EvidenceProf Blog

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

Friday, December 30, 2016

What it Means to Say That There Still is "Compelling" Evidence Against Adnan Syed

One portion of Judge Welch's opinion that has caught the eyes and ears of readers and listeners is this one:

The circuit court finds that the nature and circumstances of the offenses are the most serious in nature and there still is compelling evidence against Petitioner.[FN5]

FN5 Although the State characterizes the cell phone evidence against Petitioner as strong, the circuit court notes that this evidence was the basis of the circuit court's grant of post-conviction relief and likely would be offered and attacked differently at a new trial.

So, what should we take away from Judge Welch's statement that "there still is compelling evidence against Petitioner"? 

This Was a Time Capsule Review of the Evidence

A comment I made regarding Judge Welch's opinion granting Adnan a new trial applies here as well: "This was a time capsule review based on the evidence at trial plus the cell tower evidence and Asia." In other words, in finding that the evidence against Adnan is "compelling," Judge Welch could not consider, among other things,

-Jay's Intercept interview;

-Any evidence that Hae said that something came up and that she couldn't give Adnan a ride;

-Evidence that Jay didn't start his job at the adult video store until the end of January

-Evidence that there was no wrestling match on January 13th

-Debbie's statement that she remembered "Takera" and no one else asking Hae for a ride on January 13th, with Hae saying she had no time to give anyone a ride; 

-Evidence that January 13th was the rare day when it was warm enough to have track practice outside;

-Evidence that Jay's attorney thought he would face the death penalty if he didn't play ball.

Of course, those are just a few things off the top of my head; I'm sure that there are many more. But the important point to keep in mind is that many of the developments in this case during and post-Serial are not yet part of the evidentiary record and therefore aren't part of Judge Welch's assessment of the nature of the evidence.  

One thing that is now part of the record is the AT&T disclaimer, and we can see the weight that Judge Welch gave to it in both his opinion granting a new trial and denying release. The defense also included the lividity evidence in its bail motion, but, while Judge Welch mentioned it, I'm not sure how much weight he gave to it, given that the State hasn't responded to that evidence yet.

But beyond that, there's a lot that people following the case know about the evidence that Judge Welch couldn't consider as part of his opinion; therefore, we should take the "compelling" language with a healthy grain of salt.

This Was a Bail Motion

The other important thing to keep in mind is that the word "compelling" means different things in different contexts. First, imagine a murder case in which a convicted defendant appeals on the basis of an eyewitness recanting his testimony. On appeal, the court might find this harmless error, concluding that, regardless of the recantation, there was still "compelling" evidence of the defendant's guilt. In this case, the judge would be saying that, despite the recantation, there was still evidence to prove guilt beyond a reasonable doubt.

Second, imagine a civil wrongful death case in which the defendant appeals the verdict on the basis of an eyewitness recanting his testimony. On appeal, the court might find that harmless error, concluding that, regardless of the recantation, there was still "compelling" evidence of liability. In this case, the judge would be saying that, despite the recantation, there was still evidence to prove liability by a preponderance of the evidence, i.e., the "more likely than not" standard that applies in civil trials.

Third, we have Adnan's case, where Judge Welch was looking at the nature of the evidence against him. In conducting this analysis, Judge Welch was looking at the probable cause standard, which is the standard for determining whether the case could proceed to (re)trial. Generally, as long as there is enough evidence to establish "probable cause," this factor cuts against the defendant being released. See, e.g., In re Extradition of Garcia, 761 F.Supp.2d 468, 479 (S.D.Tex. 2010) ("By analogy, for the 'weight of the evidence' factor to have significance in the Court's bail decision, the Government's case would have to be weak in its ability to meet its burden of proof-the probable cause standard."). 

As many courts have noted, the probable cause standard "is lower, even, than a preponderance of the evidence standard applicable to civil cases." State v. Pledger, 896 P.2d 1226 (Utah 1995). So, when Judge Welch is saying that there is still "compelling" evidence against Adnan, he's merely saying that the evidence is compelling enough to satisfy the probable cause standard, and, as noted above, he's not taking into account much evidence that would be introduced at a potential retrial.



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You have talked me down from the ledge, Colin. If Judge Welch has not read the blogs, Twitter memes, listened to Undisclosed, Truth & Justice, Brandon's periscope or read Rabia's or Asia's book, as I trust he has not, all he has to go on is what was said in the courtroom and as we all know there is a TON of compelling evidence that has been uncovered. The lividity alone does it for me. Not to mention Jay says "taupe" stockings. What teenaged boy knows about "taupe stockings"? Oh, and the timecards...... Let's go to trial soon.

Posted by: JoAnn | Dec 30, 2016 1:22:25 PM

Thanks for your clarifying this, Colin. I thought the opinion was contradicted by the footnote, which didn't make sense at first. I'm pretty sure deep down Welch wanted to grant bail but didn't do so out of "overabundance of caution." As you pointed out earlier he most likely found himself in uncharted waters and essentially chose to err on the side of the caution. By the way, has Vicki Wash's office responded to Crimestoppers tipster payout request? Can this information be subpoenaed if she chooses not to disclose this information voluntarily?

Posted by: LawGeek | Dec 30, 2016 8:37:29 PM

I don’t buy the argument that Judge Welch’s use of the word “compelling” is relevant only to the extent that it meets the probable cause standard. Such an application would make the “nature of the evidence against the defendant” factor meaningless, since a failure to meet a probable cause standard would result in dismissal of the case entirely (and therefore no consideration of bail anyway), right? If merely having probable cause is “compelling”, then there is no need to further consider the “nature of the evidence against the defendant.” A plain reading of the “nature of the evidence against the defendant” surely means that the legislature intended the court to consider whether the evidence (which had to at least meet the probable cause standard) was weak or strong, as weak evidence makes it more likely the defendant will appear in court and therefore more appropriate for bail (see US v Chen, 820 F Supp 1205). While I agree with your assessment that Judge Welch could only consider facts on the record and not all the other evidence you’ve uncovered, I still find it inconsistent that he could conclude Asia’s testimony failed the Strickland prejudice prong and also call the evidence against Adnan in the bail analysis “compelling.” If Jay’s testimony independent of the cell phone evidence was “compelling” (since Jay’s testimony was really the core of the case against Adnan), then Judge Welch should have found that Asia’s alibi testimony discrediting Jay met the Strickland prejudice prong and found ineffective assistance of counsel on both the failure to contact Asia as well as the failure to effectively cross the cell phone expert.

Posted by: FormerAgent | Dec 30, 2016 9:27:46 PM

Has anyone from the Undisclosed team/Adnan's defence team spoken with 'Takera' yet?

Posted by: Cupcake | Dec 31, 2016 6:08:08 AM

Thanks for this, Colin. I was up on that ledge with JoAnn!

Posted by: Beth | Dec 31, 2016 6:44:52 AM

JoAnn: Right. Judge Welch is precluded from considering anything that isn’t part of the evidentiary record in the case.

LawGeek: Judge Welch had to weigh both the possibility of the appellate court(s) reversing his opinion granting a new trial and the possibility of a conviction on (re)trial. Once leave to appeal is denied or the opinion granting a new trial is upheld, I think the calculus changes. And, no, Wash has not given us any information about Crime Stoppers. There could be a subpoena if there is a new trial.

FormerAgent: Most bail hearings are held before there has been confirmation of probable cause to bring charges through a grand jury or preliminary hearing. Therefore, the “nature of the analysis” is really just looking at whether there is enough evidence to take the case to trial, which is the probable cause standard. Of course, no one other than Judge Welch knows exactly what he meant by using the word “compelling,” but, based on his opinion granting a new trial, I think that the “probable cause” analysis makes sense.

Cupcake: We’ll see.

Beth: You’re welcome.

Posted by: Colin Miller | Dec 31, 2016 8:56:27 AM

While I've found definitions that indicate something much stronger, I found a definition of compelling in a legal context to mean: tending to compel, as to force or push towards a course of action.

This sounds very much like the probable cause used to indict.

Posted by: Paul | Dec 31, 2016 2:53:46 PM

Thank you Colin, for everything over 2016. Especially for engaging my brain and encouraging me to think. Best wishes to you and yours for 2017.

Posted by: WLJ | Dec 31, 2016 3:41:05 PM

Speaking of not very compelling evidence –
Colin, the Baltimore Sun just published this piece, which you may find interesting:
City jury acquits 19 year-old man in Pigtown murder
(Pigtown is a neighborhood in southwest Baltimore, named for the many butcher shops that were there in the 19th century.)

Posted by: Bev | Jan 4, 2017 4:31:05 PM

In a similar case from Connecticut, Michael Skakel won a habeas petition, is out on bail, and now CT Supreme Court overturned the habeas court. So do they order him back to prison now? I guess Judge Welch was just being cautious. Still disappointed for Adnan since he's been incarcerated for so long.

Posted by: Jayne | Jan 5, 2017 5:31:19 PM

"when Judge Welch is saying that there is still 'compelling' evidence against Adnan, he's merely saying that the evidence is compelling enough to satisfy the probable cause standard"

that's incorrect

i largely agree with FormerAgent's analysis on this point

'compelling' cannot mean merely that there is probable cause, which is the standard for whether there can be a criminal defendant. under that reading, if there's not compelling evidence the court must dismiss the charges and order the defendant released

when judge welch talks about compelling evidence in the context of a maryland 9-factor test for post-conviction bail relief, he doesn't mean that there's probable cause (no one's arguing there's no probable cause). he doesn't mean he thinks the state will prevail at retrial

he means the case against the defendant is still scary enough that he might flee

that's all he means

Posted by: bunilaw | Jan 11, 2017 8:35:19 AM

Paul: Agreed.

WLJ: Thanks.

Bev: Interesting. Thanks.

bunilaw: A judge considering whether to release or detain is not making the decision about whether to dismiss the charges against the defendant. That’s either done by a grand jury or a magistrate/judge at a preliminary hearing. At a bail/detention hearing, the judge is forecasting what might happen at a grand jury proceeding or preliminary haring. That’s why using the probable cause standard makes sense. Of course, all of this is kind of beside the point given that Judge Welch is relying upon evidence that we now know is incorrect (e.g., that there was a wrestling match on 1/13).

Posted by: Colin Miller | Jan 11, 2017 4:33:34 PM

Paul, thanks for that definition of compelling. It makes a lot more sense in this context than how we usually think of that word's meaning.

Posted by: Beth | Jan 13, 2017 4:04:35 PM

New Rootclaim analysis: Who killed Hae Min Lee?

This convoluted case is an example of how Rootclaim can sift through contradictory evidence, go beyond human reasoning, and reach conclusions more solid than those of judges and juries.

Posted by: Rootclaim | Jan 18, 2017 1:47:19 AM

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