EvidenceProf Blog

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

Tuesday, April 14, 2015

Episode 1 of Undisclosed & Further Thoughts About Debbie's Testimony at Trials 1 & 2

Yesterday was the premiere of the first episode of "Undisclosed: The State v. Adnan Syed." We had some recording difficulties while doing the group recording of RabiaSusan, and myself, so we each ended up having to record individual parts that were stitched together. As a result, the final recording has some varying volumes, not enough free flowing conversation, and what I regard as some stilted delivery on my part (it's a lot tougher to talk to a computer screen than someone else). That said, I'm very proud of the finished product and the hard work that was put into creating it. If you enjoyed the first episode, be sure to check out the second episode on April 27th. And, if you're not sold after the first episode, I feel like I can guarantee that the quality of the second episode will be much higher for a variety of reasons.

I've already been getting some good feedback about my comments about Debbie's testimony at the first and second trials and the difference between guilt and innocence. Given that feedback, I thought I'd expand upon my comments from the podcast in a blog post.

Let's start with the basics. At Adnan's first trial, on December 13, 1999, the following Q&A occurred between defense counsel and Debbie (pages 337-338):

Screen Shot 2015-04-14 at 6.00.33 AM

Then, a little over two months later, on February 17, 2000, here are the relevant Q&As between defense counsel and Debbie at Adnan's second trial (page 109):

Screen Shot 2015-04-14 at 6.04.57 AM Screen Shot 2015-04-14 at 6.06.38 AM

So, how could I conclude that Adnan would have been found "not guilty" if Debbie simply repeated her testimony from the first trial at the second trial?

As I noted in the podcast, the prosecution pretty clearly established that Adnan asked Hae for a ride on January 13, 1999, a fact I've never disputed. Then, they had Hae's best friend Aisha testify that she saw Hae and Adnan talking at the end of school (page 251).*

Screen Shot 2015-04-14 at 6.20.59 AM

Finally, they had Inez Butler testify that she saw Hae leaving school in a hurry between 2:15 and 2:20 (page 20):

Screen Shot 2015-04-14 at 6.24.51 AM

During closing argument, the prosecution used the testimony of these two witnesses to claim that Hae left school with Adnan immediately after talking to Inez, whereupon he killed her in the Best Buy parking lot by 2:36, when he called Jay:

Screen Shot 2015-04-14 at 6.31.13 AM
Screen Shot 2015-04-14 at 6.33.11 AM

In other words, the prosecution didn't merely assert that Hae could have been killed by 2:36; instead, it very deliberately used three pieces of evidence -- Aisha's testimony, Inez Butler's testimony, and the 2:36 call on Adnan's call log -- to prove that Hae left school soon after 2:20 P.M. and must have been killed by 2:36 P.M.

This is why Debbie's statement that she was positive she saw Adnan at about 2:45 at the guidance counselor's office was potentially so devastating to the prosecution's case. She initially made that claim in a police statement on March 26, 1999, she remembered making the statement while testifying on December 13, 1999, and then...she forgot about the statement while testifying on February 17, 2000. 

As I noted on the podcast, if Debbie had simply remembered her statement, the defense could have turned a prosecution witness into an alibi witness...a witness who would have consistently stated on three occasions that she saw Adnan at about 2:45 at the guidance counselor's office, about 20-25 minutes after Hae supposedly left school and about 9 minutes after she was supposedly dead and Adnan was making a call from Best Buy. The way I see it, that would have been devastating to the prosecution's case.**

Moreover, even with Debbie forgetting her statement at the second trial, defense counsel still had some options. First, defense counsel seriously erred by not mentioning the time that Debbie said she saw Adnan at the second trial. As you can see from the above Q&As from the second trial, defense counsel never asked Debbie about seeing Adnan at "about 2:45," which was the most important part of her statement. 

Second, as I've previously noted, at the time of Adnan's second trial, Maryland Rule of Evidence 5-802.1(a) allowed for the admission of prior inconsistent statements in the form of both former testimony and recorded statements. Such statements was non-hearsay and thus admissible to prove the truth of the matter asserted: that Debbie saw Adnan at about 2:45 at the guidance counselor's office. Therefore, when Debbie testified at the second trial that she did not remember making the statement about seeing Adnan at the guidance counselor's office, defense counsel immediately should have admitted both her police statement and her testimony from the first trial. She didn't. Would doing so have been enough to change the outcome at the second trial? I don't know, but it couldn't have hurt. 

[Update: I've been getting some questions about whether the prosecution simply would have shifted away from the 2:36 timeline if Debbie had remembered saying that she saw Adnan at the guidance counselor's office at about 2:45. I guess it's theoretically possible, but take a look at the prosecution's opening statement from the second trial on January 27, 2000 (pages 106-107):

Screen Shot 2015-04-14 at 1.35.12 PM

So, if the prosecution wanted to shift away from the 2:36 timeline in closing, it would have needed to contradict its timeline from opening and explain why Inez (its own witness) was wrong when she testified that she saw Hae leaving school in a hurry between 2:15-2:20. It also would have needed to explain why Becky was wrong when she similarly claimed that she saw Hae heading to her car at about 2:20 because she had somewhere she needed to be. 

Or is the claim that the prosecution's strategy from the start of trial would have been different if it knew Debbie was going to testify that she saw Adnan at 2:45 on January 13th? In that case...what? The prosecution would have claimed that the Best Buy call was the 3:15 call? Inez would have been written out of the timeline? The prosecution would have relied on Debbie's first police statement, in which Debbie said she said that Hae told her at about 3:00 P.M. "that she was going to see Donald at the mall"? Or would the prosecution have relied on Debbie's second police statement, in which she remembered (1) seeing Hae between 2:45 and 3:15; (2) "Takera" and no one else asking Hae for a ride; and (3) Hae turning "Takera" down for a ride because she didn't have time/was picking up her cousin?

I think you see my point. It's possible that the prosecution could have shifted away from the 2:36 timeline, but doing so likely would have weakened, not strengthened, its case.]

_______________________ 

*As noted in the podcast and on this blog, if you believe Krista, and I do, Aisha overheard Hae telling Adnan that something came up and she could no longer give him a ride.

**In this post, I'm only talking about Adnan's legal innocence/guilt. As I've noted, there are real questions about whether Debbie actually saw Adnan (a) on January 13, 1999; and (b) at 2:45 P.M. That said, as I noted on the podcast, in her police statement, Debbie was initially quite sure that she saw Adnan on January 13th before saying that it could have been the day before or the day after. But Debbie also remembers talking to Adnan about going to track practice, and there was no track practice on January 12th (track meet) or January 14th (snow day). The prosecution did nothing to discredit Debbie's testimony from the first trial about seeing Adnan, and it's tough to see how it could have discredited similar testimony from the second trial. Luckily for the prosecution, it didn't have to engage in the rare action of impeaching its own witness due to Debbie's sudden forgetfulness.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/04/yesterday-was-the-premiere-of-the-first-episode-ofundisclosed-the-state-v-adnan-syedwe-had-some-recording-difficulties-whi.html

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Comments

You said "In this post, I'm only talking about Adnan's legal innocence/guilt".

How is that different from anything else you have done? Do you care if he actually killed her? Do you think he actually killed her? If you believed that he actually killed her, would you still be working on this case?

Posted by: theghostoftomlandery | Apr 14, 2015 5:06:14 AM

Not to put words in the professor's mouth, but I took this to mean the point is Debbie told police she saw Syed at 2:45, and admitted this in the first trial. The professor is saying he believes this could have been enough for the jury to have reasonable doubt that Syed killed Hae before 2:36.

Posted by: anon | Apr 14, 2015 6:09:57 AM

theghostoftomlandery: A number of my posts have been on legal issue while a number of posts have been about factual issues, like the Woodlawn schedule in early 1999:

http://lawprofessors.typepad.com/evidenceprof/2015/03/s-wednesday-122398last-day-of-school-in-1998-before-winter-break-thursday-122498-winter-break-friday-122598win.html

I care a great deal about whether Adnan killed Hae, and I am undecided at this point about whether he killed her. If I believed that Adnan were guilty, I would not be writing about the case. I'm firmely in the "undecided" camp.

Posted by: Colin Miller | Apr 14, 2015 6:14:22 AM

Great work Colin, really enlightening podcast

Posted by: Mp3mpk | Apr 14, 2015 6:44:33 AM

I have a problem with this entire excersize. You, Rabia, and SS are devoting ALOT of airtime and internet space to Debbie and Asia. However, By Susans own admission, she think Hae was dead sometime after 2:45. Since Coach Sye says track began at 4, that still leaves an hour and 15 to kill Hae, assuming he got to track on time. So what is the point of this? Like you said, you are trying to poke holes in the prosecution timeline, but at the end of the day, it is completely irrelevant to whether or not Adnan Syed Murdered Hae Min Lee.

Posted by: jlpsquared | Apr 14, 2015 6:52:01 AM

Colin,
I have followed your blog and miss your posts on the Reddit Board (completely understand the toxic environment and why you stopped posting there- waste of energy). I agree the first episode of the podcast was a little rough, but I know it'll get better as the kinks get worked out. I'm appreciative that you, SS, and RC are doing it as I feel your voices are the most clearly spoken (even if sometimes not unbiased- given the circumstances it'd be impossible not to be). Just wanted to say Thank You and send a bit of encouragement to you!

Posted by: CatsPjs81 | Apr 14, 2015 6:58:19 AM

I enjoyed the podcast, although I do agree about the delivery. If you don't mind a suggestion, I would encourage both you and SS to use a slower delivery pace. You have such great stuff to say, but it went by so fast I'm was struggling to catch the words-- let alone time to consider what you are saying. Keep up the good work, though!

Posted by: Listening in Atlanta | Apr 14, 2015 7:05:39 AM

theghostoftomlandery,

Do you care that potentially a man who is innocent is behind bars, and also a killer has gotten away with murder?

When have you ever demonstated more than Colin that you care about this?

Now, instead of making accusations towards Colin, would a more honest approach by you ( however unlikely) be to address why Debbie changed her story so dramatically between the first trial and the second. Do you really believe, with all we know about the corruption in the prosecutions office, that she was pressured to do so?

If you don't believe that, I think it shows the blindness of your judgement-as you know full well the prosecution used all kinds of dishonest means to prosecute this case.

Posted by: hooville | Apr 14, 2015 7:10:51 AM

jlpsquared: I'm not aware of Susan saying Hae was killed after 2:45. My opinion is that Hae left school soon after 2:20, after Becky heard her say that she had somewhere to be and/or something else to do. Therefore, Debbie's statement is possibly quite relevant, despite some clear issues with it.

CatsPjs81 and Mp3mpk: Thanks! I fully expect we'll have the technical stuff covered better next episode.

Listening in Atlanta: Thanks! I consciously tried to slow down my delivery, which is usually faster. We're definitely going to try to work on pacing for next episode.

Posted by: Colin Miller | Apr 14, 2015 7:13:38 AM

Why didn't the podcast address or at least acknowledge, given that misremembering was the topic, the obvious issue that if Debbie saw him at the counselor's office at 2:45 there is no way Asia could have seen him from 2:20-2:40 at the library!

Posted by: listener | Apr 14, 2015 7:13:56 AM

listener: The library was right next to the school, so it's possible that Asia say Adnan at the library until 2:40, followed by Debbie seeing Adnan at the guidance counselor's office at about 2:45. Of course, Adnan himself says he stayed at the library until 3:00, so that creates a problem for Debbie's statement. Personally, I think Debbie is wrong, but I think it's possible she's right.

Posted by: Colin Miller | Apr 14, 2015 7:16:34 AM

I actually thought you were the best speaker of the three, Colin. If Susan & Rabia would follow your lead and slow down and breathe a little, the overall presentation would be much better. I think you already have a good speaking rhythm & flow, if a little fast paced. Thanks for all your hard work on this new podcast.

Posted by: femputer | Apr 14, 2015 7:49:58 AM

Professor, Susan Simpson devoted a blog to her theory that HML was murdered at 3:32 pm.

http://viewfromll2.com/tag/hae/

Down to the minute!

Posted by: Badger | Apr 14, 2015 8:01:34 AM

Undisclosed was a great listen. I have no doubts that it'll get better and better as it goes along, as is the way with most productions. I'm personally very glad that you, Susan, and Rabia are going into the weeds with this case. Hae deserves the the truth to be known.--whatever that truth may be.

Posted by: Mike P | Apr 14, 2015 9:07:42 AM

"Adnan himself says he stayed at the library until 3:00"

What's this from? I don't remember ever hearing Adnan claim to be at the library. In Serial he won't even say it when talking about Asia's statement, he says he "might" or "probably" would be there to check email.

Posted by: monstimal | Apr 14, 2015 9:22:41 AM

Question for Professor Miller:

Would CG have been able to introduce Debbie's interview the police notes from Debbie's interview with the police into evidence? After Debbie says "no" can't remember, etc. about the 2:45 sighting on 7/13? Would CG have been able to hold the witness over and come back the next day with the transcript?

Thanks.

Posted by: THTHTC@yahoo.com | Apr 14, 2015 9:47:39 AM

Badger: Gotcha. There are two important times: (1) When Hae left school; and (2) When Hae was killed. Regardless of when Hae was killed, Debbie is important as an alibi witness if we believe Hae left school by 2:20 or 2:25 (Inez at trial; Becky if we discount Inez/Summer due to there possibly being no wrestling match).

Mike P: Thanks.

Monstimal: Page 4:

http://www.mdcourts.gov/cosappeals/pdfs/syed/supplementapplicationleavetoappeal.pdf (Adnan testifying that he was at the library until he left for track practice at 3:00).


THTHTC: Yes, under Maryland Rule of Evidence 5-802.1(a).

Posted by: Colin Miller | Apr 14, 2015 9:54:52 AM

Ah, sorry that was my questions re CG introducing Debbie's police interview. Thanks for the answer.

But, just throwing this out there: Perhaps CG did not pursue Debbie's police statement further because Debbie also stated that she last saw HML in the lobby area of the school between 2:45 pm and 3:00 pm.


Posted by: Badger | Apr 14, 2015 11:51:40 AM

Badger: It's possible, but that would have been a poor decision. By getting evidence that Debbie saw Adnan at 2:45 and talked with Adnan about him going to track practice, it would have forced the prosecution to do one of four things: (1) nothing (what it did at the 1st trial); (2) discredit its own witness; (3) point out that Debbie also said she saw Hae at 3:00, with Hae saying she was going to see Don at the mall (first police statement); or (4) point out that Debbie also said she saw Hae between 2:45 and 3:15, with Debbie saying that she remembers “Takera” and no one else asking Hae for a ride and Hae responding that she couldn’t give her a ride because she had no time/had to pick up her cousin (second police statement).

The way I see it, any of those four scenarios would have been much better than simply letting the matter drop without trying to introduce the statement, Debbie’s testimony from the first trial, or the time of the interaction (2:45 P.M.).

Posted by: Colin Miller | Apr 14, 2015 12:34:55 PM

EP - Thanks for the answer. By Page 4 I think you're pointing to the note that says he testified to that in the PCR. We only have a bit of those documents, I didn't even know Adnan testified at that, wish we had that transcript.

You also seem to say he claimed to be at the library till 3 in 1999. What is that from? His itinerary that day cuts off at 2:15.

Posted by: monstimal | Apr 14, 2015 1:45:16 PM

Debbie did testify on direct and cross at both trials that she saw Hae at approx. 3:00 after school (and obviously alive past the 2:36 call) and this did not cause the prosecution any problem with closing arguments. Therefore, can't we conclude that the jury was not treating the prosecution's 2:36 theory in closing arguments as evidence? Given this, how would Debbie's statement* of seeing Adnan at 2:45 be "devastating to the prosecution" and create reasonable doubt since the jury already does not appear to be relying on the 2:36 theory?

*Given that Debbie already conceded in her police interview that she might have the wrong day, if CG pressed the the issue and if the police statements were introduced, they would show that Debbie already said she was not sure of the day. Perhaps that is why CG did not pursue this as it would be a very weak alibi? Also, would this raise ethical issues for her to pursue the 2:45 alibi when she knows it's false given that Adnan has already told her he was supposedly at the library at 3:00 pm?

Posted by: Nine9fifty50 | Apr 14, 2015 3:29:20 PM

monstimal: Page 4 describes his testimony at the PCR proceeding about being at the library until 3:00. Appellant's Exhibit 3 has the note about Asia and her boyfriend seeing Adnan at the library at 3:00 (note: Asia didn't list a time in her letters, so this had to come from Adnan).

Nine9fifty50: As far as I can tell, Debbie did not testify about seeing Hae on 1/13 at the 1st trial. Did I miss something?

Posted by: Colin Miller | Apr 14, 2015 4:42:29 PM

If the prosecution knew Debbie's testimony could discredit their timeline, why would they ignore it during their opening statements in the second trial if they knew she was going to be called as a witness? Does that not suggest that they knew in advance that she would forget? Or were they just planning to poke holes in her statement?

Posted by: Anonynon | Apr 14, 2015 5:26:27 PM

Anonynon: That's the million dollar question. On December 13, 1999, Debbie testifies that she remembers saying she saw Adnan at the guidance counselor's office at about 2:45. A month and a half later (January 27, 2000), the prosecution feels confident enough to argue a timeline that excludes Debbie despite knowing that Debbie would again testify at trial and be asked about her statement. What happened during those 6 weeks that allowed the prosecution to make that decision?

Posted by: Colin Miller | Apr 14, 2015 5:41:29 PM

During the 2nd trial, Debbie testifed on direct that she saw Hae at 3:00 and Debbie confirmed with CG on cross (at page 69-70, 2/17) and again at p. 133. It seems neither side asked about this during the 1st trial.

However, the fact that the prosecution gets Debbie to testify to seeing Hae at 3:00 during the 2nd trial undercuts the notion that the prosecution was overly concerned with tailoring the evidence to fit a 2:36 timeline (it seems the implication is that the prosecution influenced Debbie to "forget" her 2:45 statement).

During the 2nd trial, when Debbie testifies that she doesn't remember what she told MacG & Ritz during the police interview in terms of the 2:45 issue, I noticed that CG didn't ignore the issue and CG did pursue Debbie's previous statements. CG gets the information in indirectly by asking Debbie point-by-point to confirm her previous statements (see pp 109-115).

I wonder, would explicitly raising the 2:45 time as an alibi raise ethical issues for CG given that Adnan already told her he would have been at the library and thus the alibi was false?

Do we have her closing arguments to see how she handled the 2:45 issue or the 3:00 issue?

Posted by: Nine9fifty50 | Apr 14, 2015 9:35:50 PM

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