EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 28, 2016

Moving the Claim that the Nisha/Jay Call Occurred on January 13th to the "Implausible" Column

Today, someone tweeted me a link to a thread discussing the possibility that Adnan's January 31st call to Nisha was the real "Nisha Call." The argument in the thread is interesting, but another comment in the thread is even more interesting because it greatly increases the chances that the call during which Nisha talked to Jay took place while Jay was working at the adult video store and not on January 13th. 

That comment goes all the way back to Nisha's testimony at Adnan's first trial on December 10, 1999. During that testimony, the following exchange occurred during direct examination (page 27):

Screen Shot 2016-03-28 at 3.17.57 PM

This is testimony we likely all recall from Serial, with Nisha explaining that the Jay call occurred "towards the evening" while Adnan was visiting Jay at his job at the adult video store, a job that Jay didn't start until the end of January. Given the timing of Jay's hiring, it would seem impossible that the Jay-Nisha call occurred on January 13th. That said, Not Her Real Name Cathy said the following in her police interview:

Screen Shot 2016-03-28 at 3.29.01 PM

Now, there are some obvious issues with this statement. First, Cathy seems to be thinking that someone was coming to pick up Jay and Adnan on January 13th, despite no one mentioning anything of the sort anywhere else. Second, Cathy is saying that Jay and Adnan were going to meet up with Stephanie on January 13th, with no one else saying that this ever was planned or occurred.

That said, some have speculated that Adnan had an elaborately planned alibi that consisted of (1) claiming that Jay and he were visiting a video store on the afternoon of January 13th, i.e., at 3:32 P.M.; and (2) also claiming that Jay and he were visiting a video store after going to Cathy's apartment, i.e., at 6:30ish or later. Then, luckily for Adnan, Jay later started working at an adult video store, distorting Nisha's memory and making her think that Adnan and Jay's fake visit to a video store on January 13th was actually Adnan visiting Jay at his adult video store job.

This theory never held much water for me, but a related argument was that the notes for Nisha's interview in April 1999 merely indicated that the Jay call took place after Adnan had just gotten to "Jay's store":

Screen Shot 2016-03-28 at 3.26.28 PM

This argument wouldn't help the claim that The Nisha Call took place on January 13th because Jay didn't have any job until January 25th, when he started work at F&M. That said, the argument that Nisha could have been confusing Jay's jobs was somewhat convincing for me, and it lead to a theory (which I don't think I've posted about) that the real "Nisha Call" could have been Adnan's February 1st call to Nisha that was place while Jay was working at F&M and that was followed by a call to Stephanie.

That said, the comment on the thread today noted the following two-question redirect examination of Nisha by Urick (page 36):

Screen Shot 2016-03-28 at 3.43.52 PM
 

This is huge. At trial, Nisha shows a clear recollection of Adnan telling Nisha that he was visiting Jay at his pornography store "before he walked in." And this isn't an answer fed to her by defense counsel; she freely gives it in response to an open ended question by the prosecutor. 

Now, Urick is clearly trying to establish that Nisha has no way to verify that Adnan was actually visiting Jay at his adult video store, meaning that Adnan could be lying. And he's clearly doing this because Jay's own version of "The Nisha Call" took place at the Forrest Park Golf Course after "The Patrick Call," a claim belied by Adnan's call log,* Jay's timeline,** and the cell tower pinged by this outgoing call.***

Of course, this claim makes little sense given that Jay wouldn't start that adult video store job until the end of January. Now, the same goes for the claim that Nisha learned about Jay's adult video store job at a later date and retconned it into her memory of a call that actually took place on January 13th.

It's still possible that this happened. Anything is possible. But Nisha herself says, under oath, that she has a recollection of Adnan telling her he was visiting Jay at his adult video store "before he walked in." This moves the claim that the Nisha/Jay occurred on January 13th from the "unlikely" column to the "implausible" column.

_________________________

*The Patrick call is at 3:59 P.M.; the call to Nisha is at 3:32 P.M.

**Jay claims he didn't even get the Best Buy call until after 3:45 P.M.

***The Forrest Park Golf Course is up by "Grandmother's House" in this map of the 3:32 P.M. ping.

-CM

http://lawprofessors.typepad.com/evidenceprof/2016/03/yesterday-a-reader-sent-me-an-e-mail-regarding-nishas-testimony-at-the-first-trial.html

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Comments

I can't believe that question and answer on Nisha's redirect has escaped discussion for so long. It pretty much removes all doubt: on the one occasion where Adnan put Nisha on the phone with Jay, Adnan told Nisha he was visiting Jay at work at the pornographic video store. And there is *no* chance that he would have told her such a thing on 1/13.

Posted by: RodoBobJon | Mar 28, 2016 1:43:45 PM

Its so simple. Phone logs show it. Jay was Adnans "get high friend" who had those connections. He did not have a job, car or phone so Adnan would give him his car/phone on some Wednesdays (called Jay night before 13th to confirm he would use them the 13th) On the 13th Jay had the phone and did his "business" while Adnan went to library (saw Asia), track and then Jay picked him up, they got high, Adnan dropped him off so he could go home and then get to mosque. Nisha call CLEARLY happened AFTER Jay got a job there and not the 13th. Police just love making sinister anything Adnan and molded all things around the Jay bs and phone bs

Posted by: Doni | Mar 28, 2016 2:12:34 PM

What do you make of the police notes of Nisha's interview that the call was 1-2 days after Adnan got his phone?

Posted by: Anonymous | Mar 28, 2016 2:53:29 PM

I'd never heard the apologetic about Adnan planning an alibi related to "visiting a video store" multiple times that day--that is absolutely hilarious. I love how many of these supposed carefully planned alibis Adnan was working on, given the fact that Adnan neither offered or even attempted to offer any alibi in any pre-arrest interview or post-arrest interrogation. How do these people take themselves seriously when spouting such an absurd scenario.

I have been confused by the contention that the Nisha call is a damming piece of evidence, all the way back to my first listen through to Serial. In fact my first ever experience with Reddit was logging in and asking for someone to explain it to me bc I thought I must be missing something.

But I wasn't. The Nisha calls existence didn't fit with Adnans story--but it also didn't fit with Jays story! And Jenn's story! But somehow this is only problematic and casts doubt on Adnan? These people have a serious dearth in critical thinking skills.

I'm glad you found this additional nail in the coffin though. I am going to predict however that Shameless Duncan and friend will still believe otherwise though. Their conviction in this belief has become identifiably religious in nature.

Posted by: Paul | Mar 28, 2016 3:17:11 PM

RodoBobJon: It was a great catch.

Doni: Yes, it now seems clearer than ever that the call took place after Jay got his job at the adult video store.

Anonymous: The notation preceded by two asterisks? My best guess is that Nisha was asked whether the Jay call could have taken place one or two days after Adnan got the cell phone and she responded in the affirmative. This would be entirely consistent with his later trial testimony.

Paul: The interesting thing is that Jay does claim that Adnan tried to fabricate the track alibi by talking to his coach about Ramadan (despite the fact that Coach Sye said he initiated the conversation). And yet, the claim is that Nisha was an attempted alibi despite the fact that Jay claims that Nisha call and related activities made Adnan very late for track practice.

Posted by: Colin | Mar 28, 2016 4:23:44 PM

I get so sick of people asking you the same questions over and over and over. Your patience is something to be admired. I don't know if it's people that haven't read your prior posts despite seemingly as familiar with the documents as any of us obsessed people. Or they have read them and just keep asking anyway to try to cast doubt with those that are new to your posts??

Posted by: Narizarielka | Mar 28, 2016 7:06:58 PM

Or maybe if they keep asking eventually they will get the answer they want?

Posted by: Narizarielka | Mar 28, 2016 7:08:03 PM

Re: Anonymous's Q

It's interesting that amidst the utter dearth of incriminating evidence that characterizes this case, the few documents touted as incriminating are all police notes. Never transcripts of what witnesses actually said (both trial testimony and witness interviews). Only when the documents aren't being written by the actual witnesses themselves.

A cynical person might get the impression that this is significant. One might conclude that only in ambiguously cryptic notes, where the choice of words isn't coming from the witness his/herself, can something incriminating be found. I'll simply remind everyone just how inculpatory the Juaun note turned out to be.

Cases where someone is guilty just aren't like this! Think back to other famous cases where the person clearly did it. OJ Simpson. Casey Anthony. What's-his-name Peterson (not the staircase one, I mean the guy who killed two wives). When someone commits a crime, it necessarily causes lots of evidence to be created, and when a ton of interest is given to the case, this stuff comes out!

But for Adnan, there isn't a single shred of anything NEW that wasn't brought up at trial 16 years ago. In fact, the vast majority of the prosecution's case has since been completely destroyed! Things just aren't like this when someone truly did do it.

So I beseech those in the guilty camp, if you can't critically reason yourself into (correctly) concluding that someone else killed Hae, please take note how this case follows zero of the trends typically found when the person of interest is guilty.

Posted by: Paul | Mar 28, 2016 8:51:53 PM

In additon to the post of Anonymous, I have a question about that interview with Nisha.
Your comment about that is

"My best guess is that Nisha was asked whether the Jay call could have taken place one or two days after Adnan got the cell phone and she responded in the affirmative."

In the interview of february 2nd, the document reads

Remember when Adnan got a cellphone
Think it was mid-January when he got it
He figured it would be easier to call me on cell phone
Think it was around time when he 1st got cell phone,
he handed phone to Jay to talk to me.
Thought Jay was white
Jay didn’t seem friendly
Defendant just gotten to Jay’s store -

Since the questions of the detectives (Macgillivary & Carew) are not on paper, there is room for speculation. I think it certainly possible that the Q&A went as you described, but that would also mean they were looking for the answer Nisha gave, by asking it that way. The more neutral question to Nisha would be: when did this take place? So is it a tactic detectives (can) use in these kinds of interviews, or is that considered manipulating? Aside from the fact if it happened in this case...

Posted by: Martin | Mar 29, 2016 3:09:40 AM

Martin- given what we see in transcripts of interviews by these detectives, asking neutral questions wasn't really their style.

Posted by: bacchys | Mar 29, 2016 6:51:50 AM

@bacchys: I know it seems that way, but I'm interested in the general point of possible manipulation of an interview, and how far detectives/police are allowed to steer answers with their questions.

I would also like to correct something from my previous post, because I said the interview happened on 2nd of february, which must be the 1st of april. I was confused by the "Occured on" date. Since the new post of the Evidence Prof. is about the dates Nisha was interviewed, I certainly wanted to correct my error :)

Posted by: Martin | Mar 29, 2016 11:39:46 AM

The way the "Juaun Mysterious Police Note Gambit" blew up in the prosecution's face, I think, perfectly illustrates why meticulous quote mining of ambiguous police notes is a fools errand.

But then, I suppose if you're someone firmly dedicated to proving something which clearly didn't happen, kinda by definition you gotta scrape the bottom of the barrel of "plausible evidence" to argue with.

Posted by: Paul | Mar 29, 2016 12:18:42 PM

Martin-most tactics police are trained to interrogate with are manipulating, and it's considered totally okay. Even when it's being used on witnesses. IMO it shouldn't be used on suspects unless the officer is trained to spot false confessions, but what's absolutely inexcusable is using them on witnesses.

These manipulation tactics are just highly successful at producing what the cops want to hear, they get used on witnesses all the time. And other than yaknow, ethics and learning the truth, there's nothing wrong with this.

Posted by: Paul | Mar 29, 2016 12:23:23 PM

@Paul It's interesting you use the OJ Simpson case as the counter-example to your point about evidence eventually showing the real perp. It turns out, there's a large amount of info pointing to his son as the person who should have been considered the major suspect from the start. As soon as you understand Jason fits all the physical evidence either theoretically (ala the DNA) or in reality (he routinely took his dads clothes, drove the bronco, hung out a Nicole's and worked with knives) you also begin to see the case against OJ is remarkably thin when you get beyond the hearsay and prosecution spin.

Posted by: GregB | Apr 1, 2016 9:09:50 PM

What's really frustrating about all of this phone stuff is that the police couldn't/didn't identify all incoming calls. Not sure what was possible in 1999, but at least they could have pulled the records of everyone who was involved and attempted to match these call up. Seriously.

And this is probably irrelevant, but why is Adnan bragging to Nisha about all of the phone numbers he got at this party? Wasn't Nisha someone he was dating or interested in? Just weird.

Posted by: Paul B | Sep 18, 2017 11:17:43 AM

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