Monday, October 10, 2016
On Friday, I posted an entry about the amici curiae brief filed by various Maryland State's Attorneys in support of the State's Application for Leave to Appeal in the Adnan Syed case. Since then, on Twitter, I've noted that almost every factual assertion made in the brief was incorrect and/or misleading, and Susan has noted how the factual error with regard to cell tower pings was especially egregious. The assertion that really bugs me, though, is this one:
So, where do we start? First, let's look at the State's Attorneys claim that Jay was Adnan's accomplice. This is incorrect. Under Maryland law, an accessory after the fact is not an accomplice. See, e.g., Brown v. State, 244 A.2d 444, 445 (Md.App. 1968) ("An accessory after the fact is not an accomplice."). Moreover, this is not a trivial point. As we noted in our "Discovery" episode, there was a huge battle between Urick and Gutierrez over the defense's access to Jay's police statements before trial. If Jay were an accomplice, the defense was per se entitled to pre-trial discovery of those statements. But, because the State charged Jay as an accessory after the fact and not as an "accomplice," Urick was able to withhold those statements from the defense.*
Second, the State's Attorneys are clearly labeling Jenn as one of the three witnesses who place Adnan and Jay together on the night of the murder, consistent with what Jay told the jury. The problem, of course, is that Jenn's testimony was very much inconsistent with what Jay told the jury. Jenn testified that she saw Adnan and Jay together when Adnan dropped Jay off in the Westview Mall parking lot on the night of January 13th, followed by Jay disposing of items in a dumpster in the parking lot that same night:
By way of contrast, Jay testified that Adnan dropped Jay off at his house without Jenn being present, followed by Jenn taking Jay to dispose of items in a dumpster the next day (during the snow/ice storm).
Simply put, that's a huge contradiction.
Third, the State's Attorneys must be referring to Nisha as the third person who put Adnan and Jay together on the night of Hae's murder (the other person being Cathy), but this creates an immediate problem. Technically, the State is correct that Nisha put Adnan and Jay together at "night" because she testified that the call where she talked to Adnan and Jay was "in the evening time."
But, of course, this flatly contradicts the State's claim that this call was the 3:32 P.M. call on January 13th under any reasonable interpretation of the phrase "in the evening time." Beyond that, there is clearly no justification for the claim that Nisha's testimony about the location of Jay and Adnan during this call was consistent with what Jay told the jury. Nisha testified that this call came when Adnan was visiting Jay at his job at the adult video store.**
Conversely, Jay testified that this call took place after they had ditched Hae's car at the Park and Ride and while they were on the way to Forest Park Golf Course to score weed:
Again, this is a huge contradiction.
Clearly, the State's Attorneys want to convince the Court of Special Appeals that Jay's testimony was corroborated and reliable, but their contention is belied by the record, which might explain why their brief contains no citations to that record.
*Additionally, if Jay were an "accomplice" he could not (legally) have received the Crime Stoppers reward. But, because he was an accessory after the fact and not an "accomplice," he could have received the reward.
**A job he didn't have until the end of January.