EvidenceProf Blog

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

Monday, April 4, 2016

The Police Influence on the "Come & Get Me" Call & Jenn's January 26th Talk with MacGillivary

Tonight, we will drop the final Undisclosed episode about the reopened PCR proceedings in the Adnan Syed case. Tomorrow, I will do a post about two of the cases we discussed in the episode. After that, though, I will turn my attention to our Season 2 case and return to blogging about other topics until Judge Welch issues his opinion. At that point, I'm sure I'll have a number of posts about the opinion, and we'll be recording new episodes about it as well. 

How do I expect Judge Welch to rule? As I've said during the PCR episodes, my understanding of the reopened PCR proceeding is that the defense presented a very strong case for both the alibi and cell tower claims. That said, it's tough to say anything definitively without being there to see the testimony and exhibits. By way of contrast, once Judge Welch issues his opinion, I will be in exactly the same position as the Court of Special Appeals of Maryland and be able to make a much more conclusive judgment about how that court will rule.

Other than new Undisclosed content related to Judge Welch's ruling, you can expect some new episodes on other criminal justice matters. For instance, later this week, I will be recording an interview with Bill Rankin, the host of the Breakdown Podcast, which just launched its second season. Now, none of this is to say that work isn't still being done on Adnan's case. It is, but none of that work is yet at the stage where it can be presented to the court or the public. In this post, though, I will share two last nuggets.

The Evolution of Jay's "Come and Get Me" Call Story

One reason that so few people trust Jay's accounting of the murder of Hae Min Lee is the fact that he is so off on the timing. Starting with his first interview, Jay consistently tells a story in which he received Adnan's "come and get me" call at or after 3:40 P.M., despite the fact that there were no incoming calls on Adnan's cell phone between 3:15 and 4:27 P.M on January 13th. Some try to write this error off as Jay being bad with time, but this is a tough argument to support, given that Jay initially made this statement right after a pre-interview in which he said he received a non-"come and get me" call from Adnan between 2:30 and 2:45 P.M

The other explanatory theory consists of Jay consciously shifting the timing of the "come and get me" call to 3:45ish because he knows that Hae's murder occurred between about 3:00 and 3:30, with the fact that the police didn't get him to correct the timing of that call used as evidence of lack of police coaching. First, again, it's tough to reconcile this theory with Jay's pre-interview, in which he said that he met with Stephanie in the back parking lot of Woodlawn High School at 3:00 P.M.

Second, it turns out that Jay's description of the timing of the "come and get me call" is actually based on police coaching. Here's what Jay had to say about the timing of that call in his first police interview on February 28, 1999 (page six):

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Dolly Dobrzycki finished her transcription of this interview on March 13, 1999, and the Progress Report for the interview was finalized on March 15, 1999, presumably in preparation for Jay's second recorded interview that same day. Here is that Progress Report (Download Progress Report), and here is the pertinent portion:

Screen Shot 2016-04-03 at 6.45.19 AM

Of course, this isn't what Jay said in his first interview; he said that Adnan was supposed to call him at about 3:00 P.M., the same time that Jay initially said that he was seeing Stephanie in the parking lot at Woodlawn. That said, when Jay describes the "come and get me" call in the second recorded interview, the State's fiction became reality (page 11):

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It's easy enough to see what happened here. During Jay's three hour pre-interview on March 15th, Detectives Ritz and MacGillivary got Jay to change the timing of the planned "come and get me" call from 3:00 to 3:30 P.M. This might have been accidental. Although her interview was all over the place, Jenn seemed to indicate that Jay was waiting for a call at 3:00 P.M., a claim that could have found its way into the Progress Report on Jay's first interview, leading the mistaken detectives to get Jay to go along with this narrative. Or it might have been intentional, with the detectives realizing that a pre-arranged 3:30 P.M. "come and get me" call made much more sense than a planned 3:00 P.M. call.

Why? Keep in mind that, as of March 15th, the detectives were still working off of the theory that Debbie was the last person to see Hae alive.* In her January 28th interview, Debbie claimed that she saw Hae at Woodlawn at 3:00 P.M. And, while the State "lost" the notes from Debbie's March 2nd interview, we know that Debbie said in her March 26th interview that she could have seen Hae as late as 3:15 P.M., with Hae typically leaving at the same time each day to pick up her cousin(s) but sometimes running late. 

Given this timeline, it's easy to see why the detectives wouldn't discourage Jay's timeline and would even encourage a shift from a planned 3:00 P.M. call to a planned 3:30 P.M. call. After all, how could there have been a plan for the "come and get me" call to be at 3:00 P.M. if Hae didn't typically leave Woodlawn until 3:00 (or later) and likely didn't leave Woodlawn on January 13th until 3:00 (or later). Conversely, a planned 3:30 P.M. call would make complete sense.

So, did the detectives intentionally get Jay to shift the timeline from 3:00 to 3:30, or did they make a mistake that Jay ended up incorporating into his story? I don't know which version is worse for the State. The former version would establish pretty clear police misconduct while the latter version would support the narrative that the police unintentionally fed Jay key aspects of his narrative without even realizing what they were doing, similar to what Detective Ritz did in the Brian Cooper case. Either way, we now know that Jay's version of the "come and get me" call wasn't his own.

The only real way this wouldn't be true is if Jay talked to Jenn before his second interview and they got their stories straight. But it's pretty hard to imagine the two of them coordinating their stories of when Adnan was supposed to call Jay but not coordinating essentially every other key inconsistency between their stories, including whether Jenn was home when Jay arrived at the Pusateri residence.

Jenn's February 26th Talk With MacGillivary

This takes me to some more misconduct by the State. We all know that Jenn first talked to Detective MacGillivary on January 26th before returning the next day for her recorded interview. But guess who didn't know this? The defense, until January 18, 2000. This comes from an Amended State's Disclosure on that date:

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The State, however, did not turn over Detective MacGillivary's notes from this January 26th conversation. So, does this disclosure accurately reflect this conversation? No.

First, the disclosure merely indicates that Jenn "knew Hae Lee had been killed and that she had been strangled." Here is the corresponding notation:

Screen Shot 2016-04-03 at 7.22.33 AM

Now, in fairness, Jenn seems to mention something similar in her recorded interview the next day, but her word jumble is much less clear that the stark notation taken by MacGillivary. Would the defense have interviewed Nicole if it received these notes? Knowing the investigatory shortcomings of Gutierrez in Adnan's case, the answer is likely "no," but a competent defense attorney would have talked to Nicole and might have discovered something interesting

Second, the disclosure makes no mention of Jenn telling MacGillivary on February 26th about her whereabouts on January 13, 1999. And, indeed, MacGillivary testifies to the following at trial (page 311):

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MacGillivary's notes, however, tell a different story:

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These notes show (1) the workplaces of Jenn's father and mother; (2) the school attended by Jenn's brother, Mark; (3) Jenn's workplace (Heartlands); (4) Jenn getting off at noon; (5) a 4-4.5 hour gap between noon/12:30 and 4:30 P.M.; (6) Jenn picking up her mother at 4:30 P.M.; (7) Jenn picking up her father at 5:30 P.M.; and (7) nothing from 6:00-6:30 P.M. or the rest of the night.

In her recorded interview the next day, Jenn told a similar story about dropping off her father, mother, and brother, going to work, and picking up her mother and father in the evening. She also discussed the events of the night of January 13th that we all know so well and filled in the noon-4:30 gap by noting that she arrived home from work and played video games with Jay before he got the "come and get me" call:

Screen Shot 2016-04-04 at 6.50.30 AM

Notably, Jenn makes no mention of picking up her brother from school or her brother being present when Jay and she played video games. At trial, though, Jenn did mention that it was her routine to pick up her brother up from school at about 1:00 P.M., (pg. 182-183):

Screen Shot 2016-04-04 at 6.55.55 AM

but I'm not sure that Jenn ever actually testified to picking up her brother on January 13th. Meanwhile, Gutierrez confronted Jenn about the lack of reference to her brother in her recorded interview (pg. 81-82):

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Gutierrez was trying to imply that Jenn never mentioned Mark's name because he wasn't home, which would very much contradict Jay's claim that only Mark was home when he arrived at the Pusateri residence. Jenn's response is that she "had no reason to" mention Mark's name.

You might agree or disagree with Jenn's assertion, but what seems crystal clear is that Jenn had every reason to mention Mark's name in her January 26th conversation with MacGillivary. Again, in the notes of that conversation, Jenn very clearly mentions picking up her mother and father at 4:30 and 5:30. Conversely, there is nothing next to 12:30-1:00, despite Jenn's claim at trial that she routinely picked her brother up from school in this general time frame.

I also think it's pretty significant that Jenn failed to fill in the noon/12:30-4:30 gap in her January 26th conversation with MacGillivary. I can see why Jenn wouldn't want to mention being with Jay, even though she did tell him Jay's name and workplaces:

Screen Shot 2016-04-04 at 7.18.31 AM

But if Jenn really did play video games with Mark and Jay from 1:00ish to 4:30, why didn't she just give this correct version of events on February 26th and simply leave Jay out of the story?

The easy response is that this was not the correct version of events, which would explain why Jay's consistent claim is that Mark, and not Jenn, was home when he arrived at the Pusateri residence. Indeed, in his ride-along, Jay implied that Jenn was never home on the afternoon of January 13th:

Screen Shot 2016-04-04 at 7.22.39 AM

So, which version of events is true? As far as I know, nobody believes that Jay was at the Puateri residence on January 13th until 3:40ish. But was he ever there? And was Jenn ever home on the afternoon of the 13th? If so, and if, as per usual, she picked up Mark at 1:00 P.M. and took him home, how could Jay have thought that only Mark was home when he arrived at the Pusateri residence? On the other hand, if Jenn didn't take Mark home on January 13th, how did he get home? Was it in fact Jenn's usual routine to drive him home after school, and, if so, why didn't Jenn mention this fact in either her January 26th conversation with MacGillivary or her recorded interview?

As usual, we have no answers. Moreover, because the State failed to turn over the January 26th notes back in 1999/2000, we don't even have the questions. What we do have is some serious doubts about what Jay, Jenn, and Mark were actually doing on the afternoon of January 13, 1999.


*It wouldn't be until Inez Butler's second interview on March 23rd that the State might have shifted its timeline, and it's not even clear whether such a decision was much before trial.



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Every time I read this timeline I get so confused. I grew up in the area that this crime happened. The idea that this amount of stopping and going and visiting people during this time seems really impossible as it is really hard to get around in that area during that time since it's the beginning of the rush-hour trickle.
The part about the route 70 park-and-ride is the most unbelievable part to me. That park-and-ride is located in a space where there is a main exit ramp that goes from Route 695 to security Boulevard, and the exit ramp wraps around through the actual park-and-ride. There is very little space between that road and the actual parking spaces, so the people who are taking the exit ramp have to drive through the park-and-ride to get to the other side. The amount of traffic going through that park-and-ride at the time that Jay 📘 says that add non-that was rooting through the trunk that contained Hae's body seems extremely unlikely due to the amount of traffic that would be flowing through that park-and-ride at that time. If the trunk was open in this car while all of this traffic was going through someone surely would have seen a body or something strange going on in the back of that car.
The other thing that seems odd to me is the fact that this suppose it strangulation went on in the back of this Best Buy parking lot. That back parking lot is somewhat secluded at night, but during the day there's enough activity that there's no way that somebody would've been able to strangle somebody in less than five minutes, move the body to the trunk ALONE, and "pretzel" a 5'8" woman in to the back of a Nissan Sentra without someone potentially rolling through if it was daylight. That parking lot is not deserted during the day. Sorry Jay!! It didn't happen.

Posted by: Jeannette | Apr 4, 2016 1:52:07 PM

Answering a question about what one did with what one would "usually" do is a sign of possible deception. They want you to take for granted that that is what they did also in this case and they don't want to tell you what they actually did. As seems to be the case over and over again in all of these statements however, the reason for the deception is not clear.

Posted by: Gregulator | Apr 4, 2016 4:20:36 PM

What if it's not the Best Buy (big box) store, but the Best something else store in the neighbourhood where the car was found? Does that chance timelines?

Posted by: JLWhitaker | Apr 4, 2016 4:30:03 PM

I was wondering if you could answer a question that's been bothering me. Does it seem like a bad sign that the judge is taking so long to issue his ruling? If he was swayed by the defense, wouldn't he want to get the ball rolling asap just out of decency -- if he thinks it's possible this young man has been wrongly convicted?

Posted by: Ruth Jacobsen | Apr 4, 2016 6:54:39 PM

While I firmly believe in Adnan's innocence, I will play the devil's advocate on the issue of the planned "come and get me" call. If Adnan's plan was to trick Hae into giving him a ride after school so he could kill her, he would know that she normally leaves school around 3 to go pick up her cousin. So he would plan to ask her to give him a quick ride - leaving asap after school lets out so she would know she could say yes and still wouldn't be late to pick up her cousin. So his plan would be to get in Hae's car and leave the school around 2:30 when the bus loop clears. She would drive him to wherever he had decided to kill her, and he figured it would be done around 3:00. So he told Jay to expect his call around then.

(All that being said, I agree that the change to 3:30 clearly shows police coaching - whether intentional or not).

Posted by: Ann | Apr 4, 2016 7:17:21 PM

What are your thoughts on Bob Ruff's theory about Don being the killer?

Posted by: Anonynon | Apr 4, 2016 7:59:08 PM

Is it possible that in his ruling there will be included a good scolding for the police and urick? Gee, I hope so...

Posted by: Joy | Apr 5, 2016 12:13:39 AM

Hey Colin - a little off topic but I have a question for you. Do you know if Adnan remembers where he was when he got the call from the police on January 13th? If I'm correct, you guys have discounted he and Jay being at NHRNC's that day but the state says that is where he received the call. I'm wondering what Adnan remembers about where he was when he got the call. Thanks, Charlotte

Posted by: Charlotte | Apr 5, 2016 1:50:29 AM

jeannnette: Interestingly, the Park and Ride disappears from the story in Jay’s Intercept interview.

Gregulator: I really wish someone talked to Mark back in 1999 or that someone did talk to him, with the notes/transcript of that interview appearing at some point.

JlWhitaker: Not really, given that Jay’s initial story had Adnan strangling Hae about 4 blocks from that location.

Ruth Jacobsen: It’s not a bad sign at all. Whichever way Judge Welch rules, he wants to make sure that he has the facts and law correct. That involves reading a lot of caselaw and going through the voluminous files admitted at the hearing.

Ann: Good point. We could play with the facts a few different ways to get different results.

Anonynon: I tend to think Don didn’t do it, with Debbie having the wrong day, but Bob says he has uncovered additional information, and I haven’t asked him to see that information. In any event, I really hope that Debbie talks at some point.

Joy: Sure, it’s possible.

Charlotte: There’s a defense memo where Adnan recounts how he was in his car and reached across Jay to the glove compartment to get his phone for the police call.

Posted by: Colin | Apr 5, 2016 3:17:14 AM

If Don did it then how did Jay get involved? Jay knows a lot of details.

Posted by: kEvin | Apr 5, 2016 8:11:50 AM

kEvin: The police told him. The only question is whether they told him on purpose to get him to be a (semi) believable witness, or told him by accident as part of their interrogation and he ran with those details, or whether he just told so many different accounts that all they had to do was pick which one to agree with.

Posted by: Dan | Apr 5, 2016 10:05:13 AM

I was wondering if Adnan's cell phone usage, in terms of quantity of calls, etc. on January 13, 1999, was different than that of other days and weeks prior to that day. I know he had a new cell phone, but I wasn't sure if that was his first cell phone, or if he had another one prior. I think it would be interesting to see if that day was any different from other days in terms of quantity and quality of calls.

Posted by: Ruth Jacobsen | Apr 5, 2016 11:27:21 AM

JLWhitaker: "What if it's not the Best Buy (big box) store, but the Best something else store in the neighbourhood where the car was found? Does that chance timelines?"

You mean like the Best Market around 600 Edgewood at Edmondson?

Posted by: Efogoto | Apr 5, 2016 11:28:16 AM

Ann - Flipping that argument around, why would Adnan plan to kill Hae between 2:30 and 3:00 knowing full well that she’d be missed by 3:15? If you had half a brain and was planning on murdering someone, don’t you think you could pick a better time than 15 to 45 minutes before you KNEW that they’d be missed?

Posted by: Eric Wolff | Apr 5, 2016 1:03:59 PM

Colin - in your response to Anonynon above you said, "I really hope that Debbie talks at some point." Can you clarify what we need to know from her?

Posted by: Mike S | Apr 5, 2016 1:24:32 PM

I am now realizing that my question above about his cell phone usage was dumb because he didn't even have his phone most of the day, so cell phone usage on his phone that day reflected that of Jay, not that of Adnan. Totally forgot that when I wrote my question above.

Posted by: Ruth Jacobsen | Apr 5, 2016 2:53:53 PM

Mike S - Debbie and Don had a seven hour phone conversation after Hae's disappearance despite not really knowing each other. I think the question for Debbie is what they talked about.

Posted by: Anonynon | Apr 5, 2016 10:12:51 PM

Eric - again, playing devil's advocate, I would answer that Adnan would plan it for that time because he knew he would have an alibi in that he would be at track practice. If his plan was for Jay to come and get him around 3 and take him back to school in time for track practice at 3:30, then by the time anyone really realized Hae was missing, he would be at practice, and no one would suspect him.

Posted by: Ann | Apr 6, 2016 1:31:57 PM

They fact that Adnan could not offer an alibi during his 12 hour interrogation would suggest that Jay's stories about trying to create one are false.
One of the reasons that people are so suspicious of Don, is that he actually nailed down an alibi that has been proven to be falsified.

Jay would have been pretty motivated to follow directions from the cops, since he had a resisting arrest charge over his head.
Based on my experiences with the BPD, I can tell you from experience, they are incredibly manipulative. It sounds to me like Jay is actually very easily manipulated, and they might still have a strong hold over him.

Posted by: Jeannette | Apr 6, 2016 4:17:14 PM

Between Eric and Ann, interesting points, but the timeline still leaves way too small a time period for a quick murder before track practice... This is crazy! There is really no way that he could have killed her if he was actually at track practice that day. None of it makes sense. If he had actually killed her, I guarantee he would have had his story straight by the time the cops got to him. Jay certainly figured one out, as did Don...

Posted by: Jeannette | Apr 6, 2016 11:53:43 PM

@Ann, the problem with the scenario you put forward is the other witness regarding Hae's day. Becky and Aisha remember Hae telling Adnan he couldn't get a ride because something came up, Becky says Hae walked towards the car park door while Adnan walked towards the library direction. Then of course Asia confirms he is in the library.

There would have to be some scenario where Adnan would know Hae's something else would mean she was in her normal place before 3pm so he could intercept before it was too late to ask for a ride because she was on her way to get her cousin.

Of course Adnan may be guilty but then it should really be shown how both Becky and Aisha are mistaken imo (shown as in investigated not just conjectured).

Posted by: Sue | Apr 7, 2016 1:29:04 AM

Sue - my theory was directed more towards what Adnan's plan would have been when he "gave" the phone to Jay earlier in the day and told Jay to expect his call. That is what Jay was talking about when he said Adnan planned to call him around 3:00 p.m. If Adnan then later found out his plan wouldn't work because Hae could not give him a ride, then that would be even more support for why Adnan actually didn't call Jay until closer to 3:45 - he had to come up with a new way to get into Hae's car and it took longer than he had originally planned.

Posted by: Ann | Apr 7, 2016 1:12:18 PM

Ann - why are you believing anything Jay said? He's been proven to have been lying about virtually everything he's ever said about that day.

Posted by: Eric Wolff | Apr 8, 2016 3:47:19 AM

@Ann - I do see what you are saying, but the problem is that it is made up conjecture based on no evidence whatsoever except a presumption Adnan is guilty. Anyone could do this for anyone else involved in Hae's life. A contrary viewpoint is always welcome but if it's weak on evidence then this also needs to be said.

Posted by: Sue | Apr 8, 2016 8:11:18 AM

If someone is trying to "create" an alibi, they will certainly share that alibi with anyone who will listen, including one's DEFENSE ATTORNEY. All these conspiracy theories about Adnan's machinations intended to create an alibi are ridiculous, since all he had to tell when interviewed about that day was what he typically did after school.

Posted by: Beth | Apr 8, 2016 7:03:27 PM

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