EvidenceProf Blog

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

Tuesday, June 2, 2015

The Failed Attempt by the Defense to Subpoena Krista for the Adnan Syed Trial

When I learned that five witnesses subpoenaed by both the prosecution and defense had tried in vain to talk to Cristina Gutierrez (and the defense team) in the Adnan Syed trial, I immediately thought of Krista. A mutual friend to both Adnan and Hae, Krista has told me that she wished the defense used her as a character witness at trial. I also knew that Krista was one of a limited number of witnesses subpoenaed by both the prosecution and defense. Indeed, she was among the first batch of witnesses subpoenaed by the defense:

Screen Shot 2015-06-02 at 5.54.20 AM

So, let's break this subpoena list down, person by person, before getting to Krista.

1. Paul was the Store Director of the PetSmart where Jay worked before getting hired at the adult video store. I wish that I had more information about why he was literally the first witness subpoenaed by the defense. So far, I can't find anything from the prosecution or defense files indicating his importance. [Update: A helpful reader notes that (page 40) Jay was fired from the PetSmart, with the discharge summary stating "do not rehire." Perhaps this is why the defense was interested in Paul.].

2. Debbie, of course, was the mutual friend to both Adnan and Hae who, besides Jay, would have been the most important witness at trial if the prosecution went with the initial timeline of Hae's disappearance. She's the one who first told police that Hae was going to see Don at the mall at 3:00 P.M. on January 13, 1999 and later told police that she saw Adnan at the guidance counselor's office at 2:45 P.M. on 1/13 before seeing Hae and "Takera" between 2:45 and 3:15 P.M. There is a record in the defense files of the private investigator calling Debbie.

3. Robert worked in the Office of Facilities Management at Coppin State College and was involved in reporting Mr. S's discovery of Hae's body. Given the focus that the defense tried to place on Mr. S, it's understandable that he was in the first batch of subpoenas.

4. Saad is Adnan's best friend, was contacted by the private investigator, and eventually testified as a defense witness at trial. 

5. Aisha* was Hae's best friend; she was presented by the prosecution as the last (innocent) student to see Hae alive. Aisha testified at trial that she saw Adnan and Hae talking at the end of A.P. Psychology class. I have a record in the defense files of the private investigator calling Aisha, getting her father, and possibly planning on speaking to Aisha at a later date. Given that Krista has said the conversation Aisha overheard consisted of Hae turning down Adnan for a ride, I would love to know whether anyone on the defense team actually ended up talking to Aisha before trial.

6. Rebecca/Becky was a mutual friend to both Hae and Adnan. She was eventually served, contacted by the private investigator, and became a defense witness at trial. She testified to seeing Hae leaving school in a hurry right after class ended and was a character witness for Adnan.

7. As I said, Krista was a mutual friend to both Hae and Adnan. As you can see from the above document, whoever prepared it was verifying Krista's address. Unfortunately, whoever was trying to verify her address did a terrible job. According to Krista, she never received her subpoena. When I sent Krista a copy of her subpoena in the case, she immediately recognized the problem(s): both the city and the zip code were incorrect.

So, what about the private investigator? While I was able to find records of calls made to Debbie, Aisha, and Becky, here's the only reference to Krista in the private investigator's notes:

Screen Shot 2015-06-02 at 6.18.35 AM

There's no mention of any call, and that's probably because there wasn't one. Krista says that she was never contacted by anyone on the defense team in advance of either trial.

This wasn't ineffective assistance of counsel, legally speaking, but it sure was a missed opportunity. As I noted above, Krista wanted the defense to use her as a character witness at trial. If contacted, she also could have told the defense about the normalcy of Adnan asking Hae for a ride and given important information about what happened to Adnan's ride request later in the day (assuming that the defense never talked to Aisha). 

And yet, Krista was never called. Her address was never verified. The defense had no idea of the ways in which this neutral witness could have helped their client's case.


*This is one of at least a few times that Aisha's name is misspelled in this manner in the defense files.

[Update: I've been asked to post a less redacted version of the defense subpoena list. The version below just has last names* and phone numbers redacted:

Screen Shot 2015-06-02 at 9.24.25 AM

I didn't redact Aisha's last name because I realized that it was mentioned on Serial, and some readers wanted confirmation that it was her name on the list.].



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Thank you again, Professor Miller, for getting to some great discoveries in this case. It's a real eye-opener into the ways that things can fall apart in a case. I appreciate you highlighting these missed opportunities, and other things you find while rooting around, it's very illuminating.

Posted by: Trillian Swan | Jun 2, 2015 4:17:42 AM

"The defense had no idea of the ways in which this neutral witness could have helped their client's case."
Can you expand on this a little bit?
The normalcy of asking for a ride does not seem like it would help Adnan's case at all, quite the opposite. Also, would Krista have been able to testify to something that Aisha said about the ride? Or do you just mean that Krista could have said to CG in a pre-trial meeting that she Aisha said that Hae changed her mind? Couldn't she have gotten that information from Adnan as well? Wouldn't CG hearing the story from him hold more weight than Krista, who wasn't even at the school then?

Posted by: theghostoftomlandery | Jun 2, 2015 4:43:30 AM

theghostoftomlandery: It depends on the strategy at trial. Defense counsel had two options at trial: (1) try to create reasonable doubt about whether Adnan asked for a ride; or (2) acknowledge that Adnan asked for a ride and try to prove that Hae turned him down for a ride at the end of school because something came up and she had “something else” to do. Obviously, defense counsel went with option 1. It seems, however, that if defense counsel did her due diligence, there would have been three neutral witnesses – Becky, Aisha, and Krista – who could have testified about Hae turning down Adnan for a ride.

Krista couldn’t have testified about what Aisha told her to prove the truth of the matter asserted: that Hae turned Adnan down for a ride. She could, however, testify about what Aisha told her to establish why she called Adnan on January 13th. The State made it seem as if she called Adnan because he asked Hae for a ride, so Krista figured Adnan knew Hae’s whereabouts. According to Krista, however, after talking with Aisha, she figured Hae hadn’t given Adnan a ride but called him anyway because she thought he might still know her whereabouts.

Of course, you are correct that Adnan himself could have told his attorney about Hae turning him down for a ride, but we know that Adnan has said he didn’t ask Hae for a ride. Why? I don’t know. He could be mistaken, he could be lying, he might not have perceived the request “ride” as a ride, which seems to be the case with his “rides” to track practice. But, notwithstanding what Adnan told his attorney, interviews with these 3 witnesses seemingly would have provided defense counsel with an indication that going with option 2 was her best bet.

Posted by: Colin Miller | Jun 2, 2015 6:11:46 AM

The more I read about your information about Gutierrez the more I think that she screwed up just as bad as the State did. I think by the 2nd trial that she was too ill to do her job effectively to her ability. Also if you look at the notes next to Krista's name verifying address. Makes me wonder how long would this process take? I wonder why there was no phone call or Krista? About Aisha I remember reading a piece of documentation that I believe that the undisclosed podcast uploaded and it said something that CG said that Aisha was an unreliable witness or something to that extent.

Posted by: Jim M. | Jun 2, 2015 6:18:06 AM

Is the defense obligated to interview each and every witness, to preview their story? If so, why? Just as a matter of course, and to prep questions at trial that counter a witness vs. winging it?}

Posted by: Fancy Nancy | Jun 2, 2015 6:34:53 AM

Jim M.: Do you have a reference for a notation about Aisha being unreliable? I don't remember anything like that?

Fancy Nancy: No, the defense doesn't have to interview every witness. The frustrating thing with Krista is that the defense clearly thought she was important (1st batch of subpoenas) and yet bungled the attempt to subpoena/contact her.

Posted by: Colin Miller | Jun 2, 2015 6:36:46 AM

So, any chance that the defense erroneously thought that Aisha and Asia were the same person?

Posted by: James | Jun 2, 2015 6:44:59 AM

I am confused by rides to the track given to Adnan from Hae. Were these from the library the 1/10 mile back to the main building where he walked to the track? Did Hae drive him off campus and drop him off around the block on Gwynn Oaks which would be the only way to really make a difference. It seems odd that someone who went out for track would need a ride for such a short 2-3 minute walk. Of course it could be just an excuse to spend a little time together, which would make sense when they were dating. After they broke up, not so much.

Posted by: harleyd | Jun 2, 2015 6:48:24 AM

james: It's certainly a possibility.

harleyd: I wish I had more information on the rides to track practice. I do know that Becky said the rides continued, even after they had broken up.

Posted by: Colin Miller | Jun 2, 2015 6:53:13 AM

I have a question from your recent interview for Serial Dynasty. You mentioned a note where Adnan described his day, including talking to the coach about leading prayers, being picked up by Jay, hanging out with Jay, going to the mosque, and talking to Bilal about leading the prayers the next day. Can you please link me to this? I don't remember seeing it.

Posted by: Seamus Duncan | Jun 2, 2015 7:06:36 AM

I was more interested in the actual route Hae would take. Where she picked him up and dropped him off. It seems like walking out to the parking lot where students parked is about the same distance to the track. Surely she wasn't providing some sort of valet service for her ex. I also recall something fro Serial (I think) about Adnan needed a ride to go pick up his car and that's why he would try and find someone else to give him a lift. Certainly if Hae couldn't give him a ride to track practice he wouldn't need to find someone else to give him a ride as others overheard.

Posted by: harleyd | Jun 2, 2015 7:15:00 AM

No I don't I wish I did. I tried to searching for it but couldn't not find it. But maybe I am remembering it wrong or something.

Posted by: Jim M. | Jun 2, 2015 7:15:18 AM

Seamus: Here's the note I was referencing:


It mentions talking to the coach about leading prayers and reaching over Jay in his car to get the phone call from Adcock.

harleyd: Yeah, I'd love more information about the track rides. I'm a bit confused myself about them, but 3 separate witnesses say that she gave him rides to track practice.

Jim M.: Thanks. Maybe you'll be able to find it at some point.

Posted by: Colin Miller | Jun 2, 2015 7:20:55 AM

There's nothing in that note about going to the mosque or talking to Bilal on January 13. Where did that come from?

Posted by: Seamus Duncan | Jun 2, 2015 7:31:04 AM

Seamus: I think that's in another note that we haven't released yet. We'll probably be covering it in an upcoming episode of Undisclosed.

Posted by: Colin Miller | Jun 2, 2015 7:32:22 AM


Do you have the handwritten note that is referenced at the bottom of that typed memo?

Posted by: James | Jun 2, 2015 7:32:51 AM

James: https://app.box.com/s/fniecw063xpvsehfkvnmgyklig8y9kep

Posted by: Colin Miller | Jun 2, 2015 7:59:18 AM

Thanks for the response Colin.

Posted by: Theghostoftomlandry | Jun 2, 2015 8:20:32 AM

How did they figure out that Hae died on Jan 13? Could they tell that definitely by the state of the body? If not, Isn't that automatic reasonable doubt, because if they can't PROVE WITHOUT A DOUBT, that she died on Jan 13, they can't convict?

Posted by: Justwondering | Jun 2, 2015 8:35:40 AM

justwondering: Time of death isn't an element of the crime of murder. The Medical Examiner testified that Hae could have been killed on 1/14, 1/15, 1/16, 1/17. It does seem pretty clear, however, that Hae was at least abducted before she was supposed to pick up her cousin at 3:15 or so on 1/13.

Posted by: Colin Miller | Jun 2, 2015 8:40:17 AM

Nice post, looking forward to the next undisclosed

Posted by: Mp3mpk | Jun 2, 2015 8:54:50 AM

Hi Colin-
Do you, Rabia, and Susan all agree at this point (privately) on who you think killed Hae - or a combination of people - or do you choose to NOT share that info with each other, trying to keep the possibilities open until you complete your entire investigation?

BTW, just finding your blog and loving it. My friends and I are obsessed, and I personally want to know more about Don. Also, do we have a 1999 pic of him somewhere (or any pic) so I can slip his image into my mind's eye? THX!

Posted by: fourhens | Jun 2, 2015 10:22:53 AM

fourhens: I don't think that any of us has a theory about who killed Hae. My personal belief is that her killer paged her between 11:10 and 12:55, but I have no clue about the identity of that person.

Posted by: Colin Miller | Jun 2, 2015 10:29:57 AM

Thanks for all your really interesting post!
The possibility of defense counsel confusing Aisha and Asia could possibly explain some of the confusion over CG telling Adnan that Asia's alibi didn't check out or was for the wrong day, resulting in them dropping the library issue entirely. If they were attributing Aisha's statements to Asia or vice versa it might make more sense for this to have happened. Would an unintentional mistake within defense counsel that led to not contacting a witness also be considered IAC, or would this just be an unfortunate circumstance that CG wouldn't be held responsible for?

Posted by: louise | Jun 2, 2015 1:22:37 PM

louise: If defense counsel were still alive and admitted to such a mistake, it would be IAC.

Posted by: Colin Miller | Jun 2, 2015 1:45:55 PM

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