EvidenceProf Blog

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

Saturday, September 16, 2017

Was The Nisha Call Nisha Calling Adnan Back After an Unanswered or Dropped Call?

As we all know, Nisha was a key witness in the Adnan Syed case. She testified that on some unknown date she received a call from Adnan, who told her that his friend Jay had invited him to his job at an adult video store. Adnan told Nisha that he was arriving at the video store during the call and handed the phone to Jay talk to Nisha upon his arrival (the only time she spoke to Jay). The prosecution claims that this call took place at 3:32 P.M. on January 13, 1999. Others, including me, have countered that this call couldn't have taken place until the end of January, when Jay started his job at the adult video store. In turn, this had led to consideration of which outgoing call from Adnan's cell phone to Nisha could have been the adult video store call.

But what if there's no record of this call because it was either unanswered and dropped and then perhaps followed by a call from Nisha to Adnan? 

According to the notes from Nisha's police interview, (1) she saw Adnan at an Indian party at the Coco Cabana in D.C. on February 12, 1999; (2) she arrived at the party at about 11:00 P.M. and left about 20 minutes later; (3) the party ended fast because someone pulled the alarm; (4) Adnan called her from the road to ask where the party was; (5) Adnan told Nisha at the party that he had gotten phone numbers from a couple of girls at the party; and (6) Adnan gave Nisha the paper with the phone number(s). Nisha is quite certain that the party was on February 12th. Here are the key portions of the interview notes:

Screen Shot 2017-09-15 at 8.52.56 PM

Screen Shot 2017-09-15 at 8.53.09 PM

Now, let's look at Adnan's cell phone records. On February 12th, Adnan made/received a series of calls that pinged tower L651C between 6:04 and 9:52 P.M. None of the outgoing calls are to Nisha. These calls are consistent wth Adnan being at or near his home. Then, there's an incoming call at 10:16 P.M. that is answered and lasts one minute; it also pings tower L651C. This is followed by:

-an incoming call at 11:22 P.M. that pings tower L673A and lasts 4:11; and

-an outgoing call to Krista at 12:27 A.M. that pings tower L673A and lasts :37

Screen Shot 2017-09-16 at 6.31.43 AM

I'm not entirely sure of where the Coco Cabana or Cococabana was in 1999, but this article from 2003 discusses the opening of a Cococabana at 2031A University Blvd., Hyattsville, Maryland, just outside of D.C. The L651 tower was at 1500 Woodlawn Drive in Woodlawn, Maryland, and the L673 tower was at 8587 Mission Road in Jessup, Maryland. Here's a screenshot of a map with these three locations:

Screen Shot 2017-09-16 at 6.41.02 AM

So, assuming that the Coco Cabana was in Hyattsville in 1999, you can see that Adnan probably would have driven through the range of tower L673 as he was going to and from the party.

Now, let's assume that Nisha is correct that Adnan called her from the road to ask about the location of the party on February 12th. Why is there no record of an outgoing call from Adnan to Nisha on the 12th? Here's one possible theory: (1) Adnan leaves his house at 10:00ish, and, as he's driving away, he calls Nisha to ask about the location of the party; (2) Nisha (just) misses the call, or it's a dropped call (which don't show up on Adnan's bill or cell phone records); (3) Nisha calls Adnan back at 10:16 P.M. and tells him the location of the party (the one minute incoming call at 10:16:09 P.M.); (4) Adnan arrives at the party and gets phone numbers from girls; (5) Nisha arrives at the party late at a little before 11:00 P.M., which is when Adnan talks with her and gives her the paper with the phone number(s); (6) Adnan leaves the party soon after 11:00 P.M. and drives in the direction of Woodlawn, reaching the range of the L673 tower in time for the 11:22 P.M. incoming call; and (7) Adnan ends up hanging out somewhere in that same general area until at least 12:27 A.M., when his outgoing call to Krista pings the same tower. 

So, where does that leave us? Assuming that Nisha is right about the date of the Indian party and Adnan calling her from the road,* it seems like we have three options: (1) Adnan made a regular call from his cell phone to Nisha that somehow didn't show up on Adnan's bill or cell phone records; (2) Adnan made a call to Nisha from his cell phone that was dropped after she told him the location of the party, which is why the call didn't show up on Adnan's bill or cell phone records; or (3) Adnan made an unanswered or dropped call to Nisha from his cell phone, followed by Nisha calling him back.

Now, if it's option #1, that of course leaves the possibility that we don't have records for any number of Adnan's cell phone calls, including the adult video store call. If it's option #2, that leaves open the possibility that calls lasting some duration could be dropped without any record. Given that Nisha says the adult video store call was short, we again have the possibility of no record of that call.

The third option is interesting because of the parallel to the adult video store call. The Coco Cabana call presumably happened as Adnan was driving away from his home while the adult video store presumably happened as Adnan was driving up to Jay's adult video store. Nisha describes the Coco Cabana Call as Adnan calling her, just as she describes the adult video store call as Adnan calling her. 

What we see from the Coco Cabana call, though, is that this might not be entirely accurate. If scenario three is correct, Adnan did call Nisha, followed by her calling him back. Then, months later, Nisha describes it as Adnan calling her. And I think that makes sense under two scenarios. First, if you miss a call from someone and then call them right back, you might just remember them calling you when asked about the call months later. Or, second, even if you remember calling the person back, you might still describe it as the other person calling you because he/she made the initial phone call.

So, where does that leave us? If my scenario is correct, it's quite possible that the adult video store call was unanswered or dropped, followed by Nisha calling Adnan back. If this is a real possibility, then the universe of calls that could be The Nisha Call expands from just outgoing calls to Nisha to all incoming calls. On the other hand, if Nisha is wrong about the date of the Indian party and/or Adnan calling her from the road to get the location...well, that would just show the fallibility of human memory.

____________________

*Nisha remembers Adnan calling her the next day to talk about the party, and there was a call from Adnan's cell phone to Nisha at 8:19 P.M. on February 13th. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/09/as-we-all-know-nisha-was-a-key-witness-in-the-adnan-syed-case-she-testified-that-on-some-unknown-date-she-received-a-call-f.html

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Comments

"Incoming calls are not reliable for location status", therefore the fact that the incoming 11:22PM call on 12 Feb 99 or any other incoming call "pinged" tower L673A or any other tower is meaningless. This is not the first time you have done this please stop. When looking at any incoming calls you have to disregard the location information and treat it as unknown. You can not pick and choose on this point otherwise you are just as guilty as the police were in their bad investigation.

Posted by: Jeff | Sep 16, 2017 5:00:47 AM

Jeff: This analysis is assuming reliability to show that it could work under the most limited circumstance. If these incoming pings are unreliable, than anything is possible.

Posted by: Colin Miller | Sep 16, 2017 6:01:26 AM

Cell phone pings try to prove that Adnan was at Haes's burial site when lividity proves the burial could not have occurred so...

Posted by: Bruce | Sep 16, 2017 7:10:44 AM

Let's talk about incoming calls, and what "not reliable for location" means. Full disclosure, I am not a cell tower expert, but I have software and telecom experience.

Here are the cases for an incoming call:

1. Landline to cell, answered.
2. Landline to cell, unanswered.
3. Cell to cell, answered.
4. Cell to cell, unanswered.

Case one is probably the case with the most reliable location info, but even that is not certain (see below). Cases two and four are less helpful, since the call could just be going out to the last known location.

In addition, cell phones can be moving, and calls can span multiple towers. And cell networks can move calls around based on tower loading. And phones are usually in range of more than one tower. There is likely a minimum signal strength level that marks a tower as available.

When a cell phone is in range of multiple towers, it likely keeps a list of available towers and their signal strengths. The algorithm probalbly prefers the strongest signal, but it can work just fine with weaker signals. And the network likely has the final say on which tower the call ends up on, not the phone. So all we can say at this point is that the call is in range of a tower, not that it is closest to a particular tower.

A single call might get routed through multiple towers, meaning it connects on one and ends on another. This is not reflected in the billing statement.

Cell networks keep track of where a phone is. A phone might be registered as near a certain tower when the user puts it in their glove box and drives away. If someone tries to call them, it may put the call out on the last known tower, when the phone is miles away.

When a cell-to-cell call is made, the tower listed on the bill could be either the caller's tower or the recipient's tower. Again, the bill doesn't list every tower involved, just one. And it doesn't explain where that one ID comes from.

Now, all that being said, the billing statement is not a random number generator. It's not going to list L673 if one of the phones involved is not or was not within range of that tower recently. So while it's not accurate to say that the phone was definitely closest to that tower, it probably is accurate to say that the phone was within range of that tower somewhere around the time the call was made

Posted by: carnotbrown | Sep 16, 2017 9:46:18 AM

I forgot to mention in my previous post, and I can't find the details now, but there was at some point discussion of a case that involved a call from Hawaii to I think California that placed the accused on one end when really he was on the other. Maybe Hawaii is different because you'd have an underwater cable between each end of the call, and maybe it's not.

Posted by: carnotbrown | Sep 16, 2017 10:27:17 AM

With regards to the Nisha call, why isn't it possible that Adnan had borrowed a cell phone for this call (the one where he puts Jay on the line), so we don't know exactly when it occurred.
Personally I believe that Adnan spoke to Nisha himself on the 13th Jan without Jay and the Jay / Nisha call happened another time.

Posted by: Ben | Sep 16, 2017 2:47:04 PM

Ben: I agree that’s a possibility. Or he could have been with a friend/co-worker and used their phone. In terms of your theory, how do you think Jay comes to the conclusion that he talked to Nisha on January 13th? Was this an intentional lie, a mistake, etc.?

Posted by: Colin Miller | Sep 16, 2017 3:35:15 PM

Colin,

I'm not sure whether Jay just wanted to put Adnan with him when the call came in or the cops mentioned the call to him and Jay / cops thought it was best to have Adnan with Jay during the call.

Jay explaining the call in his 2nd interview just doesn't make any sense. He was prompted by the cops to talk about it and his memory of the call is just out - he essentially puts the call on the way to the cliffs after they get the weed (timing way out). We also know the cell tower ping location is out with where he says it occurred.

Furthermore, in Ritz's pre-interview with Jay (top of page 3), it says "Ask Greg, 2 phone call". Is Ritz saying he should speak to Greg about the 2nd phone call? What 2nd phone call? The nisha call could be seen as the 2nd phone call after the 3.15pm actual come and get me call. Jay calls Jen at 3.21pm and then the nisha call after this.

Posted by: ben | Sep 16, 2017 9:00:54 PM

ben: So am I right that your theory is as follows: (1) Jay makes the Jenn call at 3:21 P.M.; (2) Jay gives Adnan back his cell phone and the two part ways so that Adnan can dump Hae’s car (possibly at the Park and Ride); (3) Adnan is alone when he calls Nisha at 3:32 P.M.; (4) Adnan and Jay are reunited by 3:48 P.M. because Adnan has given Jay back the phone by then, allowing him to call Phil; (5) in his first recorded interview, Jay doesn’t mention the Nisha call because he wasn’t there for the Nisha call; and (6) in his second recorded interview, Jay claims that he was with Adnan for the Nisha call and participated in the call because (a) "Jay just wanted to put Adnan with him when the call came in;” or (b) "the cops mentioned the call to him and Jay / cops thought it was best to have Adnan with Jay during the call.”

Posted by: Colin Miller | Sep 17, 2017 3:50:59 AM

Colin, yes that's correct.

Posted by: Ben | Sep 17, 2017 4:29:01 AM

I hope we get to the truth before I die. Thank you to all the people working for Adnan. When Adnan is freed, I hope it is freedom with no shadow of suspicion.

Posted by: JUNE RITTMEYER | Sep 17, 2017 5:58:28 AM

Ben: In this scenario, how would Jay/the police know that Nisha won’t flat out contradict Jay’s claim by saying that she remembers the date that she talked to Jay and that it wasn’t January 13th? Do you think that the police had already talked to Nisha as of March 15th, or do you believe that Jay/the police had some other way of knowing that Nisha wouldn’t definitively contradict Jay’s version of events? Or do you think that Jay/the police were just hoping she wouldn’t contradict it?

June: Thanks.

Posted by: Colin Miller | Sep 17, 2017 6:15:16 AM

Colin,

I think Jay tried it on. Lets face it, Jay has tried a lot of stories on since his first pre-interview before interview one. Jay probably thought that Nisha would remember speaking to him so he thought maybe he can just swap the conversations. When the police interviewed Nisha I’m sure they asked her if she remembers speaking to Adnan on the 13th. We know from the police notes that she remembers speaking to Adnan ‘around the time that he got the cell phone, 1 or 2 days after’. She probably told them “ I can’t be 100% sure it was on the 13th”. The cops then probably asked her about the conversation she had with Jay and she remembers. The cops then decide to take this path at trial and lets face it, it seemed to have worked.

So to answer your question, Jay told many lies so I don’t think it really mattered to him by trying another.

Posted by: ben | Sep 17, 2017 3:55:51 PM

ben: That’s interesting. So, Jay could have said something like, “I gave Adnan back his phone before we headed over to the Park and Ride (or wherever). After we met back up, I got his phone back so that I could call Phil (or Patrick). So, that call to Nisha must have been when Adnan had the phone by himself because I don’t know Nisha. I only talked to her once, and that was weeks later, after I started working at the adult video store.” Then, when the police talked to Nisha, she might have been able to confirm talking with Adnan on the afternoon of 1/13, and she likely would have confirmed that the only time she talked to Jay was while he was working at the adult video store.

Instead, under your scenario, Jay decides to say that he was there for the Nisha call on 1/13 by transposing the call he had with her weeks later at the adult video store. Now, luckily for Jay, this all works out because (1) Nisha can’t remember the date of the Jay call; and (2) Gutierrez never uses Jay’s work records to show that the Jay call couldn’t have taken place until weeks later. But that seems like a pretty big risk for Jay, and I don’t really see how his lie helps him (much) more than just saying that Adnan must have made the call by himself while they were in different cars.

Posted by: Colin Miller | Sep 18, 2017 6:10:54 AM

Gosh it's weird how you had these notes all along but didn't want to blog about them until they were obtained and released by someone else. It's almost like you were hiding the fact that Nisha told the police the Nisha call was a day or two after Adnan got his cell phone.

Posted by: Seamus_Duncan | Sep 18, 2017 2:45:35 PM

Paul B: I really wish we had the incoming call phone numbers.

Seamus: If you think that Nisha told the police that the call in which she spoke to Jay was definitely a day or two after Adnan got his cell phone, why do you think (1) the police didn’t get a signed or recorded statement from Nisha saying as much; (2) the prosecutor didn’t ask her about this statement at trial #1 or trial #2; and (3) Nisha couldn’t remember this fact at either trial (or, put another way, how did the police fail to make it clear to Nisha during her interview that the call was on January 13th/the day of Hae’s murder)? None of these make sense to me if this is what Nisha said. I’m guessing that the police were putting pressure on Nisha to say that this call was on January 13th, with Nisha responding that this was a possibility. We know from a PI talking to Patrice that the police were trying to do the same regarding a call that Jay made/ received from her house. I imagine the missing notes from her interview would look similar to the notes from the Nishae interview.

Conversely, how do you explain the police notes corroborating Nisha’s trial testimony that the call in which she spoke to Jay occurred when Adnan was visiting Jay at his job (which Jay didn’t have on January 13th)? The Nisha notes are definitely a mixed bag, but the portion that Nisha corroborates at trial -- about the call happening when Adnan visited Jay at his workplace -- seems to definitively rule out the call occurring on January 13th.

Posted by: Colin Miller | Sep 18, 2017 4:25:33 PM

@Colin see you are forgetting that Seamus is asking from a subjective, not objective, perspective. For him something only needs to have a single detail which might in a vacuum seem to be incriminating for it to be proof, Regardless of any and all exculpatory details it may come along with. It's the whole "take what I want to hear, whistle and ignore everything else, Lala Lala I can't hear you, I win" approach which is used in lieu of the more traditional critical thinking approach which everyone else takes.

Given that mental approach, I can sympathize. After all, he does have a point, how *will* all those kids ever learn to read good, if they can't even fit through the door of the tiny tiny building?

Posted by: Paul | Sep 19, 2017 12:18:22 AM

"The Nisha notes are definitely a mixed bag, but the portion that Nisha corroborates at trial -- about the call happening when Adnan visited Jay at his workplace -- seems to definitively rule out the call occurring on January 13th."

Except there is other evidence that Jay and Adnan were telling people they were at a video store on the 13th. Wasn't it Kathy who said she was told by Jay and Adnan they were at a video store that day? My theory is Best Buy was the video store, and Nisha conflated that fact with the later learned fact that Jay worked at a video story. After all, Nisha was pretty adamant that the call took place in January.

"Q: Can you remember the day that that phone call took place? A: No, I can't remember the exact day, but I know it was some time in January."

I know you're a big proponent of CG's cross-x, but let's be honest, the exchange you hang your hat on isn't exactly definitive, right? And we're dealing with a seasoned defense attorney vs. a high school student, right?

"Q: So it could have been the 13th or it could have been any other day from the New Year's party all the way up until Mr. Syed's arrest on February 28th?
A: Yes."

Posted by: dfgdfgdf | Sep 19, 2017 8:50:01 AM

dfgdfgdf: According to Cathy at trial one: “And the way I remember -- the reason I remember it is because it was just --Jay was just telling me all these different things that just didn't make any sense, like they were going to the video store, or they were coming from the video store, something. They were being picked up by somebody. And when I tried to clarify, he just got more confusing, so I just let it rest.” Assuming that Cathy is remembering the right day, I think this undermines the claim that Adnan told Nisha at 3:32 P.M. that Jay and he were at a video store. In other words, a fake alibi that has Adnan and Jay going to a video store at about 3:30 P.M. makes it less likely that there would also be a fake alibi that has them going to the video store after track practice or (as Cathy seems to say) after the visit to her apartment.

Given that Adnan had track practice in between the Nisha call and the visit to Cathy’s, they certainly wouldn’t have had time to watch the video they ostensibly would have rented in the afternoon. And I don’t think it would have been plausible for Adnan/Jay to say that they couldn’t find anything to rent in the afternoon, which is why they returned in the evening.

Now, I suppose you could say that this was a dumb fake alibi, but now you’re having to assume that Adnan told Nisha a dumb fake alibi about visiting a video store and then assume that Nisha got this twisted in her head to the point where she thought that Adnan told her that Jay had invited Adnan to visit him at his job at the adult video store.

As for Nisha’s recollection of when the call took place...that’s kind of the point of this post. In her police interview, Nisha called her from the road to find the location of a part that she was certain occurred on February 12th, and yet there’s no record of a call from Adnan’s cell phone to Nisha on February 12th. I’m a lot more confident of Nisha’s recollection of the circumstances of the call in which she talked to Jay -- Adnan told her he was visiting Jay at his job at the adult video store -- than I am in her recollection of the date/time of that call.

Posted by: Colin Miller | Sep 19, 2017 10:19:59 AM

If you actually believed any of these arguments you'd have introduced this document when you first received it, instead of waiting for a "guilter" to obtain and release it.

Posted by: Seamus_Duncan | Sep 21, 2017 7:27:09 AM

"I’m a lot more confident of Nisha’s recollection of the circumstances of the call in which she talked to Jay -- Adnan told her he was visiting Jay at his job at the adult video store -- than I am in her recollection of the date/time of that call."

Of course, those circumstances you're referring to also include the call coming a few days after Adnan got his phone. And Nisha's recollection of the call on the 13th is corroborated by the cell phone records.

Posted by: dfgdfgdf | Sep 21, 2017 7:53:42 AM

Seamus: There’s a bunch of evidence, both incriminatory and exculpatory, that I/we didn’t release until months/years after I/we discovered it. There’s also some exculpatory evidence that I/we haven’t released yet, but that I expect will be released in the next year or two.

dfgdfgdf: Nisha testified under oath and was cross-examined regarding her testimony about Adnan saying the Jay call was when Adnan was visiting Jay at his job at adult video store. The notes about timing that you reference are notes from a police interview of Nisha, not a transcription, and we don’t know what questions were asked (The notes are also quite possibly typed notes from initial handwritten notes and might have been typed by someone who didn’t write the initial notes). What we do know is that the police didn’t get a signed/recorded statement from Nisha, the prosecutor didn’t ask Nisha about her timing statement from the notes, and Nisha did not provide similar testimony at trial. These three facts make it highly unlikely that Nisha said in her interview that the Jay call was a day or two after Adnan got his cell phone. If she did, the behavior by the police/prosecutor(s) would make no sense.

Posted by: Colin Miller | Sep 21, 2017 9:48:34 AM

Dear Colin, I am confused at the point of this post. Susan has clearly indicated that the "real" Nisha call took place on February 14th at 7:17pm, when Jay was at work at the porn video store. We have the cell records to corroborate this as well as the cell site. Is there now disagreement among you about the importance of this call?

Posted by: Sean | Sep 22, 2017 4:14:24 AM

Sean: There’s no disagreement. If we’re looking for an outgoing call from Adnan’s cell phone to Nisha that could be the adult video store call, then the 2/14 call certainly fills the bill. The point of this post is just to say that we don’t necessarily have to look for an outgoing call. The real adult video store call might have been on January/February [insert date] when Adnan called Nisha and she didn’t pick up in time, followed by an incoming call (from Nisha).

Posted by: Colin Miller | Sep 22, 2017 7:03:05 AM

We also have that Jay normally only worked graveyard shifts--except on Feb 14th when he worked the 4pm-midnight shift--making it practically the only day it could have taken place (unless adman was calling Nisha in the middle of the night)
__________________
CM Note: This is the 25th and final comment that will appear on this post.

Paul: My big questions concern January 31st and February 1-5. According to Sis, Jay was supposed to have begun to train on January 25, 26, and 27, but he didn't show up to work. Sis also says that Jay started training on January 31st and worked the midnight shift on January 31st, February 4th and 5th. So, it sounds like Jay was supposed to have 3 training days, with the first of those actually occurring on January 31st. Therefore, I think there's a decent chance that Jay did training before the midnight shift on January 31st and 2 other days up until February 5th. Also, who knows about the completeness of Sis's records?

Posted by: Paul | Sep 22, 2017 3:27:48 PM

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