EvidenceProf Blog

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

Monday, February 15, 2016

The Problems With the State Pivoting From the 2:36 Timeline to the 3:15 Timeline



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

At 3:32 P.M., a call was made from Adnan's cell phone to Nisha. In its Brief of Appellee, the State recognized how critical Nisha was to its timeline (page 7):

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.?

5. Conclusion

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.



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Assuming that neither the state or defence want a retrial, what other option remains but a plea agreement? As he already said on the Serial podcast, if he had the chance he would pleaded guilty, but since until this day he always said he's innocent, how does this play out?

ps: You quoted the full name of Nisha, is that on purpose?

Posted by: Martin | Feb 15, 2016 5:18:55 AM

Martin, if both the state and Adnan decided they didn't want to go forward with another trial presumably the state would offer for Adnan to take whats called an Alford Plea which basically allowed the defendant to plead guilty while maintaining their innocence. The prosecutor would then recommend he be sentenced to time served and Adnan would be free. However he would still be convicted of the murder of Hae Lee so the case would remain closed and justice for Hae would be lost.

Posted by: stellarangel | Feb 15, 2016 7:34:58 AM

My head aches trying to keep all the relevant times straight, especially given the baggage each point in the timeline carries. Between faulty memories, conflicting witness statements, problems reconciling times given by witnesses with known weather/athletic events/student activities that occurred at the time, and the reliability of cell record analysis (butt dialing notwithstanding) it seems that it would no longer be possible for the state to confidently rely on many of the points on its timeline. I understand that disproving their timeline was not the intention of your article, but seeing the times all laid out like this just reminds me of how hard it would be for the state to confidently present any kind of timeline should a retrial occur, which leads me to a couple of questions that I’ve had. Should (shudder to think) judge Martin Welch deny Mr. Syed’s petition for PCR, what would then be the next step for his legal team? And, also, I’ve been curious as to why Judge Welch is hearing this petition anyway? I’ve heard it mentioned that he came out of retirement in order to do so - did he preside over the hearing because he was the judge who initially granted the petition, or is there some other reason he is ruling on this?

Posted by: Jennifer | Feb 15, 2016 7:59:13 AM

Is an Alford plea a possibility? If so, what - exactly - would Adnan have to attest to?

Posted by: Fancy Nancy | Feb 15, 2016 8:28:04 AM

Thanks to you for laying this critique out so clearly. This goes a long way toward understanding the State's reasoning and potential future moves.

Question: If Judge Welch does rule in Adnan's favor in these PCR proceedings and his case eventually reaches the threshold of a new trial, would this position then supply openings for his attorneys to pursue discovery of CrimeStoppers information, Dr. Rodriguez/autopsy/lividity information, alternate suspect information (example: LensCrafters timesheets and pay records), and so on?

Posted by: VanishingPoint | Feb 15, 2016 8:48:59 AM

There's no way the state can prosecute Adnan at this point. He should reject ANY plea offer is the conviction is overturned (and upheld).

Freedom is important, but freedom without a felony murder conviction is even more important.

Posted by: Tms78 | Feb 15, 2016 1:07:35 PM

Hi Colin, This all makes sense, thanks. I just wonder: shouldn't CG have been prepared to call alibi witnesses for any reasonable timeline? I mean, the police knew that Have did not show up at her cousin's school at around 3:15 or so. It seemed that Hae may have always gone at the end of the pick-up window as not to have to wait around in a long line of parents. (I would often do this with kids I babysat for. If the window was 3:15-3:30, I'd always go at 3:25). So any window of time PRIOR to the cousin's normal pick-up time would have been relevant as Hae was at least diverted/abducted between the end of her own school and and before that pick-up. Which means Asia would have been relevant as she saw Adnan in that window. I would think CG should have had several people lined up and subpoenaed. If she chose not to call a witness at the last minute, after prepping that witness, then maybe I could buy the "strategy" argument. My question is: is the state obligated to disclose to the defense the time of death they are arguing, or anything else about the timeline, prior to trial? Didn't CG know the timeline after the first trial, so couldn't she have (if she forgot about Asia) have gone back and said, "hmm, wasn't there a witness?" and have dug up Asia for the 2nd trial? THANKS

Posted by: iheartegrets | Feb 15, 2016 2:35:08 PM

If Jay and Jenn both say he didn't leave until 3:45, then the Nisha call could not have been Adnan. The 3:15 call could not have been Adnan calling from Best Buy, according to their testimony, so that leaves the 2:36 call and Asia's testimony refutes that. It's really confusing trying to tie Adnan to the murder. The time line doesn't work, the lividity report refutes Jays testimony and the inconsistencies in Jays stories prove him to be a poor witness. I think if I had been a juror on that case I would be very angry after finding all of this out now!

Posted by: Cathy McElhaney | Feb 15, 2016 4:50:20 PM

@Jennifer, WRT:

"it seems that it would no longer be possible for the state to confidently rely on many of the points on its timeline"

That's the point though, the State's timeline has never made sense. It's founded on lies (from Jay), invented events (based on pings, fabricated by the PD and fed to Jay), and wild supposition and speculation.

The fact that they're saying "Oh well, even if that timeline doesn't work, then what about this one?" means that they don't now, and never have had, any idea what happened to poor Hae. They don't care though, they've locked someone up, case closed.

Posted by: Squatch | Feb 15, 2016 11:22:58 PM

Total supporter of all that you do, but I do wish you had retracted Nisha's last name. I'm sure court docs are available that disclose it, but a quick google search revealed way too much in terms of her history. She is obviously an innocent here. Shit, post Patrick's last name and Jenn's current address and cell phone number, but poor Nisha.

Posted by: Zach T | Feb 16, 2016 10:47:55 AM

Nisha: A plea agreement is pretty much the only option. Also, thanks for catching the Nisha error. I’ve redacted the name now.

stellarangel: Right, an Alford plea is the likeliest plea deal option.

Jennifer: If Judge Welch denies relief, Adnan appeals to the Court of Special Appeals of Maryland. Judge Welch came out of retirement because he handled the initial PCR proceeding.

Fancy Nancy: Yes. He would have to attest that the State has enough evidence to prove his guilt beyond a reasonable doubt. He would not have to admit guilt.

VanishingPoint: Yes.

Tms78: Agreed, but a new trial would be costly.

iheartegrets: Yes, Gutierrez definitely dropped the ball.

Cathy: Agreed.

Squatch: Indeed.

ZachT: My mistake. I’ve now redacted it.

Posted by: Colin Miller | Feb 16, 2016 1:17:18 PM

So, what was Jay's explanation of the Nisha call if it happened when he was claiming he was still at Jenn's?

Posted by: MzOpinion8d | Feb 17, 2016 7:31:43 PM

If the court overturns the conviction, and the State is given the option of another trial, what is the timing of events as far as an Alford plea? In other words, would the State first have to re-charge Adnan, claim they are going to trial, and then offer an Alford plea with the specter of a new trial looming over him? Or would Adnan be offered an Alford plea first and basically have to call the State's bluff if he wanted to refuse it (and assume that they will not then decide to go to trial)? I guess what I'm really asking is whether there is a way for Adnan to not have to accept an Alford plea. Thanks!

Posted by: Ann | Feb 18, 2016 10:24:25 AM

MzOpinion8d: He didn't have one, but Gutierrez never pressed the issue.

Ann: The State could offer an Alford plea at any point.

Posted by: Colin Miller | Feb 18, 2016 12:44:57 PM

Obviously it's not my freedom or my money at stake, but do you think there's a decent chance that Adnan (and his legal team) reject a plea and force the state to either retry him or drop the charges? It may be a legal game of "chicken", but given the evidence that not only is the state's case a sham but likely it was a sham from the beginning with lies, corruption, and cover-ups at all levels, they can't possibly be dumb enough to risk trying this case again in open court, can they?

Posted by: Dan | Feb 19, 2016 8:30:57 AM

I don't understand why Adnan would accept an Alford plea at this point. If he gets his conviction overturned, and it sticks on appeal, why wouldn't he tell the state to either re-try him or drop the charges? Why would he plead guilty, even under and Alford plea, at this point with all we know about the case (or lack thereof)?

Posted by: Eric Wolff | Feb 23, 2016 5:09:04 PM

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