EvidenceProf Blog

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

Thursday, May 4, 2017

The Case Against Adnan Syed, Redux

In its Reply Brief and Appendix of Cross-Appellee, the State has a section titled, "Syed Cannot Establish Prejudice in this Case." This is, in effect, an updated version of Episode Six of Serial: "The Case Against Adnan Syed." Essentially, the State uses this section of its Reply Brief to set forth its best evidence against Adnan, other than the cell tower pings, in an attempt to prove that trial counsel's failure to use the AT&T disclaimer wasn't prejudicial. The problem for the State, though, is that its recitation of facts seemingly proves the opposite. 

Accomplice Testimony

Before I get to the State's two bullet points, I need to start by noting that the State's heading is a misnomer. In Maryland, an accessory after the fact is not an accomplice. Indeed, the State was able to avoid early disclosure of Jay's police statements to the defense by specifically arguing that Jay was not being charged/prosecuted as an accomplice.

Claim #1

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This is generally true, but it ignores the fact that Jay has changed his story on all four of these points: (1) where/when Adnan shoed him Hae's body; (2) whether Jay assisted Adnan in digging a grave; (3) whether Jay assisted Adnan in burying Hae's body; and (4) what implements were using in digging the grave (two shovels or a shovel and a pick) and how they were disposed. I think most or all of these contradictions were laid bare at trial, with the obvious one being the switch in trunk pop location from Jay's initial claim (strip off of Edmondson Avenue) in his first interview.

Claim #2

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Although there are some issues with this claim, it's generally true. But this is merely evidence that indicates that Jay has some knowledge of the crime or at least its aftermath, not evidence that directly incriminates Adnan.

Corroboration

Claim #1

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The State is correct that Kristi/Cathy placed Adnan and Jay together at her place at a time that would have been after track practice. This does indeed corroborate Jay's testimony. 

I'm presuming that the State is claiming that Jen placed Jay and Adnan together in Leakin Park because the next bullet point says that she also met Adnan and Jay at a parking lot. Notably, none of the State's citations to the transcript are citations to testimony by Jen. Perhaps that's because Jen never testified that Jay and Adnan were in Leakin Park together. On page 169 of the 2/16/00 transcript, Jen testified as follows about who answered one of her Leakin Park calls:

Screen Shot 2017-05-04 at 7.00.24 AM

In other words, legally speaking, Jen was not able to authenticate Adnan's voice, and in fact, she said that she spoke to someone who sounded like "an older male."

Nisha, of course, did not place Jay and Adnan together on January 13th. She did testify that there was one time when Adnan called her while visiting Jay at his job at the adult video store and put Jay on the phone. But Nisha testified that this call could have occurred ay time between the New Year's party until the day of Adnan's arrest. And, of course, Nisha's testimony about the location of this call did not corroborate Jay's claim that this call occurred while Adnan and he were going to the Forest Lake Golf Course to score weed.*

Claim #2

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As with the Nisha claim, this claim cuts directly against the State's corroboration argument. Jen did indeed testify that she met Jay and Adnan at the mall parking lot. The problem for the State is that this directly contradicts Jay's testimony that Adnan dropped Jay off at his house, which is where Jen picked him up without ever seeing Adnan:

Screen Shot 2017-05-04 at 7.09.27 AM

So, that's all the corroboration that the State has for Jay outside of the Leakin Park pings: (1) Cathy corroborates Jay's claim that Adnan and he went to her place after track practice; (2) Jen was unable to authenticate Adnan's voice and thus could not corroborate Jay's claim that they were in Leakin Park together; (3) Nisha can't put Jay and Adnan together on January 13th and contradicts Jay's claim about the site of the 3:32 P.M. call, even assuming that's the call in question; and (4) Jen contradicts Jay's claim that Adnan dropped Jay off at his house without Adnan ever seeing Jen.

Forensics 

Claim #1

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This is true, but as Serial noted:

The defense argued, ‘well, you can’t put a timestamp on fingerprints, they could’ve been six week-old fingerprints or six month-old fingerprints, there’s no way to tell.’ And Adnan had ridden in and driven Hae’s car many times, all their friends said so. The ripped out page showed a whole lot more than just Leakin Park. In fact, it showed their whole neighborhood, the school, the malls, probably ninety percent of where they most often drove. And that page didn’t have Adnan’s prints on it. His palm print was only on the back cover of the book. Plus, thirteen other, unidentified prints turned up on and in the map book. None of them matched Adnan, or Jay. So, the prints weren’t exactly conclusive.

Plus, I'm not really sure of the State's theory here. Are they claiming that Adnan was wearing and not wearing gloves at different points during the crime, which explains why his palm print was on the back cover of the map book but none of his prints were on the torn out page? Overall, this piece of forensic evidence seems pretty meaningless.

Claim #2

Screen Shot 2017-05-04 at 7.18.40 AMQuite simply, this is not forensic evidence. It is triple hearsay. It's (1) a memo by Detective Massay; (2) about an anonymous caller; (3) who told Massaey what Yaser had told him. Of course, Yaser was relaying what Adnan had supposedly told him, which is a fourth layer of hearsay, albeit a layer that satisfies the hearsay exclusion for statements of party-opponents. Moreover, Detective Massey never actually testified at trial, despite the defense team's efforts to track him down.

If you're wondering how this memo was admitted, you might recall that, as we discussed on Undisclosed, it was the defense who introduced this memo to establish that the State honed in on Adnan too early in the investigation and put on the blinders with regard to other leads or exculpatory evidence. Therefore, the memo was not, and could not have been, admitted to prove the truth of the matter asserted in the memo.

Of course, there's also the fact that, despite the State's claim, the anonymous caller never mentioned Hae. Also, I'm pretty sure that there's evidence somewhere that Adnan made this statement before he started dating Hae. And then, the State also conveniently doesn't mention the fact that the anonymous caller said that Yaser said that Adnan said he would dump the car into a lake, which doesn't match up with where Hae's car was found.

Claim #3

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Again, this is not forensic evidence. Indeed, the State doesn't even explain in this bullet point why this evidence is relevant at all. Adnan called Yaser twice on January 13th. Yaser's phone records show that he answered neither call.

And...that's it. The long and short of the State's forensic evidence against Adnan is the palm print on the map book, with the other evidence they cite not being forensic evidence. On the other hand, we have the hairs found on Hae that weren't a match for Hae or Adnan, the lack of evidence in Adnan's car tying him to the crime, the lack of evidence that Hae was ever in her trunk, etc.

Deviations in Syed's Story

Claim #1

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True. 

Claim #2

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The State is talking about Detective O'Shea's interview with Adnan on January 25th followed by the interview of Adnan by Detectives Ritz and MacGillivary on February 26th. I would label the State's claim misleading. Here's the actual quote from the notes from the second interview: "On 13 January, 1999, he had occasion to be at school (Woodlawn Senior High), however, he doesn't remember the events that occurred in school that day." First, this says nothing about Adnan's recollection of what happened after school, like track practice, which seems to be the point of contention. Second, saying that Adnan remembers going to school on January 13th but doesn't remember "the events that occurred in school" is very different from saying that Adnan "had no memory at all of the day...."

 Claim #3

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First, how is this a "deviation[] in Syed's story? Adnan never said that he called Hae after January 13th, so how could there be a deviation/contradiction on this point? Second, why is the State citing to Adnan's testimony from the PCR proceeding in 2012? The State's argument is that the jury had enough evidence to convict Adnan even without the cell tower pings. Even if Adnan's testimony at the PCR proceeding in 2012 could be construed as a "deviation," it has no bearing upon the jury's deliberations back in 2012.

Motive/Preparation

I'm not going to address each of these bullet points individually. The motive bullet points deal with Hae and Adnan breaking up and Hae subsequently starting to date Don. This is all true as far as it goes, although, of course, the State doesn't mention Don's testimony about his cordial interaction with Adnan while they were both looking at damage to Hae's car**:

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And then, the preparation bullet points deal with Adnan getting his cell phone the day before Hae disappeared and asking Hae for a ride on the day she disappeared.

Conclusion

So, the State's case against Adnan consisted of (1) the possible motive of the breakup; (2) Jay's changing and contradictory stories; (3) three witnesses who mostly contradicted Jay's claims; (4) almost non-existent forensic evidence; and (5) Adnan asking Hae for a ride on January 13th and then giving somewhat inconsistent accountings of that day/the ride request in different police interviews.

Therefore, other than a possible motive and scant forensics, we have #2, #3, and #5. As Judge Welch noted in his opinion with regard to #1 and #2, the State presented a pretty weak case about the actual murder that was based upon inconsistent facts. Instead, it was the burial that was "the crux" of the State's case because it "marked the convergence point between Wilds's testimony and Petitioner's cell phone records." But, of course, the State is now trying to prove the strength of its case without the Leakin Park pings.

Thus, that leaves us with #5. And here's the problem for the State: In its Reply Brief, the State acknowledges that evidence related to the supposed ride was "a gap," "a wrinkle," and "a flaw" in its case. Here's the State's discussion of the issue:

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The State is, of course, right on this point. Inez Butler testified that she saw Hae leaving school in a hurry, with no indication that she saw Adnan. Debbie testified that she saw Hae without Adnan at about 3:00 P.M., at a time when Hae would have needed to head directly to Campfield to pick up her cousin. Indeed, in one of her statements, Debbie even said that Hae told another student -- "Takera" -- that she didn't have time to give her a ride because she had to get to Campfield:

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And, while the State doesn't mention her, Becky, a defense witness, also gave testimony that widened this "gap" in the State's case. Becky, who had heard about the ride request earlier in the day, saw Hae at the end of school, cryptically saying she had to leave because she had somewhere she need to be, without further explanation:

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At trial, Becky doesn't mention Adnan being present for this conversation, which is consistent with the testimony by Inez Butler and Debbie. Or, if we believe Becky's police statement, Adnan was present, with Hae telling Adnan she couldn't give him a ride because she had "something else to do." Either way you slice it, Becky adds to the question of whether Adnan actually got a ride from Hae. Becky also testified that Adnan continued to get rides from Hae, even after their final breakup and even when he had his car at school, making Adnan's ride request on January 13th seem less odd:

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So, when you add everything up, there's not much to the State's case. Jay's story is contradictory and contradicted. There are almost no forensics. There are some oddities with Adnan's ride request, but the State acknowledges "a flaw" in this part of its case. Given all of this, it's really hard to see how the Leakin Park pings weren't hugely important to the State's case.

_______________________________ 

*And, of course, Jay didn't have the adult video store job or any job as of January 13th.

**There's a question about whether Hae and Don were dating or at least officially dating at the time of this interaction, but it was certainly presented to the jury as the old boyfriend meeting the new boyfriend.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/05/in-its-reply-brief-and-appendix-of-cross-appellee-the-state-has-a-section-titled-syed-cannot-establish-prejudice-in-this-ca.html

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Comments

Colin: What do you think of the breakup note from Hae, on which Syed wrote the words "I'm going to kill"? That seems pretty damning to me. It certainly does more that “deal with Hae and Adnan breaking up and Hae subsequently starting to date Don.” It’s evidence that Syed was contemplating killing the victim.

Posted by: Sam | May 4, 2017 10:16:57 AM

This part of the state's brief is there to argue against Welch's finding of prejudice. Under what standard is Welch being reviewed on this finding? De novo or clear error?

Does CJB just have to live with these misstatements of fact, hoping the panel sees through them, or is it worth him responding?

Posted by: Michael | May 4, 2017 10:41:21 AM

Sam: That was a note written in health class, where the lesson plan was about not using “I messages.” Adnan and Aisha were writing back and forth about Hae possibly being pregnant and possibly having an abortion or a stillbirth. This note was written after the initial breakup, before Adnan and Hae got back together again and before (as far as we know) Adnan knew that Hae liked Don.

Is it possible that Adnan was writing about killing Hae? Sure. Is it possible that Adnan was writing about Hae’s possible pregnancy, abortion, or stillbirth? Sure. Is it possible that Adnan was making a perverse comment about “I messages”? Sure. Is it possible that Adnan was writing about none of these things? Sure.

All of which goes to say that it’s hard to decipher the meaning of the message. It could be quite important or not important at all.

Michael: COSA will do a “clearly erroneous” review of the facts underlying the prejudice conclusion but do a de novo review of the prejudice conclusion itself. SO, for instance, COSA won’t reverse Judge Welch’s factual finding that the AT&T disclaimer applied to Exhibit #31 unless it determines that finding was clearly erroneous. But COSA will de a de novo review on the question of whether this fact and other facts establishes prejudice.

Posted by: Colin | May 4, 2017 11:44:01 AM

I just looked up the anonymous call info – and it refers to the conversation having taken place ‘about a year ago’ http://undisclosed-podcast.com/docs/10/Det.%20Massey's%20Memo%20on%20Anonymous%20Call%20-%20Feb.%2012,%201999.pdf – Adnan and Hae got together March 1998, having possibly shown some interest in each other in the February, which was pretty much exactly a year before the call. So it’s not impossible that if the conversation alluded to in the anonymous call with Yaser happened, and if Adnan was talking about a specific person, he could have been talking about Hae. But it’s also possible that the conversation took place before they got together, because ‘about a year ago’ gives wiggle room.

Posted by: Cupcake | May 4, 2017 12:49:01 PM

Cupcake: Right. Junior prom was in March 1998, when they started dating.

Posted by: Colin | May 4, 2017 12:57:20 PM

I fail to see how “I’m going to kill” could be a reference to pregnancy or stillbirth. Abortion, maybe. As in, “I’m going to kill Hae if she does/doesn’t get an abortion” – which would still be contemplating murder. As for the “I message” theory, after a quick Google search and a perusing of some of the amazingly thorough stuff that Serial-obsessed fans have put together over the years, I find a transcript
(https://undisclosed.wikispaces.com/file/view/All+Serial+Podcast+Transcripts+with+ToC.pdf)
that shows Aisha never saw the “I’m going to kill message.” If Adnan wrote it as a joke, why didn’t he pass it back to her so she could giggle at his cleverness? He just decided to keep the joke to himself? And then, after secretly writing “I’m going to kill” as a silly joke to himself, the subject of the note upon which he wrote the message ended up murdered? This is the unluckiest guy in the world.

Posted by: Sam | May 4, 2017 6:14:16 PM

Cupcake/Colin.

The anonymous caller said that Adnan said that if he would hurt his 'girlfriend'

Hae was his first girlfriend. He hadn't had a prior girlfriend. It must have been referring to Hae.

This aside, we are talking about Adnan's intention to cause harm against a girl. This looks terrible for Adnan.

Posted by: Ben | May 4, 2017 9:38:56 PM

Further contradiction to state's 'preparation' claim: Yaser's police interview notes say 'Bilal and Adnan had been looking for cell phone for two months' - so prior to the breakup. (It's also worth noting that the notes say 'Got it January - bragging. Called me 1st day he got it' - perhaps police were asking everyone one they first new Adnan had his cell phone? cf the Nisha police notes **Day or two after he got cell phone

Posted by: Cupcake | May 5, 2017 1:29:09 AM

Wouldn't it be better to redact the last names of Kristi/Cathy, Nisha (and Jennifer) at #Claim 1, in the bulletpoint?

Posted by: Martin | May 5, 2017 4:20:41 AM

So, absent clear error, CSA will do a new analysis of prejudice based on Welch's factual findings?

Posted by: Michael | May 5, 2017 8:13:32 AM

Sam: I think there are several other possibilities, such as “I’m going to kill myself if Hae’s pregnant.” I don’t know whether “I’m going to kill” was there when Adnan was passing the note back and forth with Aisha. Obviously, Aisha didn’t remember it being there over a year later when she saw the not again for the first time since Health class. That said, it is on the type line of the back of the note, right after a line about no “I messages at the bottom of page 1.” Meanwhile, Aisha’s first line is three lines down on the second page and seems to be responding to something. Of course, another possibility is that Adnan wrote this toward the end of class, which would explain why “I’m going to kill” is an incomplete sentence and Aisha never saw it.

Ben: I would say that this is the problem with hearsay and especially double and triple hearsay. First, we don’t know whether Adnan even made the statement at issue, and we can’t really judge the credibility of the anonymous caller. Second, even if Adnan did make some statement, Yaser might have misheard it or misremembered it when he reported it to the anonymous caller. Third, the anonymous caller might have misheard it or misremembered it when he reported it to Massey. Fourth, Massey might have misheard it or miswrote it. Fifth, if the statement was more than a year before the call or exactly a year before the call, Adnan wasn’t dating Hae at the crime.

In the end, though, we can all judge the factual significance of Massey’s memo. From a legal perspective, though, the note was hearsay and not admitted to prove the truth of the matter asserted.

Cupcake: Right, the evidence tends to show that Adnan got the cell phone to call Nisha, which could be evidence that he moved on. Of course, one might disbelieve that reason, but no one, including Jay, testified that Adnan got the phone for the purpose of executing a murder plan.

Martin: Their full/real names have been used in many of the recent filings, including the one linked in this post. Therefore, I don’t know how much sense it makes to redact them.

Michael: Yes.

Posted by: Colin | May 5, 2017 9:52:24 AM

Sam: "I am going to kill the baby" or "I am going to kill the teacher for using 'I' statements"


Think about why a teacher would tell the class not to use I statements--what's the purpose behind lesson plans involving that? In a health class, it's likely about self esteem and the self esteem of others. I'm sure the general message was something along the lines of "Be positive!"

In that sense it was probably an immature high school way of doing the exact opposite.

And as far as "the unluckiest guy in the world", I invite you to familiarize yourself with the prosecutors fallacy (type it into Wikipedia). And even on top of that, your premise is flawed. You think it's rare for someone to have at some point in their lives uttered "I am going to kill"??? How rare do you really think that is? I've said those words in any number of situations for any number of non-homicide reasons throughout my life. It's not rare at all. People say that kind of thing for myriad non-homicidal reasons. He didn't even say "I'm going to kill Hae" just "I am going to kill"--how is that damning if you aren't starting with your mind decided?

Posted by: Paul | May 5, 2017 11:10:17 AM

(Cont..) and that doesn't even take into consideration the big temporal discrepancy of when the note was actually written versus when Hae went missing. I on many occasions said I'm going to kill this one particularly obnoxious ex-girlfriend of mine. We broke up quite a long time ago: is my goose now cooked given that information? I even specified and said her name after "I am going to kill" at the time I said it, does that make me the murderer?

Posted by: Paul | May 5, 2017 11:16:54 AM

Thanks for the condescending invitation, Paul. I’m quite familiar with the prosecutor’s fallacy. Syed did not utter the phrase “I’m going to kill…” He wrote it, on a paper with a series of notes discussing an emotionally charged subject relating to the very person who ended up dead.

As for your hypothetical, do you really think I was claiming that Syed’s statement, all by itself, was sufficient proof of murder? I found it more damning than some of the points Colin did respond to, so I wanted to know his thoughts on that one. Are you guilty of murder? Gosh, I don’t know. Did your ex-girlfriend actually end up dead? Shortly after she started dating somebody else? Were you a jealous and controlling boyfriend? Was she strangled – a sign of a crime of passion? Did a friend of yours lead the police to her missing car and then explain that you killed her and asked for his help burying the body? Did cell tower evidence corroborate your friend’s story [even if some hack defense expert persuaded a retired judge otherwise]? Did you call your girlfriend on a daily basis and then never once try to contact her after she went missing?

Posted by: Sam | May 5, 2017 2:57:51 PM

Sam = Seamus?

Posted by: Beth | May 5, 2017 7:03:37 PM

Beth.

No. Sam is a very experienced lawyer. Seamus has no experience with the law and has always made that point clear.

Colin, I think Adnan wrote 'I will kill' when he was at home. I think that he was somewhat making a joke about the 'no I messages' but to himself when he was thinking about actually killing Hae. Aisha said at trial that Adnan didn't write it at school when they were passing notes. She would know, the note passing was between Adnan and Aisha.

Posted by: Ben | May 5, 2017 10:24:50 PM

Question is, Sam, should the "I'm going to kill" letter along with the rest of the evidence (and counterevidence) lead one to believe Adnan is guilty beyond a reasonable doubt?

Posted by: Paul | May 6, 2017 6:57:01 AM

Wasn't the "I want to kill" letter written after the first break up, before Hae and Adnan got back together again?

Posted by: Paul | May 6, 2017 7:39:31 AM

Late to this, but Paul: Yes, I can remember sitting through all manner of public service type classes in high school and writing on the back of a piece of paper "I'm going to kill [myself/the teacher/some random person]" would be entirely understandable HS behavior. THERE IS NO OBJECT TO THIS INCOMPLETE SENTENCE EVERYONE! YOU CAN'T TELL ANYTHING ABOUT WHAT IT MEANS.

Posted by: John Otoshi | May 6, 2017 11:25:34 AM

Do you know if anyone asked Adnan about the "I'm going to kill" note and, if so, what he said about it?

Posted by: Cathy McLain | May 6, 2017 1:58:55 PM

Sam sounds an awful lot like Seamus, and I'm not referring to the phonetics in the name.

And Sam, if you are quite familiar with the prosecutors fallacy, why'd you use it to make a point? Yes, evaluating the probability of evidence given a verdict, i.e. "He would have to be the unluckiest guy in the world to be innocent" is a textbook logical fallacy. You are the one who decided to take me pointing it out as condescending. I was just being lazy

Posted by: Paul | May 6, 2017 4:43:17 PM

Paul: That’s definitely another possibility.

Ben: Sure, that’s a possibility. I don’t put a huge amount of stock in Aisha not remembering that particular passage. She was shown it more than a year after they were passing the note back and forth, and she had already moved on to college. How likely was she to remember everything written on a letter passed back and forth during health class all those months later?

Paul: Yes, the letter was written before the final breakup.

Josh: Yes, it’s an incomplete sentence, which means that all we can do is speculate.

Cathy: I’m not sure.

Posted by: Colin | May 7, 2017 3:16:18 AM

@Cathy M. He said he didn't remember writing it but the handwriting looked like his. He said that on Serial, I believe.

Posted by: TerminalGrog | May 7, 2017 7:48:59 AM

Hi there, I am coming to "Undisclosed" a little late in the game (I only discovered "Serial" last month) and have just finished up rabidly consuming both podcasts, Rabia's book and various other tidbits with regard to Adnan's case. I find myself with two burning questions that may or may not have already been addressed (I'm only midway through Season 2 of "Undisclosed", so there might be and addendum or special episode that I may have missed):
1. I was questioning Jay's stake in the game at this point, why he would continue with his assertion​ that Adnan was guilty, especially if it's true that he knew nothing about the actual crime. He's covered on an accessory charge by his plea deal, but he could still be charged with murder if new evidence came to light, right? Assuming he really did know nothing about the actual crime, I would love to see theories on why he maintains his variations of his story, to this day. What's his stake now?
2. In re the detective note that said Don assaulted Debbie, has Debbie been located and questioned? I know it was noted that some of the classmates have passed away. I couldn't remember if she was one.
The first question pertains somewhat to the subject matter, the second not so much so I apologize if this isn't the appropriate forum for these questions. I am new to this platform.

Posted by: Christina | May 7, 2017 7:55:04 AM

They were probably being taught to use I statements--"It makes me feel X when you do Y because...."--rather than you statements--"You always do Y!"
_________________

CM Note: This is the 25th and final comment that will appear on this post.

TerminalGrog: Yes, that rings a bell.

Christina: (1) Exactly. If Jay now said that Adnan didn't do it, the State could claim that he breached his plea agreement and charge him with first-degree murder (as well as perjury). (2) I believe someone connected to the case has talked to Debbie, but not me.

Ryan: Yes, I think that's right.

Posted by: Ryan | May 7, 2017 4:54:41 PM

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