EvidenceProf Blog

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

Wednesday, October 24, 2018

My First Take on the State's New Brief in the Adnan Syed Case

Today, the State filed its Reply Brief of Petitioner/Cross-Respondent in the Adnan Syed case. This will likely the penultimate brief in this case before oral arguments are held in the Court of Appeals of Maryland on November 29th. In this post, I will quickly address the State's claim that the defense is trying to pull a bait-and-switch on the court.

According to the State:

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The State's argument is easy enough to explain: There are two prongs to an ineffective assistance of counsel claim: (1) the deficient performance prong; and (2) the prejudice prong. The State is claiming that (1) the defense's bait is to claim that Cristina Gutierrez was deficient because she merely had to pick up the phone and call alibi witness Asia McClain; and (2) the defense's switch is then to claim that Adnan Syed was prejudiced based upon Gutierrez's failure to use Asia McClain as an alibi witness at trial. In other words, the State is claiming that contacting Asia McClain wouldn't have necessarily led to Gutierrez calling her at trial.

But, just as the State's argument is easy enough to explain, it is easy enough to refute. And that's because what the State claims was a bait-and-switch is exactly how every court had handled an ineffective assistance claim based on failure to contact an alibi witness. For example consider, Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), a case originating out of the Baltimore City Circuit Court (like the Adnan Syed case). This is the case in which defense counsel failed to contact alibi witnesses in a Rite-Aid robbery case.

After finding deficient performance in failure to contact, the Fourth Circuit proceeded to find prejudice because the eyewitness testimony in the case was "precisely the sort of evidence that an alibi defense refutes best." In other words, the Fourth Circuit assumed that if trial counsel had contacted these alibi witnesses, he would have called them at trial. And this is the exact same reasoning that every court addressing this issue has used. 

The State makes the unsupported assertion that the defense's reasoning "finds no support in the precedent." And yet, the defense has cited double digit cases using this exact reasoning, which, of course, makes complete sense because if you have a good alibi witness, you call her. Conversely, the State cites no precedent where a court has used different reasoning...and that's because no such precedent exists. As the defense has repeatedly argued, when trial attorneys fail to contact alibi witnesses, courts always find prejudice because our confidence in the jury's verdict is undermined.

I'm nearly certain that the justices of the Court of Appeals will ask the State for any precedent for its many assertions about ineffective assistance and alibi witnesses...and I've yet to see the State cite a single case that fills the bill.



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this argument makes so little sense i thought i was misunderstanding the brief until i read EvidenceProf's explanation. then i was just amazed at how stupid it is.

Posted by: Francis | Oct 24, 2018 6:10:00 PM

Is Griffin really the best supporting case here?
"George David, who shared office space with Howard, took over Griffin's file. Howard advised David to 'take a plea' for Griffin. David, expecting Griffin to plead guilty, did nothing. He contacted no witnesses, though he 'imagine[s]' he 'glanced' at the file, and he failed to confirm that the state's discovery requests had been answered. At a hearing on October 25, 1984, four months after he entered his appearance in Howard's stead, David met his client for the first time. At this hearing, David expected Griffin to plead guilty. Griffin refused.

"At a bench conference, the court ruled that the testimony would not be permitted because of David's (and Howard's) failure to notify the state of Griffin's intent to rely on an alibi. David offered two excuses for the failure to respond to the state's discovery request, both of which were confessions of his own dereliction. First, he told the court that 'any discovery ... would have been propounded to Charles Howard and I don't know if he replied or not." Moments later, he said "it's been my impression ... that this case was going to be pleaded all the way up until this morning.'"

So, in Griffin, the attorney failed to investigate the alibi completely but then did try to rely on it. It wasn't that the court assumed Davis would call the alibi witness, Davis made it clear on the record at the trial that he wanted to present this alibi. Davis was then prevented from presenting the alibi he wanted to present because he failed to investigate and failed to notify the prosecution of the alibi. In Adnan's case, we know Gutierrez knew about Asia and that she made the affirmative decision to not use her per Adnan's sworn PCR trestimony. Guitierrez had Asia's letter, Adnan's conflicting story, the results of Davis' investigation at the library, and the perspective of Colbert and Flohr, who were Adnan's attorneys at the time the letters arrived.

As an aside, wouldn't it have been great if they had testified about what they knew about the letters?

Posted by: Griffin, really? | Oct 25, 2018 5:52:37 AM

Griffin, really?: That’s a fair point. I frequently cite Griffin because it’s a Fourth Circuit case originating out of Baltimore County. But the best case is probably my favorite factual case, Montgomery v. Petersen,


where trial counsel interviewed 12 alibi witnesses but not a 13th (a Sears clerk). After finding that the failure to contact was deficient performance, the Seventh Circuit held that “[t]he focus of the [prejudice] inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result.” The court then, of course, assumed that this 13th alibi witness would have testified and produced a different result. I’ll actually do a separate post on Montgomery because this quote puts it so well.

Posted by: Colin Miller | Oct 25, 2018 8:42:05 AM

OK, having thought about it, I have 2 thoughts on the state making this argument:

1. Many of their arguments throughout the process have leaned very heavily on potential justifications of CG’s tactical decision-making during trial. That is (and has always been) better ground for the state to fight on, so they are trying to get COA on board with letting them fight on what for them would be a better position.

2. This argument offered in the brief seems to be focused completely on how to interpret the law and not at all on the facts of the case. And, as you say, it ignores all of the case law that is at odds with their interpretation. But maybe they offer it here in the hope that COA will give them some sort of fact-based carve out where their argument somehow applies even though other courts and other cases clearly contradict.

Posted by: Michael | Oct 25, 2018 11:05:19 AM

I am sure we will come to an impasse discussing the applicability of the facts in Montgomery. Given the factual differences between Montgomery and Adnan's case, I look forward to your view of the State's characterization of Adnan's argument as asking for a per se rule regarding contacting alibi witnesses.

Posted by: Griffin, really? | Oct 25, 2018 11:21:10 AM

Michael: Agreed. We’ll see how the court receives that argument.

Griffin, really?: I fully expect the defense to make the following argument during oral arguments: No court has ever rejected a defendants claim that the failure to contact an alibi witness was deficient performance. This means that either (1) the failure to contact is per se deficient performance; or (2) the failure to contact is deficient performance unless there is some odd, heretofore unseen, circumstances in a case. Montgomery seems to support this second interpretation. According to the court,

“Unlike many of the ‘failure to investigate’ cases that have come before this court and the other circuits, this is not a case where counsel totally failed to present a defense. However, the importance of the information that was not tracked down and presented to the jury is, under the facts of this case, extraordinarily significant. Here, the Sears clerk can hardly be characterized as a cumulative alibi witness. Rather, he was the only disinterested witness in the case. All twelve of the other defense witnesses were either close friends or relatives of the petitioner.”

In other words, even when trial counsel contacts TWELVE other alibi witnesses, the failure to contact a disinterested thirteenth alibi witness was deficient performance. This seems very helpful for Adnan given that there is some indication that Gutierrez did some work on other alibi witnesses for other parts of the day but failed to contact an alibi witness whom Judge Welch found was disinterested and covered the State’s timeline for the murder.

Posted by: Colin Miller | Oct 25, 2018 11:37:24 AM

"[T]he failure to contact a disinterested thirteenth alibi witness was deficient performance."

Well that's the rub. There's evidence, both intrinsic to the letter and from Ju'uan that Asia was not disinterested and was offering to lie, as noted by Welch in the initial decision. That's why, after some consideration, I don't think the bait and switch argument is as ridiculous as you make it out to be. In both Griffin and Montgomery the issue of whether or not it would have been deficient to put the witness on the stand even after contact was not an issue. In Griffin, we know the defense attorney would have used the witness because he tried to get the alibi in the record. In Montgomery, the new witness was better than the interested other witnesses. Here, there is evidence Asia was offering to lie for Adnan (as noted by Welch in his first opinion), and I'm sure you know an alibi witnessed determined to be lying may be worse than no witness at all. So, I don't think it is crazy for the State to claim you still have to look to see if it was also deficient to not put her on stand. I might have wrapped this into the prejudice analysis -- "Assuming arguendo that it was deficient performance to not contact Asia, there was still no prejudice because there was no way CG was putting Asia on the stand. The letters make it look like an offer to lie, Juan said Adnan solicited the letter. And we know CG wouldn't have put Asia on the stand for these reasons because that's what Adnan said CG told him! So, even if it was deficient to not contact her, there was no prejudice because her testimony wasn't making it in front of the jury regardless!" I think what the State did was clever because it will force the court to consider the issue at the threshold deficient performance prong, assuming the court buys the State's characterization of the issue.

Posted by: Griffin, really? | Oct 25, 2018 3:10:47 PM

Griffin, really?: There are certainly facts from Griffin and Montgomery that are more favorable than the facts in the Adnan Syed case. Of course, the opposite is also true. Defense counsel in Montgomery contacted and called a dozen alibi witnesses who covered the time of the crime while Gutierrez didn’t call a single alibi witness for the critical time period in Adnan’s case. And, in Griffin, one of the alibi witnesses had been identified as one of the robbers. The bottom line is that each of the hundreds of cases in this realm are going to be somewhat different from one another (although I would say that Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012) is REALLY similar to Adnan’s case, except with more effort by defense counsel).

But the bottom line is that each and every one of judges in these cases has reached the following results: (1) the failure to contact was deficient; and (2) the failure to contact was prejudicial. And Montgomery sets forth a pretty clear and easy standard for prejudice: the alibi witnesses testifies and, if credible, we assume that would have testified similarly at trial and decide what impact that testimony would have had at trial. Now, (1) and (2) may be per se, or it may just be that it would take a very odd factual context for a court not to find (1) and (2). If the former, of course Adnan wins. If the latter…as you note there were some POSSIBLE issues with Asia, just as there are possible and often probable/certain issues with many alibi witnesses. And yet, Judge Welch found her to be credible enough, a ruling that almost certainly won’t be reversed at trial. And there were clearly issues with the State’s case against Adnan, including those admitted to by the State (when did Adnan kill Hae; how did he get in her car?).

If there were even one case in this realm rejecting an IAC claim, I might have some concern that the Court of Appeals would follow suit. But the State’s failure to find even one such case makes me feel like the defense will win the day again.

Posted by: Colin Miller | Oct 25, 2018 5:35:36 PM

Griffin, really? Really? Still won't just use a consistent username?

And by the way, we absolutely do NOT know that Gutierrez “made an affirmative decision to not call/investigate Asia McClain”—. Where would you get such clairvoyance from?

I would say the far more likely possibility is that she either A) thought Asia and Aisha were the same person, or B) that she just dropped another of the myriad balls she failed to carry because she was so wrapped up in other shit that she wasn't bothering to do ANY prep whatsoever for the case in advance, deciding instead to just "wing it" with spit and vinegar on the fly when she showed up in court.

Posted by: Paul | Oct 26, 2018 12:27:40 AM

I mean really D, to claim she did make that decision affirmatively and knowingly strains credibility, as it would have been one of the only examples of her doing so throughout the entire trial. I know it would be convenient for you if there was indication she did, but you can’t just quickly slip in indefensible assertions and move on to deductions based on it. That’s whats referred to as begging the question.

Posted by: Paul | Oct 26, 2018 12:33:26 AM

I just can’t figure out if, all bs aside, he knows he is wrong or not. Is he wholly unaware that his argued position every time blatantly ignores gigantic elephants in the room, choosing instead to deal in desperate rationalizing behavior fortified by special pleading exactly the way conspiracy theorists do—continuously making long-ago disproven factual assertions so rapid fire in effort to reshape the factual playing field to be more favorable than it is in reality? He knows the fact finding backs almost none of his background assertions about the nature of Asia’s letters, or Asia’s credibility as a matter of found fact, yet he throws those assertions in everywhere as if by continuing to repeat it over and over, it will change the actual state of the current holding? Is there purpose behind that, or just wishful thinking?

What I mean is: is he aware that he is wrong, aware that his position is wrong, but he just loves to play devils advocate to be obnoxious and get on everyone’s nerves? Or does he actually think that we are somehow being obstinate and irrational, refusing to acknowledge his “sound, logical” arguments every time he posts? I don’t see how it isn’t the former.

Posted by: Paul | Oct 26, 2018 12:59:45 AM

Paul: As further evidence that Gutierrez just dropped the ball, consider “Takera.” Debbie says in her police statement that she talked with Hae and Takera between 2:45 and 3:15pm, with “Takera” asking Hae for a ride and Hae telling “Takera” that she didn’t have time to give her a ride because she had to pick up her cousins. “Takera” also sat right next to Hae in her final period class that ended at 2:15pm. And yet, as far as we know, Gutierrez made no effort to contact “Takera.”

Posted by: Colin Miller | Oct 26, 2018 4:06:00 AM

Colin -- I've decided to go with a consistent handle at the request of your well-reasoned fans.

Given your confidence based upon the view that there are no cases that found failure to contact an alibi witness non-prejudicial, I did a little research. What do you think of these cases?

"Turning to the issue before this Court, Appellant asserts that he met his burden under the second Strickland prong by showing that if Racer had properly investigated and prepared for trial, Padilla would have served as an alibi witness, and the jury would have likely found Appellant not guilty…. We conclude that there is no reasonable probability that the result of the trial would have been different had counsel performed reasonably and satisfied his duty to investigate. We agree with the court of appeals that because Appellant did not show that his counsel's deficient performance prejudiced the defense, Appellant did not receive ineffective assistance of counsel. We affirm the judgment of the court of appeals."

"Defendant alleges that trial counsel was ineffective for failure to adequately investigate and contact potential alibi witnesses … In this context, it is unlikely that the presentation of further alibi evidence would have impacted the jury's decision, and the second prong of the Strickland test is not met. … After review of the record, we agree with the district court and conclude that petitioner has not shown that the state court's rejection of these ineffective assistance of counsel claims involved an unreasonable application of Strickland."

"In addition, neither attorney investigated his alibi claim that he was robbing a drug house at the time of the Jodie's incident, and neither attorney discussed with him the trial procedure or evidence for the sentencing phase…. The attorneys' decision not to pursue Brownlee's alibi defense after deeming it implausible and unlikely to succeed is precisely the kind of strategic decision on which a court should defer to the judgment of counsel."

Posted by: Paul's Unhinged | Oct 26, 2018 10:06:32 AM

Paul’s Unhinged: (1) In Perez, it was questionable whether the uncontacted witness was even an alibi witness: “In fact, it is questionable whether this even functions as an alibi defense.” This makes it very different from Adnan’s case, in which the PCR judge found that Asia McClain covered the time frame the prosecution claimed for the killing.

(2) In Monzo, the uncontacted alibi witnesses did not appear/testify at the PCR hearing; instead, the defendant presented “conclusory testimony of defendant's mother at the post-conviction hearing, regarding what the now-absent witnesses would have said had they been called by the defense at trial.” This is similar to Asia not testifying at Adnan’s first PCR proceeding, which led to Judge Welch denying relief under established Maryland law.

(3) In Brownlee, “the trial court credited Kendrick's testimony that Brownlee never told him about these individuals.” This is very different from the Adnan Syed case, where Judge Welch found that Adnan told Gutierrez (or at least those working for her) about Asia McClain.

In summation, I think these three cases simply show that the defendant has to (1) prove that he told his attorney about a possible alibi witness; (2) prove that the possible alibi witness was actually an alibi witness; and (3) have the alibi witnesses testify on appeal about what they would have testified to at trial. (1) and (3) are clearly not issues in Adnan’s case, and I think that it’s unlikely that (2) will be an issue for the Court of Appeals.

Posted by: Colin Miller | Oct 26, 2018 10:28:17 AM

The three cases listed also appear to be prejudice prong failures, rather than deficient performance prong failures.

Posted by: Cupcake | Oct 26, 2018 10:42:00 AM

I’ll just call you D. I want to point out a couple more of the unwarranted factual assertions that you throw in (kind of have to throw them in for your argument to sound soundish at all). I’ve already pointed out the lack of necessary clairvoyance to be able to say that we “know” Gutierrez made an affirmative and knowing decision to not call Asia at trial, but I missed a real gem of rationale that you threw in: “we know it, per Adnan’s sworn PCR testimony.”

Do we? Let’s examine your rationale. So:

Gutierrez studiously read Asia’s two letters and was extremely concerned that her client, apparently entirely prior to his arrest, concocted a plan with an acquaintance from school where, in the event of Adnan’s arrest, she would proactively reach out and send fake letters to him in jail, making sure to make clear that she was offering to lie for him (despite this being agreed upon ahead of time) so that he could take these letters to his attorney in order to convince her to reach out to the acquaintance.

Why a jail letter, especially multiple jail letters, was needed to accomplish this isn’t clear, since Adnan could have simply said he was in the library with Asia that day, so please contact her. For whatever reason though, they do it that way, and Gutierrez sees right through the charade, and actively decides to not even contact the acquaintance because doing so would... somehow hurt her case...

KEY D ASSERTION: So. When Adnan later follows up and asks Gutierrez if she contacted the acquaintance, Gutierrez decides to lie to him, telling him that she did contact her... but the dates were wrong or something. Ergo, this is how we KNOW that Gutierrez made a knowing affirmative decision not to contact Asia: because she lied to Adnan about the whole thing.

Really D? Couldn’t be that a failing lawyer who embezzles client funds and isn’t getting any prep work done would lie for any other reason?

Posted by: Paul | Oct 26, 2018 8:19:22 PM

Colin: Do you have any thoughts on the cell phone issue. To this lay reader, COSA seems to be setting an unfortunate precedent narrowing waiver unreasonably, given the facts.

Posted by: Hal | Oct 29, 2018 1:16:48 PM


Let me play devil's advocate.

You claim the need for clairvoyance to say that Gutierrez made an affirmative and knowing decision not to contact Asia. But I think most come to that conclusion naturally. It's not a long journey - we know from Gutierrez's own notes that she was aware of Asia and her claims, therefore it was purposeful not to contact her. The point you make about the jail letter(s) isn't relevant. That goes to whether she made a good decision, which isn't at issue. The issue before the court is whether it was a *competent* decision.

The State has interpreted Adnan's position as lack of contact to an alibi witness = per se IAC.

But is that right? Especially if defense counsel already knows what the witness would testify to? What would formally contacting Asia have accomplished here? The State says nothing b/c Gutierrez would not have called her in any regard. I think on that point they are correct.

Posted by: Jonathan | Oct 30, 2018 1:01:35 PM

Your discussion of Takera in an above comment reminded me of a question I've had: Given that much of the state's case was based on student witnesses who cited the wrong days, based on cited sporting events and other activities, does the fact that Asia's testimony aligns with the correct date based on weather, unlike state witnesses' testimony, have any bearing? (It has seemed that she and the track coach are among the few whose testimony align with the right day.) Would that apply to the first prong showing a failure to establish that witnesses were testifying of the wrong date or in the second prong by changing the viability of the state's timeline? Or are the wrong-date issues, clarified in part by Asia, considered only as new evidence irrelevant to the PCR procedures, not available for use until a retrial?

Posted by: Steven P | Nov 2, 2018 11:10:54 AM

Perhaps I should have said "broadening the application (?) of waiver ..." It is obvious that Gutierrez and/or subsequent attorneys were unaware of the wording on the Fax cover sheet, assuming the whole thing wasn't a Brady violation. But the facts aren't at issue, as I understand it; I don't see how the waiver was knowing by anybody.

Posted by: Hal | Nov 3, 2018 12:06:18 AM

I agree w.r.t the waiver issue. I've long thought that Judge Welch's analysis was most on point and his conclusion that this case was about faulty evidence (the fax cover sheet) and not alibi witnesses was correct.

Posted by: Jonathan | Nov 5, 2018 6:26:04 AM

Steven P -- "[D]oes the fact that Asia's testimony aligns with the correct date based on weather, unlike state witnesses' testimony, have any bearing?" That's an interesting way to characterize Asia's recollection based on weather. Serial posted a blog post that concluded "Considering that in just one week there were three school days cancelled due to weather, it seems possible Asia conflated these two weather events. But if her memory of talking to Adnan in the library is specifically tied to snow, then it’s unlikely that the day she is remembering is Jan. 13."
Colin – Some of those distinctions are interesting.
"In Perez, it was questionable whether the uncontacted witness was even an alibi witness" See comments above, as well as the fact that there was evidence that Hae was still alive at 3 pm.

In Brownlee "neither attorney investigated his alibi claim that he was robbing a drug house at the time of the Jodie's incident." It seems odd that you're seeking a standard that requires some investigation only if an actual individual is identified. It is also odd because there was some investigation of the library alibi when Flohrer and Colbert were Adnan's attorneys, the same time Adnan claimed to have received the letters.

Monzo's an interesting case. I would ask how many chances should a defendant be presented with to have a potential alibi testify at a PCR hearing? Does Monzo get a new hearing if he gets a couple podcasts? Also, why didn't Brown following through in Oregon (Washington? I don't remember …) to have Asia testify at that first hearing?

Posted by: Paul's Unhinged | Nov 5, 2018 8:13:28 AM

Jonathan—if you take your reasoning, then the only kind of alibi that would be able to lead to post conviction relief is an alibi that the client did not tell the lawyer to investigate—because otherwise, by your logic, we would know that the attorney made the affirmative decision not to contact the alibi because he/she was aware they existed and didn’t attempt to make contact.

See the catch 22 there? The defendant needs to have told the attorney about the alibi witness for there to be a duty to investigate—but then if the attorney was informed of the alibi witness’s existence, that is all we need to know in order for “everyone to come to the same conclusion” (your words, not mine, and I don’t know where such people exist) that the attorney made an affirmative decision not to investigate, and we can’t question strategy.

Im curious what your majority of thinkers make of yaknow, the existence of successful IAC verdicts based on failure to contact alibis, and the non existence of any decisions at all which follow the judicial logic you put forth as being the inevitable conclusion “everyone” comes to:

Lol sorry., I can’t help but find such weasel arguments as “everyone else agrees you are wrong” being put forth as funny, when such consensus exists in just the one subreddit, and literally nowhere else.

Posted by: Paul | Nov 7, 2018 5:32:08 AM

Jonathan - Your argument makes no sense. Asia was going to testify that she was with Adnan during the time the crime took place. Even if the state then shifts the timeline of the murder, they then have to back that up somehow, which judge welch ruled they couldn't based on the testimony of their star witness.

There is no evidence in the record that Gutierrez made a reasoned decision to not contact her, you ASSUME that because its mentioned in a note but there is no evidence investigative steps took place, nor is the results of that investigation anywhere. I wrote on a note that I was going to buy water at the store, but unfortunately I forgot. By your logic I made a decision to not by that water when in reality I simply dropped the ball and forgot.

Posted by: Robert | Nov 7, 2018 8:49:20 AM

"Even if the state then shifts the timeline of the murder, they then have to back that up somehow, which judge welch ruled they couldn't based on the testimony of their star witness."

I don't think this is an accurate statement. I think it's more accurate to say Welch said there was conflicting evidence for both timelines, but he wouldn't accept a new because of the record of the underlying trial. Here's footnote 9 in its entirety:

" 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. At 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 sixminute
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 "[alt 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."

I also find Welch's second paragraph above a little interesting. It essentially says "There are problems with any second timeline because it would conflict with parts of Jay's story." Of course, the original timeline conflicts with Jay's story more egregiously. This is why I have a hard time believing that the courts should find prejudice based on Asia's testimony.

Posted by: Really Colin | Nov 9, 2018 5:02:43 AM

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