EvidenceProf Blog

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

Saturday, September 24, 2022

Why the Alternate Suspect Having the Opportunity to Kill Hae Min Lee is Critical

At the hearing on the joint motion to vacate Adnan Syed's murder conviction, Becky Feldman from the Baltimore City State's Attorney's Office said something fairly extraordinary. Her statement was in regard to one of the alternate suspects in the case. Here were the details on the suspect from the joint motion:

Screen Shot 2022-09-24 at 8.28.41 AM

At the hearing, though, Feldman went further, stating that this alternate suspect had motive, means, and opportunity to kill Hae Min Lee. I first got this detail from the update episode of the Serial Podcast (at about 8:30). A journalist who was at the hearing then confirmed that Feldman had said these exact words: "Suspect had motive opportunity and means to commit this crime."

This is a shocking statement and one that raises strong suspicion that this alternate suspect killed Hae. Why?

Motive, means, and opportunity are the Holy Trinity of criminal prosecutions. They're the way the prosecutor proves her case beyond a reasonable doubt. Motive "is why one committed the crime, the inducement, reason, or willful desire and purpose behind the commission of an offense." The prosecution technically doesn't have to prove motive, but it can be tough to convince the jury that the defendant killed the victim for no apparent reason at all.

When a suspect had the means to commit a crime, it means she had the ability to kill the victim. The best way to define means is through its opposite. First, a suspect might lack the physical means to commit the crime. For example, a suspect with quadriplegia would be unable to strangle a victim. Second, there might be no evidence tying the suspect to the murder weapon. If a victim is fatally shot with a 9mm gun, the prosecution would fail to prove means if the suspect is under the legal age to buy a gun and there is no evidence tying him to such a gun. On the other hand, a suspect with the physical means and access to something like the murder weapon would have the means to commit the murder. Because Hae Min Lee was manually strangled, any suspect with functioning hands and arms would have the means to commit the murder.

This takes us to opportunity. Notably, opportunity is not simply about the lack of impossibility that the suspect committed a crime. For example, assume that the alternate suspect lived about 30 miles away from Woodlawn High School and did not have an alibi for January 13, 1999. At that alternate suspect's trial, the prosecution could not claim that the suspect had the opportunity to commit the crime simply because it's possible that he could have come into contact with Hae Min Lee. Instead, opportunity requires some degree of contact or access around the time of the crime. As far as we know, the last thing we know about Hae Minn Lee on January 13, 1999 is that she was driving away from Woodlawn High School. This means that for Feldman to say that the alternate suspect had the opportunity to kill Hae Min Lee, there must be evidence that he had contact with her or was in/around Woodlawn High School on the afternoon of January 13, 1999.

A few examples suffice to establish this point:

-In finding that there was motive, means, and opportunity in Simons v. State, 1996 WL 469364 (Minn.App. 1996), the Court of Appeals of Minnesota found that there was "evidence of appellant's means and opportunity to commit the crime, including the fact that appellant was home on the day of the fire, had sole access to the house, and always locked the house doors;"

-In Floyd v. Meachum, 907 F.2d 347 (2nd Cir. 1990), a case involving unauthorized use of a car, "the prosecutor claimed that Floyd's access to the car keys provided the opportunity."

-In Mascho v. Commonwealth, 2016 WL 2636706 (Va.App. 2016), the Court of Appeals of Virginia held that "Although appellant did not have exclusive access to the trailer, he had the means, motive, and opportunity to take these items."

It's perhaps best to show what is meant by opportunity by looking at a case finding it was not proven. In State v. Hayden, 711 S.E.2d 492 (N.C.App. 2011), the defendant was convicted of first degree murder in the shooting death of William Miller. In finding that the prosecution had failed to prove opportunity beyond a reasonable doubt, the Court of Appeals of North Carolina found as follows:

In order for this Court to hold that the State has presented sufficient evidence of defendant's opportunity to commit the crime in question, the State must have presented at trial evidence not only placing the defendant at the scene of the crime, but placing him there at the time the crime was committed. See, e.g., Pastuer, 205 N.C.App. at ––––, 697 S.E.2d at 386 (holding insufficient evidence of opportunity was presented where the State presented physical evidence, including the victim's blood on the defendant's shoe and the defendant's fingerprints at the crime scene, because it presented no evidence “that defendant was seen around [the victim]'s home or in her car any time” near the time of the murder); State v. Scott, 296 N.C. 519, 522, 251 S.E.2d 414, 416–17 (1979) (holding insufficient evidence of opportunity was presented where the State presented testimony that the defendant's fingerprint was on a box that had only been seen being handled by the victim's family, but also testimony that the box could have been handled by the defendant at a time other than the time of the crime, because the State was required to present “substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed”) (citation and quotations omitted). Cf. State v. Lowry, 198 N.C.App. 457, 470, 679 S.E.2d 865, 873 (2009) (holding that “(1) defendant's being in possession of the victim's car shortly after the probable time of her death, (2) defendant's also having possession of other property (jewelry and an ATM card) belonging to the victim that would have likely been taken at the time of the victim's death, (3) defendant's familiarity with the victim's house and access to the house [in] the days before the murder, and (4) defendant's effort to eliminate evidence by wiping down the car and his flight when confronted by police” constituted sufficient evidence of opportunity); State v. Cutler, 271 N.C. 379, 381, 384, 156 S.E.2d 679, 681, 682 (1967) (holding sufficient evidence of opportunity was presented where the State presented evidence that, on the day of the murder, a truck similar to defendant's was seen at the victim's house, which was the scene of the crime, before and after the body was discovered, its interior covered in human blood of two different types; on that day, the defendant went to the home of a relative 500 yards from the victim's home and was described as drunk and “ bloody as a hog” with a large gash on his head; after the murder, the defendant was found by police wearing bloody clothing; and the defendant was found in possession of a knife with both human blood and a hair deemed “ similar” to the chest hair of the victim on it).

In the case sub judice, taking the evidence in the light most favorable to the State, the only evidence presented at trial as to defendant's opportunity to commit the crime in question was from defendant's 1998 statement, made 26 years after the murder, that he was briefly in a spot two miles away from the scene of the crime. No evidence was presented at trial placing defendant at the scene of the crime, much less placing him there at the time the crime was committed. As such, we cannot hold that the State presented sufficient evidence of defendant's opportunity to commit the crime in question.

So, simply put, the State has evidence that the alternate suspect had contact with Hae on January 13, 1999 and/or was at/around Woodlawn High School on that date. This means that he's a very strong suspect.

I would also say that this revelation fits well with the theory I had since November 2014. Both Becky and Aisha (via Krista) say Hae said she couldn't give Adnan a ride after school on January 13, 1999 because something came up and she had "something else" to do before picking up her relative. It has been, and continues to be, my theory that the person who changed Hae's plans is the person who killed her. And I now believe this was the same person who had motive, means, and opportunity to kill her.



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Thank you, Colin. Trying to be tactful here and not point fingers, as I know you're not in a position to comment on speculation. That said, in case you can share your insight...Are you assuming this suspect is the same suspect whose relative lived adjacent to where Hae's car was found? And I'm curious as to whether Debbie's memory of where Hae said she was going impacts your view here? If I remember correctly, Debbie named the person Hae said she was going to meet, but perhaps that person is different in your mind than the suspect given Becky and Aisha mention a "change" in plans. Perhaps a change from who Debbie thought she was going to see? Or perhaps the same man?

Posted by: Mary Sutherland | Sep 24, 2022 6:18:05 AM

Your theory makes it all the more odd that the police didn’t pull Hae’s pager records. I find it difficult to believe that in a missing person investigation that those records wouldn’t have been requested in an attempt to find the last person that contacted her.

Posted by: Stephanie Price | Sep 24, 2022 6:29:23 AM

Yes. Also wonder if Hae’s computer was ever checked. Seem to remember there was an issue about this.

Posted by: Hal Porter | Sep 24, 2022 10:39:41 AM

Wasn't there a relative of Hae that was inappropriate with her?

Posted by: Ray | Sep 24, 2022 12:26:10 PM

Your theory assumes that Becky used "opportunity" in the way the case law you've presented uses it. It is significant that Becky only said it in an offhand comment at the hearing - not in the brief. If the alternate suspect had motive, means and opportunity, why was that not stated in the brief if she meant it in its absolute legal meaning as opposed to the colloquial argumentative way? I do not think that we can draw a conclusion from what's presented that the alternative suspects are believed to have actually had contact with Hae or were at Woodlawn. If that were the case it should be in the brief.

Posted by: Random Person | Sep 24, 2022 2:20:52 PM

If the term "opportunity" is so critical, why wasn't it mentioned in the motion?

Don't you think it more likely that Becky Feldman just got carried away while arguing the motion verbally given how often the terms "motive, means, and opportunity" are associated and used in legal arguments/courts?

Posted by: Bobby | Sep 24, 2022 4:03:25 PM

I've grown to detest the invocation of motive. It's not an element of the offense, the state doesn't have to prove it, and- to judge from the trials I've reviewed as a result of this strange hobby- they don't have to provide much evidence to support whatever yarn they spin to the jury as "motive."

Posted by: bacchys | Sep 24, 2022 7:06:48 PM

Mary Sutherland: I’m assuming the suspect with the relative is the other suspect. I also think Debbie had the wrong day and trust the memories of Becky/Aisha over hers.

Stephanie Price: I’ve always thought Hae’s pager was the key to this case.

Hal Porter: Yes. Hae has a computer class during the day, and I think something Hae saw on a computer could have changed her plans.

Ray: Yes. That was covered on the HBO series.

Random Person and Bobby: It’s tough for me to see Feldman just shooting from the hip at a legal hearing dealing with vacating a conviction. I would guess she either had a script or at least talking points. I don’t think she said what she said unintentionally.

Bacchys: Yes, motive can definitely be tricky. I think it’s important that the State has said not just that the alternate suspect had motive but specifically said he would kill Hae/make her disappear.

Posted by: Colin Miller | Sep 25, 2022 7:01:23 AM

Hi Colin: I agree that it is the other suspect, not the one with a physical connection to the car location, that is likely to have changed Hae's plans.

In this scenario, the piece I can't explain is why the car was left in this location. There is clear evidence that the car was moved there and wasn't there for six weeks. (HBO interview, state of grass.) Why was it moved there? Most likely it was the suspect who moved it. (Police have no reason to move it, very unlikely it was stolen and moved.) So why this location? Is there anything that connects the car location to this suspect?

Posted by: Steven Murphy | Sep 25, 2022 9:33:59 AM

Hi Colin-- Thank you for your reply. Rabia's comments on npr suggest that the second suspect (with means, motive, opportunity) has not previously been identified in the public eye. Are you comfortable/able-to clarify whether (you believe) this suspect is someone not yet mentioned in any coverage of the case?

Posted by: Mary Sutherland | Sep 25, 2022 3:56:27 PM

this makes sense ONLY if every suspect fell into the category of the three points. mean motive opportunity. suspects r named all the time with just 1 of the 3. I dont think the alt suspects killed Hae. If the 2 are who we all assume them to be then they are just fishing and they have no evidence proving who did what. Politics r at play and Adnan is only free because of the mess happening politically in Baltimore. I dont think he should of been convicted but at the same time i dont think anything has changed in the case to exonerate him either. no confessions no new evidence nothing. They will set a date and decide theres a lack of evidence to prosecute and that will be the end.. forever unsolved.

Posted by: Kirk H | Sep 26, 2022 9:20:42 PM

I agree about the pager records. I believe they would tell us who the murderer is and that murderer is Bilal. Bilal fits the profile. He had the means, motive and opportunity. He was in love with Adnan and jealous of Adnan's relationship with Hae and angry at Hae for hurting Adnan who he loved. I also have no doubt Bilal was molesting boys at the mosque as youth counselor and it was kept quiet. Only Adnan knows if he was one of the victims. Adnan needs to come clean if he was and yes, Adnan would lie about being one of Bilal's victims. He lied to his parents about many things so he would for sure lie about this. Adnan did not know and does not know Bilal murdered Hae. This is the mistake the creeps over at Reddit make. They implicate Bilal but only in collaboration with Adnan. Bilal acted alone and told no one.

Posted by: Justice For Hae Min Lee | Oct 3, 2022 11:51:02 AM

First of all, to Kirk H.: I think the lack of evidence in this case is not, or at least should never have been Adnan's problem. It was the State's responsibility to prove the case against Adnan with sufficient evidence, not Adnan's responsibility to exonerate himself. Even though in reality that is basically what had to be done.

But that's the most egregious thing about this whole case to me, that it seems to imply that it is beneficial for the investigators to do as little investigating as possible so as to leave the most wiggle room for prosecutors at trial to make up or alter their narrative to fit the circumstances. Any number of pieces of evidence that we know could have been gathered but wasn't would have made most of the issues in the case a moot point. But because they gathered no evidence, any times/places/theories the prosecution came up with could just be shuffled around as needed, and in one of the hearings, they even said just that. As if that somehow made their case stronger? How is someone supposed to fight back against such an ephemeral vague target? Or perhaps more importantly, why should anyone have to? How did this ever even constitute a murder case? It just blows my mind. Is this really how our justice system works? That seems so absolutely wrong to me.

Which brings me to my second issue. Just how many people had to have laid eyes on this potentially exculpatory note in this file, and chose to leave it out of discovery in order to continue pursuing this profoundly shaky and shady case against Adnan? Why?

I just feel so horribly gutted that so many seemingly evil and callous and lazy and negligent things and people seem to have conspired either knowingly or unknowingly to put Adnan in prison for this crime in spite of what to me is clear evidence that contradicts his involvement. This is the system that requires the trust of the people, and knowing how many things like this happen all over the country all the time makes it really hard for me to give it my trust.

Anyway, thanks for all the years of work, it's been great listening to you analyze all these cases. I look forward to hearing the new stuff you are working on. And it's really heartening to see how many people you've helped fight back against these wrongful convictions.

Posted by: Kevin | Oct 6, 2022 12:52:53 PM

Hi Colin--After spending hours writing up my view of the case I'm including a link to it on an old website of mine. I have never seen the theory on motive that I present for Don. I know that we now have the names of the two "persons of interest" out in the public eye, so I name them in the post. Anyway, people can take a look and see what they think: https://www.intentional-conservative.com/my-modest-attempt-to-present-a-possible-solution-to-the-murder-of-hae-min-lee/

Posted by: Debi S. | Oct 8, 2022 8:37:38 AM

Colin, why do you say it's very unlikely the car was stolen and moved? The fact that the ignition collar had been removed (a necessary first step to hotwiring the vehicle) and was found lying on the floor suggests very much that the car had been hotwired and moved -- presumably whoever killed Hae would have had access to the keys, and would not have needed to hotwire the car.

To me this points perfectly to the car having been stolen and moved by someone else. Am I missing something? I remember hearing on an episode of undisclosed that it seemed like the first step had been taken to hotwiring the car, but that it hadn't been completed. Why do you think that is the case? The jerryrig necesarry to hotwire would likely be disconnected and taken away by whoever was using it (so that it could be re-used at a future time) leaving just the ignition cylinder exposed.

I don't think we know enough about the state of the ignition assembly to presume that only the first step in hotwiring had been taken. Also Hae's brother said that when they came to pick up the vehicle, it couldn't be turned on. This would very much indicate that further steps had been taken in hotwiring the car. In order to turn the car on this way, you must disconnect the existing wires from their terminals, leaving the car inoperable to turn on with the vehicles key. This sounds exactly like what the Lee family had on their hands when they came to pick up the vehicle.

Posted by: Paul | Oct 8, 2022 3:28:39 PM

I agree totally that Hae's pager could tell us who the murderer is, as it was most likely used to lure her to a meeting place where she was killed. I can't for the life of me see how Bilal (whose name is now all over the internet as one of the 2 alternative suspects) would have had that number. But Don would have. No one has ever come up with a reasonable motive for him to kill her, but to me it looks obvious: Not that he was jealous, or insecure, but that he wanted to get out of the relationship altogether. I've gone on at great length about this whole theory in a blogpost of my own, but I don't think I can include the link in the body of this comment. Google "my modest attempt to present a possible solution to the murder of Hae Min Lee" which is on the site Intentional Conservative. Read it FWIW!

Posted by: Debi S. | Oct 8, 2022 4:35:59 PM

Kirk H: It has been determined they do have new evidence that implicates someone else in the murder. I don't believe they're making that information public, for obvious reasons. There is apparently a ton of information in the states files that the defense never saw. In addition, the courts that continuously denied Adnan's appeals did not have access to this information. There is clearly enough questionable data in the files for the state to actually vacate on their own accord. I'll wait in anticipation to see these details - though it will likely be months or years.

Posted by: Brittany | Oct 10, 2022 2:32:33 PM

The idea that Bilal would have killed Hae sounds like a huuuge stretch to me. He decided to kill the ex-girlfriend of one of the kids he likes at the mosque? Unless he is the person who had multiple people calling in that he said he wanted Hae dead, I feel like a lot more would need to be explained as that sounds even less likely than Jay being involved.

Speaking of the tips and the person who said they wanted to kill Hae, who was this? It doesn’t seem like a fit for Bilal or Mr S? Whoever said these things in my eyes is the person I’d be trying to match up with that dna evidence from the shoes.

Posted by: Paul | Oct 14, 2022 2:09:53 AM

How does Jay fit into all these theories?

Posted by: Linda ramirez | Oct 14, 2022 9:35:16 AM

Linda: he doesn’t. Jay wasn’t involved. The police pressured him like so many other young black kids in Baltimore around that era, with the ultimatum “either you are gonna be our star witness, or you can be our defendant”

Posted by: Paul | Oct 25, 2022 5:33:04 PM

Hey, Colin, are you ever going to disclose what the 'bombshell' is you talked about several years ago ?

Posted by: peter | Dec 19, 2022 3:01:47 AM

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