EvidenceProf Blog

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

Thursday, June 15, 2017

Oral Arguments in the Adnan Syed Case and the Importance of Opening Statements/Closing Arguments

Last night, we debuted our Undisclosed episode about the oral arguments in the Adnan Syed case. For me, possibly the most interesting part of the oral arguments was the back-and-forth regarding how much weight the judges should give to closing arguments from trial in assessing the prejudice caused by Cristina Gutierrez's failure to contact prospective alibi witness Asia McClain. In other words, given that Asia offered credible testimony at the PCR hearing about seeing Adnan at the Woodlawn Public Library until about 2:40 P.M., how important was it that the State claimed in closing that Adnan had killed Hae before making the "come and get me" call from Best Buy at 2:36 P.M.?

Here's Thiru Vignarajah arguing the point at oral arguments, with questions coming from Judge Kathryn Grill Graeff and then Judge Alexander Wright, Jr.:

State 14

Now, one important thing to note from this clip is that the State acknowledged that the State used this crime timeline in both their opening statement and closing argument at trial. From the State's opening:

Screen Shot 2017-06-15 at 7.05.43 AM

And from the State's closing:

Screen Shot 2017-06-15 at 7.08.04 AM

Let's start with the law. First, it is black letter law that opening statements and closing arguments are not evidence. See, e.g., State v. Lawson, 886 A.2d 876 (Md. 2005). Second, however, it is equally clear that, under Maryland law, both opening statements and closing arguments are hugely relevant for a prejudice analysis. 

Judge Welch noted the importance of opening statements in his opinion granting Adnan a new trial:

Screen Shot 2017-06-15 at 8.15.04 AM

Maybe even more importantly, as I've noted before, the Court of Appeals of Maryland concluded in Ware v. State, 702 A.2d 699 (Md. 1997), that prejudice "'is best understood by taking the word of the prosecutor...during closing argument.'" And, as I noted in last night's Undisclosed episode, the Court of Appeals reached this conclusion by quoting the Supreme Court's opinion in Kyles v. Whitley.

Therefore, legally speaking, I expect the Court of Special Appeals to place great emphasis on both the State's opening statement and closing argument at trial in assessing the likely prejudice caused by Cristina Gutierrez's failure(s).

Let's now turn to the facts. According to the state, the State's crime timeline wasn't important because "that was a passing reference to the best theory the State had." First, I think that Judge Wright's follow-up question about the State trying to synch the evidence and Adnan's call log was important. We know that the State had a big blow-up of that call log in the courtroom and spent the trial trying to map Adnan's day by filling in that call log. Second, and this gets back to the State's own words, the 2:36 P.M. call as the "come and get me" call was indeed the best theory that the State had.

The State's case was based upon Adnan loaning Jay his car and phone so that he (1) would have an excuse to ask Hae for a ride; and (2) could call Jay on his cell phone to come and get him after the crime. But Jay testified that this call came at 3:45ish, despite the fact that there was no incoming call to Adnan's cell phone between 3:15 and 4:27 P.M. And Judge Welch himself thoroughly explained (in footnote 9) why the 3:15 P.M. call wouldn't work as the "come and get me call" given the number of intervening events Jay claimed occurred between that call and that call he made to Jenn at 3:21 P.M.

Now, ultimately, Judge Welch concluded that the State's timeline was so convoluted and contradictory that it couldn't have been what the jurors used to convict Adnan. But I think that was the wrong conclusion. I think that both the judges' questions and the State's responses during oral arguments make it likely that the Court of Special Appeals will view this differently. Simply put, if the State's case was only held together by a timeline that was contradicted by much of its evidence and testimony, then surely an alibi witness who refuted that timeline is enough to create the reasonable probability of an acquittal (or, as was noted during oral arguments, a hung jury). In other words, if Asia would have prevented the jurors from believing the State's "best" version of its weak timeline, how confident can we be that the jurors would have reached the same result in the face of her testimony?

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/06/last-night-we-debuted-our-undisclosed-episode-about-the-oral-arguments-in-the-adnan-syed-case.html

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Comments

But the 2.36pm come and get me call didn't work for the state anyhow i.e.: it didn't align with what Jay and Jen were saying about the time Jay received a call and was at Jens house until. This is exactly Welch's point. The states theory of 2.36pm wasn't working with what Jay and Jen were saying yet the jury still convicted Adnan. If the state moved the cagm call to 3.15pm it doesn't change anything.

If the 2.36pm call aligned with what Jay and Jen were saying it would be a different story but the fact is the jury didn't convict on this, they convicted in believing Jay and Jen and all the other evidence.

I think you will find COSA will agree with Welch on prejudice regarding Asia.

Posted by: Ben | Jun 15, 2017 7:45:21 AM

Ben: Well, that’s the problem, right? The jury might have determined that the State’s timeline made no sense but still thought that there was enough overall evidence of Adnan’s guilt to find him guilty beyond a reasonable doubt. On the other hand, the jury might have bought the State’s opening/closing and figured that Jay/Jenn were off by about an hour, with the “come and get me” call coming at 2:36 P.M. and the rest of the timeline generally working.

In the latter case, it seems likely that Asia’s testimony, if believed, could have changed the outcome at trial. In the first situation…we don’t know. If for instance, the jurors believed Inez and/or Becky that Hae left Woodlawn in a hurry soon after school ended, Asia’s testimony could have been hugely important, regardless of what the jury thought about the “come and get me” call. Conversely, if the jurors believed Debbie or generally had uncertainty regarding whether Hae left school closer to 3:00 P.M., then Asia’s testimony would be less important.

Legally speaking, it’s important to note that the Court of Appeals of Maryland found in In re Parris W. that uncertainty regarding the State’s timeline made it easier to prove prejudice based on failure to call alibi witnesses.

Posted by: Colin Miller | Jun 15, 2017 9:00:15 AM

Is the recording of the oral argument publicly available?

Posted by: L | Jun 15, 2017 2:29:49 PM

Ben - I really don't understand how a credible alibi witness is being considered non-prejudicial because an important part of the state's case was weak. How does that even make sense?

"Well...so this one part of the state's case was pretty weak... so therefore it would not have helped the defendant to have a credible, unbiased witness alibi him during the time the murder took place." -"

..huh? Maybe I'm missing something. Seems like the state presenting a weak case should make prejudice an EASIER threshold to reach, not a harder threshold to reach.

So let's say hypothetically that Jay's testimony was way stronger than it actually was. Say he was spot-on and his recollections really were corroborated by all the times matching up to the cell records. If the state put this stronger case, would that mean the jury was MORE likely to acquit had they heard Asia? Or is it simply one of those "Heads I win, Tails you lose" type-arguments?

The whole thing seems 180 degrees backwards to me.. but maybe I'm missing something.

Posted by: Paul | Jun 15, 2017 6:58:26 PM

@ Paul

“How does that even make sense?”

Because the state are simply theorising on when they think Adnan killed Hae. They didn’t present any evidence showing that Adnan had killed Hae by 2.36pm. That was their theory and their theory didn’t match with what their star Witness Jay Wilds and Jen Pusateri were saying. Yet the jury convicted Adnan in just 2 hours. The jury didn’t convict based on the state saying that they think the CAGM call was at 2.36pm and that is why it isn’t prejudicial in this instance.

“Seems like the state presenting a weak case should make prejudice an EASIER threshold to reach, not a harder threshold to reach.”

The state presented a weak theory as to when Adnan murdered Hae. The state still has a very strong case with strong evidence against Adnan. The prejudice is just related to whether Asia testifying would have changed the juries decision.

“Say he was spot-on and his recollections really were corroborated by all the times matching up to the cell records. Would that mean the jury was MORE likely to acquit had they heard Asia?”

Yes if Jay had of said he received a call at 2.36pm and Jay & Jen corroborated that, then absolutely the State’s evidence is debunked. Asia debunks the evidence. The state’s theory of the time isn’t evidence. Bu

Posted by: ben | Jun 15, 2017 7:44:32 PM

@Colin

“On the other hand, the jury might have bought the State’s opening/closing and figured that Jay/Jenn were off by about an hour, with the “come and get me” call coming at 2:36 P.M. and the rest of the timeline generally working.”

Why would the jury think that when they had two witnesses (evidence) who testified that he left around 3.30 / 3.40pm against the State saying they think (based on no evidence) a call might have been the CAGM call? Highly unlikely Jay & Jen were off by one hour when they are only 10mins apart in their estimation of the time.

“it’s important to note that the Court of Appeals of Maryland found in In re Parris W. that uncertainty regarding the State’s timeline made it easier to prove prejudice based on failure to call alibi witnesses.”

Was there an open window of 70 minutes in that case where the state doesn’t really know exactly how the murder went down (no evidence) and two witnesses saying the defendant didn’t contact them until the end of the 70 minutes, thereby there being this loose time when the murder could have taken place?

Posted by: ben | Jun 15, 2017 7:54:40 PM

I have always found it strage that Welch could both rule out the 3:15 call on the basis of the evidence presented at trial, yet could not find prejudice. These seem contradictory.

Posted by: Michael | Jun 16, 2017 3:58:47 AM

ben: We know that the jury didn’t believe Jay and Jenn about the timing of the alleged “come and get me” call to Adnan’s cell phone because they claimed it occurred between 3:30 and 3:50ish, but there was no incoming call to Adnan’s cell phone between 3:15 P.M. and 4:27 P.M. That leaves us with three options for what the jury believed:

1. The “come and get me” call was the 2:36 P.M. call. Of course, this is what the prosecution told them during its opening statement and closing argument. It gels with Inez Butler’s testimony about Hae leaving school in a hurry at 2:20ish. It allows for all of the intervening events before Jay’s call to Jenn at 3:21 P.M. All the jury has to believe is that (1) Jay and Jenn were mistaken/lying about the timing of the “come and get me” call; and (2) Debbie was mistaken/lying when she said she saw Hae still at school at 3:00 P.M.

2. The “come and get me” call was the 3:15 P.M. call. In footnote 9 of his opinion granting a new trial, Judge Welch thoroughly explained why this timeline wouldn’t fit with the evidence/testimony/arguments presented by the State at trial. I don’t see any reason to believe that the Court of Special Appeals will reverse this reasoning.

3. There was no “come and get me” call to Adnan’s cell phone. This could take various forms, principally (1) Jay was actually there for the murder; (2) Adnan and Jay had prearranged a place where Jay would meet Adnan after the murder; or (3) there was a “come and get me” call to some other phone, like Jenn’s landline. There are a few problems with this. First, it conflicts with the State’s “kidnapping by fraud” narrative that Adnan loaned Jay his car and phone so that he could have an excuse to ask Hae for a ride and then call Jay on his cell phone to pick him up after the murder. Second, it means that the jury would have needed to believe that Jay was lying or horribly mistaken at trial. He testified that he got the call while in Adnan’s car after driving to Jeff G.’s house, so there’s no way a landline call works with his testimony. My sense is that the jury accepted Jay’s accounting that he told some lies before trial but was generally telling the truth at trial. Under this theory, the jury needed to believe that Jay was telling a pretty big lie about a pretty important event in his trial testimony.

Third, it still creates timing problems. Let’s say (1) you’re a juror; (2) Asia testified; and (3) like Welch, you found Asia credible when she says she saw Adnan at the library until she left him behind at about 2:40 P.M. That means that Becky and Inez are wrong about Hae leaving school in a hurry at 2:20ish or else Adnan is innocent. Does that mean you believe Debbie? Debbie says she talked with Hae at 3:00 P.M. If she’s right, Hae has no time to give anyone a ride before she picks up her cousin (which is what Debbie says Hae told “Takera”). Also, if Hae’s still at school at 3:00 P.M., we get the same timing issues regarding Jay’s testimony about his 3:21 P.M. call to Jenn. There’s no way his sequence of events can make sense with Hae still alive and at school at 3:00 P.M. So, does the jury think that Becky, Inez, and Debbie are all wrong? Do they think that Jay’s sequence of events is a blatant lie or at least hugely erroneous?

I think you get the point. It’s possible that the jury could piece something together that would point to Adnan’s guilt, and, indeed, this is what Judge Welch found. But my conclusion is that Asia’s testimony creates enough issues to undermine my confidence in the jury’s verdict, which is the standard for prejudice. I think COSA will agree. We’ll see.

Michael: Agreed. I think Judge Welch went with option #3 in my response to Ben. But I wish he applied the same rigor to that option that he applied to option #2 (a 3:15 P.M. "come and get me" call). I think doing so would have revealed that this option was even less palatable than a 3:15 P.M. "come and get me" call.

Posted by: Colin Miller | Jun 16, 2017 4:42:55 AM

@Ben

"They didn’t present any evidence showing that Adnan had killed Hae by 2.36pm."

Indeed, but they did fervently assert as a matter which wasn't in dispute that Hae was killed by 2:36pm, or the very least intercepted by her killer immediately following the end of school. They didn't pick any bones about this, it was quite unambiguous. Remember "LADIES AND GENTLEMAN, SHE IS DEAD WITHIN 26 MINUTES" and the like?

They provided extensive evidence of this. To start, Inez testified extensively about seeing Hae leave school in a hurry--so much of a hurry she didn't even have time to pay for the snacks she grabbed. Additionally, Becky testified that Hae said she had to leave immediately because she had something else to do or somewhere else to be.

Also don't forget the prosecution had Hae's brother testify about her failing to pick up her cousin after school at the Campfield Learning Center. Likewise even if Jay's recalled timing was off, Jay nevertheless said there *was* a come and get me call, and that Adnan made it after he was going to get a ride after school from her, and that was how he would carry out his plan.

Is it really so likely the jurors heard Jay say the come and get me call happened at 3:45, and as a result would have concluded "Oh, well I guess then she clearly wasn't murdered right after school after all. Jay's story is so inconsistent, so who knows when she died. The defendant having an alibi right after school isn't going to have any influence on my decision making"? Personally I think this is some creative and unlikely mental gymnastics to assume that twelve separate jurors thought this way.

Posted by: Paul | Jun 16, 2017 9:15:22 PM

@Ben, one last thing, I'll summarize: I still don't see how Jay's weak testimony about the time of the murder makes you so sure jurors disregarded entirely all the other solid evidence and testimony presented (not to mention emphasized and driven home *repeatedly* by the state throughout the trial) that Hae was killed right after school or at least intercepted by her killer right after school, and that jurors disregarded it to the degree which we must conclude that they formulated their own, entirely novel and wholly unevidenced, theory of when the murder took place. A theory which was never raised by prosecution or defense throughout the duration of the trial.

Posted by: Paul | Jun 16, 2017 9:17:48 PM

Ben I disagree. Jay said he left later but he also said that he spoke with Jenn and that and that Adnan called Nisha AFTER Adnan killed Hae and he'd already seen the body at BB. Both of those calls happened before 3:40 and they are facts from the phone log which pins them in on a timeline regardless of what time he and Jen he left the house. Some postulate that the call to Jenn's house was Adnan but even if that is true (which makes no sense bc Jay had the phone and how would Adnan even know Jenn's home number?) if Jay is telling the truth about hearing the Nisha call he would have have to be with Adnan by 3:30 meaning he couldn't have left the house at 3:40 anyway. So, if you believe he left the house at 3:40 then you can't believe he heard the Nisha call. If you don't believe he heard the Nisha call, you have a whole other can of worms.

Posted by: Ryo | Jun 18, 2017 3:56:12 PM

Ryo: thing is, we know for a fact that state's timeline is all wrong; Hae wasn't in the trunk until at least 10-12 hrs after she died, if at all; she was lying prone for hrs & hrs after she died. This is fact from postmortem livor. Sorry; I have science based training & so find these arguments about minutiae disingenuous, although I realize only legal process arguments can be brought up on appeal. That said, surely no point in making such arguments here. That's why Jay changed his times again in the latest interview.

Posted by: Margaret Shank | Jun 20, 2017 9:27:22 AM

I agree with you Margaret, but as to the legal question of whether Asia provides a meaningful alibi to Adnan, I think that the only real question is whether Hae left school immediately after sixth period and was soon thereafter killed. I think there was plenty of evidence presented of this even if only examining what happened at the second trial.

And given that fact, then Asia's alibi almost certainly would satisfy the prejudice prong.

Posted by: Paul | Jun 21, 2017 7:04:54 AM

@Paul: True, and I do understand that. It's just so frustrating still to see people saying here and on Twitter that, for example, "I haven't listened to Undisclosed, but after all, there are no other suspects." It's just so enraging that appellate arguments to gain a new trial have to be this way, when a new trial would throw out all of this stuff.

Posted by: Margaret Shank | Jun 22, 2017 3:16:41 PM

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