EvidenceProf Blog

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

Monday, October 24, 2016

A Quick Post About Dr. Hlavaty's Affidavit & Adnan's Bail Motion

Today, Justin Brown filed a Motion for Release Pending Appeal in the Adnan Syed case. This Motion comes on the heels of (1) Judge Welch's order granting Adnan a new trial; and (2) the State's Application for Leave to Appeal this order to the Court of Special Appeals of Maryland. Brown's motion asks Judge Welch to release Adnan from incarceration* (1) while the State appeals Judge Welch's order and (2) in the event of a retrial. I'm going to save the bulk of my analysis for a special Undisclosed episode on the Motion, but I will highlight one aspect of the Motion in this post. 

Brown's Motion has 38 exhibits. Exhibit 37 is an Download Dr. Hlavaty Affidavit. The heart of that Affidavit consists of Paragraphs 32-37:

Screen Shot 2016-10-24 at 2.07.26 PM

I've long said that this is the most significant evidence in a case rife with inconsistent witnesses statements and questionable cell tower testimony. In his opinion, Judge Welch concluded that the "crux" of the State's case was the intersection among (1) Jay's claim that Hae was buried in Leakin Park in the 7:00 hour; (2) the Leakin Park pings; and (3) Hae's body being recovered from Leakin Park.

Now, however, (1) Jay says that the burial took place "closer to midnight;" (2) the Leakin Park pings would almost certainly be inadmissible at a retrial; and (3) the lividity evidence shows that Hae was not buried on her right side in Leakin Park in the 7:00 hour.

It's also important to note that Dr. Hlavaty completed her affidavit after reviewing every piece of evidence in the State's possession.** Previously, she had reviewed (1) Dr. Korell's trial testimony; (2) the autopsy photos; and (3) the crime scene/disinterment photos introduced at trial. Now, before completing this affidavit, Dr. Hlavaty reviewed the additional crime scene/disinterment photos that were in the State's files but were not introduced at trial.

Combined with Jay's changing burial timeline and the likely inadmissibility of the Leakin Park pings, Dr. Hlavaty's conclusion about time of burial makes it exceedingly unlikely that the State could secure Adnan's conviction on retrial.


*Likely subject to bail and other release conditions.

**Unless there is additional evidence that hasn't been disclosed.



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great information (in a way I can understand it! lol) as always, colin. thank you.

Posted by: sara | Oct 24, 2016 11:41:42 AM

The state may not be able to secure a conviction but it strikes me that the pressure will be high to retry him any way. The state has doubled...no tripled...no quadrupled down on this guy's guilt. I can't see them walking away at this stage of the game.

Posted by: Daniel | Oct 24, 2016 1:51:54 PM

Isn't Jay's Intercept interview timeline problematic, as it appears consistent with Dr. Hlavaty's opinion re lividity? I get that his credibility is nil at this point, but if the State comes up with a whole new timeline at the retrial, it seems like the lividity evidence has the potential to support the State's claim. What am I missing?

Posted by: decca | Oct 24, 2016 2:13:18 PM

Interesting to read of Jay's criminal history. I hadn't heard that most of that before.

Posted by: Lagaya1 | Oct 24, 2016 2:30:22 PM

So with the "**Unless there is additional evidence that hasn't been disclosed" comment, could that possibly be a Brady violation because Adnan's defense team never had access to it?

Posted by: Jann | Oct 24, 2016 3:03:41 PM

Thanks for the brief recap, Colin. A couple questions:
- How long does the state have to respond to this motion?
- What's the process in a situation like this?

Posted by: Judie | Oct 24, 2016 3:36:15 PM

How likely is it for the court to rule on this prior to a ruling on the State's motion to appeal? What is a likely time frame?

Posted by: Abby C | Oct 24, 2016 4:25:14 PM

Colin, what is the legal term for that moment when a bail request brief so completely decimates a prosecutor's case, any response would be laughable? Did Justin just go nuclear on Maryland's insistence of guilt?

Posted by: Tim | Oct 24, 2016 6:36:42 PM

Colin - What comes next procedurally? Does Judge Welch hear the motion? Does he set a date for a bail hearing, or does he give the State an opportunity for a written response?

Posted by: pointlesschaff | Oct 24, 2016 7:19:24 PM

Jann, I think that it is implicit that Jay's Intercept interview continues a pattern of adjusting Jay's testimony to fit the rest of the "evidence" rather than other evidence being discovered that supports the "eyewitness" account. I suspect that Jay was browbeaten (we will destroy your family, confiscating all their possessions in a drug bust; and send you away forever). Combined with enticement (how would you like a pretty, new motorbike! for being a good boy; and perhaps by 2014, Change your story too much and we can still nail you for perjury, if not murder). All in a context (perhaps, We know that Adnan did it; we just need more evidence to nail the sly bastard). The problem with Jay's new, midnight timeline for witnessing burial is that there is absolutely no corroboration of his testimony for this new story, such as the cell phones provided. Jay's new story only helps the prosecution's PR (Adnan did it, he's just getting away on a technicality and making the rest of us look like suckers!) What was the prosecution role in the Intercept article. And was the recruitment of Jay's lawyer really so ad hoc? Why is she still representing him as he continues to lie? This all just gets more messy and stinky as one peels away the layers of lies, laziness, and misdirection. The implications, in Baltimore and Maryland, obviously extend far beyond Adnan's case. I suspect the prosecution may fight bail out of reflex, but more because the have almost no plea bargaining leverage if Adnan is out of prison. Finally, hasn't the Intercept interview virtually destroyed premeditation evidence? would that make it second degree murder and a shorter sentence than Adnan has already served?

Posted by: Hal Porter | Oct 24, 2016 10:08:39 PM

sara: You’re welcome.

Daniel: I could see them offering a plea deal.

decca: Under Jay’s new timeline, Hae is pretzeled up in the trunk of her Sentra for several more hours, which would be even more inconsistent with the fixed frontal lividity.

Lagaya1: We made the editorial choice to leave it out of Undisclosed.

Jann: I doubt the additional evidence would be any more exculpatory than the disclosed evidence with regard to lividity.

Judie: I think they would have 15 days to respond.

Abby C: It’s a coin flip to me.

Tim: It will be interesting to see whether the State files a responsive brief.

pointlesschaff: The State gets a chance to respond, if it wants. The judge will eventually start a hearing.

Hal Porter: It’s so messy that the State might just want to cut bait

Posted by: Colin Miller | Oct 25, 2016 3:19:10 AM

The best part is that Judge Welch (which I hadn't noticed the first five or six times through his opinion) basically pins the State to their existing timeline (... and indeed is "committed"....) so this should be interesting to see how they get around this with whatever new malarky-in-chief they come up with.

Posted by: Kevin | Oct 25, 2016 5:17:44 AM

Colin, do you know why Dr. H chose not to describe the burial position at all in her affidavit? It seems strange that she would not mention Hae being face down and the twisting at the waist given the opinion she was offering. Was this JB's decision or hers?

Posted by: Jane | Oct 25, 2016 6:24:24 AM

I think this case will be wrapped up shortly. Both the State (State’s Attorneys’ brief) and the Defense have played this game long enough and have finally arrived at the Nash equilibrium: Jay is the problem. This is face saving exit strategy for the Prosecution. It does not fully exonerate Adnan, but makes a conviction almost impossible. I predict that Adnan will get bail; the State will wait for things to die down a bit; the State will withdraw charges with the option to refile if new evidence becomes available; Police and Prosecution never look for new evidence.
Also, I’m glad to see the lividity evidence is formally presented. The importance of this evidence isn’t that it shows the timeline is a problem, but that it gives insight into Jay’s lies. If Adnan had actually murdered Hae and buried her body, Jay would have no reason to lie about the time of burial – it could have happened anytime between 8 and 24 hours. His involvement isn’t minimized at all. The Police and Prosecution benefit from the lie since it fits their cell phone timeline. This indicates police involvement in Jay’s story, and calls into question the best evidence that Jay was involved: locating Hae’s car.

Posted by: BobW | Oct 25, 2016 7:01:15 AM

I got to agree with Lagaya1, Mr. Wilds criminal history is astonishing to me. After reading the Intercept interview, I got the impression that maybe Jay was a victim or a pawn of the police in Adnan’s case. But now I see Jay was no pawn. His continued arrest history and drug dealings is unbelievable and opposite of how I perceived him after the Adnan trial. I’m no Web sleuth, so I’m sure Jay’s criminal arrest history has been organized and can be found online. But I had no idea how extensive his record is, it seems like every few years he has another charge or two coming his way. Especially Jay’s strangulation charge has me wondering about his connection to sinister murder of Hae.

Posted by: Gavin | Oct 25, 2016 7:31:15 AM

Kevin: Yes. Judge Welch basically says that the State’s case at trial only possibly makes sense with a 2:36 P.M. “come and get me” call. I think most people agree. That leaves the State trying to stick with this same timeline at retrial, dramatically shifting its timeline, or trying to drop the “come and get me” call altogether.

Jane: In paragraph 32, she notes that the autopsy says that Hae was on her right side and that she confirmed this positioning through her review of the photos of the burial site (both those admitted and not admitted at trial). Dr. Hlavaty has consistently said that the lividity is inconsistent with Hae being buried either strictly on her right side or at an angle that was diagonal to the ground, so I don’t see any need for her to describe the body positioning in further detail.

BobW: I think the State would offer an Alford Plea before that. I’m not sure whether the defense would take it.

Gavin: I still don’t think Jay was involved in Hae’s murder, but this evidence could certainly play a large role at a possible retrial.

Posted by: Colin Miller | Oct 25, 2016 8:43:27 AM

Gavin - why would Jay's criminal history make him less likely to be a "pawn". Aren't small time criminals the best "pawns" because the police have so much leverage on them? Maybe his cooperation in this case is all that kept him from doing much time after many arrests.

Posted by: Dan | Oct 25, 2016 9:36:06 AM

Colin – For the record, I have no legal background. I’m a retired chemist. An Alford plea seems like an unnecessary move in a game that’s reached its conclusion. It can only serve to keep this case in the public eye longer and shine a light on Baltimore’s trouble criminal justice system at a time when the rest of the nation is watching (Adnan Syed, Freddie Gray, Marilyn Mosby). In addition, wouldn’t a judge have to agree that the State has enough evidence for a conviction? The Prosecution doesn’t have a reliable witness or evidence to support a story that doesn’t make sense in the first place. The only downside for the Prosecution not offering an Alford plea would be that Adnan wouldn’t be a convicted felon, a small concession given that he’s served a lot of time in prison.

Posted by: BobW | Oct 25, 2016 9:50:29 AM

Colin, I worded my last post wrong. I too believe Jay Wild’s had nothing to do with the murder of Hae. But it is a bit creepy that Jay has been charged on strangulation in the past.
And I agree, if another trial came to fruition, which I don’t believe it will. The defense could definitely bring up those past charges again.
I hope Adnan gets the justice he deserves, that’s what’s important. But, selfishly, I hope there is a formal trial so we can finally discover who made the crime stoppers tip.

Posted by: Gavin | Oct 25, 2016 12:25:35 PM

I see your point about Jay having leverage. And I agree to a certain extent, at least if he kept getting stopped for crimes in the Baltimore / Baltimore County area.
But a lot of his past misdeeds have taken place in the state of California.

I don’t see him having leverage with the police and the judicial system in another state, let alone on the other side of the country.

Posted by: Gavin | Oct 25, 2016 1:06:13 PM

Will the state respond substantively, or just bluster and conspiracy theories?

Posted by: Michael Byrnes | Oct 25, 2016 5:53:31 PM

Colin, you say in your comment to Gavin "I still don’t think Jay was involved in Hae’s murder"

1) Do you mean in the murder part or also the burial part?
2) Is you comment (partly) based on information that hasn't been revealed yet? yes or no would do :)

Thanks for answering our questions.

Posted by: Martin | Oct 26, 2016 6:47:03 AM

Colin, I think your phrasing of paragraph 32 is a bit generous. She never says she confirmed that body position by her review or described the photos she used to arrive at her opinion.

Do you have any thoughts on Dr. H's time of burial and rigor opinions? They seem inconsistent with her opinion that Hae was laid flat somewhere for 8-hours (or more) after her death. How could she have been buried in the twisted at the waist, knees bent position if her body was in rigor at the time of burial? Thanks as always for your response.

Posted by: Jane | Oct 26, 2016 8:40:21 AM

Dan: There’s also the Stet that was entered on 3/5/99.

BobW: An Alford Plea isn’t ideal, but it might be better for all involved as opposed to a retrial.

Dan: Right. Jay says he has learned information that leads him to believe the murder wasn’t at Best Buy.

Garvin: A new trial would lead to a lot of new evidence. It will be interesting to see wheteher one is held.

Michael Byrnes: They will respond at the bail hearing. I’m sure whether they will file a brief.

Martin: I don’t think he was involved at all, but that’s just a guess.

Jane: She says that a right side burial is reflected in the post-mortem report as well as the photographs of the burial site. Obviously, with regard to the report, she’s relying on the language used. But it seems just as obvious to me that she’s saying this description was confirmed by her review of the photographs of the burial site.

I don’t know her specific opinions about rigor and burial, but my guess would be that either (1) burial was soon after lividity was fixed and after rigor had begun but not completely stiffened the body; or (2) burial was well after lividity had fixed and soon after rigor started dissipating.

Posted by: Colin Miller | Oct 26, 2016 10:47:46 AM

Great review as always... And the motion filed by Brown was a satisfying read as well, perfectly summing up all the reasons why we support Adnan's retrial and freedom (17 years and about as many podcasts later). I wonder, though, if it is intimidating for Brown to know that so many people read every little (or big) thing he writes on this case??? He's practically a Best-Selling author at this point, give that man a Pulitzer.

Posted by: RGoose | Oct 26, 2016 1:04:18 PM

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