EvidenceProf Blog

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

Monday, October 10, 2016

(Maybe) The Biggest Factual Error in the State's Attorneys' Brief in the Adnan Syed Case

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:

  Screen Shot 2016-10-10 at 2.47.37 PM

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:

Screen Shot 2016-10-10 at 3.03.29 PM

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).

  Screen Shot 2016-10-10 at 3.08.54 PM

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."

Screen Shot 2016-10-10 at 3.21.15 PM

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.**

Screen Shot 2016-10-10 at 3.24.47 PM

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:

Screen Shot 2016-10-10 at 3.26.56 PM 

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.



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Does Justin get a chance to file another brief in rebuttal? Not sure how many times this can go back and forth. Are you confident that the appeals court will see through all this, including the fact that they can't seem to cite any actual cases that support their claims? Thx!

Posted by: Sassy | Oct 10, 2016 1:14:47 PM

I doubt this brief was submitted for the courts consideration. It seem more like a warning to Jay and his lawyer. The state cannot be happy about the differences between Jay's testimony and his Intercept interview. Previously, Jay had to make the 'defendant or witness' choice, not the 'accomplice or accessory' choice. It has been noted that a new trial may require Jay be a defendant. Accomplice my be a way of easing him into his new role.

Posted by: BobW | Oct 10, 2016 2:18:12 PM


So what is the endpoint of the back and forth briefs between the state and defense? By this, I mean when will both parties rest and how long after that will COSA render its decision regarding the ALA?

Posted by: Teeter | Oct 10, 2016 4:22:42 PM

This level of factual misrepresentation is abhorrent. It reminds me of that case where three teenagers were exonerated post-conviction when the DNA from the scene was tested and matched a known serial rapist operating in that area at the time the crime was committed. The prosecutor (whilst pounding the table I assume) argued that the teens still did it, and what must have occurred is the serial rapist came upon the victims deceased body and performed necrophilic acts on it, thus explaining the DNA result while the original convictions were still correct. This amici brief is ALMOST getting that bad..

Posted by: Paul | Oct 10, 2016 4:33:47 PM

Jay never received any reward money. Stop lying and trying to free a murderer. I hope karma gets you all.

Posted by: Carmen | Oct 10, 2016 4:49:54 PM

Do we have confirmation that Jay was the tipster and was rewarded?

Posted by: Andrea | Oct 10, 2016 5:19:40 PM

Does Adnan have any recourse, here? Or is this one of those things that isn't important enough for him to tap into whatever legal capital he has at his disposal?

Posted by: Michael | Oct 10, 2016 5:29:04 PM

I was just thinking I wonder what happened to Seamus Duncan, but seems he's reappeared at "Carmen". Everything is right with the world again.

Posted by: Narizarielka | Oct 10, 2016 7:37:08 PM

Who did get the reward money, Carmen?

Posted by: carnotbrown | Oct 10, 2016 8:08:50 PM

Colin, is the State being willfully ignorant or are we almost to the point where we can accuse Maryland of misconduct? Jenn is not a witness to anything. Nisha is not a witness to anything. Jay has given 8 majorly different accounts of the day, with the 9th coming at the retrial. There's nothing coming from the State other than fabricated lies.

At this point, I think Adnan would be a fool to take an Alford plea if the vacation is affirmed. He looks more innocent with every Maryland brief.

Posted by: tim | Oct 10, 2016 11:56:17 PM

@Carmen Colin never said Jay received the Crimestoppers reward. He plainly stated, "he could not (legally) have received the Crime Stoppers reward." and "he could have received the reward." Evidence points to Jay being the recipient of the reward, even if it is not confirmed, because the State is hiding it.

I'd expect you show any reasonable evidence that Adnan is a "killer," but this isn't the forum. I can say factually that the State has provided absolutely no evidence that Adnan has ever even been involved in a murder. But we'll let karma choose who's right, OK?

Posted by: tim | Oct 11, 2016 12:02:32 AM

Hi Colin - in terms of the provenance of the amici curiae brief, is it likely the various Maryland State attorney's pooled their professional opinions on the case (maybe this would have made an interesting podcast) or is it more likely that Thiru wrote the thing and asked them to sign it (like he did Security Officer Steve's affidavit). Surely Maryland's prosecutors have better things to do in their spare time. My interpretation is that the AG or higher told them to sign it for political ends.

Posted by: joncatso | Oct 11, 2016 1:17:58 AM

Sassy: Justin does not have the chance to file another brief on this issue. It’s now up to the court to decide whether to grant leave to appeal.

BobW: I don’t think that Jay currently has an attorney.

Teeter: Both sides are now done filing their briefs on the issue of leave to appeal. I would expect the court to issue it’s ruling in the next few months.

Paul: It really gets so much wrong.

Carmen: I’m not saying that Jay got the reward money. I’m saying that him being designated as an accessory after the fact meant that he legally could receive the money while a designation as an accomplice would have meant he legally could not have received the money. That’s part of why his designation is so important.

Andrea: No.

Michael: I would say it’s not important enough.

carnotbrown: No idea. If this ever goes to retrial, we’ll likely find out.

tim: I have a hard time deciding how much the State is being disingenuous as opposed to the State simply not having a very good grasp of the facts in this case.

joncatso: My guess is that there were talking points but that one of the SAs wrote it. That’s just a guess, though.

Posted by: Colin | Oct 11, 2016 2:58:09 AM

Hi Colin -- with regards to Nisha, didn't she have the exhibit with the time of the call in front of her? Didn't she previously read the time of the call off of the exhibit, and didn't Urick call her attention to the exhibit (i.e., the exhibit where it lists the time of the call) when she said it happened in the evening? I think this part of your post is a mountain out of a molehill, if not purposefully deceiving. For example, you quote NIsha's response to a question, but don't post the question where Urick calls Nisha's attention to the exhibit.

Posted by: Steve | Oct 11, 2016 5:59:51 AM

Steve: I’m not trying to make a mountain out of it. The most problematic claims in the brief are the claims that (1) Jay was Adnan’s accomplice; and (2) Jenn and Nisha put Adnan and Jay together “consistent with what Mr. Wilds told the jury.” The first claim flatly contradicts the State’s position on a huge issue during discovery, and the second claim is belied by the testimonies of these three witnesses at trial.

The third, less important, claim, which you’re addressing, is that Nisha placed Jay and Adnan together “on the night of the murder.” My point is that it’s unreasonable to say 3:32 P.M.=”the evening time”=”the night.” You might be able to equate two of those, but I don’t think you can reasonably equate all three.

Posted by: Colin Miller | Oct 11, 2016 6:18:06 AM

Colin, have you ever seen notes from PI Davis's interview with Nisha on March 8, 1999 or Chris Flohr's (or Doug Colbert's) notes from a conversation with PI Davis about that interview? We know from his billing summary that he drove all the way to Silver Spring to interview her, so he surely reported back on the substance of that call. If there is nothing in the defense file about this interview, does that concern you the same way the missing police interviews concern you?

Posted by: Jane | Oct 11, 2016 6:52:16 AM

Steve-what are you suggesting? That Nisha saw the call log and decided on the fly to lie about what time the call took place in order to protect Adnan?

If she was going to lie to help Adnan, why wouldn't she just say she doesn't remember any call with Jay? Or say that her phone did have an answering machine?

See this is the problem when these guilters automatically assume anyone who says anything even remotely beneficial to Adnan must be in on the conspiracy of all these people wanting to free a murderer. No ones motivations ever make sense and nobody behaves how anyone in real life behaves.

It's really childish pathology, requiring poor critical thinking and reasoning skills. Thia handful of Reddit trolls truly lack an ability to discern the intentions of other people. They honestly think "you all know Adnan is guilty. and want to free him! Karma will get you!"

Seriously, these guilters don't just think we are naively mistaken--all of us commenters. Colin, Susan, Asia... And apparamtly now add NISHA to the list also! We are all in cahoots to free a murderer. All these people who have no motivation whatsoever to protect Adnan if he was truly guilty. But they must dismiss the evidence somehow.

Yaknow, because that's what people do.

Posted by: Paul | Oct 11, 2016 6:56:44 AM

Can Jay even be one of the witnesses? If three separate witnesses are putting Adnan and Jay together, it seems to me that means three people besides Jay and Adnan. How can Jay be a witness to himself?

Posted by: JoAnn Stringer | Oct 11, 2016 7:34:36 AM

Jane: I haven’t seen any defense notes on interviews with Nisha. The absence of notes doesn’t concern me because the defense files are a mess, with tons of missing files that I would reasonably expect to help Adnan. The same applies here. I think it’s very likely that Nisha told Davis the same story about Adnan visiting Jay at his job at the adult video store when the joint call was made.

Paul: That’s the interesting part for me. Steve is right: The prosecutor shows Nisha the 3:32 P.M. call right before she says that she remembers the call taking place in the evening. Most people would see that as a contradiction, and she easily could have said something that would have synched more with the 3:32 P.M. time.

JoAnn: I read the SA’s brief as saying, “Three witnesses – Jenn, Cathy, and Nisha – placed Adnan and Jay together at three different places on the night of the murder in way that matches with how Jay testified at trial.” So, I don’t think that Jay is one of the three, but I also disagree with the brief’s contention that Jenn and Nisha corroborated Jay.

Posted by: Colin Miller | Oct 11, 2016 8:47:01 AM

Every piece of evidence that the state has reeks of reasonable doubt. Yet CG didn't contest or couldn't convince a jury of that. I could have done a better job.

Posted by: Bruce | Oct 11, 2016 9:24:25 AM

"I haven’t seen any defense notes on interviews with Nisha." Colin, just so we are clear, have you been given complete access to the file? If so, is the file a complete mess from the beginning (i.e., during the time Adnan was represented by Flohr/Colbert) or just after CG took over? On what basis can you say that Nisha likely told Davis that Adnan said he was at an adult video store when she spoke to Jay if you haven't seen the notes? Nisha apparently told police that Adnan said he was at "Jay's store," no mention of type of store. Do you presume she also told PI Davis that this convo occurred "day or two after he got cell phone" like she told the police?

Also, you mention that there tons of missing files that you would expect to be helpful to Adnan. Are these "missing" in the sense that they are interviews or investigations that you know occurred, but there is no record of them, or "missing" in the sense that they are interviews or leads that should have been pursued and/or followed, but apparently were not.


Posted by: Jane | Oct 11, 2016 9:50:17 AM

Bruce: She dropped a lot of balls.

Jane: (1) I have access to the entire defense file. (2) It’s impossible to tell when the defense file became a mess. The Flohr/Colbert files are part of Gutierrez’s files. (3) I’m basing my conclusion on Nisha’s testimony that Adnan told her before entering the store that he was going to visit Jay at his job at the adult video store. (4) I don’t think Nisha told the police that the Jay/Adnan call took place a day or two after Adnan got his cell phone. I think the police asked whether it was possible the call happened a day or two after he got the phone, and she responded in the affirmative. This would be consistent with what Patrice told the PI about the police trying to convince her that an event from some other day (Jay being at her house) occurred on January 13th. (5) These are investigations/interviews that I know occurred.

Posted by: Colin Miller | Oct 11, 2016 12:38:27 PM

Colin, could you point me in the direction of Patrice's PI interview notes or transcripts? I don't recall seeing this before. Thanks

Posted by: Amy | Oct 11, 2016 3:35:05 PM

Instead of Nisha I was thinking the third witness the state was referring to, who saw Jay and Adnan together in the evening, was "not her real name" Cathy.
Anyway, wasn't there a fourth? Adnan :)

Posted by: mightydrunken | Oct 11, 2016 3:44:23 PM

Amy: I don’t know if there is a report. This is a current PI, and Patrice cut off contact after making initial statements.

mightydrunken: The three witnesses are Jenn, Cathy, and Nisha.

Posted by: Colin Miller | Oct 11, 2016 5:59:24 PM

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