EvidenceProf Blog

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

Tuesday, January 19, 2016

What if Abraham Lincoln Cross-Examined Jay Wilds?

At Adnan's trial, Jay gave the following testimony about the 7:09 P.M. call on Adnan's call log:

Urick When you pulled off and parked the vehicle, what if anything did you take back into the woods with you ?

Jay: Shovels.

Urick: About what time of night was this?

Jay: About 7:00 because, like I said, I had paged Jenn and while we were digging, she had called back [at 7:09], and he just told her he was busy now and hung up the phone. We dug for a little bit and he said that’s good enough. We took the shovels

Urick: What was the light like?

Jay: It was pretty dark but the moon was out, and I remember there was little bits of snow on the ground. So you could see a little bit. It wasn’t too bad

You can use any number of webpages on the internet to establish that Jay's testimony can't be correct. For instance, Susan Simpson used timeanddate.com to establish that "moonrise was at 4:37 a.m. that night, and was a bare sliver, with around 10% illumination."

Of course, Cristina Gutierrez did no such thing to impeach Jay's testimony at trial, just like she didn't use similar information to establish that Coach Sye in all likelihood remembered that Adnan arrived on time at track practice on January 13, 1999. But what if Adnan's attorney were Abraham Lincoln?

Last night, we were hanging out with friends, and their kid delivered a book report of "Abraham Lincoln's Hat." The book mentions an incident that is seemingly true: There is a Norman Rockwell painting of Abraham Lincoln apparently holding a 1857 edition of the "The Old Farmer's Almanac." 

The occasion depicted in the Rockwell painting is the 1858 murder trial of an Illinois man named William “Duff” Armstrong. Armstrong was accused of murdering James Preston Metzker with a “slung-shot”—a weight tied to a leather thong, sort of an early blackjack—a few minutes before midnight of August 29, 1857. Lincoln was a friend of the accused man’s father, Jack Armstrong, who’d just died, and so he offered to help defend young Duff Armstrong, without pay, as a favor to Jack Armstrong’s widow.

The principal prosecution witness against Armstrong was a man named Charles Allen, who testified that he’d seen the murder from about 150 feet away. When Lincoln asked Allen how he could tell it was Armstrong given that it was the middle of the night and he was a considerable distance away from the murder scene, Allen replied, “By the light of the Moon.”

Upon hearing Allen’s testimony, Lincoln produced a copy of the 1857 edition, turned to the two calendar pages for August, and showed the jury that not only was the moon in the first quarter but it was riding “low” on the horizon, about to set, at the precise time of the murder. There would not have been enough light for Allen to identify Armstrong or anyone else, said Lincoln. The jury agreed, and Duff Armstrong was acquitted.

So, what would have happened if Gutierrez had similarly shown Adnan's jury that the (bare) sliver of a moon didn't rise until 4:37 A.M. on January 14th, refuting Jay's claim that the moon was out at 7:09 P.M. on January 13th (or, as he now claims, "closer to midnight")? As with so many things that Gutierrez could have done in this case, we will never know.



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Who did phone Adnan's cell phone that night? Jenn, Krista, Aisha, Young Lee, Adcock and Stephanie all claim to have done so - Krista as many as three times. So that's 8 calls being claimed but only 5 incoming calls.

Posted by: Sue | Jan 19, 2016 6:04:03 AM

Jay would've changed his story yet one more time. Sigh.

Posted by: Denise Swisher | Jan 19, 2016 9:27:30 AM

Does it matter that Jay didn't know the difference between moonlight and light pollution?

Posted by: Steve | Jan 19, 2016 10:00:58 AM

But would impeachment by contradiction on a collateral matter like the stage of the moon have been admissible? This is not really like the Abraham Lincoln case, where the light of the moon went directly to a central issue, the ability of the key eyewitness to have recognized the defendant as the murderer. Is there any reason the light of the moon was particularly important to Jay’s narrative?

Posted by: Josh | Jan 19, 2016 10:06:34 AM

Sue: I really wish we had the incoming phone numbers.

Denise: But would the change have worked? There must have been some tipping point with Jay’s credibility, which seems clear based upon the jury polling after trial 1.

Steve: The thing is that Jay doesn’t simply say that there was light that he thinks was coming from the moon. He very clearly says that the moon was out.

Josh: Jay was testifying pursuant to a plea deal, under which he was pleading guilty to accessory after the fact to murder. Primarily, this accessory charge was based upon his assistance in the burial. A contradiction on a key fact such as the light source for the burial would certainly seem admissible.

Posted by: Colin Miller | Jan 19, 2016 10:27:19 AM

Yeah, I guess if the only alleged light source for the burial was the moon (if they supposedly had no flashlights, for example, which seems like a case of extreme poor planning) then Jay’s statements about the moon are not really collateral. I understand that the burial itself is a key fact, it just seemed like the quality of light at the time might not be. If Jay had testified that he buried Adnan while wearing a yellow hat, evidence that he actually wore a blue hat that day would probably be inadmissible, because Jay’s poor memory regarding minor details is not probative of whether he is fabricating the whole story. Similarly, if the moon was not the only source of light, Jay’s misremembrance of its presence would not tend to invalidate his narrative. However, looking back at the testimony, it does appear that Jay denied having a flashlight (or anything other than a shovel) in the woods, so evidence of the lunar cycle would cast doubt on the possibility of his account.

Posted by: Josh | Jan 19, 2016 10:44:07 AM

How do you respond to the charges by Hae's brother that claims about Hae's day from your "reliable source" are, and I quote, "COMPLETELY wrong."

Posted by: Seamus_Duncan | Jan 19, 2016 11:31:51 AM

Gutierrez should have questioned everything in this case. Very little stands up as evidence that the crime happened as the State suggests.

Posted by: Bruce | Jan 19, 2016 11:57:30 AM

Josh: Right. Jay said that there were no flashlights and that it was the moon that allowed them to see during the burial. That seems like a pretty big point.

Seamus: I’m inclined to believe Hae’s brother. My source was the person I expected to have the best recollection of Hae’s plans on January 13th outside of Hae’s family. If my source was indeed incorrect about fairly important details, it would mean that the investigation of this case was misguided from day 1, which would actually explain a lot.

Bruce: Yes, it was certainly a good idea to question everything in this case.

Posted by: Colin Miller | Jan 19, 2016 12:16:36 PM

In jays police interview, I believe it was ritz who asked him if there was moonlight and Jay replied that he couldn't recall but it was light enough.
I guess when it came time to trial months later, Jay's recollection of the light got mixed up.

Re: your source outside the family. Is your source Krista?

Posted by: Ben | Jan 19, 2016 1:16:30 PM

Someone replicated the conditions such as on the night IIRC, and it was pitch black. No light pollution. It looks to be a wooded area on a 2 lane bitumen road with no houses around.

One of the first things I did in looking at this case was pull up the weather and moon/sun data. It's a pity so many questionable cases don't use real world data in their investigations of witness statements. Think how important the temperature on the day Hae went missing was re the track session and the student memory.

Posted by: JLWhitaker | Jan 19, 2016 3:01:25 PM

ben: Jay says he can't recall whether there was a full moon that night, but he never says he's unsure of whether there was moonlight:

https://viewfromll2.files.wordpress.com/2014/11/jay-interview-1-2-28-99.pdf (page 18)

JLWhitaker: That's always a great first step.

Posted by: Colin Miller | Jan 19, 2016 4:22:13 PM

Double post since comments were full on the other post.

Do I remember right that Hae was somewhat formally dressed? Pantyhose, skirt and high heels? Was that normal for a day of school/babysitting/work? Or was she dressed up for something special?

Posted by: Lizzie | Jan 20, 2016 7:57:38 AM

Lizzie: Yes. She was dressed up. I don't think we know why she was dressed up.

Posted by: Colin Miller | Jan 20, 2016 6:31:15 PM

Just like it's unlikely you forget where you saw a body in the trunk of a car, it seems really unlikely one would forget whether or not there was enough light to see the night you buried said body. Some things might be hazy after a while, I don't think that would be one of them.

Posted by: SEO | Jan 25, 2016 1:59:40 PM

Sue - Who is saying specifically that they called his cell? The phone was new. We know he called everyone to give his new number the day before (maybe two days before.) What we don't know if his friends had this new number handy or if they were sitting at their phones, calling everyone, and just dialed the number they knew from memory. (The call from the Lee's house, I think, was to the cell number that was written in Hae's diary.)

If none of his friends were in the habit of calling his home number, that hasn't come up, has it?

Posted by: boo | Jan 26, 2016 11:18:54 AM

Colin, I've never heard why the defense or anyone couldn't identify the incoming calls to adnan's cell phone on january 13. this alone could completely wipe out the state's case of there never was a call from best buy.

Posted by: Paul | Apr 11, 2017 6:49:47 PM

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