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).

-CM