EvidenceProf Blog

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

Monday, December 28, 2015

Why Adnan's Reopened PCR Proceeding is Not About "Legal Technicalities"

We are now just a little over a month away from Adnan's reopened PCR proceeding. At the hearing, Adnan will present evidence and testimony on two claims: (1) he received the ineffective assistance of counsel based upon his trial attorney failing to contact a prospective alibi witness; and (2) the State violated Brady by failing to disclose to the defense (and its own expert) that Exhibit #31 was a Subscriber Activity Report governed by the disclaimer indicating that "[a]ny incoming calls will NOT be considered reliable information for location."

I've seen some label these issues as "legal technicalities" that don't go toward the issues of actual innocence and even the jury's finding of guilt beyond a reasonable doubt. In this post, I will counter these assertions.

Alibi Argument

The argument that Asia McClain is a "legal technicality" actually does hold some water...if you believe the timeline laid out by Serial. The problem is that basically nobody believes that timeline any more. In that timeline, Summer, Hae's co-manager on the wrestling team, talked with Hae about going to the Randallstown wrestling match until about 2:50 P.M. (or later) on January 13th, meaning that Hae wouldn't have left the Woodlawn campus until after 2:50 P.M. Under this timeline, an alibi witness who saw Adnan until 2:40 P.M. would indeed be a legal technicality. She would directly rebut the State's claim at trial that Adnan had killed Hae at Best Buy by 2:36 P.M., but she would not preclude the possibility that Adnan intercepted Hae before she left the Woodlawn campus.

As we now know, however, the Randallstown wrestling match was on January 5th, and Woodlawn had no wrestling match on January 13th. In other words, we can safely remove Summer from the January 13th timeline because her memory (over a decade later) is solely tied to the Randallstown wrestling match. We can likely do the same for Debbie, who seems to recall Hae telling her that she was going to a wrestling match* on January 13th:

Screen Shot 2015-12-28 at 7.02.12 AM

We can also likely do the same for Inez Butler, whose memory of January 13th was also tied to a wrestling match. That said, if we think that Inez Butler did have the right day, her recollection of Hae leaving school in a hurry between 2:20 and 2:30 P.M. would make Adnan's library alibi hugely relevant in terms of proving his actual innocence.

Taking these wrestling witnesses out of the equation, that leaves Becky, who recalls seeing Hae heading toward her car after saying she had somewhere else to be immediately after school (between 2:15 and 2:20 P.M.). As with Inez Butler's version of events, Becky's version has Hae leaving the Woodlawn campus well before 2:40 P.M. on January 13th, which means that Adnan's library alibi tends to establish his actual innocence. 

Put simply, if you believe that Becky or Inez was the last innocent person who saw Hae alive, Adnan's alibi claim at his PCR hearing is not a legal technicality but instead points strongly toward his actual innocence. The only real questions are whether the library alibi is reliable and whether either Summer (doubtful) or Debbie (slightly less doubtful) did in fact see Hae on January 13th, with the Debbie timeline possibly being even more favorable for Adnan.**

Cell Tower/Brady Argument

This one's much simpler. An example of a legal technicality in connection with cell phone evidence can be found in Ware v. State, 702 A.2d 699 (Md. 1997), which I've discussed on this blog and an Addendum episode of the Undisclosed Podcast. It's the case in which a man was convicted of sexually assaulted a prostitute in large part based upon cell phone records that were improperly authenticated. As we noted on the podcast, this was a technical error that the State should easily be able to remedy on retrial. All the State needs to do is call a witness from the cell phone provider to identify and authenticate the defendant's cell phone records, and the jury should be able to return another "guilty" verdict.

By way of contrast, there is no fixable error that occurred at Adnan's trial. If you believe the plain language of the disclaimer, incoming calls were not reliable for determining location, meaning that pings such as the "Leakin Park pings" don't tell us anything about the location of Adnan's cell phone. As a result, if there ever is a retrial, there is nothing that the State can do to fix its error. The incoming pings would be legally inadmissible and factually irrelevant to anything connected to the case.

Now, unlike the library alibi, this conclusion doesn't directly prove innocence, but it does remove one of the few pillars supporting the proposition that Adnan might be guilty. It also very much undermines the jury's determination of guilt beyond a reasonable doubt. As I've noted before, the jurors at Adnan's first trial were leaning toward a "not guilty" verdict before they had heard Jenn, the cell tower evidence, and the defense case. If you assume that Jenn (who mostly contradicted Jay) and the defense case cancel each other out, it was the cell tower evidence that made the difference. If that evidence was unreliable, then so was the jury's guilty verdict at the second trial, a conclusion that Kevin Urick himself would seem to support.


*I'm guessing that "rustling" means "wrestling," but the State has still failed to turn over the audio recording of Debbie's police statement. Beyond this, though, we have several other reasons to doubt Debbie's recollection, including her confusion over "A" days and "B" days.

**This is another thing that Serial seemingly got wrong. In episode 2, Sarah says, "Then their friend Debbie remembers seeing Hae on her way to her car. She told Debbie she had to get her cousin from school, and then was going see Don at the mall."

But Debbie never said that. In her first statement, Debbie says Hae said she was going to see Don; there's no mention of picking up her cousin. In her second statement, Debbie says that Hae told Takera she couldn't give her a ride because she had to pick up her cousin. There's no mention of Hae going to see Don, although Hae and Takera apparently did talk about their boyfriends. So Sarah, seems to be combining elements from two different statements, creating a version of events that is less helpful to Adnan than either of the statements standing alone.

Frankly, I think that Sarah was kind of confused about all things Debbie. Here's the Debbie entry from the Serial People Map:

DEBBIE Classmate and friend of Hae. Told police she saw Adnan after school on Jan. 13 around 3:30 p.m. Says Hae told her she was going to see Don after school.

I still have no idea where 3:30 P.M. comes from, and this entry also combines elements from Debbie's two statements. In her first statement, Debbie says Hae said she was going to see Don, and there's no mention of seeing Adnan. In her second statement, there's no mention of Hae going to see Don, but Debbie does mention seeing Adnan, but at 2:45 P.M., not 3:30 P.M.



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This is an important post. I've never got the "legal technicalities" argument. (Well, it makes sense in your Ware example where the prosecution made a fixable mistake.)

This argument and the "Adnan must have been really unlucky if he was innocent" are the 2 Serial-related arguments I most hate.

In Adnan's case, the prosecution chose to argue that Hae was dead by 2:36 PM - I think it's fair to assume that they did that for a reason and that it helped their case. That's no "legal technicality", that's a prosecution making a case that they may not have been able to prove had Asia testified.

Posted by: Michael | Dec 28, 2015 6:11:03 AM

On the issue of Asia's alibi, it seems Adnan apparently asked her to type up a letter for him based on Ja'uan's April 20, 1999 interview notes. Can you please post the transcript of Ja'uan's interview or the defense's notes on the interview so we can get to the bottom of this?

Posted by: Seamus_Duncan | Dec 28, 2015 7:02:01 AM

If (when) Adnan gets a new trial, does the prosecution have to use the same timeline as the second trial, or can they change it all up?

Posted by: Cindy | Dec 28, 2015 8:01:43 AM

Michael: Yes, the 2:36 timeline was the best that the State could do, and it has several serious problems.

Seamus: I don't think the notes imply that, but there is no transcription or recording of the 4/20 interview. There are, however, law clerk notes on the interview, and I will do a post about them tomorrow.

Cindy: Yes, the State could use a new timeline, but the defense could use the prior timeline/testimony to impeach it.

Posted by: Colin | Dec 28, 2015 9:00:54 AM

I fail to see how the Icell field in the cell detail records continues to be confused with the Location fields? The prosecution did not use location, they used the initiating cell site. Location is completely unrelated data.

Posted by: AC | Dec 28, 2015 9:53:41 AM

I have asked this question in a couple different forums, but maybe you can answer this Collin, can a decomposed body found weeks after death, really have a pinpointed 'time of death' stamp to it??? I mean can they say for sure she was dead by 1436?????! I don't get that at all?

Posted by: Michelle | Dec 28, 2015 10:04:41 AM

What do you think will happen at the pcr hearing? Do you think Asia and her alibi are reliable? Do you think the judge will consider the cell phone evidence that important to the prosecution's case and guilty verdict?

Posted by: KC | Dec 28, 2015 10:17:12 AM

If Adnan's defense team had requested the incoming call records, would they be required to turn them over to the prosecution? In other words, is there a strategic reason why Cristina Gutierrez would not have requested the information? It has always bothered me that she never asked for it.

I would guess the prosecution did not request those records because of either the fax coversheet (discounting location data) or because they were worried it would make the case harder to prove, given Jay's changing stories to line up with the call log. It would also force a phone number associated with the "come and get me" call Jay describes. However, the defense should be able to request those in hopes they can be used to discredit Jay's story. Why might his defense have chosen not to request them?

Posted by: Mackenzie | Dec 28, 2015 10:58:22 AM

AC: I’m going to take the word of the State’s own cell phone expert regarding the applicability of the disclaimer.

Michelle: The State couldn’t pinpoint time of death to a particular hour or a particular day. The 2:36 theory is just a theory that the State tried to advance at trial, likely because they feared a track alibi.

KC: I have no way of knowing at this point. I was able to predict everything that has happened up to this point (COSA granting leave to appeal, COSA remanding the case, the Circuit Court granting the motion to reopen, and the Circuit Court agreeing to hear the cell tower/Brady issues) because those were solely legal questions. On the other hand, I have no idea how witnesses will fare on cross-examination, what evidence or witnesses the State will present, etc. Once everything plays out in February, I should have a much better sense of how the court will rule.

Mackenzie: They would not be required to turn them over. I don’t see how this could have been a strategic decision by the defense.

Posted by: Colin | Dec 28, 2015 11:58:34 AM

Is there any possibility adnan would be released on bond pending outcome in the February hearing? Considering so much evidence of his innocence and alleged medical issues?

Posted by: Robyn | Dec 28, 2015 12:09:12 PM

Colin: Do you mean the statement where he stands by his testimony? In which case, why do you continue to misrepresent the evidence?

For AW:

"I have NOT abandoned my testimony, as some have claimed. The disclaimer should have been addressed in court. Period."

Posted by: AC | Dec 28, 2015 12:20:37 PM

Robyn: Unfortunately, that’s not going to happen.

AC: AW did a drive test where he made several outgoing calls, including calls somewhat close to (but not at) the burial site. Based upon these test calls, he testified that the “Leakin Park pings” could be consistent with Jay’s description of where those calls took place. Contrary to what Sarah Koenig wrote in response to AW’s affidavit, he did not abandon that testimony, which is why he posted that comment.

What he did do was realize that Urick never showed him the disclaimer about incoming calls not being reliable for determining location. Given that the “Leakin Park pings” were from incoming calls, AW realized that the disclaimer contained “critical information” that “would have affected [his] testimony.” According to AW, “I would not have affirmed the interpretation of a phone’s possible geographic location until I could ascertain the reasons and details for the disclaimer.”

Posted by: Colin | Dec 28, 2015 12:30:51 PM

Colin: AW's statement does not in any way validate your interpretation of the disclaimer. It simply states that he would have liked to have investigated it. Your stance is still completely unsubstantiated.

Posted by: AC | Dec 28, 2015 12:50:18 PM

AC: We have an interview with AW recorded that we will air after the reopened PCR proceedings.

Posted by: Colin | Dec 28, 2015 1:09:31 PM

AC, are you happy now? Done badgering for a while? Colin, you're a saint.

Posted by: Chris | Dec 28, 2015 4:00:30 PM

AC: Ouch. Burn. Looks like Colin might have more information than you do...

Posted by: Narizarielka | Dec 28, 2015 5:38:30 PM

AC:the point the disclaimer brings up is that AW has said that the prosecution MISLEAD him. Additionally, CG could have gotten the cell testimony completely thrown out had the disclaimer been brought up in open court.

Posted by: Tms78 | Dec 28, 2015 5:52:15 PM

Colin- reading this got me thinking:
1. Attempting to dissuade a witness from testifying is not a 'technicality', it is prosecutorial misconduct, right? Also, mischaracterizing a witness's intentions is as well. Urick did both with AM and her alibi testimony.
2. I went back and reviewed the "Ping" episode of UD. It occurs to me that maybe even the prosecution didn't actually understand the cell phone records at the time. Did they really understand that the cell phone records are not actually call location records, but only billing records?
Regardless, Urick's use of AW's testimony with regards to the prosecution's timeline is clearly smoke and mirrors and misdirection.

Posted by: PatrickB | Dec 29, 2015 10:01:45 AM

In the documentary, "Making a murderer" the defense attorneys produced a witness who directly contradicted the State's timeline and yet the jury found the defendant guilty. Now, can the judge rule that even though should have been contacted, it does not mean that Adnan would have been held innocent and he does not think that the granting a new trial on these grounds would serve the interest of justice? Or do you think that such a ruling would be not consistent with the law.

Posted by: S | Dec 29, 2015 2:34:59 PM

PatrickB: Yes, the misconduct component is important. And, like you, I’m not at all certain the prosecution understood the cell phone evidence.

S: The IAC standard is not a “more likely than not” standard; it’s a reasonable probability standard. The question is simply whether the uncontacted alibi witness undermines confidence in the verdict. As for the “Making a Murderer” case, I don’t know the weight of the other evidence presented to be able to balance it against the alibi defense.

Posted by: Colin Miller | Dec 29, 2015 3:14:57 PM

"...To pick up her cousin because there was a game that day, um he were rustling the basketball, but she was going to the..."

I think it might be "there was a game that day, WE WERE RUSHING to basketball."

Stephanie had a basketball game that night, right? So presumably Debbie and whoever else it was were going to the game. If she were talking about wrestling she'd be more likely to say match or meet than game.

If you read it my way, it makes sense.

Posted by: MzOpinion8d | Dec 31, 2015 6:20:06 AM

MzOpinion: I think it is more likely that Debbie said "either wrestling or basketball," not "we were rushing." First, Debbie is talking about Hae only, not herself, so it doesn't seem like she would say "we" there. Second, I believe Stephanie's basketball game was around 6:00 or even later that night, so I don't know that they would need to rush to get there, even if it were at another school.

Posted by: Ann | Jan 1, 2016 1:42:00 PM

Colin: This article was very informative and well summarized. Will you be attending the PCR hearing along with Rabia?

Posted by: Lauren | Jan 1, 2016 2:42:44 PM

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