EvidenceProf Blog

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

Tuesday, June 20, 2017

Assessing the State's Claim of "Overwhelming" Evidence in the Adnan Syed Case in Light of Wearry v. Cain

Maybe the most important exchange from the recent oral arguments in the Adnan Syed case was this one:

State 17

With her question, Judge Graeff clearly appears to be referencing the Supreme Court's recent opinion in Wearry v. Cain, which (1) was issued after the reopened PCR proceedings in Adnan's case; and (2) was cited by the defense in its Brief of Appellee/Cross-Appellant to the Court of Special Appeals. Wearry was the case in which the Supreme Court found that strong evidence of a defendant's involvement in post-murder events should not prevent a court from finding prejudice based upon evidence that undermines the State's theory of the actual murder itself.

This conclusion is, of course, hugely relevant to Adnan's case given that Judge Welch concluded that (1) Cristina Gutierrez unreasonably failed to contact prospective alibi witness Asia McClain; but that (2) the "crux" of the State's case was the intersection between Jay's testimony about the burial and the Leakin Park pings.

Those pings are part of what the State has claimed is "overwhelming" evidence of Adnan's guilt, which it asserts should prevent the Court of Special Appeals from finding that the failure to contact Asia McClain was prejudicial, or undermines our confidence in the jury's verdict. The State laid out this evidence in its Reply Brief and Appendix of Cross-Appellee.

In a prior post, I assessed the overall strength of this evidence in a general sense. In this post, I will assess this evidence under the Wearry v. Cain standard. In other words, I will assess whether the evidence actually supports the State's theory as to how Adnan murdered Hae or merely shows that Adnan might have been involved in post-murder events.


One type of evidence the State discusses in its Reply Brief is "forensics":

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First, the State's argument about the palm print makes clear that the State is trying to use it to show that Adnan tore out the page covering Leakin Park so that he could figure out how to drive there and/or figure out where in the park to bury the body in the 7:00 hour. Of course, like the Leakin Park pings, this has to do with a post-murder event -- the burial -- and not the actual murder itself.

Second, the anonymous call was also primarily about the burial because it dealt with what Adnan allegedly told Yasser what he would do with Hae's car if he hurt her. Now, you could also say that this has some bearing on the issue of whether Adnan killed/harmed Hae, but it's important to reiterate that the memo about the anonymous call was quadruple hearsay introduced (by the defense) to establish the State's flawed investigation and not to prove the truth of the matter asserted.

Third, the calls to Yasser were at 6:59 P.M. and 10:02 P.M. Therefore, it's tough to see how they have any bearing on the actual murder. The State seemingly tried to imply at trial that Adnan might have confessed to Yasser during one or both of these calls, but they produced no evidence to support this claim.

Therefore, none of the "forensics" evidence links Adnan to the actual murder.


A second type of evidence the State discusses in its Brief is "corroboration" evidence:

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First, Kristi/"Cathy" testified about Jay and Adnan coming to her place in the 6:00 P.M. hour and helped establish the State's claim that Adnan and Jay left in a hurry after the Officer Adcock call to bury Hae. Jenn testified about calling Adnan's cell phone in the 7:00 P.M. hour and talking to someone whom she wasn't allowed to identify as Adnan, ostensibly when Adnan and Jay were burying/about to bury Hae's body. Both of these calls go to the State's theory of the burial and not the State's theory of the murder.

By way of contrast, "The Nisha Call" does go to the murder itself. Of course, it's debatable the extent to which Nisha really corroborates Jay, but her testimony is clearly more pertinent to the actual murder than the testimony by Cathy or Jenn. And that's a problem for the State because it shows the prejudice in Cristina Gutierrez not contacting/calling Asia McClain.

Jay testified that he didn't get the "come and get me" call from Adnan until after 3:45 P.M., which would make the 3:32 P.M. call to Nisha irrelevant for proving Adnan's guilt if the jurors believed this timeline. Alternatively, as Judge Welch explained in his opinion, if the State tried to  claim that the 3:15 P.M. call was the "come and get me" call, Jay's entire narrative of the ensuing events and calls, including "The Nisha Call" wouldn't make any sense.

This is why the State had to argue that the 2:36 P.M. call was the "come and get me" call; it was the only version of the call that allowed for Jay's narrative, including "The Nisha Call" to make any sense. As a result, the prejudice based upon the failure to contact/call Asia is clear. If, as Judge Welch found, Asia would have credibly testified to seeing Adnan in the library until about 2:40 P.M., Adnan would have an alibi for the State's best timeline, and it's unclear how "The Nisha Call" would have had any meaning without that timeline.

Second, Jenn's testimony about seeing Adnan and Jay at the parking lot later that night not only contradicts Jay's version of events but also clearly deals with an event that happened well after the murder. 

Therefore, the only corroboration evidence that actually helped prove the State's theory of the murder was Nisha's testimony, and Asia's testimony would have been hugely helpful in undermining the importance of Nisha's testimony.

Accomplice Testimony

A third type of evidence the State discusses in its Brief is accomplice testimony:

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First, Jay's testimony about digging the grave, burying Hae's body, and disposing of the shovels deals with post-murder events that could prove Adnan's guilt as an accessory after the fact but not the murderer. Conversely, Jay's testimony about Adnan showing him Hae's body is pretty central to proving that Adnan murdered Hae. But the problem for the State is that this is possibly the weakest part of Jay's story. We all know that Jay has switched his story about the trunk pop innumerable times and admitted at trial that his initial story about the trunk pop was a lie rather than a mistake.

Second, the fact that Jay led the police to Hae's car only directly establishes Jay's involvement, and it only tends to establish that he had some involvement in dumping Hae's car, not involvement in the murder. To the extent that the car discovery corroborates Jay's story about Adnan's involvement, it only corroborates his claim about Adnan being involved in dumping Hae's car, not his claim about Adnan being the murderer.

Therefore, the only "accomplice" testimony referenced by the State that proves the murder is the weakest part of Jay's story.


A fourth type of evidence the State discusses in its Brief is motive evidence:

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I think everyone who has followed this case recognizes that there are flaws with the way that the State characterizes this motive evidence as well as countervailing evidence that tends to cut against this evidence. That said...sure. Hae and Adnan had somewhat recently broken up, and therefore Adnan had a motive to harm Hae. But, of course, "[a]s motive is ordinarily not an element of the crime charged, evidence of motive does not establish guilt." Chandler v. State, 329 A.2d 430 (Md.App. 1974).

Therefore, motive evidence is evidence that can explain other evidence establishing a defendant's guilt, but it is not evidence of guilt itself.


A fifth type of evidence the State discusses in its Brief is motive evidence:

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First, I don't believe that the State posited at trial that the three calls to Hae were preparation for murdering her. Maybe the State wanted the jurors to infer that he was trying to ask Hae for a ride during these calls, but I don't think any evidence supported this inference. That said, taking the other part of this first claim and combining it with the State's second claim, the State did put forth the theory that Adnan called Jay, visited him during school on January 13th, and left him his car and his phone so that he could call him later in the day.

But, as with the trunk pop, this was another problem for the State and one that would have been exacerbated with Asia's testimony. As Judge Welch noted, Jay testified that the "come and get me" call came after 3:45 P.M. while the State claimed that it was the 2:36 P.M. call on Adnan's call log. This led Judge Welch to conclude that the State had a weak theory as to the time of the murder because it was based upon inconsistent facts. Therefore, Judge Welch concluded that this "come and get me" timeline was weak, as compared to the Leakin Park pings, which were the "crux" of the State's case. Wearry seems to foreclose Judge Welch's latter conclusion, but his former conclusion still stands: The State's story about Adnan loaning Jay his car and phone and calling him on the afternoon of January 13th was weak and inconsistent.

This is again where Asia comes into play. If we believe Jay's 3:45ish timeline, his entire narrative, including "The Nisha Call," falls apart. If we believe the State's 2:36 timeline, Asia's testimony provides a strong alibi.

This takes us to the State's third claim, which ties into the last category of evidence discussed by the State.

Deviations in Syed's Story

The last type of evidence the State discusses in its Brief consists of deviations in Syed's story:

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The State's first and second claims tie back to its third claim in the "preparation" category; all three deal with Adnan asking Hae for a ride and subsequently changing his story about that ride request and what he did after school. Again, there are reasons to question the State's characterizations. Beyond that, though,...sure. Along with "The Nisha Call," this is the strongest evidence against Adnan that, along with motive, helped to corroborate Jay's otherwise weak claims about the "come and get me" call and the trunk pop.

But again, this is where Asia would have been huge. The State presented an easy to swallow narrative/timeline for the jurors: Adnan asked Hae for a ride on the morning of January 13th, Aisha saw Adnan and Hae together at the end of school at about 2:15 P.M., and Inez saw Hae leaving school in a hurry between 2:15 and 2:20 P.M. Therefore, the obvious implication is that Adnan got his requested ride from Hae and killed her at the end of that ride.

Asia's testimony would have cast an entirely different light on this narrative/timeline. With Asia's testimony, Inez now makes it look like Adnan didn't get a ride from Hae, who left school well before Adnan was done talking with Asia at the library. Moreover, the jurors didn't just have to rely on Inez; they could also rely on defense witness Becky, who testified that Hae told her in the minutes after school ended that she had to leave right away because she had somewhere else to be.

And while the State will claim that Debbie testified that Hae was still at school at 3:00 P.M., a pivot to this timeline would create additional complications for the State. At trial, the State claimed that Hae was supposed to pick up her cousin at 3:00 P.M., if not earlier. Given this fact, how could Hae have given Adnan a ride under the Debbie timeline? Indeed, Debbie even said in her police statement that she told "Takera" that she didn't have time to give her a ride because she had to pick up her cousin. And the Debbie timeline creates the same problems for "The Nisha Call" and Jay's narrative that are created by a 3:15 P.M "come and get me" call. Simply put, the Debbie timeline doesn't seem feasible, which is probably why the State didn't go with it at trial.

Finally, the State's third claim in the "deviations" section doesn't go to the issue of whether Adnan murdered Hae. One might (or might not) infer from Adnan's lack of calls to Hae after her disappearance that he knew that she was dead. But he would have that knowledge even if he were only involved in her burial and not her murder.


If we actually distill the State's claim of "overwhelming" evidence to the evidence about the murder itself, we are left with (1) motive; (2) Jay's testimony about the "come and get me" plan and the trunk pop; (3) the ride request and Adnan's shifting stories about it; and (4) "The Nisha Call."

Motive evidence isn't evidence of the crime. Jay's testimony about the "come and get me" plan and the trunk pop were probably the weakest parts of his story. And while the ride request and "The Nisha Call" were arguably stronger parts of the State's case, they were also parts that would have been damaged the most by Asia testifying as an alibi witness. Therefore, I feel pretty strongly that the Court of Special Appeals won't find lack of prejudice based upon failure to contact/call Asia McClain.



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Respectfully, Colin, I think this is insane. Wearry v. Cain can’t bear nearly the weight Syed’s defense team has heaped onto it. They (and you) have relied on one per curium opinion about how a particular defendant’s involvement in particular events after a murder did not amount to proof that he committed that murder. That doesn’t mean a defendant’s involvement in post-murder events is NEVER compelling proof of actual murder. It often is, and it is here. Look at some of the stuff you’ve said here. To paraphrase: “Well, that only proves Adnan was involved in dumping the car and burying Hae’s body; it’s not proof of murder.” Huh? This is Hae’s ex-lover we’re talking about. Are we to believe somebody else killed her, and then the ex-boyfriend just decided to lend a hand in dumping her car and burying her corpse? I’m not looking to get into a long exchange about all the evidence in this case. My point is a simple one: if there is overwhelming evidence that Syed buried Hae’s body, then there’s overwhelming evidence that he murdered her. Plain and simple.

Posted by: Sam | Jun 20, 2017 8:09:58 AM

Sam: How would you distinguish Wearry? Here are the key passages from the Supreme Court’s opinion:

"Wearry’s defense at trial rested on an alibi."

"One witness testified that he saw Wearry in the victim’s car on the night of the murder and, later, holding the victim’s class ring. Another witness said he saw Wearry throwing away the victim’s cologne.”

"The dissent asserts that, apart from the testimony of Scott and Brown, there was independent evidence pointing to Wearry as the murderer….But all of the evidence the dissent cites suggests, at most, that someone in Wearry’s group of friends may have committed the crime, and that Wearry may have been involved in events related to the murder after it occurred. Perhaps, on the basis of this evidence, Louisiana might have charged Wearry as an accessory after the fact….But Louisiana instead charged Wearry with capital murder, and the only evidence directly tying him to that crime was Scott’s dubious testimony, corroborated by the similarly suspect testimony of Brown.”

This makes Adnan’s case look a lot like Wearry’s case. You might similarly say that it’s insane to say that evidence that Wearry was in the victim's car, had the victim’s class ring, and was throwing away the victim’s cologne on the night of the murder is anything but “overwhelming” evidence of his guilt. But the Supreme Court clarified in Wearry that this evidence wasn’t enough to prove that Wearry committed the murder.

Posted by: Colin Miller | Jun 20, 2017 8:23:41 AM

The state’s preparation angle is the absolute weakest part of their case and highlights the importance of Asia’s testimony in terms of prejudice. First, the idea that Adnan would procure a secret cell phone in someone else’s name the day before the crime (presumably to assist in executing his fiendish plan) but would then call the victim on that phone and give them the number is ludicrous. It makes no sense. Nor does it make sense that he had 24-hour-a-day access to Hae, but somehow planned a murder that required him to ask for a ride in front of her friends, get in her car in the single most public place the two of them frequented, and kill her at a time when he knows her absence will immediately become conspicuous due to the failure to pick up her cousin. Nobody, not even a sixteen-year-old kid, would fashion such a plan.

That’s why being able to place him in the library after school for any length of time is so critical. All of the above is laughably incoherent in terms of a plan, but going to the library as part of that plan is inconceivable. How could Adnan have possibly gotten into Hae’s car and killed her before she was supposed to pick up her cousin if Inez testified (however inaccurately) that she saw Hae get in her car at 2:15 and Adnan was in the library at the time. Suddenly the prosecution’s case also requires teleportation. The point being that once you establish that no part of the state’s theory of the actual crime makes a lick of sense, Jay’s wildly (pun intended) inconsistent testimony looks bizarre – at best. The Leakin Park pings are inherently suspect. The odd behavior at “Cathy’s” house is suddenly just a kid being stoned. Undercutting the preparation and opportunity prongs casts all of the rest of the evidence in a different light. That’s prejudice.

Posted by: Eric | Jun 20, 2017 8:28:22 AM

It’s easy to envision some members of a group of friends killing somebody, taking his stuff, and then passing around the stolen goods with the other friends. That’s not insane. What’s insane is to imagine that Adnan Syed played no role in killing his ex-girlfriend but did partake in dumping her car and burying her body. In what conceivable scenario does that happen? Weave a story for me.

Maybe Jay killed her, for God knows what reason? Then he said “You know who’d be a great person to help me cover up this heinous murder? The ex-boyfriend!” And then Syed thought “Yeah! Count me in. How could this turn out badly for me?” Or Jay amazingly wasn’t involved at all, somebody else killed Hae, THAT person invited Syed to help with the cover-up, and Syed accepted?

Posted by: Sam | Jun 20, 2017 8:39:42 AM

Sam: I don’t see the issue.

Scenario One: Jay’s initial story is to police is that he want to Woodlawn after school on January 13th. While there, he runs into Hae and kills her. Why? Who knows? There’s a reason motive isn’t an element of murder. We know that Jay knew Hae and therefore could have had a million possible reasons for wanting to harm her, or maybe something happened in the moment caused him to snap. Then, he knows that Adnan has some animosity toward Hae based on the breakup, so he enlists him to help with the burial after track practice. Or maybe he figures that no one would believe that he had Adnan’s car without Adnan being involved in the murder, so he figures that he can ask Adnan to help in the burial without fear of Adnan going to the police.

Scenario Two: The somewhere else that Hae had to be after school/the something else that caused Hae to change her plans was a recent Woodlawn grad who knew Jay and/or Adnan. This person knew not only Hae but also knew Jay and Adnan. After the murder, this person then enlisted Jay for the same reasons as Adnan supposedly enlisted Jay, with Adnan becoming part of the burial because Jay had his car. Or this person enlisted Adnan after the murder because he knew Adnan had animosity toward Hae after the breakup.

I could easily imagine either of these scenarios, and, indeed, at trial #1, the jurors seemed to indicate after the mistrial that they thought that Jay and not Adnan should be the one being prosecuted.

Posted by: Colin Miller | Jun 20, 2017 9:04:42 AM

I find those scenarios unfathomable. Motive is not an element of murder, but it is accepted as evidence of murder for a reason, and lack-of-discernable-motive is obviously a powerful defense theory. Jay had no discernible motive; Syed did. I cannot imagine that Syed, as the bitter ex-boyfriend and the most obvious suspect in this hot-blooded murder by strangulation, would have no involvement in the crime and yet agree to help bury the body. Anybody in his shoes would know how that would look. It’s like he was framing himself for murder. And to think the actual killer (Jay or whoever else) would invite Syed to cover up the crime, just because he knew Syed “had some animosity toward Hae”? Surely Syed still had feelings for Hae. Unless the killer knew Syed just happened to be planning to kill Hae before he did the job himself, why would he risk involving the ex-boyfriend?? This is a scenario in which Syed is innocent, after all. What reaction would anybody expect from Syed? I would think something along the lines of “What the ****!? You killed my ex-girlfriend!?” And just for fun – Fifth Amendment aside -- what about after Syed’s arrest? Don’t you think he’d be screaming at the top of his lungs that Jay or whoever else actually committed the murder, and that he got roped into the cover-up? I can’t accept the twin implausibilities of the killer choosing to bring the innocent ex-boyfriend into the picture, and the innocent ex-boyfriend actually agreeing to help (and then never saying a word about the true identity of the killer, which would have been known to him).

Posted by: Sam | Jun 20, 2017 9:45:23 AM

Sam: Isn’t that the whole point, though? Jay asks Adnan to cover up the murder because he knows that Adnan has every incentive to (1) effectively cover up the crime; and (2) not go to the police. After all, if the crime isn’t effectively covered up, Adnan, as the ex-boyrfriend, becomes a prime suspect. And, if Adnan goes to the police, what’s he going to say? “I didn’t kill Hae. It was the guy I gave my car hours before the murder.”

Compare Adnan with Jay’s friend, John Doe. If Jay goes to John Doe and asks for his help after the murder, the likely response is “No way,” and the friend might even go to the police that day or certainly incriminate Jay if the police ever come to his door.

Indeed, this is why many question whether Adnan would have sought Jay’s help after the murder and why Jay would have agreed to help.

Posted by: Colin Miller | Jun 20, 2017 10:21:02 AM

I can imagine lots of reasons Jay would help Syed. Maybe Syed paid him. Maybe he threatened to report his drug dealing activities to police. I don’t think we can know exactly what transpired that caused Jay to participate, because I think Jay told the police half-truths to obscure what was likely his much larger role in the crime.

I don’t think it would have made any sense for Jay to enlist Syed, or that Syed would feel he had to participate. “If the crime isn’t effectively covered up, Adnan, as the ex-boyfriend, becomes a prime suspect”? This makes little sense to me. Cover up how? She was dead. Syed was going to be a prime suspect either way. Unless you think their plan was to keep the body from EVER being found by burying it in a shallow grave in West Baltimore’s #1 dead-body-burial spot, and hoping everyone would be convinced Hae abandoned her car and ran off to Fiji.

The story you’re telling is one in which Syed is innocent but feels he just has to pick up a shovel and help Jay bury his ex-girlfriend’s corpse – or else he might get in trouble(!!). Then, when the police come for him, he says nary a word about how Jay was the real killer. This sounds like a cheesy Lifetime movie to me. I think I’d sooner convince the Pope to convert to atheism than convince you there’s compelling evidence of Syed’s guilt, so I’ll leave it there. But just know how silly some of these innocence theories sound to people outside the Serial/Undisclosed echo chamber.

Posted by: Sam | Jun 20, 2017 10:46:49 AM

Sam: Just to be clear, it’s not my theory that Jay killed Hae and that Adnan assisted in the aftermath. I don’t think that Adnan was involved in the crime or the aftermath. But I don’t see much practical difference between (1) Adnan agreeing to help Jay in the aftermath due to fear that he would otherwise be implicated in Hae’s murder; and (2) Jay agreeing to help Adnan in the aftermath due to fear that he would otherwise be implicated in drug dealing activities. This second theory, of course, is the theory presented to the jury based upon Jay’s testimony. From your comment it appears that you don’t believe it yourself.

Posted by: Colin Miller | Jun 20, 2017 11:09:14 AM

I understand you don’t think Syed had any involvement. But this whole post is premised on the idea that IF Syed participated in dumping Hae’s car and burying her body, that still doesn’t prove he’s the one who killed her. I think that’s bonkers. As for Jay’s reason for going along, I simply didn’t recall what his testimony was. If it was the drug-dealing threat, that sounds plausible enough to me. Maybe Syed also paid him. Maybe it was something else. Point being that I, unlike you, see a world of a difference between #1 and any version of #2 in your last post. I’ve already explained why I think so – and you’ve explained your position – so I will stop flooding the comment section. Happy to hear others’ thoughts.

Posted by: Sam | Jun 20, 2017 11:25:56 AM

Eric, good post. Ridiculous theory from State. Sam, please stop monopolizing comment space. Only 25 allowed for everyone. Thanks

Posted by: Cathy McLain | Jun 20, 2017 11:31:48 AM

Sam: Here's an alternative attempt... Jay (or whoever) threatened Adnan he'd report his Adnan's drug dealing activities, wrecking his future career prospects/position in the family & Muslim community. Perhaps Jay (or whoever) only enlisted Adnan after they'd plied him with a spliff. Or, scratching some or all of the former, perhaps Adnan was initially unaware of the reason he was dropping Jay (or whoever) at Leakin Park, but once there was threatened with accusations of accessory, the incoming calls pointed out as evidence that could tie him to the location. I dunno, it's not that impossible to think up something remotely plausible. Why assume Jay would be willing to accept money for this, but Adnan wouldn't be? Maybe he accepted money to help with something without knowing what, then didn't feel he could back out?

Posted by: Cupcake | Jun 20, 2017 1:32:45 PM

My take on the relevance of Wearry v. Cain is that this is one more reason that Judge Welch's ruling granting Adnan a new trail should be upheld; that is: pursuant to Wearry v. Cain, the state's evidence does not support Adnan's conviction of murder, but only of being an accessory to murder- which he was not on trail for. In other words: evidence of being an accessory is *not* evidence of murder, therefore his conviction cannot stand.
So many of us that follow this case have been saying: "If Adnan really did commit this crime then *prove* it." Prove it with *real* evidence. Quit making stuff up: find the real killer. If it did turn out to be Adnan, then so be it- but the evidence we have so far simply does not support that.
We can rehash this all day, but Judge Welch made his ruling for a reason: Adnan received ineffective assistance and the state's evidence is weak at best. The timeline is a mess. The cell tower evidence is flawed and inconclusive. Adnan has alibi witnesses, the strongest of whom wasn't even contacted. Jay is unreliable.
Judge Welch did not declare Adnan innocent. What he said with this ruling is: your case isn't good enough: go back and fix that.
I think that's the right call, and I doubt the state has enough to succeed.

Posted by: PatrickB | Jun 20, 2017 3:30:45 PM

PatrickB: For me, it’s all about precedent. The defense has identified published opinions from all across the country, at both the state and federal levels, categorically concluding that (1) failure to contact an alibi witness is deficient performance; and (2) this failure to contact is prejudicial. As the State acknowledged at oral arguments, it has identified no published opinions to the contrary. The State’s argument, then, is essentially that this case is unlike any of the other hundreds of cases out there with similar fact patterns. That’s a really tough argument to make and one that I don’t think the Court of Special Appeals will accept.

Posted by: Colin Miller | Jun 21, 2017 4:42:54 AM

Colin -- Your "Scenario 1" and "Scenario 2" in response to Sam lead me to believe that you think Jay was involved in the murder. Have you heard of Undisclosed? It's a podcast where they make some pretty convincing arguments that Jay was not involved at all. You should try listening to it.

Posted by: steve | Jun 21, 2017 1:41:59 PM

Colin, you say above:

"But I don’t see much practical difference between (1) Adnan agreeing to help Jay in the aftermath due to fear that he would otherwise be implicated in Hae’s murder; and (2) Jay agreeing to help Adnan in the aftermath due to fear that he would otherwise be implicated in drug dealing activities."

Well there is one big difference. It's true Jay was a drug dealer. In your hypothetical Adnan is completely innocent.

Posted by: Tony | Jun 21, 2017 1:51:49 PM

steve: You know I’m one of the hosts of Undisclosed, right? FWIW, my Scenarios 1 and 2 aren’t what I actually believe happened. They’re things that the jury might have believed at trial.

Tony: Sure, but that gets back to the question of what evidence the State presented of Adnan’s guilt of the actual murder, right?

Posted by: Colin Miller | Jun 21, 2017 5:24:10 PM

It seems from reading through these comments that some believe that if there is evidence that proves Adnan was involved in post-murder activities, then he must therefore be guilty of the actual murder simply because no one can come up with a cogent theory that would explain Adnan's involvement after the murder, but not his involvement in the murder itself. But isn't that entirely beside the point? The way I understand it is that even if there is tons of evidence proving a defendant's involvement in post-murder activities, that simply can NOT be sufficient to implicate that same person in the crime of murder even if there is a lack of any evidence that would prove otherwise. And, moreover, the fact that no one can come up with some story that can rectify Adnan being involved in the burial but not being involved in the murder is meaningless. The whole concept of a criminal trial is to prove that the defendant is guilty of the crime he is charged with, not that he is most likely guilty of the crime he is charged with because he is guilty of some other related crime, and it's the best story anyone could come up with. (Although, that actually seems like that is exactly what happened in this case...But that's just my opinion.)

In other words, even if, hypothetically, someone had videotaped Adnan burying Hae in the woods, that alone is only evidence of him being an accessory after the fact, not of him being a murderer, and the lack of any alibi or exculpatory evidence for the time of the murder is not proof of his involvement in it. The fact that there is no alternative theory of what actually happened is completely irrelevant (except that this is precisely the job of the defense counsel, and goes right to the point of having ineffective assistance of counsel).

However, that also makes the fact that there IS possible exculpatory testimony for the time of the actual murder that was never heard at trial extremely relevant. In fact, it seems to me that all of the evidence presented against Adnan is referencing time periods either before the murder or after the murder, so ANY evidence that references the time period during the murder would carry subtantially more weight in the eyes of a jury than any of the evidence of the surrounding time periods, and therefore the omission of such evidence necessarily MUST be prejudicial. Is that summation fairly close to what you are getting at here? =)

As an aside, I must admit I've never really been interested in studying law before, but since I've been reading your blog, you've really piqued my interest. It is surprisingly intriguing to try to form the logical connections between real-world facts/events and objective law and interpretations thereof, while also keeping my own inherent bias and belief separate. I always assumed law would be boring and dry, but I am finding it to be anything but. So, thank you for taking the time to give all of us non-lawyers an opportunity to engage with you in this way, I really appreciate and enjoy the exchanges. =)

Posted by: Kevin | Jun 26, 2017 6:43:50 PM


A videotape of Adnan burying Hae in the woods would be evidence that he killed her. I don’t think even Colin would dispute that. It would be “circumstantial” rather than “direct” evidence, but it’s evidence all the same, and circumstantial evidence can be very powerful. (https://en.wikipedia.org/wiki/Circumstantial_evidence). The disagreement here is whether reliable evidence that Adnan was involved in the burial would constitute “overwhelming” proof that he committed murder, such that his trial attorney’s failure to contact Asia McClain didn’t affect the outcome of the trial (i.e., he’d surely have been found guilty anyway). I do think such evidence would be overwhelming proof of murder, because I find implausible any scenario in which an innocent Adnan agrees to help bury the body of his murdered ex-girlfriend.

Posted by: Sam | Jun 27, 2017 9:51:06 AM

@Sam: I think I understand what you are saying, but try to think of it from this perspective: Suppose that the afforementioned video was presented as the sole piece of evidence at trial for the charge of murder, but the defense presents an ironclad alibi for the time period during which the actual act of murdering the victim took place. If you were on the jury and those were the only two pieces of evidence that you saw, wouldn't you necessarily have to conclude that the defendant was not guilty of murder? Yes, he was involved in a major way, and yes he would be guilty of SOMETHING. But in a criminal trial, you can't just convict someone because they are guilty of something related to the crime, you have to decide if they are guilty of the exact crime that they are charged with and ONLY that crime, and in this hypothetical case, it is impossible for the defendant to be guilty of this murder as it is presented, so therefore he must be found not guilty.

Incidentally, I believe that is precisely why the term is "not guilty" rather than "innocent," because the purpose of the trial is to decide whether the defendant committed a specific crime as the facts and testimony describe it. It is entirely possible for someone to be found "not guilty" of the crime as presented yet still not be "innocent" altogether. To say the defendant is not guilty of the crime simply means that he could not have committed the crime based solely on the facts presented at trial. This could mean that he didn't commit the crime at all, but it could also mean that the police/detectives drew the wrong conclusions from the evidence and so the prosecution presented an incorrect theory of the crime at trial. This is why it is important for the investigation to be as thorough as possible so as to make the overall theory of the events that took place as certain as possible. Otherwise, if they take a weak or incorrect theory to present at trial, then even if defendant is ACTUALLY guilty of the crime, he could be found not guilty simply because the prosecution had an incorrect theory of the crime.

Posted by: Kevin | Jun 27, 2017 6:31:46 PM

Sam: I agree with Kevin’s last comment. Let’s assume that COSA affirms Judge Welch’s finding that Asia credibly testified about seeing Adnan at the library until 2:40 P.M. How are we still confident in the jury’s verdict that Adnan was guilty of kidnapping and murdering Hae? According to Thiru himself, the State’s “best” theory is that the 2:36 P.M. call was the “come and get me” at Best Buy call, which obviously doesn’t work with Asia’s testimony. Judge Welch has explained why the 3:15 P.M. call doesn’t work as the “come and get me” call. And no other call to Adnan’s cell phone possibly worked.

Becky testified to Hae heading to the door leading to her car right after school ended and saying she had somewhere she had to be. Inez Butler testified to Hae leaving school in a hurry when she saw her between 2:15 and 2:20 P.M.

So, what would the State have argued to the jury if Asia had testified? “We know that two witnesses testified to Hae leaving school in a hurry between 2:15 and 2:20 P.M., but we think she actually stuck around for another 20+ minutes before picking Adnan up at the library. Then, as Jay testified, Adnan killed her at the library. And while he said that Adnan then called him on his cell phone while Jay was in his car, we think that call was actually made to Jenn’s landline, although we have no records to back that up.”

Basically, the question is what the State’s theory of the actual murder would have been with Asia’s testimony.

Posted by: Colin Miller | Jun 28, 2017 9:28:44 AM

In all honesty, Colin, I really don’t have enough information about this case to have this debate with you. I don’t even know who “Becky” or “Inez Butler” are. I listened to Serial a couple years ago and I’ve followed this appeal because there were some UPPA issues in a case of my own, and so the procedural aspects of this piqued my interest. That’s about it.

What I would say is that I think it’s fallacious to suggest the State needs to present ANY theory as to exactly when a murder took place. Surely countless murder cases have been made where the prosecution didn’t know when or even how the murder occurred, but had sufficient evidence to show (1) that a murder did occur, and (2) that the defendant was the one who committed the murder. That’s all that’s required for a murder conviction. If, in this case, there’s overwhelming evidence that (1) Hae was murdered, and (2) Syed is the one who killed her, then it really doesn’t matter who called whom at what time and who went where at what time. The State doesn’t need to present a seamless storyline. It tried to do so in this case even though there wasn’t a lot of evidence about exactly how things unfolded, so I’m unsurprised that there are holes in the story. I’m unsurprised that Jay’s story doesn’t entirely check out, because I think he was more involved in the crime than he lets on. But for all the reasons I’ve articulated above, I find it impossible to believe that Jay was entirely uninvolved, impossible to believe Syed was entirely uninvolved, and impossible to believe that Jay (or someone else altogether), and not Adnan Syed, is the one who actually killed Hae. If a jury could think the same, even when confronted with Asia McClain’s testimony, then there’s no prejudice in this case.

Posted by: Sam | Jun 28, 2017 6:45:56 PM

@Sam: Ok, maybe I don't understand what you are saying, but it sounds like you are suggesting that details like time of death and alibis are frivolous in murder cases, and the only details that really matter are (1) someone was killed by someone else, and (2) the identity of the killer. This honestly sounds like fairly egregious thinking to me. One of the main foundations of our criminal justice system is that the burden of proof falls on the accuser, not the accused. It is weighted in favor of the accused at least in part so that situations exactly like this case are not the norm, where the details of the case are so minimal and vague that an innocent person would have an even harder time defending against the charges than the actual perpetrator of the crime. At least the actual murderer would know the details of the case and so would know exactly what he or she needed to disprove/defend against. But this simply CAN NOT be the way the criminal justice system is supposed to work. The prosecution is supposed to prove, beyond a shadow of a doubt (which means to me having the MOST amount of facts and details as possible, not the least, as it sounds like you are suggesting), that the defendant is guilty of the crime he or she is charged with.

If the state doesn't need to present a seamless storyline, then what's to stop them from creating any story they want, to make whomever they please look like the guilty party? They would have all the power in the system, and the accused would have none. How can you expect anyone to be able to defend themselves in court if the case against them doesn't have to be logically congruous? How would YOU defend yourself if someone accused you of murdering someone last year and didn't give you any details about how/when/where the murder occurred, but they presented several pieces of circumstantial evidence that could place you in the vicinity of the supposed crime somewhere around the vague time of the crime? Could you prove you DIDN'T do it?

I have always believed that the system is designed to prevent this exact scenario: where someone is accused of a crime and then forced to prove that they weren't involved, which quickly becomes a sisyphean task as the case against them becomes more vague. That is why this case is so discouraging to read for me, because it goes against everything I've learned about how the system is supposed to work. If this is, in fact, the reality of the criminal justice system and I was just believing in a fantasy, then I hope that none of us ever end up having to defend ourselves against false charges, because we don't stand a chance...

Posted by: Kevin | Jun 29, 2017 11:38:54 AM


All I’m saying is that the State can meet its burden of proof in a murder case without establishing when or how the victim was killed.

Let’s say Colin and I are neighbors, and it’s a well known fact that because I’m an obnoxious asshole, Colin dislikes me a great deal. Evidence proves that Colin takes out a million dollar life insurance policy on me on June 29, and my signature is forged on the documents. I’m reported missing on June 30. Clear video surveillance footage shows Colin driving into an industrial parking lot on July 1, pulling my dead body out of the trunk of his car, and stuffing it into a dumpster, where it is later found. As soon as my death certificate is issued, Colin goes to collect the life insurance money. Colin’s best friend, Rabia, later tells police that on July 2, Colin bragged to her “I killed Sam and made myself rich in the process!” That’s the evidence in the case. No eyewitnesses, no forensics, and no theory as to exactly when or where I was killed or how the murder unfolded. You’re on the jury at Colin’s murder trial. Guilty or not guilty? I’d say guilty. In fact, I’d say the evidence of his guilt is overwhelming.

Now let’s say in some parallel universe, the State has all that same evidence against Colin, and it also has some weak evidence about when I was last seen and when Colin might have had an opportunity to lure me into his car and strangle me. Another neighbor saw me go out for my daily 30-minute walk at 8am on June 30 and then didn’t see me the rest of the day. The State’s theory is that Colin nabbed me between 8 and 8:30am. But that’s just their best theory. They’re telling a story to the jury. “You can be sure Colin did it based on the motive, life insurance policy, body-disposal, and third-party confession evidence. And how’d the crime unfold? Colin lured him into his car between 8 and 8:30am while he was out for his morning walk.” Later on it turns out an alibi witness could have placed Colin on the other side of town during that time frame. What should we conclude? That he didn’t do it? Or that he still clearly did it, just not when/where/how the State theorized?

[Pleeeeease nobody bother distinguishing my hypothetical from Syed’s case. The parallels are not supposed to be perfect. I’m only illustrating that if the prosecution’s theory as to when, where, and how a murder occurred falls apart, there can still be overwhelming evidence of guilt. And Colin, thanks in advance for being a good sport.]

Posted by: Sam | Jun 29, 2017 3:31:44 PM

Note: This is the 25th and final comment that will appear on this post:

Sam: I agree that "if the prosecution’s theory as to when, where, and how a murder occurred falls apart, there can still be overwhelming evidence of guilt.” But I think Wearry stands for the following proposition: If the primary evidence against the defendant is a witness who was largely contradicted regarding the crime but largely corroborated regarding post-crime events, evidence further contradicting the State’s theory of the crime is enough to establish prejudice. Here’s the key portion of the Court’s opinion:

"Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi….The dissent asserts that, apart from the testimony of Scott and Brown, there was independent evidence pointing to Wearry as the murderer. But all of the evidence the dissent cites suggests, at most, that someone in Wearry’s group of friends may have committed the crime, and that Wearry may have been involved in events related to the murder after it occurred."

Posted by: Colin Miller | Jun 29, 2017 4:01:59 PM

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