EvidenceProf Blog

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

Tuesday, August 4, 2015

DNA, Brady, and More Bail Letters From Adnan's Classmates

In yesterday's Addendum Episode of the Undisclosed Podcast, I talked a bit about the symbiotic relationship between Adnan's eventual DNA petition and his developing Brady claims. In this post, I will expand upon this point and also provide follow-up regarding yesterday's post.


On February 25, 2000, Adnan was convicted. On June 6, 2000, Adnan filed his direct appeal, based upon alleged errors that were apparent from the trial transcript. On March 19, 2003, the Court of Special Appeals of Maryland denied Adnan's direct appeal. On June 20, 2003, the Court of Appeals of Maryland denied Adnan's petition for writ of certiorari, meaning that it would not hear his appeal. This was the end of Adnan's direct appeal.

Thereafter, on May 28, 2010, Adnan filed his Petition for Postconviction Relief under Section 7-103 of the Maryland Code of Criminal Procedure. This was a collateral appeal, based upon alleged errors not apparent from the trial record. Section 7-103(a) reads as follows:

One petition for each trial or sentence 

(a) For each trial or sentence, a person may file only one petition for relief under this title.

In other words, a defendant usually only gets one bite at the apple under Section 7-103 and cannot files multiple petitions for postconviction relief. On January 6, 2014, the Baltimore City Court Court denied Adnan's petition. Thereafter, however, on February 6, 2015, the Court of Special Appeals of Maryland granted Adnan leave to appeal. Then, on May 18, 2015, the Court of Special Appeals remanded the case back to the Circuit Court so that Adnan could file a motion to reopen under 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.

If the court reopens the postconvction proceeding, Asia McClain will testify, and other evidence might be introduced. As a result, the Circuit Court might change its prior decision or keep it the same. In either event, the losing party will likely appeal to the Court of Special Appeals, and the losing party there will likely appeal to the Court of Appeals of Maryland. If the court does not reopen the postconviction proceeding, the case will return to the Court of Special Appeals, which will either reverse or affirm, with the losing party again likely appealing to the Court of Appeals.

As we noted on the podcast last night, Adnan has two other possible grounds for filing a new postconviction proceeding: (1) emerging Brady claims; and (2) DNA testing. As I noted in this post, the "one petition" rule contained in Section 7-103(a) does not apply to DNA petition so Adnan could file a petition for DNA testing before his current petition is resolved.

As I said in that post, I think that Adnan's has a pretty good chance at succeeding...but it's not a sure thing. The biggest question mark seems to be Jay. How likely is it that an unknown third person committed the crime based upon Jay's statements and testimony? And would the discovery of Jay's DNA actually be favorable for Adnan? I think the State could present reasonable opposition to a motion for DNA testing.

That's where the Brady claims come into play. We mentioned one last night: The notes from Patrice's police interview were "lost," and she might very well have remembered Jay being at her house on January 13th. If that's true, it calls into question Jay's statements and testimony. It also significantly bolsters the DNA petition.

Moreover, assume that, before the Brady claims are developed, the DNA petition is filed, granted, and does not produce an exculpatory result. That would leave Adnan asking for the court to again reopen his postconviction proceeding after he was given two bites at the apple (initial petition and DNA petition) and one opportunity to reopen (what's going on now). I could see the court being very reluctant to give him this additional chance, despite possibly meritorious Brady claims.

So...the current strategy is to wait. See how the current petition plays out. Keep working on the Brady claims. If the current petition succeeds, Adnan gets a new trial. If not, Adnan files a DNA petition that contains these new Brady claims. This provides the best chance for all of Adnan's claims to be heard.

Bail Letters

Yesterday, I noted that, contrary to the claim by the State, a number of Adnan's fellow students wrote bail letters in support of him. How many? I can't say for certain. I included the summary letter from Adnan's attorneys, three letters in the body of my post, and another one in the comments. I don't know the exact number because I don't have the full list of students who attended Woodlawn in 1999. I can say, however, that the number of letters that came from fellow students is easily in the double digits. I have attached two more of these letters below:

Screen Shot 2015-08-04 at 9.59.58 AM

Screen Shot 2015-08-04 at 10.02.48 AM



| Permalink


Hi Colin,

Great work as always. Has the DNA evidence been recovered? I remember from Serial Deirdre E stating that they weren't sure if it had been destroyed or not.

Posted by: Chin F | Aug 4, 2015 7:21:12 AM

Chin: As you say, it's not even a certainty that the evidence still exists that would allow for DNA testing.

Posted by: Colin Miller | Aug 4, 2015 7:24:52 AM

I honestly think the DNA/Brady will be a non sequitur shot in the dark kind of move. Should have been done in 1999.
Judges aren't stupid people and they know that this case has generated a great deal of contradictions that have been exposed by the media in a worldwide format. Look what they did for the Unger defendants ... a group decidedly more unsympathetic than Adnan. Hopefully he will get a new trial ... that's were the proof is in the pudding. This case has made BCSAO the laughing stock of the world, unfortunately, the real victim is a young man who seriously got shafted. Every time I listen to one of the podcasts (starting with Serial) I feel ill.

Posted by: laura | Aug 4, 2015 7:50:17 AM

Thanks for another great post. I enjoy reading these blogs and very much look forward to them. I truly hope we hear of Adnans release within a few years, but, I have to ask. Why can't he get a pardon? Isn't there enough proof now?

Posted by: Angie | Aug 4, 2015 9:00:43 AM

Thanks for clearing up the status of the case and DNA. If it has to come to DNA evidence, that will be an interesting hunt for the samples.

Posted by: Chris D. | Aug 4, 2015 9:39:02 AM

laura: I think at least one of the Brady claims has a great shot of succeeding.

Angie: We're getting there.

Chris D.: No problem.

Posted by: Colin Miller | Aug 4, 2015 11:09:40 AM

This issue has three components for me. First, it’s to correct the injustice that was imposed upon Adnan. Second, it’s to provide justice for Hae. Third, it serves as yet another example of why our Justice System needs to be seriously reformed from top to bottom.

Pursuant to that, the DNA testing is not just about the first aforementioned component, it’s also about the second component — justice for Hae. It would be bitter-sweet to see Adnan released and/or exonerated and everyone who’s been interested for the past year to pack up their bags and move onto the the next novelty.
The notion of justice for Hae would be overlooked and forgotten. I hope that doesn’t happen, but, my experience in life tells me it most likely will.

Hae’s murder still needs to be solved if and when Adnan is released and/or exonerated. It doesn’t end there, or at least it doesn’t end there for me. Then it’s time to put on our detective hats and go to work solving this murder mystery so that Hae’s murderer can be indentified and prosecuted if still alive. Hell, there’s no reason we can’t put on our detective hats now and try to solve Hae’s murder with a proper, Right From The Start investigation that is evidence based rather than pure fabrication.

Posted by: Cold N. Holefield | Aug 4, 2015 12:47:33 PM

Is there a scenario where it would be easier to keep Adnan in jail and just deny his appeals? Assuming Adnan is innocent, we’re not any closer to finding out who’s responsible, even after everything that’s been uncovered through serial and undisclosed. Sure, we all have theories and guesses, but there’s still no mention of hard physical evidence linking anyone to the crime other than a bunch of confusing stories and cell locations of where people may or may not have been when a call was made. I just can’t help but think this case is so confusing and full of holes the courts might just take the “we’ve got someone for the crime” road.

On a side note, if Adnan is innocent do you think he’ll be completely exonerated or do you think it’ll come with some sort of probation or something? I only ask because of the Norfolk 4 case, one of the men who were innocent actually served his full sentence and still has to be registered as a sex offender whereas the others I believe were given clemency.

Posted by: RudyTuesday | Aug 4, 2015 1:18:53 PM

After listening to the last Undisclosed I have a couple more questions. Why didn’t Adnan’s lawyers subpoena AT&T themselves for Adnan’s phone records in either trial? It seems this would be a no brainer for impeaching testimony that you feel is not truthful. Second, very interesting information about the Nisha call but where is this incoming information coming from? This seems to be in a different form from the other evidence? Is this from Adnan’s cell bill? And if so, what about his cell phone bill for Jan 1999 aren’t there incoming calls listed on that?

Posted by: Paul Hoen | Aug 4, 2015 1:33:04 PM

OK, so there are several more hurdles for Adnan or the state, going forward. But did I miss a reference to clemency? In addition to winning or losing, in court, couldn't a bolt from the blue set him free sooner - with a call from the governor's office?
Or is that longshot only plausible if/when he reaches the very end of this long road...

Posted by: Fancy Nancy | Aug 4, 2015 1:47:35 PM

Cold: Great breakdown.

Rudy: My current line of thinking is that Adnan will be granted a new trial and that the State will not reprosecute. I should have a better grasp of the issue soon.

Paul: I don’t know why Adnan’s attorney failed to request the incoming call information. It’s probably the same reason she didn’t consult with a medical examiner or cell tower expert: she wasn’t on the ball.

All of the Nisha calls we discussed were outgoing calls from his bill. We have no records of outgoing call numbers.

Posted by: Colin Miller | Aug 4, 2015 1:49:06 PM

Since you mentioned a cell tower expert, there have been some serious questions about the expert you cited, Michael Cherry. Specifically it seems no one can find an example of his resume online, and it seems his partner hasn't worked on mobile phone technology since the 1970's. Can you please provide his credentials as relates to cell towers?

Posted by: Seamus Duncan | Aug 4, 2015 2:50:05 PM

Seamus, one quick search and I found quite a bit of info on Michael Cherry. Try again.

Posted by: Seamus McBoogie | Aug 4, 2015 3:29:35 PM

Seamus: Nice weasel statement: "... there have been some serious questions ...". Questions from whom, I wonder?

Although Cherry has nothing to do with this particular blog post, if going after him is your latest cause du jour (perhaps you've fatigued of the Asia-bashing), why don't you just look up the many trials in which Cherry has been qualified as an expert witness, as well as the articles, in both the mainstream media as well as in professional journals, in which he is cited as an expert.

Posted by: Bryan | Aug 4, 2015 4:01:51 PM

Above, you said, "We have no records of outgoing call numbers." I think you meant "incoming" call numbers,

Posted by: xyz | Aug 4, 2015 4:52:45 PM

Seamus: He’s the head of the leading biometrics firm that deals with cell tower issues, including the issues in the Roberts case we referenced in the podcast. Ed Imwinkelried, the law professor with the most expertise in this area, recommended him as one of the top two experts to contact on these issues and has co-authored with him.

xyz: Good catch. I meant “incoming.”

Posted by: Colin Miller | Aug 4, 2015 5:00:11 PM

Is it alright if we refer to Ed Imwinkelried as Mr. I for simplicity's sake? Please?

Posted by: Cold N. Holefield | Aug 4, 2015 6:59:10 PM

I was hoping for something more specific that that. For example, at trial Waranowitz testified he worked as an RF engineer for AT&T for four years, designing, building, and troubleshooting the very network at the heart of the case. Does Mr. Cherry have comparable experience?

Also, out of curiosity, who is the other top two expert that was recommended?

Posted by: Seamus Duncan | Aug 4, 2015 9:53:09 PM

Had there been any contact with Patrice regarding her recollection of events and her interview? Had anyone else previously involved tried contacting you to talk?

Posted by: KC | Aug 5, 2015 2:46:17 AM

One of the many things that has bothered me about this case: I hear and read about numerous cases highlighted on true crime shows
or in the news where a person is convicted of a murder and in prison
(like Adnan) then new evidence is revealed, sometimes of a very
questionable nature, and the judge quickly sends the person home
to either await a new trial or they are just released. Example-
recently Juan Silva in Milwaukee was released when it was revealed
he falsely confessed to protect his son. First that's a crime in itself,
second, why doesn't the conviction stand and have to go through
"the process" to be overturned? Or how about Cal Harris in New
York, convicted of murdering his wife. Years laters someone "suddenly" remembers that he drove by and saw the victim standing in the dark arguing with another person. Judge sends him home to
await a new trial. These are just a couple cases that immediately
come to my mind as a regular person who follows theses type of
shows. So why, given the mountains of evidence that the
Undisclosed team has provided and having systematically shredded the

case against Adnan -why is Adnan still sitting in prison hoping to get a hearing instead of being sent home with either the charges dropped or to await a new fair trial? Last comment, I had already come to the conclusion that Adnan's case is not unique or due to a conspiracy but standard operating procedure to clear a case off the books.

Posted by: Elizabeth MM | Aug 5, 2015 3:40:51 AM

When you mentioned the case of Ezra Mabel you stated that the State's Attorney General joined him in his request for post conviction relief. How does that happen and is there any chance of that here?

Posted by: lavoix | Aug 5, 2015 5:05:39 AM

Seamus: Experts are qualified by “by knowledge, skill, experience, training, or education.” Cherry has been the head of the leading biometrics firm dealing with cell tower evidence for a number of years and has published articles on the subject. He’s more than qualified.

ScottM: Yes, they are all being catalogued.

KC: We relayed what she’s said so far. Hopefully, she’s able to tell us more.

Elizabeth MM: I feel like we’re getting closer to that outcome, but we’ll see.

lavoix: It would just be the AG agreeing that Adnan’s claim is meritorious. Right now, Adnan has moved to reopen. The AG could respond by saying that Gutierrez was off her game and clearly made an error in failing to contact Asia. But I don’t see that happening.

Posted by: Colin Miller | Aug 5, 2015 6:22:50 AM

You've said this twice now:

"the leading biometrics firm dealing with cell tower evidence"

Can you explain what this means to you?

Posted by: monstimal | Aug 5, 2015 7:23:43 AM

monstimal: See here:


Posted by: Colin Miller | Aug 5, 2015 8:15:36 AM

This is the most frustrating blog! I hate to join the commenters that demand things from you, but how about the ability to read all the comments? Not to mention, you responded to a ScottM above but, scroll as I might, I cannot find his post. (I suppose it could be me, but.......)
EvidenceProf: I'm sorry. This blog is notoriously glitchy with comments and seems to only post the first 25 comments posted (this is comment #25). I'm trying to get the issues corrected.

Posted by: Liza Jane | Aug 5, 2015 8:22:36 AM

Post a comment