Friday, December 30, 2016
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.