EvidenceProf Blog

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

Tuesday, July 5, 2016

Does Judge Welch's Opinion Leave the State With Any Workable Theory of Adnan's Guilt?

"Had trial counsel investigated the potential alibi witness, she could have undermined a theory premised upon inconsistent facts. The potential alibi witness, however, would not have undermined the crux of the State's case: that Petitioner buried the victim's body in Leakin Park at approximately 7:00 P.M. on January 13, 1999." Excerpt from Judge Martin P. Welch's opinion granting Adnan Syed a new trial.

In yesterday's episode of Undisclosed, I repeated the claim I made in a blog post last week: Pursuant to the Supreme Court's recent opinion in Wearry v. Cain, evidence "that [the defendant] may have been involved in events related to the murder after it occurred" might support a conviction for being an accessory after the fact but cannot support a conviction for murder. Therefore, evidence of what Adnan may have been doing at approximately 7:00 P.M. cannot support his conviction for murder, and there are good reasons to believe that the Court of Special Appeals of Maryland (COSA) will use Wearry to find that failure to contact Asia McClain was prejudicial, assuming that there is even an appeal.*

Apart from Wearry, however, in this post I will really dig into Judge Welch's opinion and show how it demonstrates that Asia wouldn't merely have undermined the theory presented by the State at trial; she would have undermined any theory that the State could have presented at trial.

1.    The 2:36 P.M. call was the "come and get me" call

This was the theory that the State presented at trial, and it was the theory that Asia undermined, according to Judge Welch. Clearly, if Adnan was talking to Asia at the library adjacent to Woodlawn High School until 2:40 P.M., there is no way that he could have called Jay from the Best Buy a mile away from the school at 2:36 P.M. Indeed, if Adnan was talking to Asia at the library until 2:40 P.M., there is no way that he could have called Jay from anywhere at 2:36 P.M.

2.    The 3:15 P.M. call was the "come and get me" call

In footnote 9 of his opinion, Judge Welch flatly refuted the State's contention that it could have used the 3:15 P.M. call on Adnan's call log as the "come and get me" call:

Screen Shot 2016-07-05 at 9.17.40 AM

Although Judge Welch didn't note it in his footnote, a State pivot to a 3:15 P.M. "come and get me" call would have created the same issue with regard to "The Nisha Call."

3.    Any call after 3:15 P.M. was the "come and get me" call

Obviously, if a 3:15 P.M. "come and get me" call wouldn't work given Jay's narrative about the 3:21 P.M. Jenn Call and 3:32 P.M. Nisha call, a "come and get me" call after  3:15 P.M. would be even more problematic. Moreover, the State's whole theory of the crime was that Adnan loaned Jay his car and cell phone so that Adnan could call Jay on his cell phone after he had killed Hae so that Jay could pick him up. After the 3:15 P.M. call on Adnan's call log, the next incoming call was at 4:27 P.M., which simply doesn't make any sense at all as a "come and get me" call.

4.    There was a non-cell phone "come and get me" call between 2:36 P.M. and 3:15 P.M.

There were no incoming calls to Adnan's cell phone between 2:36 P.M. and 3:15 P.M. Therefore, if there was a "come and get me" call in this time frame, it couldn't have been made to Adnan's cell phone. Therefore, under this theory, for the jury to convict, it would have needed to believe that (1) the State's theory about Adnan loaning Jay his cell phone to make a "come and get me" call was wrong; and (2) Jay was mistaken/lying when he said that he received the "come and get me" call on Adnan's cell phone...while he was driving Adnan's car.

Moreover, let's narrow the 2:36-3:15 P.M. window a bit more. If Asia saw Adnan until 2:40 P.M., what's the earliest that Adnan could have called Jay from Best Buy after getting a ride from Hae and fatally strangling her? Maybe 2:50 P.M. On the other end, what's the latest that Adnan could have called Jay to allow for enough time for all of the intervening events before the call to Jenn at 3:21 P.M.? Maybe 3:05 P.M.

So, is that our window? If there was indeed a "come in get me" call that wasn't made to Adnan's cell phone, it would have occurred in the fifteen minutes between 2:50 and 3:05 P.M. Could the jury have reached this conclusion and convicted Adnan of murder?

Well, what about Becky? She testified that she saw Hae heading to the door that led to her car in the seconds after school, with Hae saying that "she had to leave" because "she had to be somewhere after school." And what about Inez, who was not discredited at the time of trial? She testified that she saw Hae between 2:15 and 2:20 P.M. as she was leaving school to pick up her cousin(s). If Hae did indeed leave school between 2:15 and 2:20 P.M., how could Adnan have killed her if he was at the library next to the school until at least 2:40 P.M.? 

I suppose the State would say that the jury could have credited Debbie, who testified that she saw Hae, still at school, at 3:00 P.M. Could the jury have credited Debbie and found Adnan guilty based upon her timeline? I see at least two problems. First, if Hae is still at Woodlawn at 3:00 P.M., how in the world is Adnan making a "come and get me" call by 3:05 P.M.? Again, that's pretty much the latest time for a "come and get me" call to make sense given the 3:21 P.M. call to Jenn, and, under Debbie's timeline, Hae probably hadn't even left Woodlawn by 3:05 P.M.

Second, Judge Welch's opinion reminded me that the State actually claimed at trial that Hae's family was notified at about 3:00 P.M. that Hae hadn't picked up her cousin(s) (page 11):

Screen Shot 2016-07-05 at 9.50.46 AM

This would mean that Hae was supposed to pick up her cousin(s) at or before 3:00 P.M., which would mean that Hae was already late picking up her cousin(s) when Debbie saw her. Therefore, to believe in Adnan's guilt, the jury would have needed to believe that Hae, despite already being late to pick up her cousin(s), gave Adnan a ride to Best Buy.

5.    There was no "come and get me" call

Given the issues with 1-4, this is seemingly the only option that would have been available to the jury if Asia had testified at trial: believe that (1) the State's entire theory of the case (phone loan) was wrong and that Jay was lying or mistaken about there being a "come and get me" call; (2) Becky and Inez were mistaken about Hae leaving school in a hurry between 2:15 and 2:20 P.M.; and either (3) Debbie was mistaken about seeing Hae at 3:00 P.M.; or (4) Debbie saw Hae at 3:00 P.M., with Hae subsequently giving Adnan a ride to Best Buy despite already being late to pick up her cousin(s).


*As Erica Suter has noted, there's a decent chance that COSA does not even allow the State to appeal Judge Welch's finding that trial counsel was ineffective based on failing to cross-examine the State's cell tower expert via the AT&T disclaimer. If COSA does allow the State to appeal, the defense would then cross-appeal and ask COSA to find that trial counsel's failure to contact Asia McClain was prejudicial.



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Any come and get me call from the scene of the crime doesn't make sense to me. If the killer had access to the victim's car, why wouldn't he leave the scene (a public retail establishment in broad daylight) as quickly as possible instead of hanging around and risk someone seeing him? If he was so crafty to leave his car and cell phone and plan an alibi (showing up at track practice to be seen) surely he wouldn't be so stupid to hang around where someone might identify him? No, he would have taken the victim's car and arranged somewhere to meet that was more private and then leave the car there.

Posted by: JoAnn Stringer | Jul 5, 2016 7:54:32 AM

As you mention, and Erica Suter describes in greater detail in the post you linked to, while the State has options at this point none of them seems to have promising odds attached. A Motion to Alter or Amend Judgement has a doubtful outcome, Suter suggests. COSA could very well decline to hear an appeal, in which case a Motion to Reconsider seems likely to fail. And given what we know — and don’t know (i.e., “bombshells” that await) — the notion of retrying the case seems far-fetched. That said, is the State’s best ploy to go for a deal now, when it perhaps has the greatest leverage for an Alford plea? I’d hate to see it happen, but there’s seemingly no downside to such a move. If it fails, it fails; on the other hand, if it succeeds the State could salvage something resembling victory (and prevent further embarrassment) rather than prolonging matters only to probably lose in the long run.

Posted by: streetwriter | Jul 5, 2016 8:03:25 AM

I think the only theory the state could present at this point would be that there was no come and get me call and no trunk pop. The state could go with a version of what was in the Intercept interview - Adnan gets Jay to help him bury her body around midnight. They would have to get Jay to say that he knew Adnan was guilty because he helped bury the body, but that at the previous trial he told the police a story to fit their cell evidence in order to avoid trouble for himself and his family. Jay would have to say there was no CAGM call, that there was no trunk pop (or, I guess he could stick to the new Intercept trunk pop, but that's a harder one for the defense to prove than no trunk pop), and that he lied about those things.

There would be nothing to corroborate Jay's story - no cell pings, no other witnesses, no other evidence - but I think the ONLY case they could present would just be Jay's word against Adnan's, with nothing to prove Jay is now telling the truth. They would have to say their previous story was wrong, Jay lied to try to fit cell evidence, and that the real story is Jay helped him after midnight and doesn't know exactly how or when Adnan did it.

Because none of the other evidence will hold up and the only chance the have is to make it Jay's word against Adnan's without giving the jury discredited "evidence" to consider as they decide who to believe.

Posted by: Anon | Jul 5, 2016 8:24:46 AM

How do the trials fit within the preparation of a new one?
Jay's testimony was under oath, so they can't just ignore that, right?
Even if it turns out the police made Jay change his story to fit the timeline, this can't just be erased, right?

Posted by: Martin | Jul 5, 2016 8:56:05 AM


I'm guessing that because of the ongoing legal process regarding Adnan's case and where things may lead, you can't fill us in yet on the "Bombshells" that you mentioned in the podcast.

So, with that being sad, how many are there and could you give us at least an indication of how BIG they might be in regards to the case? Maybe a rating on a scale of 1-10? Do they have anything to do with the potential of other people's guilt or innocence in the murder? Any clarification is greatly appreciated!

Posted by: mike | Jul 5, 2016 10:59:23 AM

Adnan said on Serial, "always take the plea." I can't see him wanting to take any chances with a trial again.

Posted by: JTS | Jul 5, 2016 11:21:12 AM

I'm interested in the role of the school during the investigation. The context of many statesment seems to be that the school had to be protected from anything bad that could come from helping someone that already had been confirmed to be guilty. This article about that school and some of the teachers facinates me: http://observer.com/2015/02/serial-exclusive-the-teachers-of-woodlawn-high-speak-out/
I'd like to see some investigation into how much damage Adnan's case took due to how things were handled by the staff at Woodlawn High School.

Posted by: Lars in Sweden | Jul 5, 2016 2:17:09 PM


The defense can use his previous testimony to discredit his new testimony. I'd love to see a good lawyer ask Jay to walk through a timeline based on his various testimonies on some display.

Posted by: Ryan | Jul 5, 2016 4:32:53 PM

JoAnn: Agreed. The idea of a prearranged “come and get me” call never made any sense to me.

streetwriter: I don’t feel like I have enough of a read on the State’s chance of success on appeal to be able to say whether offering a plea at this point is its best option. But now might indeed be the ideal time.

Anon: Agreed.

Martin: Correct. Jay’s testimony at Adnan’s prior trials would be admissible nonhearsay.

Mike: I’m not even sure of the exact number. There are definitely at least a handful, some more significant than others.

JTS: I could completely understand him taking a plea deal.

Lars: Me too. That’s a bug mystery in this case.

Ryan: Agreed.

Posted by: Colin Miller | Jul 5, 2016 5:30:27 PM

@Colin Miller

If the court refuses to hear appeal from the state, can they appeal that decision itself? How many layers of appeals do they have?

Posted by: Vshape | Jul 5, 2016 7:33:00 PM

Yes. The theory is, his accomplish/witness turned state's on him. This was corroborated by cell phone evidence. That evidence is in question, but not proven wrong. Nor does Jay's inconsistency/lies show that Adnan is innocent. The real question is, if Adnan takes a plea and confesses, will you stand by your work as in the interest of justice?Or hide behind sophistry and blame the bad cops and prosecutors? The justice system isn't perfect, but you simply cannot believe that letting a guilty person out of jail with a confession is "Justice."

Posted by: Joe | Jul 5, 2016 8:50:12 PM


What is the implication of judge Welch’s ruling for Jay? My understanding was that his original plea deal provided him with a free pass as long as he “truthfully” testified against Adnan. Does the recent information where he has repeatedly changed timelines (midnight versus 7 PM, etc.) open him up to the “accessory to murder charge” again? Or would that be considered double jeopardy, despite the fact that the plea never resulted in a real trial and it is clear now that Jay was not truthful in his testimony? In light of Adnan’s conviction being vacated, and what has now become public record vis-à-vis the Intercept interview, it seems clear that Jay has not lived up to his end of the plea agreement. Also, with regard to the actual murder, do you think the police would be wise to re-visit Jay’s role? I think many of us believe that Jay played a much larger role in Hai’s death than the prosecution record would leave you to believe.

Posted by: Bill | Jul 5, 2016 10:58:01 PM


In case of a new trial would it be possible for the state to completely disregard Jay and instead use a jailhouse snitch? I.e. get a former/current inmate of Adnan's to testify, that Adnan confessed the crime to him, in exchange for a reduced sentence.
The state could then argue, there is motive (i.e. the kill note), there is a confession and there is some (quesitonable) cell phone evidence showing Adnan was at the site of the burial at the day of the murder.
Could you see the state going this route?

Posted by: Gabe | Jul 6, 2016 4:27:10 AM

VShape: If the Court of Special Appeals of Maryland denies the State leave to appeal, the State can file a motion for reconsideration with the Court of Special Appeals but cannot appeal to the Court of Appeals of Maryland.

Joe: But the point is that Judge Welch found that Jay’s story was not corroborated by the cell phone evidence. The heart of Jay’s story was that Adnan loaned Jay his car and cell phone so that Adnan could call Jay on his cell phone after he killed Hae. Judge Welch is clearly saying that there is no call that works as the “come and get me” call. Furthermore, I can’t see Adnan taking any plea deal either than one that involves an Alford Plea or a nolo contendere plea.

Bill: Double jeopardy does not preclude successive prosecutions for accessory after the fact and murder or accomplice to murder.

Gabe: Juries tend to put very little faith in jailhouse snitches. I don’t see that strategy working.

Posted by: Colin Miller | Jul 6, 2016 7:40:04 AM

Thank you for your wonderful blog.
Shouldn't Adnan be transferred from the super max prison immediately since he is no longer a convicted murderer at this point?

Posted by: cmclain | Jul 6, 2016 8:20:03 AM

Fair enough, thanks for responding. So you're saying that Adnan would go through another trial, and risk more time in jail, rather than get out now with a guilty plea? I didn't get from Welch's decision that there is no "come and get me call" -- I thought it was simply that not challenging the cover sheet was prejudicial. The state has no obligation to provide the exact events in order.

Posted by: joe | Jul 6, 2016 9:53:59 AM

Given that Adnan has been returned to a position of innocence and is still in prison, is there any time limit on the State where they have to bring new charges or to drop them?

Posted by: Dawn Johnson | Jul 6, 2016 11:23:19 AM

"Judge Welch found that Jay’s story was not corroborated by the cell phone evidence" -- I don't think he found that at all. In a factual sense, he only found that CG should have challenged it. It's not the same thing as saying the data are invalid and cannot support a pick me up call. Besides, Adnan was found guilty not based on a pick me up call, but on the belief by the jurors that Jay saw Adnan do it, supported by the belief that Jay was with Adnan. The cell phone data support that whether or not there was a pick me up call. They can be wrong about details, and Adnan could still be a murderer.

Posted by: joe | Jul 6, 2016 2:13:16 PM

Joe - Actually, I do think the State is obligated to show the exact events as they happened. If the State wants to take away someone's life, I think they should have a solid story and timeline and be able to support it. There simply isn't a viable timeline or solid story that supports Adnan being guilty.

It sounds like you're arguing that just because the State's timeline doesn't work, that doesn't mean that Adnan didn't still do it some other way that we don't know about. In other words, assumption of guilt until proven innocent. That's not how it works.

Posted by: Eric Wolff | Jul 7, 2016 4:19:07 AM

"I do think the State is obligated to show the exact events as they happened."

But that's not the law. All the State has to prove are the elements of murder, which for 1st degree murder in Maryland are:

(a) In general.- A murder is in the first degree if it is:

(1) a deliberate, premeditated, and willful killing;

(2) committed by lying in wait;

(3) committed by poison; or

(4) committed in the perpetration of or an attempt to perpetrate:
[a list of aggravating offenses].

Posted by: steve | Jul 7, 2016 6:32:46 AM

cmclain: That order is not yet final, so transfer wouldn’t happen yet.

joe: I don’t know what Adnan will do. I could see him taking a plea deal or defending himself at a retrial. Judge Welch said that Asia’s testimony refuted the claim that the 2:36 P.M. call was the CAGMC and that the State’s evidence/argument didn’t support the claim that the 3:15 P.M. call was the CAGMC. That doesn’t leave any other viable candidate.

Dawn: There’s a rule in MD that says 180 days, but the Court of Special Appeals has found this doesn’t apply to retrials. That means the only time limit is one imposed by the Sixth Amendment right to a speedy trial, which doesn’t have a specific deadline; it’s a balancing test.

joe: Judge Welch pointed out that Jay said the CAGMC was at 3:45ish while the State claimed it was at 2:36 P.M. Judge Welch noted why the CAGMC couldn’t be the 2:36 or 3:15 P.M. calls, and the next incoming call was at 4:27 P.M.

Eric and steve: The State doesn’t always have to prove a timeline, but Urick himself noted that it was only through the confluence of Jay’s testimony and the call log/pings that the jury was able to convict in this case.

Posted by: Colin Miller | Jul 7, 2016 6:34:12 AM

"The State doesn’t always have to prove a timeline, but Urick himself noted that it was only through the confluence of Jay’s testimony and the call log/pings that the jury was able to convict in this case."

The State never has to prove a timeline, the State only has to prove the elements of the crime beyond a reasonable doubt. In this case, Urick was saying the corroboration of the Jay's testimony by the cell phone evidence was sufficient for the jury to believe Jay was telling the truth about Adnan's performing the elements of the crime beyond a reasonable doubt.

Posted by: steve | Jul 7, 2016 6:53:13 AM

steve: You are correct. There is no literal requirement that the State prove a timeline. Practically speaking, though, a flawed timeline can lead to a jury finding reasonable doubt. For instance, if Asia had testified and the jury believed that she saw Adnan at the library until 2:40 P.M., that could have created real issues for the jury based upon the testimony by Becky and Inez about Hae leaving school in a hurry between 2:15 and 2:20 P.M. Would this have been enough to create reasonable doubt? Obviously, Judge Welch didn’t think so. We’ll see how COSA rules if there’s a cross-appeal.

Posted by: Colin Miller | Jul 7, 2016 8:36:09 AM

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