EvidenceProf Blog

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

Tuesday, May 5, 2015

An Addendum to the Addendum: Hae's Second Diary & A Possible Due Process Clause Violation

In yesterday's Addendum episode of the Undisclosed Podcast, Susan discussed a very "interesting" statement made by prosecutor Kathleen Murphy in her closing argument at the trial of Adnan Syed for murdering Hae Min Lee. Here's the statement (pages 75-76):

Screen Shot 2015-05-04 at 4.10.39 PM

This statement is interesting because we have Hae's diary...her "print" diary. In it, the last ride that Hae mentions giving to Adnan occurred on December 31, 1998. That's two weeks before January 13th and the day before Hae started dating Don. So, what was the basis for Murphy making this claim?

We know from testimony by Hae's brother Young that Hae had a second "diary" in the form of entries about private matters that she recorded on floppy disks (page 73):

Screen Shot 2015-05-04 at 4.31.11 PM

We also know that a floppy disk was one of several items recovered from Hae's car:

Screen Shot 2015-05-05 at 9.13.58 AM

This disk, however, was lost and never turned over to the defense or introduced into evidence. Before, it was lost, however, was it reviewed by Murphy? Murphy's statement during closing raises three possibilities: (1) Murphy was mistaken about the diary entry; (2) Murphy was lying about the diary entry; or (3) Murphy had read a diary entry on Hae's floppy disk about a ride on January 11th before that disk was lost. 

The best case scenario for the State is that Murphy was merely mistaken, which would have no legal consequences. The question, of course, is whether Murphy could have made such an egregious mistake. Could Murphy really have thought that a diary entry from two weeks before January 13th was actually from two days before January 13th? This would be a pretty significant mistake given that the ride actually took place in a different year (1998, not 1999) and before Hae started dating her new boyfriend.

A worse scenario for the State is that Murphy was simply lying, but I don't think Murphy was lying. After all, Hae's print diary was admitted into evidence, so it would have been easy enough for jurors to realize that it didn't indicate Hae gave Adnan a ride on January 11th. It's also pretty hard for me to believe that Murphy would intentionally lie about something that didn't have any basis in fact, which could lead to a mistrial and/or sanctions.

The worst, and probably most interesting, scenario for the State is that Murphy read the contents of the floppy disk before it was lost. Why? 

There's a classic Supreme Court case regarding the State's loss or destruction of evidence: Arizona v. Youngblood. Youngblood was a child molestation case in which the State failed to preserve semen samples for testing. According to the Supreme Court, however, the Due Process Clause is only violated if there was a bad faith loss, destruction, or failure to preserve potentially exculpatory evidence. This meant that the defendant was not entitled to relief because the semen samples (1) were not lost in bad faith; and (2) were merely potentially exculpatory, i.e., testing of the semen samples could have determined that the defendant was an unlikely source of the semen, or the testing could have determined that the defendant was a likely source of the semen.

In its  subsequent opinion in California v. Trombetta, however, the Court noted that even the good faith loss, destruction, or failure to preserve evidence violates the Due Process Clause if (1) the evidence was apparently exculpatory; and (2) "the defendant would be unable to obtain comparable evidence by other reasonably available means." What does this mean? Let's take a look at a real world hypothetical I give to my Criminal Adjudication students:

Kyle Huggett is charged with second-degree intentional homicide based upon the shooting death of John Peach, the ex-boyfriend of Huggett’s pregnant girlfriend. This killing was preceded by Peach sending several voicemail and text messages to his ex-girlfriend. Peach was screaming on the voicemail messages and all of the messages contained threats to harm Huggett. The sheriff’s office takes possession of the ex-girlfriend’s phone as evidence, and a sheriff listens to the messages. When defense counsel seeks to obtain the messages during discovery, the government learns that the messages have been deleted by the cell phone service provider based on the passage of time. Huggett moves for dismissal of the case with prejudice, claiming that he needed the messages to prove that he acted in self-defense. How should the court rule? See State v. Huggett, 783 N.W.2d 675 (Wis.App. 2010).

The answer is that the court dismissed the case with prejudice (and the appellate court affirmed on appeal). The reason is that the evidence was apparently exculpatory. In other words, this wasn't a case in which the State lacked knowledge of the content of the voicemail messages, which would have made them merely potentially exculpatory. Instead, a sheriff listened to the messages and knew their content, making them apparently exculpatory because their exculpatory value was clear or apparent. Moreover, the court found that Huggett could not obtain comparable evidence because the messages had been deleted. Therefore, the case had to be dismissed even though the messages were "lost" in good faith.

Let's now turn to Adnan's case. Obviously, the floppy disk from Hae's car was lost, and there was no evidence of a January 11th ride in Hae's print diary, so Adnan could not get comparable evidence. This leaves the question of whether the floppy disk diary was apparently exculpatory. If Murphy did in fact get the information about the January 11th ride from the floppy disk, I would say that we already know from her statement during closing argument that the floppy disk was apparently exculpatory. To wit, I can immediately think of three ways in which Adnan's trial attorney could have used evidence about a January 11th ride:

1. Physical evidence from Adnan, including his fingerprints, was found in Hae's car. If Hae gave Adnan a ride on January 11th, that provides a much better explanation for this physical evidence than a last (recorded) ride on December 31st.

2. We know that several witnesses in the case could have had the wrong day, with some witnesses (such as Debbie) even acknowledging that they could have had the wrong day. The defense could have used a January 11th ride to create doubt about whether witnesses testifying about Adnan's ride request had the wrong day.

3. The State's whole theory of the case was that Adnan lied to Hae to get a ride. If the last record of Hae giving Adnan a ride was on December 31st, before she started dating Don, this makes a good deal of sense. But, if Hae willingly gave a ride to Adnan two days before January 13th, why would Adnan need to lie to get a ride a mere two days later?

Of course, there could have been other helpful things on the floppy disk. Assume, for instance, that the January 11th entry mentioned that the ride to Adnan was a "ride home" so that Adnan could change for track practice. This would provide an "innocent" explanation for the January 13th ride request that was otherwise lacking. 

At this point, I'm delving into speculation, but...that's the point. If Murphy's closing statement was based upon Hae's floppy disk diary, we know that the disk had apparently exculpatory information, and we can only speculate about what else it contained. That's why even the good faith loss or destruction of such evidence is a Due Process Clause violation that should lead to dismissal or at least an adverse inference instruction (telling jurors that they can assume any information on the lost floppy disk would have been helpful to Adnan).

Simply put, this is a serious issue and one that I think Murphy should have to answer. If Murphy's response is that she was simply mistaken when she made her statement during closing...fair enough. You have to take her at her word and assume that this was an honest mistake. But if Murphy does recall reading a diary entry about Hae giving Adnan a ride on January 11th, and such an entry was never disclosed to the defense, there's a pretty strong argument that there was a Due Process Clause violation.

[Update: A few people have questioned whether Murphy in fact said that the January 11th ride was in Hae's diary. Let's assume that those people are correct and that Murphy was relying upon some source of information other than Hae's diary/diaries to make the claim about the January 11th ride. That's actually worse for the State. If Murphy was referencing Hae's diary, then you could at least imagine her relying on the print diary and getting the date wrong. Conversely, if Murphy wasn't relying on Hae's diary/diaries, there has to be some other source of information for the January 11th ride such as a letter or e-mail written by Hae that was never disclosed to the defense. In that case, there would definitely be a Due Process Clause violation].

[Update #2: As a commenter noted below, Debbie actually read the diary entry about Hae giving Adnan a ride on December 31, 1998. It was a diary entry from January 2, 1999 referencing a ride that Hae gave to Adnan on New Year's Eve. As with so many things in this case, we now have several different explanations for Murphy's statement during closing that Hae had given Adnan "a ride just two days prior."

1. Murphy meant that Hae had given Adnan "a ride just two days prior" to her January 2nd diary entry.

2. Murphy meant to say that Hae had given Adnan "a ride just two weeks prior" to January 13, 1999 and simply said days instead of weeks.

3. Murphy was lying.

4. Murphy was confused and thought that the ride of December 31st was a ride given two days prior to January 13, 1999.

5. Murphy's statement was accurate and was based upon a second diary or some other source of information that was not disclosed to the defense.

Option 1 doesn't make much sense to me. Why would it be important that Hae gave Adnan a ride just two days before her January 2nd diary entry, even if that were the last entry when she mentioned Adnan? In fact, wouldn't that be the point...that Hae's last ride to Adnan was before she had moved on and started dating Don?

Option 2 also doesn't make much sense to me. I don't see Murphy constructing a sentence where she says that Hae gave Adnan a ride just two weeks prior. That seems pretty meaningless to me. What does a ride that (1) took place over winter break; (2) in 1998; (3) before Hae was dating Don tell us about the events of January 13th?

I already stated in my initial post why I don't think Option 3 makes any sense.

That leaves us with Option 4 and Option 5Option 4 is an honest but serious mistake. In this option, Murphy somehow gets it in her head that the ride on December 31st was a mere two days before January 13th and makes a very misleading statement to the jury. As I said in my initial post, I would accept an admission that this was a mistake and move on. Such a mistake wouldn't be actionable at all.

Option 5 means that there was very likely a Due Process Clause violation for the reasons discussed in this post.].



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Was this the first time this "fact" was introduced?

Can the prosecution do that?

Did CG err by not objecting to the inclusion of a "fact" that was not in evidence ?

Legally, if you are the defense and the prosecution does something like this, what is the process for being able to go and check the diary to see if this is in the diary? Can you ask for a recess ? Can you include in your appeal?

Also - small typo December 31, 1998 not 1999

Posted by: JoeJim | May 5, 2015 8:18:32 AM

"It's in her diary." the paragraph is about how much Hae cared for Adnan. it lists examples of how we know. One reason we know is that it's in her diary. Why are yall implying she mentioned the ride in her diary? That's clearly not what Murphy was saying.

Posted by: theghostoftomlandry | May 5, 2015 8:24:57 AM

Also, why not mention the ride two weeks earlier in her diary in the podcast?

Posted by: theghostoftomlandry | May 5, 2015 8:42:08 AM

JoeJim: It was the first time this “fact” was introduces, as far as I can tell. CG did err by not objecting. CG could have objected/moved to strike the statement and asked for a sidebar to show the judge that there was no reference to a January 11th ride in the diary admitted as an exhibit.

theghostoftomlandry: Murphy said, “She’d given him a ride two days prior. It’s in her diary.” It seems pretty clear to me that Murphy is saying that the January 11th ride was in Hae’s diary.

Posted by: Colin Miller | May 5, 2015 9:28:43 AM

theghostoftomlandry: I respect the way you interact here. But cmon, you can't expect us to take your assertion seriously. It's abundantly clear she was referring to a ride two days prior.

Posted by: Paul Jacobs | May 5, 2015 9:40:12 AM

Does anyone even understand what ghostoftomlandry is trying to say?

His rationalizations are getting more bizarre. Its says, "she'd given him a ride two days prior" in quotes from Ms. Murphy, for crying out loud.

How in the world is he trying to spin that sentence? Maybe the stenographer forgot a comma, and what she really said was, "she'd given him a ride two days.....comma....prior"...and then she loses her train of thought and then starts talking about her diary??

Posted by: hoovill | May 5, 2015 10:29:46 AM

Call it mother's intuition... Murphy read the disk. Perhaps there were other things on it that they did not want known by the defense.

Posted by: navymom | May 5, 2015 10:52:52 AM

I am with theghostoftomlandry on this one- It sounds like Ms. Murphy is saying something like- Hae cared for Adnan and this is evident from her giving him a ride and things she wrote in her diary. It seems like the context and clarity is lost a but in transcription.

Posted by: Guest | May 5, 2015 11:00:28 AM

Guest: Let's say that's true. Assuming that Murphy wasn't simply mistaken, she must have gotten the information about the January 11th ride from something or someone, and there's no indication that the source of information was turned over to the defense. So, let's say, for instance, that the prosecution got the information from an e-mail or letter Hae had written. There's still the same issue because the evidence, whatever it was, was never turned over to the defense.

Posted by: Colin Miller | May 5, 2015 11:10:06 AM

When I read the transcript, I understand it as Murphy painting how much Hae cared for Adnan. Where the "ride two days earlier" statement comes from I don't know. Can't believe she just pulled it out of her butt. Only she'll know where that came from at this point.

Posted by: Tom(my) | May 5, 2015 11:27:54 AM

"We also know that a floppy disk was one of several items recovered from Hae's car" -- how do we know this? Why not cite the specific source document? Was the document listing “floppy disks” disclosed to the defense? When? Did the defense ask for the floppy disk? If not, would the prosecution be required to voluntarily turn it over without a request when they never sought to introduce it into evidence? Do we know for certain that CG didn’t ask about the disk, even if only verbally, or is this simply based on not finding it in the case file you were given? Did you ask CG's former associates / law clerks? Do we know for certain that the prosecution never explained (maybe verbally) what they found on that disk (likely answer: irrelevant schoolwork)? These are really basic things about trial procedure regarding evidence that I assume are in your wheelhouse as a professor – it’s incredibly surprising to me that you don’t address (or even mention!) them, especially when you’re implying that all the lawyers involved maybe acted in bad faith and/or committed ethics violations and/or were totally incompetent.

Posted by: johan | May 5, 2015 11:30:58 AM

Jordan: We know a floppy disk was recovered from Hae's car. Susan referenced this in the podcast, and I posted a portion of the list of items recovered from Hae's car: the floppy disk was item #13. Under Brady, the State had a duty to disclose material exculpatory evidence regardless of whether there was a request by defense counsel. Also, I'm not alleging bad faith by the State. Indeed, that's the point of my post: Even if the floppy disk were lost in good faith, there was a Due Process Clause violation if the State knew the contents of the disk.

Posted by: Colin Miller | May 5, 2015 11:34:47 AM

Now I’m even more confused. Are you simply assuming the disk had material exculpatory evidence on it? And that this disk was suppressed by police/prosecution because it had material exculpatory evidence on it, but Murphy accidentally cited it in her closing as having non-exculpatory evidence proving Adnan’s guilt? Sounds a little, uh, convoluted and unlikely, to say the least. Isn’t it more likely that the disk had irrelevant schoolwork on it? And Murphy misspoke or was mistaken?

Posted by: johan | May 5, 2015 12:02:36 PM

johan: I'm not claiming suppression or any bad faith by the State. I'm noting that Murphy referenced a ride that Hae gave to Adnan on Janaury 11, 1999. Assuming that this wasn't an intentional lie (and as I've said, I don't think this was a lie), then Murphy either (1) misspoke; or (2) had some source for her information, whether it be a floppy disk diary or something else, that was not disclosed to the defense.

As I said, I would accept an explanation that Murphy simply misspoke. But, if she did have a source of information for her statement that was never disclosed, there's a good argument for a Due Process Clause violation, even if the source of information was lost/destroyed in good faith.

Posted by: Colin Miller | May 5, 2015 12:07:35 PM

Also, the ride on New Years Eve when there was presumably no school seems substantively different than a quick ride after school. So it seems unlikely that the prosecutor would have merely misspoke in saying days instead of weeks since the NYE ride isn't really evidence of Hae giving ride when busy after school.

Posted by: Matt | May 5, 2015 1:28:02 PM

This really seems like she misspoke. Substituting "days" for "weeks" is not confusing particular types of rides. It's just a word-recall error. I just accidentally mixed up my kids' names again. I know who's who.

Posted by: Sophie | May 5, 2015 3:27:17 PM

I can't speak about 16 years ago, but today, in IT forensics, it's normal to create an image of a disk/flashdrive/harddisk and then examine that image instead of the original data carrier.
Maybe that kind of image is lying around somewhere waiting for examination. Admissibility in court is of course a different question.

Posted by: Cobinja | May 5, 2015 3:42:45 PM

theghostoftomlandry - with all due respect, you no longer sound like you can convince yourself of your train of thought.

Posted by: Di Jones | May 5, 2015 4:35:40 PM

Point wasn't that she was confusing different types of rides, but rather that because the rides were so different she wouldn't have used a NYE ride in the argument that Hae would drive Adnan after school.

Posted by: Matt | May 5, 2015 4:57:25 PM

Maybe Hae gave Adnan a ride to the shop to pick up his car on January 11.

Posted by: kd | May 5, 2015 5:51:35 PM

This point really seems like it's grasping at straws. The most likely scenario is Murphy misspoke and said days instead of weeks. I agree that the sentence about "it is in her diary" can be interpreted as either way given context. Then because the brother testifies entries were written on a floppy drive, we jump to the conclusion that the ride was from an entry on the floppy diary!?

On a whole, I've got to say, after serial, I was convinced Adnan was innocent. After the first two episodes of undisclosed, I'm more towards the middle.

Posted by: curious | May 5, 2015 7:21:08 PM

This is a silly post - Murphy is obviously refering back to the diary entries that were presented during the trial & merely misspoke -- the diary was read into evidence during Debbie's direct -
From trial transcripts Feb 16, 2000 at pg. 303 - 310: Murphy has Debbie read diary entries from the following days:
1) May 14 & 15, 1998: Hae describes the beak up; religious issues; possessivness

2) Jan 2, 1999: Hae describes that on Thurs, December 31, she picked up Adnan and gave him a ride to Sears so he could pick up his car. Hae writes how she was going to wait for Adnan but instead decided to go to Owings Mall because she was drawn to see Don; she goes on to describe flirting and having their first date.

3) Jan 6, 1999: Hae mentions going to a movie with Don

4) Jan 12, 1999 (day before murder): Hae writes about being in love with Don, Don being her soulmate, etc.

During closing, we can see that Murphy is clearly refering to the sections of Hae's diary which were read into evidence:

Murphy is specifically referring back to the ride Hae had given Adnan on Dec 31 because of its signifcance - Hae had given Adnan a ride to pick up his car from the shop at Sears (as described in her diary on Jan 2, 99) - Murphy reminds the jury that Adnan had asked for a ride to the shop on the day of the murder; this time it was merely to get her alone:

For example, at pages 56-57: "He told her he needed a ride. He said his car was in the shop and he needed a ride. . . He told her his car was in the shop to get her in her own car. . ." At page 72: "Well, we know that was was a deception, something he fabricated. It was a pretext to get into her car because he gave his car to Jay Wilds."

Further, at page 74 of the closing, Murphy refers back to the Jan 12th diary entry which was read into evidence by Debbie. Murphy quotes Hae writing about being in love with Don and Don being her soulmate to make the point that when Adnan was calling that night before the murder, Hae had spent the night with Don and was in love with Don.

Posted by: Nine9fifty50 | May 5, 2015 9:52:52 PM

If she had meant to say two weeks instead of two days, she would not have added the word "just".

That would have been a silly way to say it, "she had given him a ride just two weeks earlier...."

Two weeks is too long to say just. A lot can occur in two weeks. If she wanted to reference two weeks ago, why not also reference one month ago.

ghostoftomlandry knows this.

Posted by: hoovill | May 5, 2015 9:56:11 PM

Yes - the floppy disk/2nd diary notion is a false lead.
Here is my reasoning:
Look at trial transcripts 2/17 at page 136 - 137 for Debbie's redirect by Murphy:

>Murphy asks Debbie to review all the diary entries from Dec 29th to Hae's last entry on Jan 12.
>Debbie confirms that Adnan is mentioned only once in Hae's diary during this period, in the Jan 2nd diary entry:
"Q: Can you please read, and I'll refer to you January 2nd, 1999, the only entry that mentions Adnan Syed?
[Debbie reads Hae's entry about giving Adnan a ride two days prior, on Dec 31]
Q: Thank you Ms. Warren. Now, would that be like Hae to do a favor for Adnan like that?
A: Yes
Q: Even though they were broken up?
A: Yes
Q: Because they were still friends?
A: Correct
Q: And the entry indicates that the very next thing she did was meet [Don]?
A: Correct."

First, the fact that Murphy specifically makes the point that Adnan is only mentioned one time in Hae's diary from Dec 29 to the date of the murder (in Hae's entry on Jan 2nd) undermines the notion that Murphy is referencing some undisclosd diary or other source.

Further, Murphy's "just 2 day prior" statement in closing seems to be referring back to Hae's diary entry on Jan 2nd. Murphy is not saying Hae gave Adnan a ride 2 days prior to the actual day of the murder - Murphy is saying there is proof that Hae had previously given Adnan a ride to pick up his car from the shop -specifically 2 days prior to Hae's Jan 2nd diary entry (i.e., Dec 31st) which had been read into evidence ("It's in her diary.").

Murphy is making the point (although poorly worded) that based on the Jan 2nd diary entry and Debbie's testimony about Hae not having a problem doing a favor for Adnan if he asked, there is reason to believe Adnan would have known that Hae would be willing to give him a ride on the 13th as a favor even if she were busy after school.

Posted by: Nine9fifty50 | May 5, 2015 11:33:36 PM

There are a couple of aspects that make the Dec 31st date significant and this is what Murphy is highlighting for the jury:
1) The Dec 31st ride is significant because Hae is giving Adnan a ride to pick up his car FROM THE SHOP.

2) The Dec 31st date is also significant because on the very same day that Hae gave Adnan the ride (Dec 31), Hae chose to go to the mall to see Don over waiting for Adnan and Hae and Don flirt and arrange to go on their first date; The next day (Jan 1), Hae has her first date with Don.

Point # 1 was used by Murphy to argue that Adnan knew he could ask Hae for a ride to pick up his car from the shop on the day of the murder; from the diary (referring to the Dec 31 ride) we know that he already had done so. The fact that he asked for a ride to the shop on the day of the murder, when his car was not in the shop, is pointed to by Murphy several times during her closing argument as evidence of Adnan's intent & premeditation. This only makes sense if she is referring to the Dec 31 ride to the shop.

Point # 2 was that as of Dec 31, we know from the diary that Hae was over Adnan and was only interested in Don; On the 31st, Hae chose to see Don over waiting for Adnan on the 31st and they agree to have a first date. Murphy makes the point that Adnan is no longer even mentioned in Hae's diary after the ride on the 31st; the remaining entries up to the night before her death are only about Don.

So, in the context of the Murphy's full closing argument, we can tell that she's talking about the Dec 31st ride described in Hae's Jan 2nd diary entry.

Posted by: Nine9fifty50 | May 6, 2015 1:13:33 PM

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