Tuesday, May 12, 2015
Jay's Day: The Possible Legal Implications
Today was the premiere of Episode 3 of the Undisclosed Podcast: Jay's Day. In the episode, we discussed the possibility that significant portions of Jay's police statements were coached, meaning that the detectives taking the statements knew that those portions were false and part of their narrative rather than Jay's narrative. Is there enough evidence at this point to prove this possibility? I don't know, and I don't know that the possibility needs to be proven. It's still quite possible that the Court of Special Appeals of Maryland will remand Adnan's case to the Circuit Court so that Asia McClain can testify, which could result in a new trial. But let's assume that the Court of Special Appeals doesn't remand. That's quite possible as well.
In that event, Adnan could file a motion to reopen pursuant to Section 7-104 of the Maryland Code of Criminal Procedure, which states that
The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.
One ground for such a motion to reopen would be Asia's second affidavit, which raises the possibility of prosecutorial misconduct. Another ground for such a motion to reopen would be the evidence that Susan Simpson has uncovered, which raises the possibility of police misconduct. I wrote about this in an entry I posted last December after Jay's Intercept Interview. The key Maryland case on this issue is Gray v. State, 879 A.2d 1064 (Md. 2005). In Gray, the Court of Appeals of Maryland found that a motion to reopen was properly denied despite a witness admitting to perjuring herself because, inter alia, "there is no indication that the officer who obtained [her] testimony believed it to be false or that the State knowingly used false testimony at trial."
What this implies is that, if Adnan could present evidence indicating that the detectives who took Jay's statements knew them to be false, it would be grounds for reopening the postconviction proceeding and possibly a new trial.
-CM
https://lawprofessors.typepad.com/evidenceprof/2015/05/jays-day-the-possible-legal-implications.html
Comments
It was very confusing because y'all didnt always say which interview (Jays 1st and Jays 2nd) clips were being played from which made it hard to follow. Also, why have we had an Episode of Adnan's Day and an Episode of Jays day with no talk of their time together that morning?
Posted by: ghostoftomlandry | May 12, 2015 1:14:44 PM
I hope someone gets Mosby to listen to this episode. You guys uncovered a bombshell. Hoping this gets some results for Adnan. Great work!
Posted by: thanksformutton | May 12, 2015 1:14:54 PM
Tom, because their time together that morning isn't relevant to her murder. She was alive that morning and not even Adnan denies seeing Jay that morning. It adds no weight to either side of the case, only that yes Adnan lent Jay his car. No one has disputed that.
Posted by: Laura Davis | May 12, 2015 1:26:52 PM
I am not a lawyer; but it seems to me that there was already a lot of evidence in the trial that the State's timeline was wrong. Does that mean that Ms. McClain's alibi testimony is not enough to overturn the original decision.
Posted by: RC | May 12, 2015 1:42:54 PM
Laura: But they spent time today talking about what Jay did at Jenn's that morning, whether or not they were at Cathy's that day, what time Jay went to Stephanie's etc etc. How are those more relevant to the murder than the two people accused and convicted of carrying out the murder and then the burial hanging out less than two hours before the murder?
Posted by: ghostoftomlandry | May 12, 2015 1:51:21 PM
Sassy: I don’t think anything would happen to Jay if he said that he was coached. I supposed that he could be charged with perjury, but I can’t imagine that would be done given that it would include a claim of State wrongdoing. I have to imagine that the police thought Adnan did it, but who knows.
ghostoftomlandry: If we had anything to report about the morning, we’d do so. We simply haven’t found anything beyond what was reported on Serial.
RC: My view is that the evidence of the State’s flawed timeline shows the weakness of the case against Adnan, making it easier to prove prejudice. Beyond that, Becky testified at trial that she saw Hae leaving school in a hurry right after the end of school, and Inez also testified to seeing Hae leaving school in a hurry between 2:15 and 2:20 P.M. The claim about the 2:36 Best Buy call during closing certainly makes Asia’s alibi important, but the testimony by Becky and Inez makes Asia seeing Adnan until 2:40 compelling.
Posted by: Colin Miller | May 12, 2015 1:51:25 PM
Laura: But they spent time today talking about what Jay did at Jenn's that morning, whether or not they were at Cathy's that day, what time Jay went to Stephanie's etc etc. How are those more relevant to the murder than the two people accused and convicted of carrying out the murder and then the burial hanging out less than two hours before the murder?
Posted by: ghostoftomlandry | May 12, 2015 1:51:44 PM
was jay's lawyer present at the interviews with the tapping?
Posted by: briply | May 12, 2015 2:19:20 PM
briply: Jay didn't have an attorney at the time of the police interviews.
Posted by: Colin Miller | May 12, 2015 2:25:39 PM
"ghostoftomlandry: If we had anything to report about the morning, we’d do so. We simply haven’t found anything beyond what was reported on Serial."
There have been several spots where someone on the podcast has said something like "let me remind you (enter so and so here)" and then proceed to retell something from Serial. Surely a little mention would be the above board ethical thing to do here? The fact is that the the two people accused and convicted of carrying out the murder and then the burial are hanging out less than two hours before the murder and that gets zero mention when recounting the day?
Posted by: ghostoftomlandry | May 12, 2015 2:32:17 PM
ghostoftomlandry: We use Serial as a launching pad for our new discoveries. With the morning stuff, we have nothing to add. If we find anything, we'll report it.
Posted by: Colin Miller | May 12, 2015 2:44:22 PM
Thanks for the answer. I was also referring to the fact that as you pointed out in this podcast that Jay's time of the "come and get me" call clashes with the State's timeline. There are also two witnesses for this.
Also, if I understand your post, it will be much more difficult to prove that Jay was coached than to get the conviction overturned on Ms McClain's testimony. Is that your thought also?
Posted by: RC | May 12, 2015 2:49:02 PM
RC: Right. Jay and Jenn contradict the timing of the Best Buy call argued by the State during closing. I would argue, pursuant to In re Parris W., that this makes Adnan's case easier.
Also, you are right. I think Asia's testimony is a much clearer path to a "new trial."
Posted by: Colin Miller | May 12, 2015 3:56:46 PM
Ghost: They covered that time period in episode 1, as part of Adnan's day. Because Adnan was also there. Why cover the same ground again? Especially since there's no disagreement over that part of the day from anyone.
Posted by: Paul | May 12, 2015 5:58:48 PM
Ghost: Who's agenda are you concerned is being furthered by the omission? I'm confused as to who you think might potentially benefit.
Or are you instead simply raising it as a poor decision for the overall storytellinh/narrative arc of the episode?
Posted by: Paul | May 12, 2015 6:16:20 PM
Did I miss something? Why didn't the podcast discuss the call from leakin park??
Posted by: curious | May 13, 2015 3:29:18 AM
curious: We're going to have a whole episode of the cell phone/tower data.
Posted by: Colin Miller | May 13, 2015 5:02:04 AM
Professor, if you attempt to try to prove that Jay's testimony was the result of some kind of police misconduct, how will you do that? What concrete evidence is there? Short of Jay recanting his testimony and claiming that the police made him, threatened him, etc, etc.,. are there any other ways to prove that his entire testimony was a pack of lies at the behest of the police? Is it okay for a witness to be prepared, but not coached? Aren't all witnesses more or less coached? Jay recanting seems extremely unlikely, and even if he did recant, would that guarantee Adnan a new trial or any other types of relief? Plus wouldn't the state then move on to testing the DNA?
Posted by: Badger | May 13, 2015 6:37:30 AM
"But they spent time today talking about what Jay did at Jenn's that morning, whether or not they were at Cathy's that day, what time Jay went to Stephanie's etc etc. How are those more relevant to the murder than the two people accused and convicted of carrying out the murder and then the burial hanging out less than two hours before the murder?"
Because those things are relevant to the murder. They are completely relevant to the timeline and lining Jay's story up as fact or fiction. Cathy, Jay and Jenn's timeline are relevant to challenging murder times, burial times, etc. If Adnan and Jay both agree they were hanging out that morning, then it's undisputed. They aren't going to have a whole segment on the fact that they hung out just to say they hung out. They have nothing to add to that, as Colin said. However, when discussing these other things, they had plenty to add and question.
Posted by: Laura Davis | May 13, 2015 7:03:49 AM
One thing (among others) about this episode that jumped out at me (as an avid watcher of TV courtroom dramas, haha) was the recordings from the actual trial - I didn't catch whether, but assumed that, the lawyer speaking was Adnan's attorney? In any case, in every snippet, she was totally leading/feeding testimony to Jay, in essence, testifying herself and just getting him to agree with every statement she made. How was that not objected to?? It wouldn't fly in, for instance, The Good Wife - and I have to think those shows are written with *some* nod to courtroom reality and the rules of eliciting testimony...
Posted by: gkkk04 | May 13, 2015 7:59:56 AM
Do you have all of the audio? Can your sound person also tell when the tapes are paused or completely stopped and started over. I seem to hear this sometimes and it wasn't brought out in this episode. Also, did CG have access to the complete audio of the interviews by way of discovery?
Posted by: lavoix | May 13, 2015 8:10:42 AM
In the one clip it sounds as though Jay is saying that he saw Adnan in gray gloves. It's hard to tell with the audio quality and he got interrupted by the cops. If so, when did the gloves become red? i.e. in which interview? I always thought that the "red glove story" was an attempt by the cops to tie Adnan to the crime via physical evidence, as there were red fibers found with her body. Susan suggested though that the cops tried to steer him away from the glove story. Why would they do that if they are trying to tie him to the crime?
Posted by: lavoix | May 13, 2015 8:18:00 AM
@gkkk04
Leading the witness is only objectable on direct examination. It is perfectly allowable to lead the witness on indirect examination unless it becomes a narrative.
@Colin
Ok. I look forward to that episode, although it seems like the phone call/leaking park should absolutely be a part of "Jay's Day". Other phone calls and cell phone towers were mentioned in this podcast.
Posted by: Curious | May 13, 2015 11:06:14 AM
Curious: There's a lot of technical ground that needs to be covered with the cell phone/tower evidence.
Posted by: Colin Miller | May 13, 2015 11:11:11 AM
Are there any legal implications on Jay's behalf, if he were to come out now and retract his entire statement and say he was coerced? Not sure if he can even be believable in any way at this point. I'm also not sure whether the entire substance of his statement was made up by the police, or whether there was some backbone that came from Jay initially that they used to fit their narrative into.
Also curious about the police motive. Was it simply to get the case off the books? Did they really think Adnan did it and if so, why did they think that (aside from being the ex and Muslim)? I still can't wrap my head around the fact that other suspects were dismissed with only a cursory investigation. Although now it makes much more sense why they didn't look more closely just at Jay....
Posted by: Sassy | May 12, 2015 1:05:08 PM