EvidenceProf Blog

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

Wednesday, October 25, 2017

The Effect of 4 Permutations of Debbie's Statements on the Adnan Syed Case

A reader/listener e-mailed me recently to ask about the implications of various permutations of Debbie's police statements/testimony in the Adnan Syed case. You might recall that Debbie gave three police statements and testified at both of Adnan's trials:

Police Statement to Detective O'Shea: On January 28, 1999, Debbie said that she saw Hae at school at approximately 3:00 P.M. on January 13th and that "Hae told Debbie she was going to see Donald at the mall."

Police Statement to Detectives MacGillivary and O'Shea: On March 2, 1999, Debbie went to the police station for a recorded interview. The State has only been able to locate the cover sheet for this interview.

Police Statement to Detectives Ritz and MacGillivary: On March 26, 1999, Debbie said that 

(1) she saw Adnan outside the guidance counselor's office at about 2:45 P.M. on January 13th; Adnan had his "track stuff with him, his gym bag," and they talked about school and Adnan "going to practice;"

(2) she saw Hae and their classmate "Takera" between 2:45 and 3:15 P.M., with "Takera" (and no one else that Debbie can remember) asking Hae for a ride and Hae responding that "she couldn't because she had to pick up her cousins after school, and she had to meet them about 3 O'CLOCK, so she didn't have time;"

Trial #1 Testimony: At Adnan's first trial, Debbie testified on December 13, 1999 that she remembered telling the detectives that she saw Adnan outside the guidance counselor's office on January 13th. She was not asked about seeing Hae after school on January 13th.

Trial #2 Testimony: At Adnan's second trial, Debbie testified on February 16-17, 2000 that she saw Hae at about 3:00 P.M. on January 13th, with Hae telling her that she was going to see Don at the mall. Debbie was not asked about "Takera" and testified that she did not recall telling detectives that she saw Adnan outside the guidance counselor's office on January 13th.

The reader/listener's question was about the implications of various permutations of these statements. So, let's look at the four likeliest permutations and their implications.

1. Debbie was right about seeing Adnan and wrong about seeing Hae on January 13th

This is essentially what you would have heard if you were a juror at trial #1 where, again, Debbie testified about saying she saw Adnan at the guidance counselor's office but didn't testify about seeing Hae. This permutation pretty clearly helps Adnan. In both her police statement and at trial, Becky consistently says that she saw Hae soon after the end of school, with Hae saying that she had to leave right away because something came up and/or she had somewhere else to be.* Inez Butler also says she saw Hae leaving school in a hurry both in her police statement(s) and at trial, although we have some reason to question whether she's remembering the right day. 

Simply put, if Hae left school between, say, 2:20 and 2:30 P.M., Adnan being outside the guidance counselor's office at 2:45 P.M. is a pretty rock solid alibi. Further, if you believe Asia, Adnan could have headed to the guidance counselor's office right after seeing Asia from 2:20ish-2:40ish, and, if you don't believe Asia, this could have been Adnan's true alibi.

2. Debbie was right about seeing Hae and wrong about seeing Adnan on January 13th

This is essentially what you would have heard if you were a juror at trial #2, but with one missing detail: Defense counsel never asked Debbie about "Takera." This is pretty surprising because it is the "Takera" portion of the statement that seems the most exculpatory. It shows that another student asked Hae for a ride right around the time that Hae would have needed to go directly to pick up her cousin at Campfield, with Hae accordingly saying she didn't have time to give her a ride.

This statement makes it pretty unlikely that after this conversation, Hae would have agreed to give Adnan a ride; after all, as she told "Takera," she didn't have time to give a ride. So, to believe Adnan is guilty, you have to think that he somehow convinced a time-pressed Hae to give him a ride or otherwise forced his way into her car. Unfortunately, the jury never heard this part of the story at trial.

3. Debbie was right about seeing both Adnan and Hae on January 13th

For all of the reasons given in permutation #2, the portion about Debbie seeing Hae and "Takera" at 3:00ish is still pretty helpful for Adnan because it makes it seem like Hae had no time to give anyone a ride. Of course, unlike in permutation #1, Debbie is no longer an alibi for Adnan because Hae is no longer leaving school before 2:45 P.M.

But I would still say that Debbie's testimony about seeing Adnan outside the guidance counselor's office is pretty helpful for Adnan. After all, Debbie says that she saw Adnan with his gym bag and track stuff and talked with him about going to track practice. If Adnan was planning to get a ride from Hae (and kill her), why would Adnan already have his gym bag and track stuff? Under this scenario, Adnan would have to bring his track bag and gym stuff into Hae's car, take the bag and stuff out of her car when he ditches it, and then make sure that he has the bag and stuff when Jay drops him back at school.

This seems like not only a big inconvenience but also risky in the sense that the bag and stuff could easily leave physical evidence in Hae's car. I could only really see it making sense if Adnan were trying to make a quick change before track practice, but Jay never says that Adnan changed into his track clothes before he dropped Adnan off at school.

Simply put, Debbie's description with Adnan makes it seem pretty likely that he remained on campus until the start of track practice.

4. Debbie was wrong about seeing both Adnan and Hae on January 13th

This permutation is helpful for Adnan based on other evidence. Sarah Koenig questioned the State's "dead by 2:36 P.M." timeline based upon Debbie and Summer, who recalled talking to Hae on the day of the Randallstown wrestling match. Given that the Randallstown wrestling match was on January 5th, it's pretty clear that she has the wrong day. That leaves only Debbie to disrupt the narrative that Hae left Woodlawn soon after the end of school. If Debbie has the wrong day, by far the likeliest scenario is that Hae did in fact leave Woodlawn soon after school ended (2;20ish to 2:30), likely because something came up and she had somewhere else to be before picking up her cousin.

At the reopened PCR proceeding, of course, Asia McClain testified that she saw Adnan at the Woodlawn Public Library until about 2:40 P.M., and Judge Welch found her testimony to be credible. Therefore, removing Debbie from the timeline entirely doesn't help Adnan in and of itself, but it removes the main question mark about whether Hae left Woodlawn soon after the end of school and strengthens Adnan's alibi defense.

_____________________

*In her police statement, Becky says that Adnan was part of this conversation, but she doesn't mention him at trial. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/10/a-readerlistener-e-mail-me-recently-to-ask-about-the-implications-of-debbies-police-statementstestimony-in-the-adnan-syed-c.html

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Comments

It seems as if Hae told Debbie that she was going to go see don before she picked up her relatives. So why wasn’t he looked at harder?? Which permutation do you think is most likely?

Posted by: My real name is Cathy | Oct 27, 2017 1:24:34 PM

This is reminding me.... So it's been at least a year since I've seen anything re: Hae Min Lee. I've decided to put this all to the side for now. Meanwhile, I've become more interested in true crime, in general, and I've been learning a little about how criminal investigations work. And I guess I've come full circle, because here I am again. And now that I've come back with a little more knowledge under my belt, I'm wondering: Isn't a full reinvestigation in order? It's clear that the original investigation was messed up from the beginning because the police had a theory in mind and beat up the facts to fit their theory. They put a bullseye on Adnan Syed and/or Jay and nailed one of them. That was all they wanted--turn that case, put away some non-white person who they think is a filthy criminal, and add your metrics to the big board. It was never about justice. Given this, shouldn't we put all this information off to the side for now and start fresh? Start with the facts of the case--start from the very beginning, with that crime scene in Leakin Park--and let the facts drive the theory this time, which is how it should've gone from the very beginning, in the first place.

Posted by: Mia | Oct 28, 2017 8:02:11 AM

I thought that it had been determined that Adnan was at the counselor's office earlier in the day--around noon? Not after school. I might be mistaken on that?

Posted by: Cathy McLain | Oct 28, 2017 11:47:23 AM

Cathy: They thought he had an solid alibi: they didn't know that the manager at the store he was supposedly "loaned out to" that day was his mother. They also didn't know his normal store's manager, who they talked to to check that info with, was his step-mom (mom's live-in partner)

Posted by: Paul | Oct 29, 2017 5:03:59 AM

Cathy: That Adnan had a meeting earlier in the day to request a letter of recommendation is entirely consistent with him dropping by later to pick it up.

Posted by: TerminalGrog | Oct 29, 2017 1:44:53 PM

Paul, Cathy: It wasn't until Bob Ruff obtained the schedule and timesheets that it was discovered that Don's employee numbers didn't match up, and everyone scheduled for work that day worked their shifts. Either Don didn't go into work and killed Hae or he and his moms were engaging in a falsified timesheet scheme.

Posted by: Tim | Oct 30, 2017 1:02:31 AM

What about the dna from the bottle and rope found near her body?

Posted by: Karen | Oct 30, 2017 8:32:00 PM

What is the latest on the case?

Posted by: Anne | Oct 31, 2017 3:23:40 PM

Will you be doing a post on Undisclosed LLC vs State? I'm curious about your perspective on the opinion of the George Supreme Court and what options (if any) that leaves Undisclosed (or any other third party) to obtain access and copy court reporter recordings (writ of mandamus still an option?).

Posted by: FormerAgent | Nov 2, 2017 4:55:32 PM

Can we get an update on Adnan Syed's case?

Posted by: Katie Dunlap | Nov 3, 2017 3:51:26 PM

Cathy: 4 or possibly 1. I definitely think that Debbie has the wrong day for seeing Hae because I think that Hae left soon after the end of class on 1/13 (because something had come up, according to Becky). My best guess would be that Debbie is remembering a different day when she spoke with Hae and Takera and that this is the same day that she spoke with Adnan.

That said, if Debbie is right about talking with Adnan about going to track practice, there were very few days when Adnan went to track practice in the first half of January. And there’s the fact that Adnan got a letter from the guidance counselor’s office on 1/13 (although he seems to say he got it earlier in the day). So, I can’t quickly dismiss Debbie’s statement about seeing Adnan at the guidance counselor’s office on 1/13.

Mia: If the appellate courts uphold Judge Welch’s order granting a new trial, we very well could have a new investigation.

Cathy McLain: There are some notes in the defense file implying that Adnan went to the guidance counselor’s office earlier in the day, but there’s some ambiguity. For instance, one note says he was there at 1:13 P.M., which could be a mistake based on the date being 1/13. Of course, Adnan going to the guidance counselor’s office earlier in the day doesn’t preclude the possibility of Adnan returning to her office later in the day; the earlier visit could even provide an explanation for the later visit.

TerminalGrog: Right. That could be the explanation I mentioned above.

Karen: The defense is putting off the motion to test for DNA until after it sees how the current appeal plays out. The State could test it now, but ostensibly has chosen not to test it yet.

Anne and Kate Dunlap: We’re waiting on the Court of Special Appeals to rule on the State’s appeal and the defense’s cross-appeal. I expect a verdict around the last Tuesday oin November or December.

FormerAgent: Done.

Posted by: Colin Miller | Nov 6, 2017 6:13:07 AM

"The State could test [the DNA evidence] now, but ostensibly has chosen not to test it yet."

Can they? They have a duty to preserve scientific identification evidence pursuant to §8–201(j).

Posted by: dgfhfdgh | Nov 7, 2017 9:52:20 AM

dgfhfdgh: Right, that section precludes an intentional and willful destruction, which would lead to an inference that DNA testing would have been favorable to the petitioner. But, in this case, there would be actual DNA testing, so that statute makes clear that such testing is permitted.

Posted by: Colin Miller | Nov 7, 2017 5:13:20 PM

"But, in this case, there would be actual DNA testing, so that statute makes clear that such testing is permitted."

Where does it do that? It only says that the convicted can file a petition, right?

Posted by: zfsdgdfzgd | Nov 8, 2017 1:55:44 PM

zfsdgdfzgd: The State can always do DNA testing on evidence that they lawfully obtained. Section 8-201 sets forth a procedure for a convicted defendant to seek testing and prohibits the State from intentional and willful destruction of scientific identification evidence and creates a presumption that DNA testing would have produced a result favorable to the defendant.

So, nothing prevents the State from doing post-conviction testing; the statute merely prevents the State from destroying evidence in the absence of testing.

Posted by: Colin Miller | Nov 8, 2017 6:54:08 PM

"The State can always do DNA testing on evidence that they lawfully obtained." Do you have a cite for that?

"Section 8-201 sets forth a procedure for a convicted defendant to seek testing and prohibits the State from intentional and willful destruction of scientific identification evidence and creates a presumption that DNA testing would have produced a result favorable to the defendant." Section (j)(1) and (2) present a blanket prohibition on destruction of the material. Testing would destroy that material. Section (j)(3) provides a remedy for if the destruction was willful and intentional

Here's a hypothetical. The State tests the DNA, but uses a technique other than the most advance, consumes the available evidence denying Adnan the chance to test it using the most sensitive techniques. Do you think Adnan would consider that legitimate?

Posted by: zfsdgdfzgd | Nov 9, 2017 5:45:42 AM

Zzdfgdggjustwriteyourname: How would it exactly go down if your interpretation was correct? "State moves to test DNA evidence, defense files motion to stop state from doing so".

If so, there's a lot of defendants who are letting perfectly good defense strategies on the table by not asserting their right to stop the state from destroying DNA evidence by testing the DNA evidence.

Posted by: Paul | Nov 9, 2017 12:50:15 PM

And no, there doesn't need to be a specific language anywhere permitting the state to test evidence it collected legally. The statute you are talking about permits the defense some rights regarding evidence which they didn't have already. Since the state already has full privilege to test evidence as they see fit, the statutes lack of explicit permission giving is nothing

Posted by: Paul | Nov 9, 2017 12:53:06 PM

zfsdgdfzgd: Section 8-201(k) specifically authorizes the State to dispose of the evidence, subject to certain conditions.

Posted by: Colin Miller | Nov 9, 2017 6:47:18 PM

"Section 8-201(k) specifically authorizes the State to dispose of the evidence, subject to certain conditions."

Right, and those conditions include notice to the convicted, and a hearing if the convicted opposes.

Paul, regarding this "And no, there doesn't need to be a specific language anywhere permitting the state to test evidence it collected legally," the statute requires the State to preserve the evidence. Testing consumes the evidence. Therefore, the State cannot test it without notifying the convicted and either receiving no objection from the convicted or having a hearing.

Paul, you're also missing the point with this " there's a lot of defendants who are letting perfectly good defense strategies on the table by not asserting their right to stop the state from destroying DNA evidence by testing the DNA evidence." The statute is specific to convicted individuals, not defendants at trial.

Posted by: zfsdgdfzgd | Nov 10, 2017 7:08:34 AM

It seems to me no one has a strong recollection of Hae that day because she kept a low profile, maybe because she knew she was going somewhere after school. I think it is even possible she skipped out on school early which is why everyone's memories are muddled.

It would make sense considering she had to pick up her cousin from school but also seemed to want to go somewhere, leaving school an hour or two early would have given her a few hours to go wherever it was that she wanted to go.

Posted by: Robert | Nov 10, 2017 10:03:33 AM

zfsdgdfzgd: Right, and what would be the basis for the defense objecting. The State lawfully obtained the evidence and would certainly have ample reason to want to test it. As you noted before, I could see the defense asking for a particular type of DNA testing, but I don't see any grounds for objecting to testing at all.

Robert: Becky does make it sound like Hae was being cryptic, whether intentionally or not. And that's too bad. If Hae had said, "I'm leaving early because I need to see [X] and/or go to [Y]," we'd have so much more clarity.

Posted by: Colin Miller | Nov 10, 2017 10:41:01 AM

" I don't see any grounds for objecting to testing at all." So you agree there's no reason for Adnan to have delayed pursuing the DNA? Or is there a reason for the delay? I mean he must have had a reason because he gave up the opportunity to have his petition handled free of charge by UVA. So are there strategic reasons? If there are strategic reasons, shouldn't that be "grounds for objecting to the testing at all"?

Posted by: zfsdgdfzgd | Nov 10, 2017 12:22:05 PM

Zfsdgdfzgd: I’ve explained this before. There are possible new claims that Adnan would like to raise in a motion to reopen in the event that COSA or COA reversed Judge Welch’s order granting a new trial. DNA testing in this case is exceedingly unlikely to produce a useful result, but a DNA motion makes it much likelier that these new claims will be heard. So, strategically, it makes sense to wait to move for testing. But this type of strategy wouldn’t be valid grounds to oppose State testing.

Posted by: Colin Miller | Nov 10, 2017 12:55:53 PM

Zdfgs wait...? Are you saying you subscribe to that adorable SerialPodcastOrigins group-think that assures itself that one can tell Adnan must be guilty because he chose to stick with his already-paid-and-invested legal team and legal strategy? When he instead could have dropped them (and likely their retainer) halfway through post-conviction so the Innocence Project could do their standard DNA testing service for him instead?

Especially since a DNA non-match to Adnan wouldn't be exonerating by itself, i mean how much would it mean to you? Or to anyone else who already "knows" he's guilty? And of course the only chance of it matching someone else is if the killers DNA is on file, i.e. Roy Moore et al? BUT... Considering we all here know who that DNA in fact does actually match to, and we know that he never gave DNA samples, we can rule out a Onday-Atchmay. So do you think that Adnan, were he innocent, would ditch his current clearly winning strategy at present so he could go down that DNA route? for that? Interesting.

Or wait, wasn't the official group-think actually that the UVA innocence project determined they thought Adnan was guilty and thus quietly withdrew their offer? That you can tell Adnan is guilty because the Innocence Project wasn't actively working his case anymore? Oh wait was that a previous group-think iteration that had to be updated after it become untenable after Diedre explicitly stated otherwise?

If that is what you are getting at--that Adnan must be guilty Bc he is sticking with his current winning legal strategy in lieu of a pursuing a DNA testing strategy whose absolute ceiling would provide at best a non-definitive no-match--well all I can say is I have yet to see it convincing argued. But then the group-think thing isn't for me anyway.

PS. Oh, and you don't know that there's so little DNA evidence that testing it would use up the entire sample. Just want to point out that's an unfounded convenient assumption you are making. Of course, for your argument to be valid, it certainly must be the case. But you needing it to be true for your argument to work is not very good evidence to suggest that it in fact is the case.

Posted by: Paul | Nov 13, 2017 2:26:14 AM

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