Monday, February 15, 2016
This language comes from footnote 8 on page 26 of the State's Brief of Appellee in the Adnan Syed case. The argument seeks to strike at the heart of the "prejudice" prong of the ineffective assistance of counsel standard. Adnan's claim is that testimony by Asia McClain that she saw Adnan until 2:40 P.M. on January 13, 1999 would have created the reasonable probability of a different outcome at trial given that the State claimed that the 2:36 P.M. call on Adnan's call log was the Best Buy call Adnan made to Jay after he had killed Hae.
The State's claim, both in its brief and at the reopened PCR proceedings, was that the prosecution could have claimed at trial that Debbie saw Hae at 3:00 P.M. at school, making the 3:15 P.M. call the Best Buy call, with Adnan possibly getting a ride from Hae after Asia saw him at the library. Indeed, according to the State, neither the 2:36 nor the 3:15 "timeline was more or less consistent with the rest of the State's case." In this post, I will test that claim.
1. Jay and Jenn
At trial, both Jay and Jenn testified that Jay didn't leave Jenn's house until 3:45 P.M. According to Jenn, Jay left at 3:45 P.M. after getting Adnan's phone call (page 87). According to Jay, (1) Adnan was supposed to call him at 3:30 P.M.; (2) Jay eventually left Jenn's house at 3:45 P.M. when Adnan hadn't called; (3) Jay drove to Jeff G's house; (4) Jay saw that Jeff G wasn't home; and (5) Jay then got Adnan's phone call.
Therefore, in this regard, the State is correct that "neither the 2:36 nor the 3:15 "timeline was more or less consistent with" the testimony by Jay and Jenn. Neither the 2:36 call nor the 3:15 call work with the times given by Jay or Jenn. I would, however, very much disagree with the State's claim that this inconsistency does not show that "the State's asserted timeline was flawed."
2. The Nisha Call
The State called additional witnesses who fortified key facts and critical features of the narrative and timeline established by the State at trial. For example, Nisha , a friend of Syed’s, claimed she remembered receiving a call from Syed who, conspicuously, then placed Wilds on the phone, just as Wilds testified. (Id. at 136-37; T. 1/28/00 at 189-90).
So, let's reconstruct that timeline: (1) depending on whether you believe Jay or Jenn, Jay received the Best Buy call right before he left Jenn's house or after Jay had left Jenn's house and driven to Jeff G's house; (2) Jay then drove to Best Buy; (3) upon Jay's arrival, Adnan took Jay to Hae's car and did the trunk pop; (4) Adnan and Jay drove to the I-70 Park and Ride; (5) Adnan rearranged some items in Hae's car; (6) Jay called Jenn to see whether Patrick was home;* (7) Jay unsuccessfully called Patrick to score some weed; (8) Adnan and Jay drove to the Forest Park Golf Course to score some weed; and (9) Adnan called Nisha and put Jay on the line.
Now, if the 2:36 P.M. call was the Best Buy call, (1)-(7) could have occurred before Adnan called Nisha.** Conversely, if the 3:15 P.M. call was the Best Buy call, there is no way that these events could have preceded The Nisha Call. By going with the 2:36 P.M. call, the State asked the jury to disregard one lie/mistake: that the Best Buy call occurred at 2:36 P.M., not 3:45 or 3:55 P.M. If the jurors could get past that one lie/mistake, they could believe that something like the sequence of events given by Jay preceded The Nisha Call. Conversely, if the State had gone with the 3:15 P.M. call, the State would have needed to convince the jury to buy two lies/mistakes: (1) that the Best Buy call occurred at 3:15 P.M., not 3:45 or 3:55 P.M.; and (2) that nothing like Jay's sequence of events could have preceded the Nisha Call. This latter lie/mistake easily could have been a bridge too far that caused the State to lose one of the key pieces of its case
3. The Ping(s)
The 2:36 P.M. call pinged L651B, which covered Jenn's house (and Jeff G's house):
Conversely, the 3:15 P.M. call pinged L651C, which did not cover Jenn's house (or Jeff G's house):
Now, these were both incoming calls, so we now know that there is reason to believe that neither was reliable for determining location. That said, the State certainly argued such reliability at trial, meaning that the ping for the 2:36 P.M. ping would have corroborated Jay's story while the 3:15 P.M. ping would have refuted it.
4. Debbie vs. Inez (and Becky)
The final thing to consider is whether the State could have pivoted from the Inez timeline to the Debbie timeline as easily as it claimed. Let's start by noting that there are plenty of reasons to believe that both Inez and Debbie had the wrong day, so the two aren't really distinguishable in that regard. As for other regards...
Inez testified that she saw Hae leaving school in a hurry between 2:15 and 2:20 P.M. This testimony was corroborated by defense witness Becky, who said she saw Hae heading to the door that led to her car just after school ended at 2:15 P.M., with Hae saying "she had to leave" because "she had to be somewhere after school."
This allowed the State to tell a fairly coherent narrative in closing: (1) Adnan asked Hae for a ride at the start of the school day; (2) Aisha saw Hae and Adnan talking at the end of school; and (3) Inez (and Becky) saw Hae leaving in the minutes after school. Therefore, in the absence of something strange happening, Adnan likely got the requested ride and killed Hae during/after it. This was the argument that the State made at trial. All the jurors had to believe was that Debbie was mistaken when she claimed she saw Hae at 3:00 P.M.
So, what if the State had gone with the timeline where Debbie saw Hae at 3:00 P.M. and the Best Buy call was the 3:15 P.M. call? Well, let's again look at Debbie's description(s) of her interaction with Hae. In her first version, Debbie said that Hae told her she was going to see Don. In her second version, Debbie said that "Takera" asked Hae for a ride, with Hae saying she had no time to give anyone a ride because she had to pick up her cousin. It's unclear whether these are two completely different versions of this encounter because Debbie does mention Hae and "Takera" talking about their boyfriends in the second version.
In any event, either version would have been harmful to the State's case. In the first version, Hae is possibly going straight to see Don, whom the defense claimed was an alternate suspect. In the second version, someone else is asking Hae for a ride, and Hae is saying she doesn't have time to give a ride. Indeed, Debbie says that Hae typically left school at 3:00 P.M. to pick up her cousin. If Hae were still at school at 3:00 P.M. on January 13th, how did she thereafter have time to give Adnan a ride to Best Buy before picking up her cousin?
Moreover, unlike with Inez, there was no one like Becky to corroborate Debbie's timeline because no one from the State apparently ever interviewed "Takera." Meanwhile, Becky and Inez seem to very much refute Debbie's timeline. Becky said Hae headed to her car and said she had to leave just after school ended, and Inez testified that she saw Hae leaving school in a hurry just minutes later. So, why would Hae still be at school at 3:00 P.M.?
The above demonstrates the problems with the State pivoting to the 3:15 P.M. call: (1) the State would have lost The Nisha Call; (2) the relevant cell tower ping would have gone from corroborating Jay's story to dispelling it; and (3) the Becky/Inez timeline was much easier to sell to the jury than the Debbie timeline As such, the State's claim that neither the 2:36 nor the 3:15 "timeline was more or less consistent with the rest of the State's case" fails to hold water.
*Jenn says that Jay would not have called her asking for this information. At trial, Jay claims that this was the 3:21 P.M. call on Adnan's call log, which is another impossibility if the 3:15 P.M. call was the Best Buy call.
**Well, the Patrick call couldn't have happened because the call log call shows that this call was placed at 3:59 P.M., after The Nisha Call.