EvidenceProf Blog

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

Tuesday, June 23, 2015

The 5 Missing Witness Statements & The Possibility of a New Trial for Adnan

In yesterday's episode of the Undisclosed Podcast, we revealed that the police "lost" the notes from interviews with 5 out of the first 8 witnesses they interviewed after Adnan was arrested: "Ann," Debbie, Aisha, Jeff J., and Patrice. So, let's assume that these witnesses are contacted now and are able to recall the substance of what they told police. Where would that leave Adnan?

The classic case on the State's Constitutional obligation to turn over evidence to the defense actually originated in Maryland. In that case, Brady v. Maryland, the defendant and a co-conspirator were participants in the murder of a victim. At the defendant's trial, he admitted to his involvement but claimed that his co-conspirator committed the actual act of murder. After the defendant was convicted and sentenced, he appealed, claiming that the State failed to disclose a statement made by his co-conspirator in which the co-conspirator admitted to committing the actual act of murder. The Supreme Court agreed with the defendant and granted him a new sentencing hearing.

According to Brady, the State violates the Due Process Clause by failing to timely disclose to the defense material exculpatory evidence. Evidence is "material" when it creates a reasonable probability of a different outcome. Because the co-conspirator's statement created the reasonable probability of a different outcome at sentencing, the defendant was entitled to a new sentencing hearing. If the co-conspirator had said that the defendant had no involvement in the crime, the defendant would have been entitled to a new trial.

In Brady, the Court dealt with substantive evidence, meaning that the substance of the evidence was directly relevant to the defendant's trial. Obviously, the fact that the co-conspirator was the one who ostensibly killed the victim had a direct bearing on the punishment the defendant should have received.

In its subsequent opinion in Giglio v. United States, the Court noted that Brady also covers material impeachment evidence. Impeachment evidence doesn't have direct bearing on a defendant's trial; instead, it is evidence that calls into question the credibility of a witness. Typically, Giglio is invoked when the prosecution fails to disclose a statement or evidence that tends to show a key witness for the prosecution is biased or that his accounting of events is contradicted.

In Adnan's case, we have at least 5 witnesses whose statements were not turned over to the defense. For at least a few of them, we have an inkling of what they might have said. According to Krista, Aisha easily could have told the cops that she saw Hae turn Adnan down for a ride. "Ann" was in the same A.P. Psychology class in which Hae supposedly turned Adnan down for a ride. We know that Debbie made various statements that could have provided Adnan with an alibi and/or called into question whether Hae would have given Adnan a ride. Jay claimed that he talked to Patrice on the afternoon of January 13th. What did she have to say about the conversation? Jeff J. was Cathy's boyfriend. Did he contradict the story that Jay and Adnan went to Cathy's place on January 13th.

Maybe none of these witnesses had anything meaningful to say in their interviews. Maybe what they said helped Adnan a bit but was not "material." Or maybe what one or more of these witnesses said was indeed "material." In this latter case, Adnan could file a motion to reopen his postconviction proceeding and possibly receive a new trial. See, e.g., Booth v. State, 696 A.2d 440 (Md. 1997).



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Thanks for clearing this up. I've been wondering if there's another "Asia" out there, meaning someone who is now willing to come forward with information. Curious whether anyone related to the defense has been in touch with any of these witnesses, or others who changed their stories in order to clarify how key details changed over time. I just can't believe how far the police and prosecution went to hide evidence from the defense in this case, and how passive CG seemed to be about gaining some of this info. This whole case makes me profoundly sad. I've known the justice system is flawed, but this is absolutely unconscionable. It seems more basis for appeals for Adnan keep popping up. Would the post-indictment grand jury activity ever factor in?

Also wondering if you are convinced the DEA had no activity in this case other than the covert subpoenas? I'm still skeptical of their involvement and covering for someone.

Posted by: Sassy | Jun 23, 2015 7:30:27 AM

"Jay claimed that he talked to Patrice on the afternoon of January 13th. What did she have to say about the conversation?"

Sorry who was Patrice?

Posted by: Seamus Duncan | Jun 23, 2015 8:26:21 AM

The police only have to preserve evidence that would have been exculpatory or otherwise unavailable to the defendant. So what in this case would indicate that these witnesses were not available to Adnan and his attorney? Wouldn't this just go to the IAC claims?

Did CG have her PI interview any of these witnesses, and if so do we have their notes?

Posted by: lawd00der | Jun 23, 2015 8:35:36 AM

Going with your starting assumption, how would you be able to prove that the substance of what they recall is the same as what they told police 15 years ago? Assuming one of them does remember saying something potentially exculpatory or relevant for impeachment purposes, with no record of their interviews or statements at the time and with the police most likely countering with "I don't recall what was said, but I wouldn't suppress this type of information" do you think there's a real foundation for a Brady violation there? I think the legal standard for proving Brady violations is quite high, and I don't see 15 year old memories, assuming those memories are even material, with no record to compare would overcome it for a court. Maybe there's precedent or nuance I'm missing though. It just seems like it would be a very tough argument indeed, even with the generous assumption that the witnesses have memories specific and intact enough to offer anything of importance.


Posted by: OhDatsClever | Jun 23, 2015 9:04:58 AM

I love how lazily you guys are "fighting" for Adnan.

You say right here in your post what you need- Anne or Jeff to say something; ANYTHING.

Literally, if it doesn't involve using a computer at home you guys won't do it.

If CG was the pit bull on the pant leg YOU are the basset hound.

Posted by: MildManneredObserver | Jun 23, 2015 9:11:56 AM

Don't yall have the ability and resources to contact and interview these people?

Posted by: Theghostoftomlandry | Jun 23, 2015 9:22:36 AM

I haven't finished listening to this episode yet, but I'm already struck by two important things: Not only does it seem clearer and clearer with every revelation that the police and prosecutors totally railroaded Adnan (especially with Rabia's reading of the memo about Muslims, Pakistanis, and the "meaning of honor killings" (paraphrase) ), but, secondly, especially given recent events in Baltimore, I have to wonder how many more Adnans (young men of color and/or Muslim faith and/or of "foreign" descent) are wasting away in Maryland's prisons, having been treated in just the same way (whether they actually did a crime or not).

Posted by: Gurukarm | Jun 23, 2015 9:46:51 AM

Are these possible witness statements missing from the police files - or just not handed over to Adnan? Is there a way of forcing the police to check whether or not they still have these statements but failed to hand them over?

Posted by: Cupcake | Jun 23, 2015 10:24:17 AM

This makes me Wonder why didn't Gutierrez didn't go to the judge presiding the case about not getting all of the witness's statements? The judge would have forced the prosecution and the police to give them the missing statements. The same thing applies to them crime scene photos that the prosecution refused to give copies to.

Posted by: Jim M. | Jun 23, 2015 10:25:16 AM

Has anyone reached out to this “Mr. A” to determine whether he is willing to come forward and reiterate the details, as he remembers them, from his police report? Is he still alive? If so, has the Undisclosed team or Adnan’s attorney reached out to him for more information?
Do you think it’s possible that Mr. A could have mistaken Adnan for a black male? Only pics I’ve seen of Adnan are from 1999/2000 and while I have a hard time believing he could be mistaken for a black male, it could be possible if he was wearing a sweatshirt or jacket that might have concealed or shadowed his face, particularly if this was at nighttime.
Same question for any of these other five witnesses. I’d think Adnan’s attorney is doing his due diligence and reaching out to these people because they’re testimony/interview could potentially help or hinder Adnan.
On a related note, is it possible that Hae’s body was buried a day or two after she was reported missing on the 13th? I ask because if she had to have been face down for at least 8-12 hours to allow full frontal lividity, I wonder if she may have been kept somewhere until the 14th or 15th before she was buried in Leakin Park. Or would broken rigor debunk that if she was found on her side in a fetal-esque position? If you already covered this in a previous episode or blog post, I apologize.

Posted by: Jake | Jun 23, 2015 10:58:12 AM

Seamus: Patrice is Patrick’s sister.

Lawd00der and Jim M.: I don’t even know whether defense counsel was even aware of some of these witnesses. The document linked on the podcast website is from the State’s files, not the defense files.

OhDatsClever: There are plenty of cases in which courts have found Brady violations based on witnesses saying, “I told the police X.”

Sassy, MildManneredObserver, Theghostoftomlandry, and Jake: Adnan’s legal team is reaching out to a number of people referenced on various episodes of our podcast. When a witness has possible legal relevance to the case, it makes sense for his legal team to contact them and to not have them make a statement on the podcast.

Gurukarm: Unfortunately, I think the number is higher than most people think.

Cupcake: We have the Maryland Public Information Act (MPIA) file obtained by Adnan’s attorney. If there’s another statement floating around, there is not really another avenue for us to obtain it.

Posted by: Colin Miller | Jun 23, 2015 12:09:40 PM

Is there any reason to believe Patrice is relevant to the case?

Posted by: Seamus Duncan | Jun 23, 2015 12:44:44 PM

Seamus: Jay says

https://viewfromll2.files.wordpress.com/2014/11/jay-interview-2-3-15-99.pdf (pg. 16)

that he called Patrick to see about getting weed and ended up talking with his sister for around 4 minutes. That's presumably the 3:59 call, although Adnan's call log says the call only lasted 25 seconds. The "Patrick" call seems pretty important given its timing, which is likely why the police talked to Patrice. I have no idea what she told them.

Posted by: Colin Miller | Jun 23, 2015 12:50:52 PM

OMG. YES, Seamus!

Jay says he called Patrick looking for weed and talked to Patrice. If her statement says she doesn't remember that, it's yet another thing the impeaches Jay and the states timeline.

Posted by: Dragga | Jun 23, 2015 12:58:43 PM

Dragga: Right. Presumably, Patrice tells the police: (1) I don't remember January 13th; (2) I didn't talk to Jay on January 13th; (3) I talked to Jay on January 13th and he was looking for my brother and/or weed; or (4) I talked to Jay on January 13th and [other explanation].

What she said could have been a dead end or hugely helpful to Adnan.

Posted by: Colin Miller | Jun 23, 2015 1:01:29 PM

What she said could have provided much needed corroboration of Jay and the State's story. That her results of her statement were never disclosed are of interest because if she HAD corroborated Jay's statements, it most likely would have been used by the police and prosecution.

Posted by: Dragga | Jun 23, 2015 1:12:21 PM

Dragga: Right, and Jeff J. could have corroborated Cathy while Mark could have corroborated Jay. Or they all could have contradicted the relevant players.

Posted by: Colin Miller | Jun 23, 2015 1:14:51 PM

It's weird to me that the police would interview her based on a throwaway line like that . . . is there any other evidence of contact between Adnan and Patrice?

Posted by: Seamus Duncan | Jun 23, 2015 1:20:48 PM

The only references I have found to Patrice in the State and defense files are (1) Jay's statement that he talked to her on the phone when he called Patrick; and (2) the cover sheet indicating that she was interviewed by police. I'm not aware of any connection between Adnan and Patrice or Patrick.

Posted by: Colin Miller | Jun 23, 2015 1:25:08 PM

The notes were not handed to the defense. Says who? How do you prove such a statement in the absence of defense attorney.

Posted by: S | Jun 23, 2015 1:28:18 PM

S: I guess I can't say with 100% certainty that they were never turned over to the defense, but they are not in the defense files, and they are not in the State files turned over pursuant to an MPIA request.

Posted by: Colin Miller | Jun 23, 2015 1:31:23 PM

It also appears that the Asia letters were not in the defense file. Does that mean Adnan never gave them to the defense?

Posted by: Seamus Duncan | Jun 23, 2015 1:43:02 PM

Seamus: I have no idea. If that were the case, though, it would be interesting. The Circuit Court’s holding was largely premised on the finding that Gutierrez could have thought that Asia was offering to lie in her letters. If Adnan told Gutierrez and her clerk about Asia (as indicated by the notes) but didn’t turn over the letters, the Court’s holding on this point wouldn’t make any sense. But it would seem odd for Adnan to tell Gutierrez and her clerk about Asia but not give them the letters.

It’s tough to say anything definitive about what was given to Gutierrez because there are several documents from other cases in Adnan’s file and it appears that Gutierrez was actually billing Adnan for work done in other cases and vice versa. So, it’s easy to imagine several documents from Adnan’s case being in the files for other cases.

Posted by: Colin Miller | Jun 23, 2015 1:52:19 PM

"It’s tough to say anything definitive about what was given to Gutierrez because there are several documents from other cases in Adnan’s file and it appears that Gutierrez was actually billing Adnan for work done in other cases and vice versa. So, it’s easy to imagine several documents from Adnan’s case being in the files for other cases."
WOW. just...wow.

Posted by: BeOhBe | Jun 23, 2015 4:01:52 PM

Along another line, looking at the ground around the picture of Hae's car, it sure looks like another car was recently parked immediately to the ledt (right looking at it). Notice the browned out grass as if a car had been parked there for a while. Also notice that it would not fit there unless Hae's car --over the green grass -- were not there.

Posted by: Kris | Jun 23, 2015 4:12:49 PM

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