EvidenceProf Blog

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

Tuesday, June 27, 2017

Oral Arguments in the Adnan Syed Case & Another Reason the 3:15 P.M. Call Doesn't Work

Throughout the appeal in the Adnan Syed case, the State has claimed that the prosecution's argument at trial that Adnan Syed killed Hae Min Lee by 2:36 P.M. was just its "best" theory of the case and that it just as easily could have argued a different theory of the case. The only alternate theory of the case that it has advanced, however, is that the 3:15 P.M. call on Adnan's call log was the "come and get me" call as opposed to the 2:36 P.M. call. Judge Welch, of course, refuted this argument in footnote 9 of his opinion granting a new trial based upon the number of events in Jay's narrative between the "come and get me" call and the 3:21 P.M. call he made to Jenn, ostensibly to look for Patrick. Until re-listening to the oral arguments in the case today, however, I hadn't noticed an even bigger problem for the State.

Here's Thiru Vignarajah, trying to resurrect the 3:15 P.M. "come and get me" call during oral arguments:

27 - 23

Thiru is correct that Jay mentioned this "two call" scenario before trial. Specifically, he testified to it at the first trial:

Screen Shot 2017-06-27 at 4.09.45 PM

Screen Shot 2017-06-27 at 4.10.17 PM

So, the State's "best" alternate theory is that Adnan called Jay at 2:36 P.M. to tell him that he was leaving school and then later made the "come and get me" call at 3:15 P.M. According to the State, this solves any issues that would have been created by Asia testifying and still would have allowed the jury to find Adnan guilty beyond a reasonable doubt.

Except...as Thiru himself notes in the above audio clip, Asia testified that she saw Adnan at the library until 2:40 P.M. And, of course, Judge Welch found this testimony to be credible. Therefore, the State's "best" alternate theory has the same problem as the State's "best" theory: It still requires the jury to believe that Adnan was making a phone call to Jay (2:36 P.M.) at the same time that Asia says Adnan was having a conversation with him her in the library (2:20-2:40 P.M.).

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/06/throughout-the-appeal-the-adnan-syed-case-the-state-has-claimed-that-the-prosecutions-argument-at-trial-that-adnan-syed-kill.html

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Comments

This just seems like the epitome of absurdity to me. Basically, the state is saying that their theory of the facts of the crime are so ephemeral and vague that they can't possibly be refuted! In what reality is that considered sound logic? I thought that the entire basis for our criminal justice system is "innocent until PROVEN guilty," but the State is basically turning that on its head with this. They have so few concrete facts that they can simply adapt their theory to counter any possible defense thrown against it. Who could possibly have a chance against that? I really hope that the COSA can see how ridiculous this is, too. If not, then what is the point of having laws anyway, if this is what it all comes to in the end: who can make up the best story? It's insulting.

Posted by: Kevin | Jun 27, 2017 1:43:57 PM

Just a minor typo in the last sentence. "Him" should be "her"

Posted by: Jeff | Jun 27, 2017 3:43:20 PM

It has become pretty clear that the prosecution can shake around all their facts and all Jay's statements and re-arrange them a thousand different ways but they have still to come up with a plausible evidence-backed version of how Adnan killed Hae that day. That is their problem and it is hard to imagine any court supporting any of their stories.

Posted by: FarFarAway | Jun 27, 2017 10:42:39 PM

This reminds me of the interview Sarah had on Serial with I believe a law expert. He said that the job of the State isn't finding the truth, but constructing the most convincing story why the accused did it. That really was an Aha moment for me, because it does not make sense... but it makes so much sense. This shifting of the timeline is a great example of telling that story.

Posted by: Martin | Jun 28, 2017 1:17:54 AM

According to Judge Welch’s opinion (p.12), McClain stated “that she spoke with [Syed] at the library sometime between 2:20 p.m. and 2:40 p.m.” Her affidavit says she talked to Syed, then left the library “around 2:40.” How is this inconsistent with Syed making a phone call at 2:36 p.m.? Say McClain and Syed spoke to one another from 2:25-2:35pm, then then they parted ways and Syed made a phone call. Why’s that not possible?

Posted by: Sam | Jun 28, 2017 7:50:15 AM

Kevin: We know that Judge Welch already rejected the pivot to a 3:15 “come and get me” call. I expect COSA to do the same.

Jeff: Thanks.

FarFarAway: Right. It seems pretty clear that the only way the State’s case might work is without a “come and get me” call to Adnan’s cell phone, but the absence of such a call creates its own issues.

Martin: Law professors refer to this as narrative theory.

Sam: In her first affidavit, Asia said she was waiting for her boyfriend at around 2:20, then Adnan entered, then she talked to him for 15-20 minutes, then she left at around 2:40. In her second affidavit, Asia says she was waiting for her boyfriend when school let out at 2:15, then Adnan entered at around 2:30, then she talked to him, then she left at around 2:40. Combining these two statements, it seems likelier that she left a couple of minutes after 2:40 as opposed to a couple of minutes before 2:40. Beyond that, it’s possible that Asia actually left a full five minutes before 2:40, followed by Adnan immediately making the 2:36 P.M. call from the library (although I’m not aware of any evidence regarding the location of phones in the Woodlawn Public Library). But that’s a lot less likely.

Posted by: Colin Miller | Jun 28, 2017 9:03:11 AM

Colin:
Those two statements from Asia don’t seem very different at all. And let’s not forget we’re talking about a woman’s recollection as to what time of day she ran into a classmate, at the library, SIXTEEN years earlier. And the State’s alternate theory “works” if she was off by just 5 or so minutes. If you asked me what time I left my house this morning, I’d probably be off by more than 5 minutes. If you’re suggesting Syed didn’t have time to get to a phone, then maybe Asia and Adnan stopped chatting and parted ways at 2:34 p.m. Or maybe it was 2:33 p.m.! I don’t see how you can conclude any of these scenarios are “a lot less likely” than them parting ways after 2:36 p.m.

Posted by: Sam | Jun 28, 2017 9:28:32 AM

Sam: I agree that the statements by Asia don’t seem that different, and that’s my point. In her 2000 affidavit, she doesn’t specify the exact time that her conversation with Adnan started, but she says she talked with him for 15-20 minutes before she left at about 2:40. In her 2015 affidavit, Asia says that her conversation with Adnan started at about 2:30 and that she left at about 2:40 P.M. If she’s right about the 15-20 minute duration of the conversation, it likely ends closer to 2:45 or 2:50 than 2:40. And even if the conversation started a few minutes before 2:30 and was a bit shorter than 15-20 minutes, we’re still past 2:36 P.M.

But I agree with you that it’s possible that she’s off enough on times such that she might have finished the conversation with Adnan at, say, 2:34 or 2:35. But let’s contextualize that. At trial, the State says that the 2:36 P.M. call is placed from Best Buy after Adnan has killed Hae, which clearly doesn’t work with Asia’s testimony. What we’re now considering is whether Jay’s “two call” testimony from trial 1 might have worked at trial 2 to rebut Asia’s testimony. We already know from Judge Welch’s opinion that this wouldn’t have worked in connection with the second call because a 3:15 P.M. “come and get me” call doesn’t work with Jay’s timeline/narrative. And now we’re debating whether it’s possible that this would have worked in connection with the first call, with the best case scenario for the State being that Asia was off enough in her recollection of timing to allow for Adnan possibly calling Jay the minute after Asia had left the library.

Posted by: Colin Miller | Jun 28, 2017 9:40:40 AM

Jay testified at the 2nd trial (the trial that matters for prejudice issue) that he received the CAGM call after he had left Jens house. Jay said he received the call as he was leaving Jeff’s street.

This would be consistent with the 3:15pm incoming call because this call pinged a cell tower that wasn’t consistent with being at Jen’s house. The prior 2.36pm call was consistent with being at Jen’s house.

At the 2nd trial, Jay was asked if he remembered making the 3.21pm call to Jen. Jay replied “I believe so , to ask Jen if Patrick was on or if he was home, one of the two, meaning if he had majijuana”.

Could Jay have got confused with recalling if this was the 3.21pm call? Possibly. Jay could have got mixed up with the 4.12pm call to Jen which was not long after he called Patrick and this 4.12pm call is consistent with being near Patrick’s house. Could Jay have called Jen because he wasn’t home and was wondering where he was?

Posted by: ben | Jun 28, 2017 8:21:45 PM

I’m lost. Sam, even if the 2:36 call stands as the ‘come and get me’ call, when did Adnan kill Hae? Even if Asia is out by 5 minutes or so, she was talking to Adnan for somewhere between 10 and 20 minutes and she leaves at about 2:40, according to what she recalled back in 2000. So, school gets out at 2:15 and Hae is dead before Adnan begins talking to Asia by 2:30. Jay says in many different statements that the ‘trunk pop’ happened in many different locations but he never claims it was at the library or the school. So, even if Asia is out by 5 minutes and Adnan could find a phone somewhere in or near the library to make the 2:36 call to Jay, Hae’s murder by Adnan is still unexplained. If Adnan was in the library when Asia says he was, even given a 5 minute leeway either side, Adnan has no time to get in Hae’s car, kill her, place her body in the trunk of the car, take the car somewhere (because if it was in the school carpark I cannot believe not one witness saw it), get to the library to talk to Asia and then call Jay from an unknown phone by 2:36. I can see why the prosecution doesn’t want to go to a re-trial with this scenario.

Posted by: FarFarAway | Jun 28, 2017 8:34:18 PM

@ FarFarAway

The state aren’t claiming now that the 2.36pm call was the come and get me call. This would mean the 3.15pm call was the come and get me call. Jay claimed at the 2nd trial that there were in fact 3 calls.

The first call Jay says he received from Adnan he asked if Adnan was ready and he said no.

The second call Jay says he received from Adnan he claims Adnan was asking if Jay had the phone turned off and that Jay needed to get him at 3.45pm or something.

Jay says he then waited and there was no call so he left to go to Jeff’s. Then the third call from Adnan came in as Jay was leaving Jeff’s Street, when Adnan said to come and get him from Best Buy. This call being the come and get me call.

According to Jay, all these 3 calls were on the cell phone.

Jay never claimed at trial that the 2.36pm call was the come and get me call, that was what the state thought at trial. Jay was basically saying the opposite, that he received these other incoming calls from Adnan and the final call was the come and get me call.

So could the 12.43pm incoming call to Jay have been Adnan saying he wasn’t ready.

Could the 2.36pm (5 second call) be the call to Jay where Adnan is asking Jay if he had the phone off? Certainly seems like a quick call to say something like that. This call is also consistent with a cell tower that covers Jen’s house.

Could the 3.15pm call be the come and get me call to Jay, a call when Jay had left Jen’s house. This call is consistent with Jay having left Jens house according to the cell tower. This is also much closer to what Jay and Jen said about the time he would have left Jen’s house (3.30 – 3.45pm).

Back to what you had said. The state is just saying that the 2.36pm call was their theory back at the 2nd trial in 1999 and that Jay and Jen both testified to a much different time that Jay left Jen’s house.

So maybe Asia left just after 2.30pm from the library and Adnan calls Jay at 2.36pm to ask if he had the phone on (call number 2 according to Jay). Adnan then meets Hae at say 2.45pm in the library car park. Adnan gets a lift to bestbuy where Adnan says his car is. Adnan strangles Hae and then calls Jay at 3.15pm (the come and get me call). Maybe Hae had something else to do quickly at the school or across the road and organised to meet Adnan at 2.45pm in the school car park. This would actually be consistent with part of what Adnan told officer Adcock that evening. Adnan told Adcock that he didn’t get a lift because she must have got tired of waiting for him.

Posted by: ben | Jun 29, 2017 4:34:09 AM

Sam: That’s the thing, though. The State argued to the jury that it could use the cell phone records to show where Adnan was and what he did throughout the day on January 13th. It then backed that up by (1) having a blow-up of Adnan’s call log and filling it in as witnesses testified throughout trial; and (2) having Waranowitz testify about where the phone could have been based on certain pings. I don’t see how the State goes from that to claiming during closing that it actually has no idea what happened on January 13th and that jurors should just look at the case as a whole and conclude that Adnan was guilty. Indeed, prosecutor Kevin Urick himself said that the overlap between Jay’s testimony and the cell phone records was needed to secure Adnan’s conviction.

ben: But I’m not sure which is worse. In your scenario, Adnan makes the “come and get me” call to Jay at 3:15 P.M., followed by Jay making a call to Jenn six minutes later at 3:21 P.M. that he doesn’t remember at all (because in your scenario Jay is remembering the 4:12 P.M. call). Judge Welch noted that it took about seven minutes to get from the general location of the “come and get me” call to the Best Buy, so Jay would have been making this forgotten call to Jenn pretty much just as he was arriving at the Best Buy. And, of course, we know that Jenn disputes that Jay would have been calling her about Patrick, meaning that an attempt by the State to claim a mistake about the timing of this call would only magnify this problem.

FarFarAway and ben: Right. The State claimed at oral arguments that the 3:15 call could have been the “come and get me” call, with the 2:36 call being the “leaving school” call. But this actually creates issues with all three calls. I think most people believe Adnan and Jay were still together at 12:43, with Adnan arriving late to class at 1:27. Asia’s testimony makes the 2:36 call unlikely unless she’s pretty far off on timing. And Judge Welch clearly expressed how a 3:15 “come and get” me call was fundamentally inconsistent with the State’s case at trial.

It seem pretty clear to me that Urck and Murphy looked at the various options at trial and realized that a 2:36 P.M. “come and get me” call was the only workable option given the rest of their case and therefore went with it.

Posted by: Colin Miller | Jun 29, 2017 5:23:34 AM

"We already know from Judge Welch’s opinion that this wouldn’t have worked in connection with the second call because a 3:15 P.M. 'come and get me' call doesn’t work with Jay’s timeline/narrative. "

Of course, the 2:36 call doesn't work with Jay's timeline either. So I think you'll still run into a prejudice problem if you try to rule out theories because they don't match Jay's timeline. The calls presented at trial didn't match Jay's timeline and the jury still convicted. How would a different theory which is closer in time to Jay's timeline somehow result in a different outcome when the State's timeline that was further from Jay's timeline resulted in a conviction?

Posted by: steve | Jun 29, 2017 7:13:54 AM

steve: The way I see it, there are two separate points: (1) Jay’s claim about the timing of the “come and get me” call; and (2) Jay’s claim about what happened in between the “come and get me” call and the sequence of calls starting at 3:21 P.M.

Jay testified at trial that he received the “come and get me” call in Adnan’s car after driving to Jeff G.’s house at 3:40ish. We know that timing isn’t correct because there were no incoming calls to Adnan’s cell phone between 3:15 and 4:27 P.M., and the jury would have known this based upon the blow-up of Adnan’s call log displayed throughout trial.

So, therefore, for the jury to believe that there was a “come and get me” call to Adnan’s cell phone, a pretty key component of the State’s case, the jurors had to believe that Jay was lying or mistaken about timing and that the “come and get me” call was the 2:36 P.M. call or the 3:15 P.M. call. As you note, the 3:15 P.M. call is closer in time to 3:40ish than the 2:36 P.M. call.

But then there is the sequence of events before the 3:21 P.M. call to Jenn. Jay says that, after he got the “come and get me” call, (1) he drove to Best Buy; (2) Adnan showed him Hae’s body; (3) they drove to the Park and Ride; (4) Adnan rearranged some things in the car; (5) they started driving to the golf course; and then (6) Jay made the 3:21 P.M. call to Jenn in which he was asking about Patrick. As Judge Welch notes in his opinion, even just the ride to the Best Buy from Jeff G.’s house would take about seven minutes, meaning that a 3:15 P.M. “come and get me” call is fundamentally inconsistent with Jay’s narrative/timeline.

Conversely, the 2:36 P.M. call would work pretty well with this timeline because it would provide a full 45 minutes between the “come and get me” call and the call to Jenn at 3:21.

And, of course, this is only looking at the timing of the calls. We know that both Becky and Inez testified to Hae leaving school in a hurry between 2:15 and 2:20 P.M. So, separate and apart from the issue of the timing of the “come and get me” call, Asia’s testimony has her talking with Adnan in the library 20ish minutes past the time when Inez said that Hae was in such a hurry to leave school that she didn’t even have time to pay for her snacks.

Posted by: Colin Miller | Jun 29, 2017 7:42:51 AM

I'd like to second the earlier comments by Kevin and FarFarAway, and note how absurd this entire framing of the discussion is (especially the ones being pushed by Sam and ben).

So from what I see so far, basically the ground rules are that we can disregard entirely the coherent narrative pushed at trial, and instead pick and choose whatever of the myriad different tidbits or suggestions made by any witness at either trial (or, according to Conspiracy Thiru, even statements made by Jay before trial?), in the goal of seeing whether we can formulate a possible series of events where it's not absolutely impossible for Adnan to have killed Hae. And this is the rubric we use to find prejudice? It doesn't matter how contradictory and absurd such a sequence of events may be, just so long as someone out there can assert it while maintaining a straight face?

..And by that I don't mean that reasonable people can assert it with a straight face, I just mean that someone out there exists who proves they can maintain a straight face while asserting it, regardless whether the vast majority of people would find the theory absurdly unlikely.

And even given those ground rules, it's still proving WILDLY DIFFICULT to formulate a sequence of events which satisfy it. I mean seriously even with the bar set that low, it's still bordering on impossible to come up with a sequence of events that can slither over it without being thwarted away by the unforgiving logic of reality.

Is this really how we should be assessing prejudice? This reeks of farce. Reeks of a certain subreddit. Maybe it's just me though.

Posted by: Paul | Jun 29, 2017 10:26:48 PM

@ Paul
If we are going to discuss a farce, can we please talk about Asia then?

Someone who writes letters to Adnan saying “I will try my best to help you account for some of your unwitnessed / unaccountable lost time 2.15 – 8pm”…. and “if you’re innocent I’ll do my best to help you but if you’re not only god can help you…”.

Adnan’s friend Juaun tells the police in his police interview that Adnan “wrote a letter to a girl to type up but she got the address wrong, Asia McClain, she typed it”

Rabia then realises in 2000 the huge injustice that was done with CG not getting Asia to testify. Rabia gets Asia to write an affidavit. But what happens next? Nothing for 10 years! Adnan in a letter to Rabia writes that he will wait out the 10 years before appealing. What innocent person who has just had this terrible injustice done to them would wait 10 years before appealing it?

Around 2010 Asia has a PI turn up on her door and she tells him to go away, she doesn’t want to help. She calls the prosecutor to find out how guilty Adnan is. What witness isn’t willing to tell the court what she heard? A witness who likes to play judge herself. When she thinks Adnan is innocent she is willing to help. When she thinks Adnan is guilty she isn’t willing to help. From her first letter to Adnan “if you’re innocent I’ll do my best to help you but if you’re not only god can help you…”.

Sarah Koenig calls Asia and initially she isn’t willing to talk to her. When she does she tells Sarah that if it wasn’t for the snow she would have never remembered and that she got snowed in at her boyfriends house that night and that it was the first snow of the year. Sarah tells her that she is very important to the case.

After serial finishes Asia then changes her tune and is willing to help Adnan out. She puts forward a new affidavit that doesn’t mention her recollection of the snow, having been snowed in at her boyfriends house and it being the first snow of the year. The memory from the conversation with sarah of “if it wasn’t for the snow I would never have remembered” is dropped from her affidavit. Isn’t it a coincidence that the first snow of the year was on the 8th of January and the snow that night was that heavy that people were snowed in the following morning. Rob Kasper form the Baltimore Sun on the 9th of January wrote about the first snow of the year from the day before. He wrote that early in the morning he was shovelling snow off the sidewalk for the second time that morning.

Asia testifies at the 2nd PCR. Days later she opens a twitter account and she then tells people she is writing a book. A few weeks later she releases her book so that she can profit out of Hae’s murder.

Welch during the middle of 2016 awards Adnan a new trial. Within one day of this, the twin sisters who went to school with Asia and who are facebook friends with her, message Asia to tell her how disgusted they are with her, how she has lied about this. The sisters contact the attorney generals office a week later to tell them what they know. They claim that days after Adnan’s arrest Asia McClain told them that she was going to make up a lie to help out Adnan. They say that they didn’t come forward earlier because they didn’t think Adnan was going to get a new trial and they didn’t want to get involved.

And Paul you would like to talk about a farce?

Posted by: ben | Jun 30, 2017 4:04:08 AM

ben: Judge Welch, who saw Asia testify and be rigorously cross-examined by the State, found that she credibly testified about seeing Adnan in the Woodlawn Public Library until January 13, 1999. And, while it's tough to read the tea leaves from oral arguments, it seems that the Chief Judge of the Court of Special Appeals of Maryland has a very different take on Asia's letters than you.

Posted by: Colin Miller | Jun 30, 2017 6:14:16 AM

Colin – I think it’s also obvious that Ben hasn’t been following the supplemental information about Adnan’s case that’s come out in the past few years (or he’s choosing to ignore it). If he had, he’d already know, for instance, why Adnan “waited 10 years before appealing.” And Asia has explained herself and why she did what she did, over and over, in court, in affidavits, in her book, interviews on TV, radio, podcasts, etc. and not one detail about her story has changed even once.

Anyone can cherry-pick through random facts and stories and put together a narrative that makes it sound like everyone is lying to try to get Adnan out of prison. But, as I’ve said many times before, in order to do that, you have to actively ignore HUGE amounts of solid, proven, without-a-doubt facts. That just doesn’t work. That’s tantamount to saying, “Well, they arrested Adnan, so he must have done it, right??”

Posted by: Eric Wolff | Jun 30, 2017 8:59:09 AM

@eric Hear hear.

@ben -- see, you illustrates what I'm talking about. When dedicated to finding a sequence of events which makes Adnan's guilt not impossible, you must ignore the majority of disconfirmatory facts and far more plausible explanations of certain things.

Let's take the Juan note you pulled into your scenario: so we are to assume that the police notes which were taken during the interview that say "Asia?" is in fact Juan stating it's Asia who he is talking about, and that in fact the letter being referred to is an elaborate plan hatched presumably before being arrested, that Asia is to write to Adnan asking him if he remembers seeing her after school, so that he can then ask his attorney to contact Asia on her own. Why? Duh because having Asia make contact with the defense attorney herself, or have Adnan arrange the meeting, or have his family do so, all those would be too obvious right?

No, so Adnan and Asia prearrange this subtle ruse which somehow without ever talking to Asia, Guttierez manages to identify as a fraud, someone who is attempting to carry out a plan to lie on Adnans behalf. This, despite the fact that today, given the amount of that light shone in every nook and cranny of this case, everyone finds Asia totally credible (except for a small group of obsessive online Redditers devoted to their preferred conclusion). This even includes the judge reversing his own previous decision after seeing Asia tell her story instead of the hearsay he heard prior to his original decision.

Ok so, with that fact established, we go back to the police taking notes of Juan telling them not about the bail letters which were being solicited precisely during that time frame, but rather the false alibi. The police do nothing about this, however, and simply jot down an ambiguous note. Certainly they weren't aware of Asias 1st letter, given that all incoming inmate mail is read, and were themselves asking Juan if "Asia?" is who he was talking about.

No, certainly not. And of course Juan's recent affidavit explaining that he was refering to bail letters and not Asia--he of course is lying to help a murderer. And Justin's affidavit today, he is lying to help a murderer. Oh, and of course Asia is lying today to help a murderer.

In fact everyone now saying things which they recall, if those recalled facts help Adnan, are lying to help a murderer. Because, you know, people love lying to help murderers.

Which brings us to your two sisters. See, if they are lying, it isn't lying to help a murderer. If they are lying, it would be to STOP a murderer get out of prison--at least thats what would be the scenario in their own minds. See how that is far more plausible?

But then, I guess plausibility isn't that important. I mean, it's important to the everyone in the real world of course, judges included, but I mean it isn't important to enthusiastic subreddit echo chambers. Just so long as you maintain everyone's preferred conclusion, the real world can remain illusory and aloof.

Posted by: Paul | Jul 1, 2017 1:23:57 AM

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