EvidenceProf Blog

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

Tuesday, May 24, 2016

My New Podster Article, "The Debbie Dilemma"

Today, Podster Magazine released its May 2016 issue. My article, "The Debbie Dilemma," appears on pages 46-47 (or 49/57). It deals with the police statements and testimony of Debbie Warren at Adnan's two trials.

-CM

https://lawprofessors.typepad.com/evidenceprof/2016/05/my-new-poster-article-the-debbie-dilemma.html

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Comments

Would it have been possible for Asia to have seen Adnan at the library until 2:40 and Debbie to have seen him in the guidance counselors office at 2:45? Are the two locations close enough for that?

Posted by: TW | May 24, 2016 3:01:30 PM

Absolutely. You could walk from the library to the guidance counselor's office in 5 minutes or less.

Posted by: Colin Miller | May 24, 2016 4:02:19 PM

My theory on why Debbie won't talk to anyone about Adnan's case is she can't face the fact that her decision to back off on her earlier statements and testimony about seeing Adnan in the counselor's office may have cost him (so far) half his life. That's a tough thing to get over when you know you could so easily have helped an innocent person and you opted not to.

We know that Jay will never come clean about his role in putting an innocent man in prison for life. I suspect his reason is similar--it's tough to admit that your selfishness and stupidity hurt someone as badly as his hurt Adnan, someone who's only crime was to be Jay's friend, lending Jay his car and his phone when Jay was little more than an unemployed loser (Jay may still be those things, I don't know, but he sure was then). I imagine even Jay has a hard time looking at himself in the mirror after throwing Adnan under the bus the way he did. He doesn't understand that admitting the truth is his only way out.

I gave up hope on Jay doing the right thing before Serial ended. I still have hope for Debbie.

Posted by: Eric Wolff | May 24, 2016 7:41:49 PM

Why on earth would Gutierrez impeach Debbie's memory of January 13th? In the second trial Debbie testified on direct examination that she saw Hae around 3 o'clock. She confirmed this under cross examination by Gutierrez. Impeaching Debbie's memory of seeing Adnan at 2:45 would call into question her credibility. It's more important to Adnan that Debbie be credible about seeing Hae alive at 3 than it is to get her to say she may have seen Adnan at 2:45 by calling into question her memory of the 13th. Calling into question Debbie's memory of the 13th would have been damaging to Adnan.

Posted by: steve | May 25, 2016 12:01:43 PM

steve: If it was a huge deal that Debbie said she saw Hae at school at 3:00 P.M., then why didn’t Gutierrez ask Debbie about what Hae said during this interaction? In other words, why didn’t Gutierrez ask Debbie about (1) Hae saying she was going to see Don; and/or (2) Takera asking Hae for a ride, and Hae saying that she didn’t have time to give anyone a ride. If Gutierrez pursued this line of inquiry during cross-examination, I would feel a lot better about her not following up on the 2:45/track practice question.

Posted by: Colin Miller | May 25, 2016 12:11:06 PM

She did ask her about what she said during the interaction. CG got Debbie to confirm that Hae said she was going to see Don at the mall. Take a look at pages 69-71 of the transcript:
https://app.box.com/s/7puhghm0lfjdh6khswz7jm4s61u2djny

What more do you want her to ask? You know you don't ask a question on cross that you don't already know the answer to, and you ask the witness "yes" and "no" questions.

If I was a defense attorney, I wouldn't touch the ride issue with a 10 foot pole. Adnan had a car, and therefore, any indication that he asked Hae for a ride could be spun in the prosecution's favor.

Posted by: steve | May 25, 2016 12:22:58 PM

Congrats on the publication, professor!

Posted by: Shi | May 25, 2016 12:46:34 PM

steve: Thanks. I had forgotten that she asked about Hae saying she was going to see Don at the mall. Still, I think the Takera exchange was much more important. According to Debbie, (1) Hae typically left school at 3:00 to pick up her cousin; (2) Debbie saw Hae at 3:00 on January 13th; (3) Takera and no one else that she can recall asked Hae for a ride on January 13th; and (4) Hae responded that she had no time to given anyone a ride. Those 4 facts together would have gone a long way toward creating reasonable doubt about whether Adnan got a ride from Hae on January 13th.

Shi: Thanks.

Posted by: Colin Miller | May 25, 2016 1:27:02 PM

Colin -- Now I am doubly confused. Your whole article is about how Adnan couldn't have killed Hae at 2:36 if Debbie saw Adnan at 2:45, right? It makes no mention of Takera or ride requests by anyone. Doesn't Debbie seeing Hae alive at 3 prove the same point? CG clearly wanted Debbie to confirm Hae was alive at 3. Why would she call into question Debbie's memory of the day? It would be counterproductive to Debbie's credibility on the point she was trying to make.

Your article even mentions that CG had notes that said Adnan picked up the letter earlier in the day. CG had a State's witness making the point she wanted to make on direct and cross examination (i.e., Hae was still alive after 2:36). Why ask Debbie questions about the guidance office visit when she knew it might not be helpful based on her own notes and she already had Debbie making the point you wanted CG to make (i.e., Hae was still alive at 3, after 2:36)? Remember, don't ask a questions you don't already know the answer to.

Posted by: steve | May 25, 2016 2:07:46 PM

Your article contains numerous errors.

“the prosecution claimed that Adnan called Jay Wilds at 2:36 from a payphone at a Best Buy”

False. Urick and Murphy argued in the opening and closing statements that Adnan told Jay to meet him at the Best Buy. They did not say Adnan himself was at Best Buy at that moment.

“After all, a State’s witness was confirmed that she had seen Adnan, still at Woodlawn, nine minutes after he has supposedly murdered Hae”

Also false. Murphy argued that class ended at 2:15, and that Hae spoke to Adnan, got her car, came down to get a snack from Inez, left, and then was dead with 20 minutes. In order to believe that the prosecution argued Hae was dead by 2:36, you’d have to believe that Murphy thought Hae left class, got her things, talked to Adnan, got her car, drove to Inez, got a snack, and left in – literally – one minute.

“Therefore, the easy conclusion would be that Adnan picked up his letter at about 2:45 on January 13”

Also false. Adnan told his defense on August 21 that he went to get the college recommendation letter around 12:40.

I assume you will be posting a correction in the next issue?

Posted by: Seamus_Duncan | May 25, 2016 2:12:40 PM

steve: The point of raising the Takera issue was to push back against the argument that Gutierrez had a strategy of avoiding further inquiry into Debbie’s 2:45/guidance counselor’s office/track practice statement because it would have undermined Debbie’s testimony that she saw Hae at 3:00. Gutierrez not asking about Takera tends to show that she was simply unprepared for cross-examination of Debbie as opposed to engaging in a rigorous cost-benefit analysis.

I also think that testimony about the 2:45 encounter would have been hugely important. Debbie recalled that Adnan had his gym bag and that the two talked about Adnan going to track practice. This would tend to be inconsistent with Adnan getting a ride from Hae, especially when Debbie testified that she had no recollection of anyone but Takera (soon thereafter) asking for a ride from Hae.

Moreover, I don’t see a huge deal with Gutierrez trying to refresh Debbie’s recollection. It was almost a year later, and there was a transcript of Debbie’s police statement.

Seamus: (1) From Judge Welch’s prior opinion: “The State claimed that sometime after 2:15 p.m., when school ended, and before 2:36 P.M., when cell phone records indicate a call was made to Mr. Wilds from a payphone in the Best Buy parking lot, Petitioner received a ride from the victim and strangled the victim during the course of that ride.” So, the State claiming that Adnan killed Hae before 2:36 P.M. and the State claiming that Adnan called Jay from Best Buy are both legally operative facts in this case.

(2) In the article, after the sentence you quoted about the “easy conclusion,” I noted that there is evidence tending to show that Adnan picked up the letter earlier in the day. This, of course, leaves a few questions. Is Debbie remembering a different day? Did Adnan actually go to the GC office earlier in the day? If so, and if Debbie is remembering the right day, why does she recall Adnan having his gym bag and talking about track practice before school had ended? Did Adnan go to the GC office twice on January 13th? Etc.

Posted by: Colin Miller | May 25, 2016 5:32:49 PM

Why are you citing the judge's opinion, instead of what the prosecution actually said at trial?

Posted by: Seamus_Duncan | May 25, 2016 8:57:29 PM

Seamus: It would be tough to catalogue every argument and piece of evidence and testimony that the State made in a single comment. Judge Welch's opinion puts it quite succinctly. So does the State's own brief:

http://mdcourts.gov/cosappeals/pdfs/syed/appelleebrief201505.pdf (footnote 8):

"At Syed’s trial, prosecutors posited that the 2:36 p.m. entry corresponded to Syed’s call to Wilds from the Best Buy store on Security Blvd., suggesting that the murder took place between 2:15 p.m. and 2:36 p.m."

Posted by: Colin Miller | May 26, 2016 2:56:09 AM

Steve - by "impeach Debbie's testimony", he's referring to impeaching her pretending that she "didn't remember" during the second trial and her backing away from her prior testimony and very clear statements to the police and investigators about seeing Adnan at the guidance counselor's office. He's not suggesting Gutierrez should have tried to *discredit* her testimony about that, just not let her back off from her previous statements by reminding her what she'd said before.

If Gutierrez had made a bigger deal of Debbie's very clear memories of her interaction with Adnan and the evidence around it, Adnan might not have spent the last 17 years in prison. Instead, she basically let Debbie off the hook and stuck Adnan in it.

Posted by: Eric Wolff | May 26, 2016 3:34:47 AM

Colin -- Do you really think CG wanted to bring this comment up:

MacG: Did she indicate that she was going to give anybody a ride?

Warren: No, um, somebody, I think Takera asked, and like she said she couldn't because she had to pick up her cousins after school, and she had to meet them about 3 O'Clock, so she didn't have time. But no one else that I remember.

https://app.box.com/s/h8lcxrlkyco28q6ydh0bdepu6wb15a2f p. 32

CG had Debbie claiming to have seen Hae at 3:00, after the time the State put forth as the time of the murder. You want CG to go down a path that not only calls into question Debbie's memory, but also calls into question whether Debbie really saw at Hae at 3 on the 13th? Read what Debbie said. She said Hae couldn't give anyone a ride because Hae had to meet her cousins at 3. If Hae had to meet her cousins at 3, then Debbie didn't see Hae at 3, she had to have seen her earlier. This is bad for Adnan. Trying to bring up this conversation does not help Adnan. Also, we're back to the issue of asking questions on cross examination that you don' t know the answer to. If CG goes down this route, maybe Debbie says she must have seen Hae earlier. Maybe she realizes she's thinking of a different day. Maybe on redirect the State brings all of this out.

Posted by: steve | May 26, 2016 6:07:59 AM

http://undisclosed-podcast.com/docs/1/Debbie's%20Statement.pdf (pg. 31):

“MacGillivary: Ok, However, she had to pick up her cousins, and from my knowledge she had to be there at 3:20 to pick up her cousins. So you indicated you saw her around 2:45 and she would have to have left school during that time span to pick up the cousins at least by 3:20.

Debbie: Usually she would leave about 3 o'clock. Generally she didn't leave any earlier. Now sometimes she'd go, sometimes later um, if they had something else to do.”

So, according to Debbie, (1) Hae would leave Woodlawn at about 3:00 P.M. to pick up her cousin(s), but she would sometimes leave later if (t)he(y) had something else to do; (2) she saw Hae at about 3:00 P.M. on January 13th turning down Takera for a ride because she had to pick up her cousin and didn’t have time to give anyone a ride. Given that the State’s theory was that Adnan killed Hae after getting a ride from her to Best Buy on January 13th, cross-examination about Hae turning down Takera for a ride would have been hugely helpful to the defense.

Posted by: Colin Miller | May 26, 2016 6:59:21 AM

We'll have to agree to disagree. But I will reiterate, you don't question the memory of the person who saw the victim alive after the time the State says the victim was killed. Would you ask Asia questions impeaching her memory of the 13th? There is no way CG would have wanted to go through this mess of conflicting times and circumstances when she wants Debbie to be credibile about seeing Hae at 3:

"Debbie said she saw Hae at approximately 1500 hours on 01/13/1999. Hae was by herself and she was inside the school near the gym."
https://app.box.com/s/xv6ojmomauk97e9q5bldp8h2fdcshy1k

"Yes, in the lobby area wen I spoke to her and one of our friends."
https://app.box.com/s/h8lcxrlkyco28q6ydh0bdepu6wb15a2f

"So you indicated you saw her around 2:45 and she would have to have left school during that time span to pick up the cousins at least by 3:20."
http://undisclosed-podcast.com/docs/1/Debbie's%20Statement.pdf

“Therefore, the easy conclusion would be that Adnan picked up his letter at about 2:45 on January 13”
https://issuu.com/shelfunbound/docs/podster_may_2016

Posted by: steve | May 26, 2016 9:31:00 AM

steve: Frankly, I think Gutierrez handled this perfectly at the 1st trial:

http://lawprofessors.typepad.com/.a/6a00d8341bfae553ef01b8d10289d9970c-pi

She read the transcript of what Debbie said of her 2:45 encounter with Adnan and then asked, “Do you remember telling them that?” If Gutierrez did the same thing at the 2nd trial and Debbie answered, “yes,” that’s great. If not, the jury has still heard what Debbie said about the 2:45 encounter. If Debbie answered, “no,” the jury still would have heard what Debbie told the detectives.

Instead, Gutierrez just asked Debbie about whether she recalled telling the detectives that she talked with Adnan before he went to practice:

http://lawprofessors.typepad.com/.a/6a00d8341bfae553ef01bb081ce9b2970d-pi

Debbie, of course, answers “no.” As a result, the jury never hears (1) the statement; (2) the time when Debbie saw Adnan; and (3) where Debbie saw Adnan. Part (3) might be especially important because the guidance counselor testified that she gave Adnan a recommendation letter on January 13th.

If Gutierrez started by reading the relevant portion of Debbie’s statement, the jury would have heard it all. Even after Gutierrez’s error, though, I don’t see any issue with Gutierrez saying something like, “That’s certainly understandable that you don’t remember telling the detectives a year ago. Let me read the statement, and let’s see if it jogs your memory.”

Posted by: Colin Miller | May 26, 2016 9:56:47 AM

"Frankly, I think Gutierrez handled this perfectly at the 1st trial"

I think that is very much dependent on whether or not the 2:36 time was clearly set forth as the State's proposed time of murder at that point in the first trial. I doubt the 2:36 time had been fleshed out at the proposed time of the murder at that point in the trial because Debbie testified before Jay. So, the best thing CG could do at that point was show that Adnan was busy from school getting out until track. Debbie seeing Adnan at 2:45 helps with this.

In the second trial, CG has heard Jay's testimony once already in the first trial. Also, and correct me if I'm wrong, but I think the state mentions the 2:36 time in their opening statement. So, by the time Debbie testifies in the second trial, it becomes more important to show Hae was alive at 3.

Posted by: steve | May 26, 2016 11:26:28 AM

steve: The 2:36 Best Buy call was in the prosecution's opening statement at the first trial:

http://lawprofessors.typepad.com/.a/6a00d8341bfae553ef01bb07cd1302970d-pi

Posted by: Colin Miller | May 26, 2016 11:47:43 AM

I think you're reading more into that than CG could have done without having heard Jay's testimony or received his statements. But, even if that was a tip-off to CG that the State thinks the time of death was 2:36, from my perspective, that's an indictment of the CG's approach in the 1st Trial, not what she did in the second.

Also, check out pages 110-115 of Debbie's testimony in the second trial. CG did ask more than just the one question you excerpted above. She didn't explicitly read from the interview transcript or mention the 2:45 time, but she asks about what she said to the police, reminded her it was record, talks extensively about the guidance office, etc. CG asks Debbie things along the line of "Wouldn't have told them something that wasn't true?" and " You wouldn't have concealed things?" and "You remembered things better then than you do now?" So, at very least it undermines the idea that "Gutierrez didn't even really ask about [Debbie's] police statement."

Posted by: steve | May 26, 2016 1:51:00 PM

steve: I’m not sure what you mean. Before Debbie testified at trial #1, the State had (1) laid out its 2:36 P.M. Best Buy call in its opening statement; and (2) elicited testimony from Inez that she saw Hae leaving school in a hurry on January 13th between 2:15 and 2:36 P.M. Thereafter, Debbie testified as a witness for the State and was not asked about seeing Hae at 3:00 P.M. On cross-examination, Gutierrez then got Debbie to testify that she remembered telling detectives that positive that she saw Adnan at the guidance counselor’s office at about 2:45 P.M. on January 13th. This turned a State’s witness into an alibi witness and is probably a big reason why the jurors were leaning toward a “not guilty” verdict when the mistrial was declared.

This takes us to Gutierrez’s line of questioning at the second trial. You note the huge deficiency yourself: Gutierrez never mentions the 2:45 time. That’s the whole point of Debbie’s statement about seeing Adnan. If Debbie saw Adnan soon after school ended (e.g., between 2:15 and 2:20), this encounter is utterly meaningless. The encounter only becomes meaningful because Debbie says it occurred at 2:45. We can debate back and forth the minutia of what Gutierrez did and didn’t do while cross-examining Debbie, but, in the end, it’s all about the 2:45 omission.

Posted by: Colin Miller | May 27, 2016 6:11:34 AM

Given that the jury only deliberated for two hours, I'm pretty confident that they did very little in the way of creating timelines based on various witness testimonies and cross-checking them against each other. I think the jury was confused, and focused on "why would Jay lie?". Colin, do you think our justice system would benefit from an official fact-recorder, whose job it is to track, at a minimum, the times and places relayed in testimony, and create basic timelines that the jury could reference during deliberations? I have zero confidence that the average jury is capable of this on its own.

Posted by: carnotbrown | May 27, 2016 7:52:41 AM

I think the entire jury system needs reform. They should be required to have specific training, take notes, be able to ask questions, especially of expert and or technical witnesses. Times and technology have changed drastically in the last 100 years yet little has changed regarding jury trials. Also, why did the prosecution call Debbie in the first place, especially after CG had basically turned her into an alibi witness in the first trial. She testifies she saw her around 3:00pm when they were claiming Hae was dead by 2:36. I don't understand that.

Posted by: Cathy my real name | May 27, 2016 7:47:09 PM

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