Monday, December 8, 2014
The Serial Podcast, Episode 6: What Defense Counsel Could Have & Should Have Done With The Nisha Call
I've done eleven posts (here, here, here, here, here, here, here, here, here, here, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the sixth episode of the Serial Podcast: "The Case Against Adnan Syed." This episode deals with the strongest evidence that the prosecution introduced against Adnan at trial. In turn, this post primarily focuses on the strongest of those pieces of evidence: The Nisha Call.
The Nisha Call
Probably the most important confluence of evidence at Adnan's trial was the following: The call record for Adnan's cell phone shows that it was used to make a call to a girl named Nisha at 3:32 P.M. on the day of Hae's murder (January 13, 1999). According to Adnan, Jay was in sole possession of his cell phone between lunchtime and the end of Adnan's track practice at "five something." This mostly seems plausible. Between noon and 5:00 P.M. on the day of Hae's murder, there were seven outgoing calls from Adnan's cell phone. Six of those went to people Jay knew. The seventh, however, went to Nisha, a girl from Silver Spring whom Adnan was seeing and whom Jay didn't know.
Jay testified regarding this call at trial:
Yeah. Umm, Adnan, I can’t remember whether he received a call or placed a call, but I remember he was talking to a girl umm, I can’t remember her name. He put me on the phone with her for like three minutes, I said hello to her.
Nisha herself testified at trial and partially corroborated Jay's testimony. Specifically, she answered "Yes" when the prosecutor asked her, "[N]ow did there ever come a time when the defendant called you and put a person he identified as Jay on the line?”
Adnan's only explanation for The Nisha call is that it was some kind of butt dial combined with an answering machine picking up. This is pretty much what he has to claim because his call log indicates that the call lasted for two minutes and twenty-two seconds. On the one hand, this makes sense because Nisha's number was entered into Adnan's phone on speed dial, and it wasn't tough to "butt dial" with 1999 cell phones. On the other hand, it doesn't make much sense because Nisha testified at trial that her phone didn't have an answering machine (although Adnan believes that it did).
Again, if I'm a juror, this is probably the most compelling confluence of evidence at trial, which is probably why the prosecutor emphasized it so much during closing argument. If I'm a juror, I know that Jay has changed important aspects of his story innumerable times and is testifying pursuant to a plea agreement. Jenn's story has also changed between her police interview and trial. I'm assuming that defense counsel has at least made some mention of cell tower pings being imprecise. But when Nisha, Jay, and the call log match up in the middle of the day, that's trouble for Adnan. Big trouble. But...
Adnan had two trials. The first trial ended in a mistrial after a juror overheard the judge referring to defense counsel as a liar. But, before that mistrial was declared, Nisha testified at the first trial, and this is what she said when asked about the call where she talked to Jay:
Ummm, it’s a little hard to recall, but I remember [Adnan] telling me that Jay invite- invited him over to a video store that he worked at. And, he basically well Adnan walked in with his cell phone and then like- he told me to speak with Jay and I was like ‘okay’ cause Jay wanted to say hi so I said hi to Jay. And that’s all I can really recall.
And then, when asked about what time of day that call occurred, Nisha responded, "I would think towards the evening, but I can’t be exactly sure."
As Sarah Koenig notes in the sixth episode, there are two problems with this testimony, one obvious and one less obvious. The obvious problem is that Nisha thinks the call was "towards the evening" when the call on January 13th was actually at 3:32 P.M. That's not a huge deal because Nisha herself says she's not sure about the timing of the call, and you can even legitimately construe a 3:32 P.M. call as being "towards the evening."
The bigger, less obvious, problem is that Hae's murder was on January 13th and that Jay didn't take the job at the video store until the end of January. Moreover, Jay mostly worked nights at the video store. This would tend to corroborate Nisha's testimony but place the Adnan/Jay/Nisha call weeks after Hae's murder.
When I say that this bigger problem is less obvious, I mean less obvious to someone not intimately familiar with the case. But if you're Adnan's defense counsel, your #1 goal at trial is to discredit Jay, the key witness for the prosecution. And, regardless of what you knew before the first trial, you 100% know after that (mis)trial that you have to do everything in your power to call into question The Nisha call. You must have determined at some point before the second trial that Jay hadn't started working at the video store as of January 13th, right?
This takes us to the second trial. Here's Sarah Koenig's description:
So listen to what happens at the second trial. I don’t have the tape, but I have the transcript. [The prosecutor] asks Nisha, "now did there ever come a time when the defendant called you and put a person he identified as Jay on the line?" "Yes," she says. "Please tell the ladies and gentlemen of the jury what that call consisted of." Nisha starts to answer, "basically Jay had asked him to come to an adult video store that he worked at." But then [the prosecutor] interrupts her, he says, "no don’t-- tell us the content of the call." Now if I had to guess, I’d say that the prosecutor is trying to get her to not mention the video store, because it contradicts their story. So, Nisha says, "okay. He just asked me how I was doing, et cetera," then she goes on. She doesn’t mention the video store to [the prosecutor] again.
All of this makes sense, but it leaves one huge question unanswered: Did defense counsel ask Nisha about the video store? I'd need to get a copy of the trial transcript to answer this question. But, if she didn't, well...that's a huge error, possibly on par with not contacting Asia McLean as a potential alibi witness.
So, what did defense counsel actually do? What should she have done? This would have been my strategy with regard to The Nisha call:
Cross-Examination of Jay
Defense counsel: Jay, you testified on direct examination that, at one point on January 13, 1999, Adnan handed you his cell phone to talk to a girl from Silver Spring, is that correct?
Defense counsel: And, when the prosecutor was questioning you, he told you that the call records from Adnan's cell phone indicated that this call took place at 3:32 P.M., is that correct?
Defense counsel: Now, let's go back to your prior statements. Police first interviewed you on February 28, 1999. This was before they showed you the call records from Adnan's cell phone. In this interview, you didn't make any mention of this call, did you?
Defense counsel: Okay, and then, at your second interview with police on March 15th, 1999, they showed you the call records from Adnan's cell phone, and, all of a sudden, you remembered this phone call, is that correct?
Defense counsel: Now, just a few minutes ago, you testified that you talked to this girl for three minutes. And in your second interview with police, you said the same thing, right? That you talked with this girl for three minutes, is that correct?
Defense counsel: So, Jay, I'm guessing from the consistency between these two statements that you feel like you have a very good memory of the length of this phone call, is that correct?
Defense counsel: Now, during the second interview with police, you also said, and let me quote: "It was a pretty long conversation, maybe like 7-8 minutes, 10 minutes, something like that." Is that what you said about the overall length of the phone call with this girl from Silver Spring?
Defense counsel: So, that means your part of the call was about three minutes, and...let me do the math. That would make Adnan's part of the call between four and seven minutes, is that correct?
Jay: Yeah, I guess so.
Defense counsel: And that makes sense, right? Adnan knew this girl, and you didn't know this girl, so it would make sense that he would talk to her longer than you did, is that correct?
Defense counsel: And it wouldn't make sense that he would just call this girl and immediately hand you the phone without really talking to her either before or after, is that correct?
Defense counsel: Right, and you said in your second statement and on the stand today that you do remember Adnan talking with this girl for a while and that the conversation was not at all about Hae's death, is that correct?
Defense counsel: Well, Jay, here's my problem. The call log for Adnan's cell phone says that this 3:32 call to this girl from Silver Spring only lasted two minutes and twenty-two seconds. How does that make any sense given that you said the call lasted 7-8 or 10 minutes?
Jay: I don't know.
Defense counsel: Is it possible you're confusing this conversation in which you talked with this girl from Silver Spring with another conversation that occurred with her on some other day?
Defense counsel: And that's because this was the one and only time you talked to this girl, right?
Defense counsel: And you're 100% sure that you never talked to this girl at any point before or after January 13, 1999 and that you're not confusing this conversation with another conversation you had with her at some other date and time?
Jay: I'm sure.
Defense counsel: Okay, Jay. Let's return to your second interview. In that interview, you told the officers that right after the conversation with this girl, Adnan and you went to Patapsco State Park, is that correct?
Defense counsel: And in this second interview, you said that Adnan and you were at Patapsco State Park for twenty to thirty minutes and that you remember him telling you specific details of Hae's death, is that correct?
Defense counsel: But you've made no mention of going to Patapsco State Park today, have you?
Defense counsel: Right. Instead, you've said today that the call with this girl took place at Forest Park Golf Course, is that correct?
Defense counsel: But it's your testimony here today that you only went to Forest Park Golf Course on January 13, 1999 and never went to Patapsco State Park?
Defense counsel: And you're 100% sure of that?
Defense counsel: Okay, but let me go back to that second interview for a second. In that interview, you don't just say that you went to Patapsco State Park. You say that you went to a specific spot in that park: the Cliff. And when you describe your conversation with Adnan, you talk about being at the Cliff, looking out at a bunch of stuff in the park, is that right?
Defense counsel: But now you're saying that you have complete confidence in your testimony today and that this 20-30 minute conversation at a specific place in a specific park never happened, is that correct?
Defense counsel: Okay, I just have one last set of questions. Now Jay, you yourself acknowledged during direct examination that you've been inconsistent regarding almost all of the details of what happened on January 13, 1999 such as the location where Adnan supposedly showed you Hae's body and what we just went over with Patapsco State Park, is that correct?
Defense counsel: But there is one thing you have been remarkably consistent about across all your statements. Let's start with your first police interview. In that interview, you said that you were at Jenn's house until Adnan called you on his cell phone and told you to pick him up. And you said that this call was at at, let me quote, "three-forty something," is that correct?
Defense counsel: Now, turning to your second police interview, you again said that you were at Jenn's house until Adnan called you and told you to pick him up. And you said that this call was at, again let me quote, "About 3:40," is that correct?
Defense: And today, just a minute ago, when the prosecutor was asking about your timeline on January 13, 1999, you said that you didn't leave Jenn's place to meet up with Adnan until 3:45 P.M., is that correct?
Defense counsel: But Jay, according to Adnan's cell phone records, the call with the girl in Silver Spring took place at 3:32 P.M. Can you explain how Adnan was there for this call if it was made before you left Jenn's place to meet him?
Defense counsel: And let me retrace what you just said on direct examination. You said that you got the call from Adnan at Jenn's house, you drove to meet him at Best Buy, he showed you Hae's body in the trunk, you drove over to the Park and Ride, Adnan shifted some things around in Hae's trunk, you got in his car, you drove to the golf course, and then this call took place. Is that what you said?
Defense counsel: So, let's assume that you're mistaken on when you left Jenn's house despite your repeated statements to the contrary. Let's say you actually left her house 10 or even 15 minutes earlier than you thought. There's still no way that you could have been with Adnan, talking with this girl at the golf course, is that correct?
Jay: I don't know.
Defense counsel: Well, Jay, just a few minutes ago, you said you left Jenn's house at 3:45 and that it took you five minutes to get to the Best Buy. If you left Jenn's house 15 minutes earlier than you thought, at 3:30, you're not even at the Best Buy until 3:35, which is after this call was made at 3:32. And you didn't even say that the call took place at Best Buy. You said it took place after you spent some time in the Best Buy parking lot, drove to the Park and Ride, spent some time at the Park and Ride, and then drove up to the golf course. So, you actually could have left Jenn's house much earlier than you thought, and there's still no way that the phone call with the girl from Silver Spring happened the way you described it, is that correct?
Jay: I don't know.
Defense counsel: Well, here's what we do know. We know that Adnan had this girl from Silver Spring on speed dial. Is it possible that you accidentally dialed her number?
Defense counsel: But you also can't explain how this call took place before you left Jenn's house?
Jay: I don't know.
Cross-Examination of Nisha
Defense counsel: Nisha, when the prosecutor asked you about your conversation with Jay, you started answering by saying, "basically Jay had asked [Adnan] to come to an adult video store that he worked at..." but then he cut you off. Could you please explain to me exactly what Adnan told you about Jay inviting him to come to the adult video store?
Nisha: It's just like I was saying before. Adnan told me that his friend Jay told him to meet him at the adult video store where he worked, and then he handed me the phone to talk to him.
Defense counsel: Right, and this isn't the first time you've testified under oath about this, is that correct?
Nisha: That's correct.
Defense counsel: Right. Let me read you your prior testimony: "I remember him telling me that Jay invite- invited him over to a video store that he worked at. And, he basically well Adnan walked in with his cell phone and then like- he told me to speak with Jay and I was like ‘okay’ cause Jay wanted to say hi so I said hi to Jay." That's entirely consistent with what you just told me today, is that correct?
Defense counsel: And just to be clear, as you said in your prior testimony, it was Jay who wanted to talk with you, is that correct?
Defense counsel: And during that testimony, you also said that you thought this testimony took place "towards the night," is that correct?
Defense counsel: Now, Jay worked mostly nights at that adult video store, so is it possible you remember that the call took place towards the night because Adnan or Jay told you something about Jay working nights at the adult video store?
Nisha: Yes, it's possible.
Defense counsel: And, just to be clear, by "towards the night," you mean something like nine o'clock, ten o'clock, or maybe something like seven o'clock, eight o'clock?
Nisha: I'm not sure.
Defense counsel: But by "towards the evening," you certainly mean after six o'clock or, at the very least, after five o'clock, right?
Nisha: Yeah, I would think so.
Defense counsel: Now, Jay was on the witness stand earlier talking about a call in which Adnan put him on the phone to talk to a girl from Silver Spring, and he estimated that the call was long, 7-8 or 10 minutes long. Now, I'm not sure whether this is the same call you're talking about, but I'm guessing you talked to Adnan for a while for him to establish that Jay had invited him to the adult video store. And then you talked to Jay for a while. Would you say that the total call was around 10 minutes?
Nisha: That sounds about right.
Defense counsel: Also, I'm guessing that this was the first and only time you talked with Jay, is that correct?
Defense counsel: And is that maybe why you remember this call so well?
Defense counsel: And you seem to have a good memory of the substance of the call in that you remember Adnan being at the adult video store. Is that because of the adult video store? I mean, had you even heard of an adult video store before this call?
Defense counsel: And so is that probably why you remember the call and the details so well today...because you were talking to a new person who worked at an adult video store?
Re-Calling of Jay during defense case
Defense counsel: Jay, you testified earlier at trial that Adnan would sometimes visit you at the adult video store where you work, is that correct?
Defense counsel: Well, after you testified, the prosecution called a witness and she remembered an occasion on which Adnan was visiting you at the adult video store and he handed you the phone to talk to her. Do you remember this happening?
Defense counsel: I understand. I can barely remember people I talked to on a particular day last week, let alone last year. But it's certainly possible that there was a time when Adnan visited you at the adult video store and handed you the phone to talk to a girl, right?
Jay: I guess it's possible.
Defense counsel: This girl's name is Nisha. You don't remember talking to a girl named Nisha while you worked at the adult video store?
Defense counsel: But do you remember when you started working at the adult video store?
Defense counsl: Your honor, I'd like to introduce into evidence Defense Exhibit #Y. These are Jay's employent records from the adult video store. Jay, can you please take a look at these records and tell me what date your started working there?
Jay: It says that I started working there on January 27th, 1999 [Note: I'm guessing at the exact date].
Defense counsel: So if this girl, Nisha, if she says she talked with you while you were working at the adult video store, there's no way that conversation could have taken place on January 13th, 1999, is that correct?
Jay: Not unless she's mistaken.
Defense counsel: Right, but this girl also mentioned a particular detail about the call. Of course, she said the call happened when you worked at the adult video store, but she also said that it happened "towards the night." Now, you worked mostly nights at the adult video store, is that correct?
Jay: I guess.
Defense counsel: Well, you have your employment records right there. What do they say about when you worked?
Jay: They say I worked mostly nights.
Defense counsel: So, if this girl says she talked to you at the adult video store "towards the night," she's probably remembering the call correctly, right?
Jay: I don't know.
Defense: Well, Jay, maybe this will jog your memory. As I said, the girl's name was Nisha. This was a girl that Adnan was seeing. And she remembers that Adnan put her on the phone to talk with you because you wanted to say "hi" to her. Are you sure you don't remember talking to a girl named Nisha at the video store?
Jay: I'm sure.
Defense counsel: Hmm, well you know what? Do you remember testifying about talking to the girl from Silver Spring at 3:32 on January 13, 1999? According to Adnan's cell phone records, that call was actually made to Nisha. Before, I asked whether this call could have been an accidental dial. If you don't remember ever talking to Nisha, do you now agree that this could have been an accidental dial that she never picked up?
Jay: No, I remember talking to the girl from Silver Spring. I just don't remember her name.
Defense counsel: And you're sure that you talked to her while you were at Forest Park Golf Course, like you said before?
Defense counsel: Okay, but Jay, I have here the cell tower records that the prosecutor introduced into evidence. Now, the prosecutor had a fancy expert come in and testify that a cell phone call tends to register on the closest cell tower. According to those cell tower records, the 3:32 P.M. call, the one you say took place in Forest Park Golf Course, that call registers on cell tower L651, which is way over by Woodlawn High School. How do you explain that?
Jay: I don't know.
Defense counsel: Is it possible that you were actually over by Woodlawn High School at 3:32 P.M.?
Jay: No, we were at the Forst Park Golf Course.
Defense counsel: So, you're saying that the cell tower data must be wrong?
Jay: I guess.
Defense counsel: And there's no chance you're wrong?
Defense counsel: But you also testified that you didn't leave Jenn's house to meet up with Adnan until 3:45 P.M., is that correct?
So, that's my strategy. You start with The Nisha call being pretty damning based on the prosecution's case. To believe Adnan, you have to believe (1) Jay made some kind of butt dial to Nisha; and (2) an unanswered call that keeps ringing could register as a couple minute call OR Nisha is wrong about not having an answering machine on her phone (by the way, how did the prosecution or defense not figure out whether Nisha's phone had an answering machine and/or use Adnan's cell phone or another phone to test out how unanswered calls registered in call logs?). If I'm a juror just hearing the prosecution's side of things, this is pretty damning.
After the above interrogations, however, I now have to believe the following to think that Jay's story bears any relation to reality: (1) Jay is WAY off on when he left Jenn's house; (2) Jay is WAY off on the length of The Nisha call; (3) Jay is mistaken about where The Nisha call took place OR the cell tower data is unreliable; (4) Nisha is mistaken about the call taking place while Jay worked at the adult video store; and (5) Nisha is mistaken about the call taking place towards the night.
This begs two questions: First, did defense counsel interrogate Jay and Nisha in something resembling what was listed above? Second, if so, what would you think as a juror regarding The Nisha Call?