathize with the frustration you went through because we had similar problems communicating with the attorneys and getting them to listen sometimes!
I just had one clarifying question: Was it ultimately Jim’s decision for you not to take the stand? Did he discuss it with you beforehand (like the pros and cons) and ask your opinion? You mentioned in your email possible reasons he might have decided not to call you, but I was just wondering if it was a decision he made unilaterally.
Thank you again for all of your help,
Taylor Jarvis
Loyola Law School | J.D. Candidate Class of 2022
redacted
Vladan Jovanovic to Taylor Jarvis
Taylor:
It was frustrating, guess needed to vent some of that, sorry you were the victim.
Who goes on stand is always the lawyers’ decision. At some point Jim told me that he might not call me to testify, I think that 9:32PM call was his biggest concern, second probably that I was not willing to claim that those 4-5 calls could not have been made from the High Desert.
When I realized that Site Table will not be discussed – again, he never said explicitly but I figured out that the second report was not shared with the Court because Jacob could not find anybody from ATT to testify about that file – without that there was not much I could realistically add that he could not do on cross.
And – honestly — I was p/o because I was asking them to find that cover letter and the ATT’s person who sent the Site Table for 3 months at least, and everything was OK except me freaking out for no reason. Then I find out it was not sent, without anybody telling me anything about it, which was at least 50% of my case.
If that was indeed why Jim did not send out the report on Site Table and did not go into those issues, then you can imagine how p/o squared I was when Raj sent it with a pile of other stuff when we started working on that appeal, it was apparently in the folder with the file itself!
I do not recall that Jim asked for my opinion explicitly about testifying, but when I realized that he can pull his own slides on cross I did help him reuse some from my deck, at that point it was clear to me I will not be called. I do not recall any discussions on that subject in between, but to the best of my recollection now I never told him that he must or should call me to testify either.
Regards,
Vladan
His words, and the record
Dr. Jovanovic wrote from memory, long after trial. Below, his key statements are set beside the sworn record.
What he thought of my lawyer
Although Dr. Jovanovic seemingly agreed that he:
Dr. Jovanovic wrote
“actually thought that Jim did rather well on cross in spite of everything.”
And on not being called, he acquiesced:
Dr. Jovanovic wrote
“given how things went I did not think it was unreasonable myself.”
(Emphasis added.)
Those words are the key. Both remarks come at the end of long passages describing what had gone wrong. “Everything” and “how things went” included this:
Dr. Jovanovic wrote
“Jim did no appear to be up to speed with what I was doing with Jacob”
“I received several hundred emails from Jacob, more than 200 for sure, only 3 from Jim”
“I prepared several other documents on how to grill agent Boles and Sy Ray if he was called, which Jim refused not only to discuss but to even to acknowledge”
“He did not answer repeated emails and phone calls while I was there either”
“Jim chose not to question Boles’s repeated ‘I was told so’ and ‘I learned since’ justifications, which made me fume behind him and send notes that he did not follow up on”
“I am not sure that he understood what it was about and why it mattered.”
Read what follows with that in mind.
1. “In his back pocket”
Dr. Jovanovic wrote
“Second was that he did not forward my other report to the Court at all, the one about Site Table problems, he said something to the effect that he was keeping it ‘in his back pocket’… I still believe that that was at least 50% of the case I was to make.”
The record
At the hearing on my motion for a new trial, January 17, 2020, my lawyer described the report: “he had a lengthy report detailing numerous errors that he saw on the table.” (RT 8911:13-14) Asked why it was not brought up at trial:
“Well, first, we were talking about doing it as a foundational issue to exclude the cell tower evidence in its entirety. That was the initial approach and that’s why we broke it up into two reports. After further discussion with the expert, it became clear, based on what he was going to say, that I did not believe that we would receive a favorable ruling from the trial court to exclude the evidence.
So we decided to hold that and see if that’s something that we can address on cross with Mr. Boles, or in the event that we call Mr. Jovanovic, that he could testify to it on direct.”
RT 8911:21-8912:2
See page 8911
The report was written to challenge the State’s cell-tower evidence as a whole. My lawyer decided not to put it before the Court at all, and to hold it for two other uses instead. Neither use ever came, as the sections below show.
2. The records, and the custodian
Dr. Jovanovic wrote
“I figured out that the second report was not shared with the Court because Jacob could not find anybody from ATT to testify about that file.”
The record
The records were ours. The Site Table came from AT&T on the defense’s own subpoena. Dr. Jovanovic wrote: “the Site Table that we got via Jerry Grant’s subpoena from ATT.” My lawyer:
“The cell tower records, like, talking about describing the tower and everything, we received those on our own subpoena.”
RT 8928:24-25
See page 8928
At trial, the prosecutor (Deputy District Attorney Britt Imes) himself proposed using our AT&T records, which he called the “SDT documents” (records obtained by subpoena), to check the State’s:
“because Mr. McGee provided us the SDT documents from AT&T with that history, we could provide that to Mr. Boles to compare in contrast with his records. Because if the stuff that the defense already has is accurate to what he already has, then there’s no difference, then there’s no issue.”
RT 4586:21-25
See page 4586
The court: “you can obtain it on your own without going through them. You can get it through AT&T.” The prosecutor: “Which they did.” (RT 4587:6-9)
See page 4587
The name was in our own file. Eight days before the hearing on my motion for a new trial, Dr. Jovanovic sent my lawyer, Mr. Maline, the AT&T cover letter:
Dr. Jovanovic wrote
“Long story short, this appears to be the cover letter received with the Site Table and Drive Test data, the very same one that Jacob and Jim’s assistant tried so hard to find but could not before the trial !”
Mr. Maline replied: “Should I subpoena him”
Dr. Jovanovic answered that it was his call, “you said that for the Appeal you don’t need anybody to authenticate the records,” but: “If I was you, I would definitely approach him about the possibility that he might need to testify one day.” Because he is Serbian, he urged Mr. Maline to make the contact himself: “if he is from Croatia he might not be want to be very helpful to a dude from Serbia…. Complicated things related to the centuries of Balkans history, I think best would be for you to try to contact him.”
The man on the cover letter was Darko Gospavic of AT&T.
Eight days later, at the hearing, Mr. Maline began by referring to a discussion held off the record: “I’m taking my cues from the Court, based on our chambers discussion.” (RT 8838:16-17) He then told the court: “we do have our expert that was hired — our first and only expert on this issue, which is — who is in the courtroom today.” (RT 8838:21-23)
See page 8838
THE COURT: “As I indicated, I would permit you to mark your expert’s report as an exhibit for the motion… but I don’t think we need additional testimony.”
MR. MALINE: “I think the testimony part is the crucial part, your Honor.”
RT 8843:18-25
See page 8843
THE COURT: “I’m not going to permit the testimony.”
RT 8844:9-10
See page 8844
Dr. Jovanovic sat in the courtroom. Once again, the court never heard from him.
And AT&T could have given us his name at any time. On February 12, 2018, nearly a year before trial, a legal assistant in my lawyers’ own office wrote to AT&T’s Global Legal Demand Center about this very subpoena, asking for “confirmation that the cell site table that has already been provided was for all of the cells in the areas we requested in the SDT by zip code.” AT&T forwarded the request the same day. It reached Darko Gospavic.
The records were ours. The name of the person who could authenticate them was in our own file, and our own correspondence with AT&T had already reached him. The prosecutor told the court the records could be compared against the State’s own. They were never authenticated, and the report built on them never reached the Court.
3. The cross-examination that never came
Dr. Jovanovic wrote
“I prepared several other documents on how to grill agent Boles and Sy Ray if he was called, which Jim refused not only to discuss but to even to acknowledge.”
The record
“I didn’t do everything that Vlad wanted me to cover, because a lot of it started going to technical issues and it became clear to me that Boles did not have the foundation to discuss those technical issues.”
RT 8918:2-5
See page 8918
But on January 7, 2019, in his opening statement, before a single witness took the stand, he told the jury:
“WELL, THEIR EXPERT THAT THEY ARE CALLING, HE HAS NO TECHNICAL TRAINING OR EDUCATION WHATSOEVER. HE HAS NO EXPERTISE ON THE ENGINEERING BEHIND THE SYSTEM OR HOW THEY ACTUALLY WORK.”
RT 1690:1-4
See page 1690
It did not “become clear” at trial. He told the jury so on the first day. The report was being held for a cross-examination he had already told the jury could not work.
4. Who decided he would not testify
What the jury was told on the first day of trial:
“We have a Vladan Jovanovic, who is our cell tower expert.”
RT 1664:5-6
See page 1664
What he would explain:
“HE TALKED ABOUT DIRECTED RETRY AND HOW THAT AFFECTS THE CELLULAR TOWERS. DIRECTED RETRY, YOU WILL HEAR, IS ONE WHEN YOU TRY AND MAKE A PHONE CALL BUT IT DOESN’T CONNECT RIGHT AWAY. WHY HE IT STILL DIALING? IT’S NOT RINGING. IT’S LOOKING FOR A TOWER. THAT’S A SIGN IT’S NOT GRABBING THE CLOSEST TOWER. IT’S REACHING BECAUSE IT CAN’T FIND WHAT IT’S SUPPOSED TO DO. YOU WILL FIND ALL DURING THAT TIME ON THE 6TH, THAT’S WHAT CHASE’S PHONE WAS DOING. YOU DON’T KNOW WHERE IT WAS.”
RT 1692:13-21
See page 1692
What he would refute:
“WHERE ARE THE AREAS THAT BOTH THOSE TOWERS REACH? DOWNTOWN VICTORVILLE. NOT UP HERE BY THE GRAVESITE.”
RT 1693:14-16
“THESE ARE SOME OF THE CALLS YOU DON’T SEE IN THE F.B.I. REPORT BECAUSE THEY DON’T GO WITH THE STORY OF, OH, LOOK. HE IS DOWNTOWN.”
RT 1693:21-23
See page 1693
“HE WILL EXPLAIN THIS TO YOU… BUT IN THE END, YOU WILL BE CONVINCED HE KNOWS WHAT HE IS TALKING ABOUT. CLEARLY, THE CELL PHONE WASN’T AT THE GRAVES.”
RT 1694:3-8
See page 1694
However, when my daughter, Taylor Jarvis, later asked him directly:
Taylor Jarvis asked
“Was it ultimately Jim’s decision for you not to take the stand? Did he discuss it with you beforehand (like the pros and cons) and ask your opinion? … I was just wondering if it was a decision he made unilaterally.”
Dr. Jovanovic answered
“Who goes on stand is always the lawyers’ decision. At some point Jim told me that he might not call me to testify”
“I do not recall that Jim asked for my opinion explicitly about testifying”
“I do not recall any discussions on that subject in between”
The record
Under oath, my lawyer told the court it was decided together:
“after Boles testified, we did talk to Jovanovic about the — his testimony, or whether or not he should, and we both agreed that it’d probably be more counterproductive for him to testify. So he and I both agreed that it would probably be better if he stayed off the stand.”
RT 8922:10-14
See page 8922
Q. “So that was a tactical decision that you made based on your experience and your knowledge of the topic?”
A. “And consulting with the expert, yes.”
RT 8928:8-10
But at the same hearing, my other lawyer, Mr. Maline, told the court what Dr. Jovanovic experienced as he listened to Agent Boles at trial:
“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 8839:19-26
See page 8839
Dr. Jovanovic himself wrote that he never insisted: “to the best of my recollection now I never told him that he must or should call me to testify either.” He wasn’t asked.
The jury was promised he would explain it all. He was never called.
Asked if he was consulted, the expert said he was told. Under oath, my lawyer said they decided together.
It must be asked: why?
5. Where the report went, and where it didn’t
Dr. Jovanovic wrote
“I figured out that the second report was not shared with the Court”
The record
It is correct. It never reached the Court. However, it did reach the prosecution.
But at the hearing, when my lawyer was asked:
Q. “Was that something that was shared with the prosecution?”
A. “No.”
RT 8911:17-18
And again on cross-examination, where he seemed certain:
“It’s not that I don’t recall, I know I didn’t disclose that.”
RT 8923:17
And yet, when the prosecutor showed him a flash drive of reports he had given to Deputy District Attorney Sean Daugherty (one of the three prosecutors on my case), he seemed to falter:
“That’s one that I didn’t think I gave over, yeah.”
RT 8923:28
See page 8923
Q. “Okay. In all fairness, it appears that you did; right?”
A. “It appears that I did.”
RT 8924:1-2
See page 8924
Twice he told the court the report never went to the prosecution (RT 8911:17-18; 8923:17). Both times, it had.
One more thing he saw.
6. The map
Dr. Jovanovic wrote
“When I got in he was actually making a map himself for that call a minute or two after the first one… they never asked me to look at that one… not to mention that when I looked later, the FBI put that cell at different location on their map than what Call Records showed.”
The record
On February 10, 2010, my phone records show two calls one minute apart: Call #9217 at 12:37 p.m., through a tower near my home in Rancho Cucamonga, and Call #9218 at 12:38 p.m.
Exhibit 910 puts Call #9218 at Lake Mathews, about 18.8 miles from my home, in the same place as the State’s Exhibit 495. The carrier’s own record puts that tower at 33.51286 / -117.26251, about 45 miles away, which is a physical impossibility one minute after the previous call. On cross-examination, my lawyer supplied the wrong distance himself: “18.8 by Google?” Boles: “That sounds about right.” (RT 4642:27-4643:7) The full story: The (impossible?) call.
Why would defense counsel acquiesce to this erroneous premise?
Decide for yourself
My lawyer told the jury the State’s expert did not understand the system, and that our expert would explain it. Our expert did explain it, in writing: a lengthy report detailing numerous errors in the State’s own tower records. My lawyer recalled his words: “these are the worst records that I have ever seen in my career.” (RT 8912:5-7)
See page 8912
That report was never used on cross-examination. Its author was never called. The jury that convicted me never saw a page of it.
Outside my own defense team, the only people who ever received it were the people prosecuting me, whose witness presented those same records to the jury as reliable.
The jury was promised the answers. The answers existed, in writing. They went to the prosecution instead.
Decide for yourself why.
All quotations are from the Reporter’s Transcript (RT), People v. Merritt, San Bernardino County Superior Court, Case No. FVI1404194: opening statements of January 7, 2019; trial proceedings during Agent Boles’s testimony; and the hearing on the motion for a new trial, January 17, 2020. E-mails are reproduced as noted.