EvidenceProf Blog

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

Tuesday, March 26, 2019

Episode Three of "The Case Against Adnan Syed": Nikisha Horton

As I noted in my prior post,

In tonight's 3rd episode of HBO's "The Case Against Adnan Syed," there was a huge revelation that makes its really difficult to believe in Adnan Syed's guilt: Amy Berg showed Kristina (Kristi) Vinson her academic record from the University of Maryland Baltimore County. That record showed that Kristi was taking a short course during the Winter Term in January 1999. That class met three (or four) times on Wednesdays from 6:00-9:10pm, including on January 13, 1999, the day that Hae Min Lee disappeared. As Kristi notes, there's no way she could have blown off that class. Because the class met only three/four times, if she skipped even one of the class sessions, Kristi would have failed; instead, she got a B. Therefore, as Kristi herself concludes, there's no way that the day that Jay and Adnan came to her house was January 13th.

There was, however, a second "potentially" big revelation in the episode. This second revelation is only "potentially" big for a few reasons.

This second revelation is the phone call between Jay Wilds and Nikisha Horton, the mother of his child. The first big question is exactly what Jay said during the call. In 39 states, we wouldn't have this issue. Those states are one party consent states, meaning that only one party to a conversation needs to consent to it being recorded. So, for example, a call between a person in Georgia and a person in South Carolina could be recorded with only the consent of the person making the call.

Maryland and California, however, are both two party consent states. Therefore, for HBO to record Jay's side of the call with Nikisha, they would have needed the consent of both Nikisha and Jay. HBO obviously did not get Jay's consent to record him, which is why the episode only shows Nikisha's summary of what Jay said.

This leads to the second big question, which is what exactly Jay said. Clearly, Nikisha says that Jay got busted with a bunch of weed in his possession and accordingly claimed that Adnan killed Hae in exchange for not being charged in connection with the weed. But, at various points, Nikisha seems to be saying that (1) Jay made the whole thing up and said what the police wanted him to say; and/or (2) Jay made things seem worse than they were. In other words, it's unclear whether Jay was saying he made up everything about Adnan killing Hae or merely made Adnan's behavior sound worse than it was (whatever that means...maybe premeditated vs. heat of passion).

This, of course, leads to the third big question, which is whether we can trust what Jay says. I would be completely unsurprised if Jay was busted with weed and pointed the finger at Adnan as Hae's murderer to avoid years in prison. But I would also be completely unsurprised if Jay was not in fact busted with weed in the period between Hae being killed and Jay pointing the finger at Adnan. With Jay, you just never know.

But, let's assuming that Jay did in fact point the finger at Adnan due to being busted with a bunch of weed. This information obviously was never disclosed to the defense. That would thus make this a classic Brady violation due to the State's failure to disclose material exculpatory evidence, in this case material impeachment evidence relating to a key witness for the prosecution. 

I don't know that we'll ever get resolution of this issue, but it's yet another lifeline that could exist to get Adnan a new trial.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/03/as-i-noted-in-my-prior-post-in-tonights-3rd-episode-of-hbosthe-case-against-adnan-syedthere-was-a-huge-revelation-that-m.html

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Comments

It's been my belief that Adnan is innocent and that Jay didn't know about what happened to Hae but cooperated with the police to throw Adnan under the bus to avoid getting charged with and convicted of a crime the police discovered Jay committed that was unrelated to this case. In the 3rd Undisclosed podcast episode in series of Undisclosed podcast episodes about the HBO documentary series, Rabia and Susan essentially dismiss/don't believe the idea that Jay would be convinced to fabricate a story in which he would open himself up to an accessory-after-the-fact charge in a murder case to get past a pot charge or lesser crime. That begs the question: Why was Jay so willing to lie and implicate Adnan? I just don't believe the police telling him that they had physical evidence connecting Adnan to Hae's death would've have been enough for Jay to involve himself in Hae's murder case.

There had to have been something the cops had over Jay when they initially approached him (prior to Feb 28, 1999) to convince him to throw Adnan under the bus.
What are your thoughts on this?

Posted by: Pankti Patel | Mar 26, 2019 2:26:40 PM

Come on. Nothing Nikisha says Jay said would ever get in front of a jury. I thought you were an evidence professor.

Posted by: Jimbo | Mar 26, 2019 3:20:36 PM

My take is the police decided the boyfriend was the killer and then by chance found out Jay was a friend of his and made him an offer he couldn’t refuse, most likely a pile of cash.

Posted by: Louis | Mar 26, 2019 4:21:14 PM

Is there any way that Adnan’s defense fund could sign a cooperation agreement with Jay offering to pay his legal expenses to end this nightmare?

Posted by: Abby Crowley | Mar 26, 2019 5:02:47 PM

Pankti Patel: What Nikisha says would certainly support that theory. We’ll see.

Jimbo: That’s why I say we have three big questions. Nikisha’s summary of what she says Jay said clearly wouldn’t be admissible. The question is whether we can get something more concrete.

Louis: This could be consistent with the CrimeStoppers angle, but more work needs to be done.

Abby: Nothing like that would be allowed, but Jay could come forward on his own.

Posted by: Colin Miller | Mar 26, 2019 5:21:10 PM

The very end of the third episode showed Justin Brown ordering a DNA test (seemingly for Adnan). Is this actually true? I thought he had advised against it

Posted by: Rachael | Mar 26, 2019 6:17:35 PM

Convince the governor to pardon Jay of all his past drug etc crimes, in order to free him up to tell the real story without legal penalty. Or am I being naive?

Posted by: Steven T | Mar 26, 2019 7:33:11 PM

To follow up on Rachael's comment, what is the process for getting postconviction DNA testing in Maryland?

Posted by: Garrett | Mar 27, 2019 7:26:23 AM

Jay knew how the Baltimore cops worked with respect to young black men. With the two connected by phone records on the day...it's no stretch to get to - "you wanna play the witness or the defendant?" Who are they going to believe?- the honor student or you Jay?...

No problem at all to get scared kids to grab a fake lifeline as easily as a real one.

Posted by: John bocum | Apr 1, 2019 1:35:42 PM

In my opinion Jay Wilds is guilty the wrong man is in jail.
There needs to be a new trial!!!
Set Adnan free

Posted by: Kim Terzian | May 26, 2019 3:25:12 PM

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