EvidenceProf Blog

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

Monday, May 8, 2017

Would Asia's Testimony Have Magnified or Minimized the Flaws in the State's Case Against Adnan Syed?

Was Adnan Syed prejudiced by Cristina Gutierrez's failure to contact alibi witness Asia McClain? Judge Welch answered this question in the negative in his opinion granting Adnan a new trial on his cell tower claim. In that opinion, however, Judge Welch noted a first flaw in the State's case: "the State presented a relatively weak theory as to the time of the murder because the State relied upon inconsistent facts to support its theory." Specifically, Jay testified that he got the "come and get me" call after 3:45 P.M. while the State argued in closing that the "come and get me" call occurred at 2:36 P.M., after Adnan had killed Hae at Best Buy.

In its Reply Brief and Appendix of Cross-Appellee, the State has now identified a second flaw in the State's case:

Screen Shot 2017-05-08 at 1.01.04 PM 

Of course, the State's claim is that Asia's testimony actually "resolves the flaw Gutierrez intended to exploit. Meanwhile, the defense's claim is that these two flaws mean that the State's case was already weak and that there's a reasonable probability that there would have been a different outcome if Asia had testified at trial. So, who is right?

Let's start with Inez Butler's actual testimony at trial:

Screen Shot 2017-05-08 at 1.07.19 PM

So, according to Inez, when she saw Hae between 2:15 and 2:20 P.M., Hae was in such a hurry that she rushed up to the concession stand to get her items and didn't even have time to pay for them. Meanwhile, Asia testified that she left Adnan behind in the library at about 2:40 P.M. If the jury believed Inez Butler's testimony, then Asia's testimony would have been hugely helpful to the defense case. Under this timeline, Hae leaves Woodlawn between about 2:20 and 2:25 P.M., which is 15-20 minutes before Asia leaves Adnan behind in the library.

This also coheres with the timeline that Becky gave at trial:

Screen Shot 2017-05-08 at 1.15.05 PM

So, this paints a pretty clear picture: (1) school ends at 2:15 P.M.; (2) Becky sees Hae "a few seconds after class lets out," with Hae saying she has to leave and heading in the direction of her car; (3) Hae drives over to the concession stand between 2:15 and 2:20 P.M., runs up to the stand, buys some items, and tells Inez that she'll pay later because she's in a hurry to leave; and (4) Hae presumably leaves Woodlawn between 2:20 and 2:25 P.M.

Now, I suppose the State would claim that, in between (3) and (4), Hae stopped by the library to pick up Adnan. But this timeline seems fundamentally inconsistent with the testimony by Inez and Becky. Both Inez and Becky said that Hae was in a terrible hurry on January 13th, so how does it make any sense that Hae pulled away from the concession stand between 2:20 and 2:25 P.M. and then waited outside the library for another 15-20 minutes until Adnan was done talking to Asia? I suppose anything is possible, but it seems like jurors would a real issue with the alleged sequence of events.

And, of course, if Adnan was talking with Asia until 2:40 P.M., he couldn't have made a 2:36 P.M. "come and get me" call. Combine that with Judge Welch's conclusion that the 3:15 P.M. call couldn't have been the "come and get me" call, and it means that there would have been no viable "come and get me" call at trial. This certainly seems like enough to undermine our confidence in the jury's verdict, which is the test for prejudice.

How about if the jury believed Debbie? Let's again turn to Debbie's actual testimony:

Screen Shot 2017-05-08 at 1.28.30 PM

The first obvious problem for the prosecution is that Debbie has Hae telling her she's going to see Don at the mall, which doesn't help the State to prove that Adnan got a ride from Haw and then killed her. The second problem is that the State tried very hard to convince the jury that Hae was supposed to pick up her cousin at Campfield at 3:00 P.M. or even earlier. From their opening statement:

Screen Shot 2017-05-08 at 1.35.09 PM

And from their closing statement:

Screen Shot 2017-05-08 at 1.36.01 PM

So, if the jury went with the Debbie timeline, this would create a real issue. Debbie says she saw Hae at about 3:00 P.M. and talked to her for some period of time. So, under this timeline, by the time Hae is done talking to Debbie and has walked to her car, she's already late for the cousin pickup. Moreover, even if we say that the cousin pickup was at 3:15 P.M., Hae will have to drive directly to Campfield to have any shot of making it on time (and she'd still probably be late). 

What, then, would be the State's theory? Hae and Adnan had prearranged for Hae to drive Adnan to Best Buy after 3:00 P.M., even though it would make Hae late in picking up her cousin? Or, Adnan flagged down Hae after she talked to Debbie and got her to give him a ride to Best Buy, even though she was already late or about to be late in picking up her cousin? Neither of these scenarios seem to make much sense.

Also, again, this timeline means that a 2:36 P.M. "come and get me" call is out the window. It also means that the State's newly proposed 3:15 P.M. "come and get me" call might be impossible and not merely implausible.

In the end, then, how will the Court of Special Appeals rule? The State is arguing that, while there were two flaws in the State's case at trial, Asia's testimony actually would have helped the State resolve the second flaw, meaning there was no prejudice. The defense is contending that Asia's testimony would have magnified both of those flaws. Pretty soon, it will be up to the Court of Special Appeals to decide which side is right.



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It's a weird argument.

Posted by: Michael | May 8, 2017 11:15:17 AM

Michael: I'm really surprised that the State acknowledged this gap/flaw in the State's case at trial.

Posted by: Colin | May 8, 2017 1:02:17 PM

I think you've also done a post on Adnan's track attendance and how he was probably at track, on time, most likely at 3.30pm.

Posted by: Sue | May 8, 2017 1:41:34 PM

Having thought more about it:

1. The state needs Welch upheld on the Asia claim and overruled on the cell tower claim.

2. On the cell tower claim, the state isn't going to win on prejudice. So they need to focus on whether CG was deficient and on whether the claim was waived.

3. It's the revise on Asia. The state isn't going to win on deficient performance, so they need to win on prejudice.

4. One way to look at this strange argument from the state, which draws attention to limitations in its case, is to follow Jedge Welch's reasoning. The state's timeline was weak, thus not calling Asia wasn't prejudicial. Muddying the waters here might actually help the state.

Posted by: Michael | May 8, 2017 2:01:59 PM

Will there be press allowed in the court for the oral arguments? Also, when is that scheduled to happen?

Posted by: Jeff | May 8, 2017 2:30:17 PM

Jay and Jen were both clear at trial that Jay was at Jen’s house until after 3pm and Jay received the come and get me call after 3pm.
The state had a theory that was not consistent with their main witness in regards to the come and get me call.
I don’t see how Asia seeing Adnan at 2.15 – 2.35pm would have changed the jury’s decision because the timeline for when Adnan killed Hae was simply too grey at trial. The jury obviously believed Jay as a witness because he was the main piece of evidence for the state and Jay puts the come and get me call after 3pm.
The come and get me call could still easily have been the 3:15pm incoming call because this is consistent with what Jay is saying and the jury obviously believed what Jay was saying.
I just can’t see how COSA will over-rule Welsh on this.

Posted by: ben | May 8, 2017 4:04:00 PM

Any chance you can also do an undisclosed addendum before oral argument to review the major themes/issues at play in the appeal? I personally would find it very interesting/helpful?

Posted by: Teeter | May 8, 2017 4:11:32 PM

The strangest thing about this argument is that putting Adnan at the library from 2:20 pm to 2:40 pm does not actually put him at the library with Hae at a critical juncture, or (in fact) at any juncture. Nor does it put him in her car.

As far as I can see, the difference between "Adnan got into Hae's car without being seen, which he was well able to do because they were in the same close and immediate environs as each other when she left campus" and "Adnan got into Hae's car without being seen, which he was well able to do because he was at the library when she left campus" is trivial to non-existent. The thing that would have made a real difference would be someone witnessing it. Short of that, same diff.

Posted by: pluscachange | May 8, 2017 5:16:50 PM

You mentioned in a comment on another blog that Justin B will likely be responding to the latest Brief from Thiru V. It seems as if Thiru has been trying to game the system. From his contents page, it's clear that half of the latest combined brief (by number of pages) is the X Appellee Brief and half is the Reply Brief. The combined word limit is 13000 and indeed the combined word count is just a few words under that. But, the actual split shouldn't be half and half, officially the limits are 3900 for the Reply and 6100 for the X Appellee. So Thiru's clearly used his excess X Appellee limit to extend the word limit for his Appellant reply brief. Yet another manipulation by the State, and especially galling given that Thiru's reply brief was submitted a week late.
Do you think Justin will (ask for or even) be allowed an extra 2000+ words in his Reply Brief in compensation?

Posted by: Creuset | May 9, 2017 1:51:21 AM

Can it be established from the school(s) records when the wrestling competition which Inez testifies to at Cheasapeake actually took place - because we know it wasn't on the day Hae died?

Posted by: Derek Martin | May 9, 2017 3:21:23 AM

Sue: Yes, but I don’t think that will play any role in COSA’s opinion.

Michael: Agreed. Aside from scope and waiver, the State’s best bets are arguing against unreasonable performance on the cell tower claim and prejudice on the alibi claim. But I think the problem with the muddying other waters is the recent Supreme Court opinion in Wearry v. Cain. Judge Welch found serious issues with the murder timeline, and now the State has acknowledges a flaw/gap with regard to how Adnan got in Hae’s car. Wearry says that evidence of post-murder events aren’t enough to prove murder. So, I think the defense has a pretty good argument on prejudice.

Jeff: Yes. June 8th at 2:00 P.M.

ben: But on that point, Judge Welch actually found that the State committed to the 2:36 P.M. timeline and that the 3:15 P.M. call (which itself was inconsistent with Jay’s timeline) wouldn’t have worked with the rest of the State’s case.

Teeter: Yes, we will have an episode next week.

pluscachange: That’s a good point. If we believe Debbie, she talked to Hae by the gym, and then the two parted ways. If Adnan did get a ride, why would being at the library vs. being at the school make any difference.

With Inez, it’s a bit more complicated, and the State might need to be careful if this comes up during oral argument. The State has now clearly claimed that Inez testified that she saw Hae alone in her car when she came to the concession stand. If the State is claiming that she also saw Hae drive away alone, then Adnan being at the library actually would give Adnan a better chance to get into Hae’s car…but only because Inez is seeing Hae drive away from the school alone at 2:20ish. First, this seems to prove a huge weakness in the State’s case. Second, if we assume Asia’s timeline is correct, it doesn’t explain why Hae is in such a rush at the concession stand if Adnan is talking with Asia until 2:40ish. On the other hand, if the State is not claiming that Inez saw Hae driving away, then Adnan just as easily could have been waiting by her car when she returned by the stand; Adnan being at the library doesn’t really hurt his case.

Creuset: You might be right, but I have no idea about the Maryland rules/word limits on these briefs.

Derek Martin: Someone could probably do a deep dive into the Baltimore Sun sports sections to find this out. If it comes to a retrial, someone probably will.

Posted by: Colin | May 9, 2017 6:12:14 AM

This feels like it goes back to your post in March about the CAGMC being the linchpin of the state's case.

Posted by: Michael | May 9, 2017 7:40:06 AM


I'm not sure it's actually true that if they go with Inez's timeline, his being at the library gives him a better chance of getting into Hae's car, because the question you have to ask before you can answer "Is this better?" is "Compared to what?" And if you do that, this is what you get is:

If Asia doesn't testify, Adnan would have had the chance to get into Hae's car at any time and from any point along the route from the concession stand to off-campus, at any point in time, which (at least as I recall), CG did not in fact exploit by arguing that he didn't or couldn't have anyway.

But if Asia *does* testify, it creates a unexplained twenty-minute gap between her driving away from Inez in too much of a hurry to pay for snacks and Adnan getting into the car, as well as contradicts the State's 2:36 pm CAGM call theory *without making it more possible that Adnan could have gotten in the car than it would have been without her testimony.* .

I don't see how that improves his chance of getting into the car. Seems to me like it just very inconveniently reduces it to one that causes a lot of problems for the State.

Posted by: pluscachange | May 9, 2017 9:40:48 AM

But as Welch says himself
“In fact, the State presented a relatively weak theory as to the time of the murder because the State relied upon inconsistent facts to support its theory…..Upon viewing the record, however, Wild’s testimony diverged from the cell phone records that the State used to identify the call at issue”.
Colin, you say that Welch found that the 3:15pm call wouldn’t have worked with the rest of the State’s case.
Where does Welch say that?

Posted by: ben | May 9, 2017 3:54:55 PM

Michael: Agreed.

pluscachange: Right. It comes down to place vs. time. I think that Adnan being in the public library might help explain how Inez saw Hae driving away from the concession stand by herself from a location standpoint, but it creates a timing issue based upon Inez’s testimony.

ben: Footnote 9 of his opinion: https://undisclosed.wikispaces.com/file/view/WelchRuling20160630.pdf/586442607/WelchRuling20160630.pdf:

The record reflects that Wilds's testimony is inconsistent with the State's adopted timeline that Petitioner called Wilds at 2:36 p.m. According to Wilds, he did not receive the call from Petitioner until he had left Pusateri's residence at 3:45 p.m. A t the February 2016 post-conviction hearing, the State suggested a new timeline that would have allowed Petitioner to commit the murder after 2:45 p.m. and then call Wilds at 3:15 p.m. instead of 2:36 p.m., which would negate the relevance of the potential alibi. The trial record is clear, however, that the State committed to the 2:15 p.m.—2:45 p.m. window as the timeframe of the murder and the 2:36 p.m. call as the call from the Best Buy parking lot. During opening arguments, for instance, the State asserted that at "[a]bout 2:35, 2:36, Jay Wilds received a call on the cell phone from [Petitioner] saying, 'Hey, come meet me at the Best Buy.— Trial Tr., at 106, Jan. 27, 2000.
The State also elicited testimony during the trial that is incongruent with the State's newly adopted timeline. Wilds testified on direct examination that he called Pusateri at 3:21 p.m. to go buy some marijuana after abandoning the victim's body and her vehicle at the Interstate 70 Park & Ride. Accordingly, the State's new timeline would create a six-minute window between the 3:15 p.m. call from Petitioner and the 3:21 p.m. call to Pusateri. Within this six-minute window, Wilds had to complete a seven-minute drive to the Best Buy on Security Boulevard from Craigmount Street, where he claimed he was located when he received Petitioner's call. Wilds then had to make a stop at the Best Buy parking lot, where Petitioner showed him the body in the victim's vehicle. Then, both parties had to take another seven-minute drive to the Interstate 70 Park & Ride to abandon the victim's body and her vehicle. It would be highly unlikely that Wilds could have completed this sequence of events within a six- minute window under the State's new timeline.
The State contended during closing arguments that "[the victim] was dead 20 to 25 minutes from when she left school" at 2:15 p.m. Trial Tr., at 54, Feb. 25, 2000. The State also urged the jury to consider the 2:36 p.m. incoming call on Petitioner's cell phone records, and asserted once again that "[a]t 2:36 p.m. [Petitioner] call[ed] Jay Wilds, come get me at Best Buy." Id. at 66. Based on the facts and arguments reflected in the record, the Court finds that the State committed to the 2:36 p.m. timeline and thus, the Court will not accept the newly established timeline.

Posted by: Colin | May 9, 2017 7:02:19 PM

Ben-in addition to what Colin said, i don't think we can assume the jury was actually aware of the conflicting call times of Jay's 3:45pm vs the State's 2:36pm.

Juries aren't allowed to have a copy of the call log w/ times in the jury room, right? And they certainly arent allowed to have a transcript of Jay's testimony to compare it to, right?

And of course we know that Guitierrez didn't ever point out any inconsistencies during the whole trial. The prosecution certainly didn't point it out to them.

Do we have to presume the jury nevertheless was making note of this super-important-yet-admittedly-unobtrusive difference between 2:36 and 3:45? When nobody pointed it out and the two disparate pieces of datum were mentioned days apart from one another, with no big fanfare highlighting them as being of particular importance to check?

I don't think we can assume that at all. This is what the defense attorney is supposed to be getting paid to do. And of course it's one more thing the Gootz failed completely at doing.

Posted by: Paul | May 9, 2017 11:13:37 PM

Welch's findings on timeline are a factual finding that would require clear error to overturn, correct?

So we have a weak timeline according to the evidence, but the prosecution argued a strong timeline in its opening and closing statements.

Do those arguments from the prosecution factor into the court's analysis at all? If so, how? Welch's opinion essentially assumes that jurors were swayed by the burial timeline and cell phone corroboration and (essentially) dismisses the possibility that the jurors were swayed by the states strong (and wrong) timeline argument. Is that how it is supposed to work?

Posted by: Michael | May 10, 2017 3:56:03 AM

Paul: Right. I don’t think that Gutierrez ever pointed out the inconsistency between Jay’s timeline and the State’s timeline.

Michael: Judge Welch made the factual findings that (1) Jay testified the “come and get me” call came after 3:45 P.M.; and (2) the State claimed in closing that the 2:36 P.M. call was the “come and get me” call. COSA won’t appeal those findings unless they were “clearly erroneous.” Of course, those findings were pretty clearly correct. Judge Welch also made the legal conclusion that Adnan wasn’t prejudiced by Gutierrez’s failure to contact Asia because she would have merely undermined the already weak crime timeline. That legal conclusion will be reviewed de novo, with no deference to Judge Welch’s conclusion.

Posted by: Colin | May 10, 2017 9:56:19 AM


Do you know yet who the three-judge panel will be?

Posted by: pluscachange | May 10, 2017 7:30:35 PM

@ Colin

Thanks for that footnote information, I hadn't seen it.

I skimmed the testimony of Jay and Jen and from what I could see Jay says that he left Jen's house around 3.45pm. Jen said Jay left around 3.30/3.45pm.

What I found quite astonishing is that CG never once brought up this fact in cross with Jay or Jen or in her closing statements.
CG went hard in cross with Jay about his lying. She also went through the list of the calls in afternoon with Jay.
CG talked about Jay’s lying during closing but why oh why didn’t she bring up the fact that Jay and Jen were lying about their 3.30/3.45pm time of when Jay left?

Posted by: ben | May 12, 2017 9:35:48 PM

pluschachange: No, I don’t know the judges assigned to the panel.

Ben: I don’t know. It seems fairly easy. 1. Ask Jay to confirm his timeline of waiting until 3:45 P.M. for Adnan’s call, leaving Jenn’s house, driving to Jeff G.’s house, driving away from Jeff G.’s house, and then receiving the “come and get me” call from Adnan; (2) display Adnan’s call log to Jay and then jury; and (3) ask Jay to identify the call that could have been the “come and get me” call. Responses: (1) Jay picks nothing; (2) Jay picks the 3:15 P.M. call; (3) Jay picks the 2:36 P.M. call. If it’s (1), that makes Jay/the State’s case look really weak. If it’s (2), go though a series of questions based upon the events Judge Welch laid out in that footnote. If it’s (3), you make sure that you get Debbie’s statement about seeing Adnan at the guidance counselor’s office at 2:45 P.M. into evidence.

Posted by: Colin | May 14, 2017 3:21:39 AM

@ Colin

I agree. CG could have shown at trial that both Jen and Jay were lying. That could have been the straw that broke the camels back for the jury – that may have been enough for the jury to say ‘Jay has lied before, and he is still lying, so is Jen. How can we believe him’.
Another interesting thing I picked up on when re-reading the transcripts was what Jay said in cross to CG. She asked him if Jen was at Cathy’s apartment at the time of when Adnan was there. Jay doesn’t say ‘no she wasn’t there’. Jay says he can’t really remember, that she may have been there but he wasn’t sure.
I have a sneaking suspicion that maybe Jen was over at the apartment at the time. Remember Jay had never been over there on his own before (Cathy was Jay’s friend) and Jen and Cathy’s story about being on the phone together at the time was a bit weird. If Cathy was on the phone, then how did she hear everything Jay and Adnan were saying near the TV. Wasn’t Cathy meant to be watching TV?
I think Jen was there and she was involved much more than what we have been told.

Posted by: ben | May 14, 2017 5:04:42 PM

@ colin. Sorry Typo. I mean't to say 'Cathy was Jen's friend'. Not 'Jays friend'.

Posted by: ben | May 14, 2017 5:05:45 PM

ben: And, of course, Jay says that Jen was there in his Intercept interview (as well as Laura). On the other hand, we have the "missing" interview with Cathy's boyfriend Jeff and the fact that Jeff was not called a witness at trial. This strongly suggests to me that there was disagreement between Jeff and Cathy, and I'd imagine that the disagreement extends beyond the possible presence of Jen.

Posted by: Colin | May 15, 2017 4:24:44 AM

@ Colin

Aha, thanks I hadn't picked that up. Makes sense now.

'and I'd imagine that the disagreement extends beyond the possible presence of Jen'

Well possibly. Maybe Jen left with Adnan and Jay. Maybe it was just that Jeff said Jen was there.

Has anyone tried contacting Jeff, Cathy, or Laura to ask them?
CM Note: This the 25th and final comment that will appear on this post.

I think Bob talked to Laura for his podcast. I don't know that anyone has talked with Jeff. We know that Sarah Koenig talked with both Jenn and Cathy. AFAIK, the Undisclosed team hasn't talked with any of them yet, but I still think the social work conference finding from Addendum 1 is significant.

Posted by: ben | May 15, 2017 8:00:00 PM

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