The highlight of today’s round of witness testimony in the Zimmerman trial appears to have been the defense’s attempted impeachment of Selene Bahadoor — a.k.a., Witness 1, or W01. Her testimony was that, on the night Trayvon was killed, she was at home cooking when she heard screaming or yelling from the ‘dog run’ behind her townhouse. W01 was to the east and slightly south of where Trayvon’s body eventually ended up, and prior to the shooting, she could see figures in the dark outside her porch window, with arms flailing. She initially thought the shouting came from children squabbling, and heard shouts of either “no” or “yo.”

On cross, Zimmerman’s counsel attempted to impeach W01 by asking why she had not previously stated, on the record, that she thought the noises of the fight had moved from south to north. The defense also attempted to show her as biased for “liking” a Justice for Trayvon status on Facebook. Although the claims of bias were easy targets for the defense to pick up, I’m left somewhat confused about the defense’s aim in attempting to impeach W01 over inconsistent (or at least previously left unspecified) testimony.

From reports of her testimony at trial, it does not seem that she said anything inconsistent with her police interviews. And her testimony could hardly come as a surprise: W01′s sister, W02, who watched the altercation from upstairs, stated in her initial interviews with police that she saw a chase that occurred from south to north outside their townhouse. (March 9, 2012 interview: Q: “The direction in which you saw these two individuals running, was it towards your house or away from your house — towards the “T” or towards the street?” A: “Towards the T.”)

So the fact that the witnesses at 2841 Retreat View Circle describe the sounds as moving from south to north isn’t some new and previously unknown revelation. It was known within two weeks of the killing (although the Sanford PD failed to immediately interview W01 and W02 as they should have, a fact that Zimmerman’s defense will now benefit from). But it is not clear precisely why Zimmerman’s defense so stridently attacked that specific portion of her testimony. Because the fact that running noises were going from south to north is not damaging to Zimmerman’s defense, and in fact supports his claim that Trayvon ambused him. Zimmerman claims he was attacked after Trayvon headed north from outside W01′s house towards the “T.” If anything, W01′s testimony is consistent with Zimmerman’s story, in that regard.

But the part of W01′s testimony that is hugely inconsistent with Zimmerman’s story is her statement that, after hearing the start of the altercation, W01 saw flailing arms from two standing figures. W01 was consistent in that part of her story at all times, and Zimmerman’s defense did not actually challenge that part of her testimony. But perhaps the defense is hoping that, by pseudo-impeaching W01′s claims regarding the direction of the fight, the jury will also disregard the rest of her testimony.

To me, though, the biggest question regarding W01′s testimony is why on earth did no one think to ask her in depositions which direction she heard the noises going in? Sheesh. It’s hardly W01′s fault if the attorneys deposing her failed to ask such basic questions.

-Susan

The prosecution is wrapping up its case against George Zimmerman today, after presenting nearly forty witnesses in total, and having provided the jury with a fairly comprehensive overview of the available evidence. The defense has not gotten a chance to make its own case yet. From the trial so far, we have a rough idea of the facts that are agreed to by both parties. And, based only on the agreed-upon facts, there appear to be two possible scenarios for what occurred on the night Trayvon died.

The first, the defense’s scenario, is that Trayvon, while walking home from the store, decided to kill Zimmerman in order to defend his honor, after Zimmerman offended Trayvon by following him. And the second, the prosecution’s scenario, is that, when Zimmerman followed Trayvon and encountered him in the grassy area between the houses, Zimmerman tried to detain Trayvon, and Trayvon resisted, resulting in the fight that lead to Trayvon’s death.

By my reckoning, these are the facts that both the prosecution and the defense would agree to:

1. On the night of the shooting, Trayvon stated that he was going to walk to the store to get skittles and a drink. Trayvon did in fact get those items from the store, and he was walking directly home from the store at the time that Zimmerman first saw him. There is no evidence to indicate that, prior to the moment of the fight, Trayvon was engaged in any form of unlawful behavior. Zimmerman was correct in that he did not recognize Trayvon as being a resident of the community, as Trayvon had only been there one week at the time of his death.
2. Zimmerman pursued Trayvon for a period of approximately four minutes, while Zimmerman was in his car and Trayvon was moving on foot. Trayvon and Zimmerman did not speak or attempt to speak to each other at any point during this time period.
3. Based on the fact that Trayvon was walking in the rain, and that Zimmerman did not recognize him, Zimmerman believed that Trayvon was either on drugs or in the middle of committing a criminal act. Concerned that Trayvon was a criminal, Zimmerman called the non-emergency number to request that police be dispatched to investigate Trayvon.
4. Trayvon was on the phone with a friend, Rachel Jeantel, for the duration of his walk home from the store. Call records show that the phone call began before Zimmerman first observed Trayvon. The records also show that, at approximately 7:12pm, the call’s connection was dropped unexpectedly, but that the call was resumed 20 seconds later.
5. At some point during the four minute period that Zimmerman was following Trayvon by car, Trayvon became aware that he was being followed. After realizing he was being followed, Trayvon continued to walk in the direction of the house where he was staying.
6. After Zimmerman had watched Trayvon walk for approximately four minutes, Trayvon’s pace changed. Trayvon had previously been walking, but at approximately 7:11:42, Trayvon began either to run, or to skip. Zimmerman, who was on the phone with the police dispatcher, stated “shit he’s running” while opening his car door. Zimmerman, now on foot, moved out into the “dog walk” area, moving in the same direction that Trayvon had ran or skipped away a few moments before.
7. After Zimmerman exited his vehicle, he could not see Trayvon, who had started running before Zimmerman could get out of his car. There is no evidence that Trayvon saw that Zimmerman had left his vehicle. Both Zimmerman and Trayvon state in their respective phone calls, to dispatch and to Jeantel, that they have lost the other individual. Zimmerman ended his call with the police dispatcher two minutes after he got out of his car, and he remained on foot in the “dog walk” area. Trayvon remained on the phone with Jeantel while continuing to walk through the neighborhood, on an unknown path, and he did not return to his house.
8. At approximately 7:15:40pm, Trayvon and Zimmerman came into close proximity with one another, while both were moving on foot in the “dog walk” area. Trayvon was still on the phone with Jeantel, but after an initial exchange of words between Trayvon and Zimmerman, the call was dropped.
9. The fight between Trayvon and Zimmerman lasted between a minimum of 60 and a maximum of 100 seconds. For the last 45 seconds of the fight, there is a continual yelling of “help,” in a desperate and panicked manner, from one of the two individuals involved.
10. All witnesses and parties agree that, at some point prior to the gunshot, the fight involved both participants on the ground, with one on top of the other.
11. At 7:16:56pm, Zimmerman fired a single  round into Trayvon’s chest, immediately incapacitating him and leading to his death shortly thereafter.
12. Approximately one* to three minutes later, the first law enforcement officers arrived at the scene. Trayvon was face down in the grass. Zimmerman was standing nearby, with his gun in his holster. Zimmerman identified himself as the shooter, and was taken into custody.

Based on the above facts, then, either of the following scenarios is plausible:

Scenario 1: Zimmerman sees Trayvon walking home from the store. Zimmerman is a concerned neighbor, and because he does not recognize Trayvon, he comes to the possibly mistaken — but understandable and well-intentioned — conclusion that Trayvon is “on drugs” and “up to no good.” Zimmerman follows Trayvon, and calls the police to come question Trayvon and investigate the situation. When Trayvon skips away and out of sight from Zimmerman, Zimmerman leaves his car. Zimmerman does not intend to follow Trayvon after he loses sight of him, but Zimmerman believes he can gather better information for the police if he is on foot.

After Trayvon observes that a man in a car is following him through the neighborhood, Trayvon decides to skip away from the car, and he heads into the “dog walk” area behind the house where he is staying. Approximately four minutes after having skipping away from Zimmerman, Trayvon makes a decision to go back and find the man in the car. Trayvon does not know who his pursuer is, but he feels “disrespected” that the man followed him. Trayvon decides that he will attack the man, in revenge for being followed. Trayvon either announces this intention to Jeantel, and Jeantel later lies about it, or else Trayvon decides to attack Zimmerman without informing Jeantel of this plan. Although Zimmerman is no longer where Trayvon last saw him, Trayvon eventually manages to find Zimmerman at the “T” junction. Trayvon goes in to attack Zimmerman, while angrily demanding “Do you have a problem?” Zimmerman tries to back away, because Zimmerman did not want to encounter Trayvon. As Zimmerman is trying to avoid confrontation, Zimmerman does not identify himself to Trayvon, and responds only that “I don’t have a problem.” Although Trayvon does not at first take any action against Zimmerman, Zimmerman believes that he is in danger, and immediately attempts to call 911 when he sees Trayvon.

Seeing that Zimmerman is trying to call the police, Trayvon punches Zimmerman in the face. After getting punched, Zimmerman stumbles 40 feet southwards until falling to the ground, and Trayvon straddles him. For at least 60 seconds, Trayvon punches Zimmerman between 20 and 30 times, attempts to bash Zimmerman’s skull in with the sidewalk, and uses his hands to suffocate Zimmerman, who is unable to breathe and about to black out. Zimmerman does not fight back, but does try to protect his head from the concrete by repeatedly squirming away. Zimmerman also yells continuously for “help.” Witnesses on the scene ask what’s going on, during the course of the fight. When Zimmerman begs for assistance, they tell Zimmerman they are calling for help, but refuse to intervene in the fight themselves. After a minute or so of punching Zimmerman in the face, and otherwise attempting to kill Zimmerman with his bare hands but being unsuccessful in the attempt, Trayvon notices that Zimmerman has a gun. Trayvon tries to grab the weapon, and he informs Zimmerman that he intends to kill him with it. Zimmerman manages to draw the gun first, and fires once into Trayvon’s chest, killing him. * * *

Scenario 2: Zimmerman sees Trayvon walking home from the store, and comes to the mistaken conclusion that Trayvon is “on drugs” and “up to no good.” Zimmerman pursues Trayvon, from his car, and calls for police to come investigate. Zimmerman frequently calls police when he observes strangers walking through his neighborhood; on the five prior occasions when he has done so, it has always been to report unknown black males who are walking through the gated community. Recently, a skinny black teenager is believed to have committed a crime in the neighborhood, and Trayvon matches that description. While following Trayvon, Zimmerman expresses his frustration  to the dispatcher that assholes like Trayvon always “get away.” When the “fucking punk” then decides to run from him, Zimmerman, who is armed, leaves his car to follow Trayvon on foot.

After Trayvon observes that a man in a car is following him through the neighborhood, Trayvon is initially apprehensive. He is on a phone call with a friend, and he informs her that a “creepy ass cracker” is following him. The friend, either as a joke or as a warning, says to be careful, because the stranger might try and rape him. Trayvon tells her not to joke about that, and expresses nervousness. Trayvon’s friend then tells him to run when the man keeps watching him, and at first Trayvon says he is only going to “walk fast.” The man continues to pursue Trayvon in his car, however, and eventually Trayvon agrees with the suggestion to get away. He heads back through a cut-through, where the car cannot go, and Trayvon believes that he has lost the man in the car. Trayvon’s precise direction is unknown, but he does not  make it inside his home. Thinking that he lost Zimmerman back on the street, Trayvon remains outside in the “dog walk”, talking on the phone with his friend.

After Zimmerman loses sight of Trayvon, Zimmerman leaves his car, and continues to keep a lookout for Trayvon while walking through the neighborhood. Zimmerman is searching for Trayvon, hoping to be able to find Trayvon’s location so that the police will be able to apprehend him when they arrive in the neighborhood. A couple minutes later, Trayvon and Zimmerman run into each other in the “dog walk” area. Trayvon says, “Why are you following me?” Zimmerman says, “What are you doing here?” Zimmerman moves to question Trayvon, hoping to keep him there until police show up. Trayvon doesn’t know Zimmerman, and in fact minutes earlier Trayvon had been discussing with a friend how creepy this guy was, and how he might be a rapist, or have other bad intentions. Trayvon freaks out and resists Zimmerman’s attempts to detain him. A fight then breaks out in earnest, initially with both parties upright and moving around through the grassy area, and then with both parties wrestling on the ground. Neither Trayvon or Zimmerman sustain significant injuries, but Trayvon, having seen Zimmerman’s gun during the struggle, screams in terror, trying to prevent Zimmerman from getting off a shot. The two are locked in place on the ground for nearly a minute, until Zimmerman finally overpowers Trayvon and draws the gun, firing once into Trayvon’s chest, killing him. * * *

In order to prove scenario 2, the prosecution’s job, in addition to familiarizing the jury with the known facts of the case, was to convince the jury of two basic facts: the only evidence that Trayvon tried to kill Zimmerman is Zimmerman’s own words, and that nothing Zimmerman says about that night can be believed. To bolster this case, the prosecution also tried to demonstrate Zimmerman’s vigilante, hero-wannabe tendencies, thus explaining both his skewed perception of events, and the likelihood that he would try to detain Trayvon.

If the prosecution succeeded, the defense has a big problem on its hands, as Zimmerman has few available options for rebutting the prosecution’s case — because there is no way that he can take the stand to present that evidence himself, and there is no one else who can present it for him. Meanwhile, the prosecution has already presented a witness that was, quite literally, in the middle of a conversation with Trayvon at the time the fight occurred. Rachel Jeantel was, indisputably, a witness to Trayvon’s descriptions of what he subjectively experienced in the moments leading up to the fight. Her testimony is consistent with all the available physical evidence, and she provides direct evidence that, at the time the fight occurred, Trayvon did not have the slightest intention of committing homicide.

The doesn’t leave much middle ground: either Rachel Jeantel is lying, or George Zimmerman is lying. They cannot both be telling the truth. But Zimmerman’s defense won’t focus on Jeantel, because there is nothing more to be covered there. Jeantel’s testimony is itself wholly consistent with the available physical evidence, and the defense won’t gain any ground by trying to contradict it that way. Jeantel may have been lying, but the defense has no way of disproving her words, other than by attacking her credibility in general. And for better or for worse, that part of the trial is done with.

Which means Zimmerman’s defense — assuming, that is, that it is not based on trying to destroy Trayvon’s character — a defense that would be unlikely, because it would open the door for the prosecution to try to do the same to him — has the job of trying to convince the jury that it is at least possible that Zimmerman isn’t lying about Trayvon attacking him.

This post is long enough for now, but in my next post I’ll give a run through of all the problems with Zimmerman’s testimony that the prosecution has tried to highlight. It will be interesting to see how the defense is going to try to rebut those attacks on Zimmerman’s credibility, without introducing either character evidence or Zimmerman’s own testimony.

-Susan

As I discussed in my previous post, there are two plausible scenarios that fit the undisputed evidence in the Zimmerman trial. Zimmerman’s defense is now presenting their case in support of scenario 1: that Trayvon decided to commit murder and beat Zimmerman to death with his bare hands, as revenge for Zimmerman having “disrespected” Trayvon. In making their case, however, Zimmerman has two problems they face. The first is that there is very little they can do to directly disprove the prosecution’s case, as the prosecution’s evidence is largely circumstantial and based on known parts of the record. The second is that the evidence of their version of events all comes from a single witness, George Zimmerman himself — and there are so many points of question and confusion over his testimony that it is difficult, if not outright impossible, to accept his version as being wholly accurate. The prosecution’s job will therefore be to argue that even if Zimmerman’s story cannot be completely relied upon, it reliable enough to create doubt to prove one central point: that perhaps Zimmerman doesn’t know what happened that night, but the events were so confusing that no one else can know either.

I’ve provided below a run-down of the central points for both problems that the prosecution will face.

Reasons to Believe that Trayvon Did Not Try to Murder Zimmerman:

• There is substantial circumstantial evidence that Trayvon did not have any intent to harm Zimmerman. We know from Zimmerman’s non-emergency call that Trayvon initially tried to evade Zimmerman, not attack him. (Zimmerman later changed his mind about this, but I find his non-emergency call to be more reliable evidence than his after-the-fact statements.) We know from Chad and from the 7-11 video that Trayvon was doing nothing more than returning from the store with some snacks. We also know that Trayvon was on the phone with a friend at the very moment that the fight broke out, and we have the friend’s testimony that (1) Trayvon did not express any aggressive intent towards Zimmerman, and (2) that she believes it to be “retarded”, and not credible, to think that Trayvon would attack Zimmerman mid-phone call without indicating to her his intent.

• The DNA evidence is incomplete, but the evidence that does exist is wholly consistent with the prosecution’s version of events, and provides no support for Zimmerman’s version . If Trayvon had been fighting desperately with Zimmerman, and used his hands to simultaneously smother, punch, and pound Zimmerman’s head, then there should have been DNA evidence suggestive of this version of events. There was none. It is possible that, by chance, all of the DNA evidence that would support Zimmerman’s story happened to be washed away — but the idea that Trayvon’s long sleeved hoodie had zero DNA from Zimmerman, even on the cuffs, makes the idea that Trayvon was manually smothering Zimmerman’s allegedly bloody nose improbable. In contrast, Trayvon’s DNA was found on the cuffs of Zimmerman’s jacket. (Zimmerman’s blood and DNA was also found in patches on Trayvon’s under shirt, underneath the hoodie, but I’m willing to assume this was from when Zimmerman was patting Trayvon down after the shooting. If it’s not from that, then it would further discredit Zimmerman’s story.)

• Trayvon’s story only has a single unexplained inconsistency. Trayvon doesn’t have a story. He is dead. But we have Jeantel’s testimony regarding his intentions that night, and, based on her statements, everything about Trayvon’s story is perfectly consistent with the evidence, with one exception. Assuming Zimmerman’s recounting of the direction that Trayvon ran is accurate, Trayvon had time to run home, but was still outside when the fight occurred. Why didn’t he go back inside the house? We’ll never know. We don’t know what explanation Trayvon would give if asked why he didn’t go back, so we cannot evaluate the consistency of that statement. There is zero evidence to support the “Trayvon decided to commit murder” theory, however, other than Zimmerman’s own explanation. But again, even Zimmerman’s version doesn’t require that conclusion — Zimmerman still has no idea why Trayvon was outside when he encountered him, just that he did. And although it is necessarily speculation, there are many possible explanations for why Trayvon was outside of his house that night. Based on the other available evidence, my guess is it had something to do with his phone call to Jeantel. Significantly, Trayvon was on the phone with her that day, and with other people, for an absurd amount of time. But Chad, the 13 year old at the home with him at the time, never noticed Trayvon on the phone, suggesting that all of Trayvon’s phone calls occurred out of the house. Perhaps because Trayvon was unable to get reception inside — we know reception in the area was poor, with all the dropped phone calls on Trayvon’s phone records. Or perhaps because Trayvon didn’t want Chad to hear his phone calls. But even though we can never know why Trayvon was outside, assuming it was because he intended to commit murder is a wholly unsubstantiated leap.

• The Trayvon-went-out-to-kill-Zimmerman theory has a major problem. Even assuming the revenge fantasy theory were accurate, how on earth did Trayvon find Zimmerman at the “T”? All the available evidence indicates Trayvon had no idea that Zimmerman ever got out of his car. If Trayvon was trying to find Zimmerman, how would he have known to find Zimmerman walking around at the “T”? Zimmerman claims he was on the east prong of the T, on Retreat View Circle, where it is exceedingly unlikely Trayvon could have seen him, based upon Zimmerman’s claim of where both of them were walking — so how did Trayvon find him there? Zimmerman has also said at various times that Trayvon was “laying in wait” for him, but this is not plausible. Trayvon had no idea that Zimmerman would be on foot, or which direction he would be walking in — Trayvon couldn’t have done it even if he’d wanted to, Trayvon didn’t have the time or knowledge of Zimmerman’s movements to pull it off.

The prosecution’s own story is straightforward: all the evidence in the record (saving Zimmerman’s own testimony) contradicts the claim that Trayvon tried to kill Zimmerman that night. In addition to the physical evidence,  the prosecution in this case has crucial evidence that is almost never present in killings that have been claimed to be self-defense: witness testimony concerning Trayvon’s subjective experience of the lead-up to the flight which, if accepted as true, demonstrate that Zimmerman is guilty of a wrongful killing. And finally, perhaps most importantly of all, the prosecution’s story is not contradicted by any physical evidence, and has only a single unexplained question: why did Trayvon not make it back inside his house that night?

But beyond this one question, the prosecution does not have any worries over the physical evidence and witness testimony. None of that evidence contradicts their version of the fight. Nor is there any physical evidence that contradicts the version of events described by Jeantel, in her testimony. In contrast, Zimmerman’s own version of events has dozens of unexplained inconsistencies, and relies upon many implausible assumptions. If Zimmerman had never given any police statements, or media interviews, or statements to friends about what happened, then it is very likely there would be no case to be brought against him at all. But he did speak — and his statements have become the prosecution’s strongest evidence in disproving the otherwise evidence-less claim that Trayvon was the one who tried to commit murder:

Reasons to Question Zimmerman’s Testimony:

• Trayvon did not circle Zimmerman’s car. Zimmerman states in both written and verbal statements that, during Zimmerman’s non-emergency call, Trayvon “circled” his car, while it was parked on Twin Trees:

DS: Okay. He comes out from where?

GZ: I don’t know.

DS: Okay. All of a sudden you just notice he’s circling your car.

GZ: Yes, ma’am.

Zimmerman is either lying or bizarrely mistaken, because based on the distances and times involved, it is categorically impossible for Trayvon to have circled Zimmerman’s car as Zimmerman describes. There is simply not enough time for this story to be anything close to correct. Those who believe Trayvon randomly decided to kill Zimmerman that night try to excuse this statement as a mere “inaccuracy” caused by “confusion” and “trauma.” That is absurd. If Zimmerman inaccurately recalls Trayvon aggressively circling his car, Zimmerman cannot be considered a reliable witness regarding his claim that Trayvon acted aggressively in their final encounter, because his perception of events is faulty.

• The “I was looking for an address” story is, technically speaking, total bullshit. Zimmerman has been inconsistent in whether he was looking for an address or a street sign, but it doesn’t matter. He never ended up getting information from either a street sign or an address. He walked right be several visible street addresses on Twin Trees while he was “not following” Trayvon. In order to “fix” this inconsistency, Zimmerman claims he walked across the “T” to get a street sign instead,  on the other side of the road — but if Zimmerman was looking for a street sign instead of an address, then his explanation is even more false, because Zimmerman knew, beyond a shadow of a doubt, the name of that road was. Because it was Retreat View Circle, the road he lived on, and the same road he knew well enough to refer to addresses by block number in prior calls and e-mails. So even assuming that Zimmerman genuinely forgot the name of Twin Trees, Zimmerman’s story still cannot be correct. Also, even if he didn’t know the name of his own road, there are zero street signs in the direction he was walking — a fact he also had to have known. Although Zimmerman informed the police that “And then I walked straight through to see a street sign and then when I came back obviously [Trayvon] was waiting somewhere,” this has to be a lie. In the time available, Zimmerman could not have walked to a street sign and back, in the direction he was heading, because there was not a street sign where he said he walked and saw a street sign.

• Even assuming Zimmerman did not know the name of any road in his neighborhood, Zimmerman had no need to give the police an address of where to meet him, because the club house — the initial meeting location — was in sight of where his truck was parked. Zimmerman’s story — that he needed an address to tell police where to meet him — is not a rational explanation, unless Zimmerman had in fact intended to pursue Trayvon, and did not think he would be at his car when police arrived. Because even assuming Zimmerman did not know the name or address of either Twin Trees or Retreat View Circle, Zimmerman had no need for an address of his location — the dispatcher already had an accurate rendezvous location to give to officers. The dispatcher initially suggested “Okay, do you want to just meet with [the police] right near the mailboxes then?”, which is in the direct line of sight of where Zimmerman’s truck was located. If Zimmerman did not intend to move from his truck, this meeting point did not need to be improved upon in the slightest. The only address the dispatcher ever needed was the address of where his car was located, which had already been satisfactorily established.

• Zimmerman’s claim that he went to find an address at the direction of the police dispatcher is incorrect, because the dispatcher’s request to Zimmerman could not be interpreted as a request to get an address from a different street entirely . The dispatcher did ask Zimmerman at one point “What address are you parked in front of?” and Zimmerman responded “It’s a cut through, so I don’t know the address.” (As it was a cut through, and not a house, then obviously it had no address to be given.) If the police had gone to the mailboxes, though, they’d have been able to see Zimmerman, as discussed above. But Zimmerman’s story is that he walked to a different street to get an address — when, obviously, that address would be useless for directing police to his car. Why was Zimmerman trying to get an address for the dispatcher of a location that had never been discussed, and had never been of interest? Why would Zimmerman get an address of a street his car was not located on, in order to direct police to his car? (Answer: As everyone who listens to the non-emergency call can tell, Zimmerman left the car to follow a running Trayvon. The idea that he left to get an address is a bad retcon on Zimmerman’s part.)

• Zimmerman’s decision to leave his car to pursue, on foot,  a suspect who was on drugs, committing a criminal act, and who had only seconds before aggressively circled around Zimmerman’s vehicle,  shows that Zimmerman’s judgment was reckless, unreasonable, and bizarre. Zimmerman, by his own words, thought the kid he was following was “on drugs” and “up to no good” and “had his hand at his waistband,” perhaps holding a gun. So Trayvon was high, committing a criminal act, and indicating he had a gun — and Zimmerman gets out of his car and walks into the dark after him. And then stays in the darkened cut through for nearly four minutes. That is beyond foolhardy, it’s insanity. And people think Zimmerman’s decision that he needed to kill Trayvon can be trusted?

• Trayvon did not say “You got a problem homie.” He just didn’t — that is not what a 17 year old says to some creepy stranger he is about to try to murder. This is a minor point, sure, but it is very telling about Zimmerman’s perception of the situation. Either Zimmerman’s recollection is tainted by his own beliefs of what a murderous thug would say before trying to kill someone, or else Zimmerman is distorting what happened to make it sound like Trayvon was more threatening than he was. Take away that one word, and Zimmerman’s story and Jeantel’s stories match on how the very first part of the fight started, with Trayvon asking “Why are you following me?” Jeantel’s version of how Zimmerman replied certainly seems plausible enough: “What are you doing around here?” Zimmerman’s own version is that, rather than ask the obvious question to Trayvon, he immediately tried to call 911 — but why? Why call 911 because the person he’d been following asks if there is a problem? It doesn’t make sense. Zimmerman wasn’t trying to call 911 when he was punched — because (1) it makes no sense that he’d do that, and (2) the phone was safely in Zimmerman’s pocket after the fight, as discussed in more detail below.

• Trayvon could not both have sucker punched Zimmerman, and also have had a conversation with him first. Zimmerman has said at various times that Trayvon came out of the “darkness” or “out of the bushes” and punched him with zero warning. Zimmerman also says he didn’t see the punch coming in almost all of his stories. But they had a full three-sentence exchange before the first punch was thrown, according to Zimmerman — that is not a surprise attack. Did Trayvon just politely stand there while Zimmerman said “I don’t have a problem,” and wait for Zimmerman to pull out his phone? And then Trayvon had the presence of mind to get out a glib response, “Well you do now,” before taking a swing? That didn’t happen. And if it didn’t happen, then Zimmerman’s claim that Trayvon ‘came out of the darkness to punch him’ is false.

• Zimmerman’s claim that he pulled out his cell phone before being punched cannot be accurate. Zimmerman said he pulled his phone out when Trayvon punched him. Zimmerman also says he was pinned on the ground immediately after the first punch. But the phone was still in Zimmerman’s pocket after the shooting. How on earth did Zimmerman manage to put his phone back in his pocket, in the middle of a beat-down? Zimmerman had his phone with him at the police station (along with his gun, which he was given possession of), with the phone apparently in working order, in direct contradiction with this claim:

“I was walking back through to where my car was and he jumped out from the bushes. And he said, “WTF’s your problem, homey?” And I got my cell phone out… to call 911 this time. And I say, hey man, I don’t have a problem. And he was, “No, now you have a problem” and he punched me in the nose. At that point, I fell down[.]“

• Zimmerman believed Trayvon punched him because “I guess [Trayvon] was upset that I called the police.” Under the version of events Zimmerman provides, there is no possible reason that Zimmerman should believe that Trayvon knew that Zimmerman had called the police. Zimmerman is either making up explanations about why Trayvon allegedly attacked, or there’s something in Zimmerman’s story he’s leaving out. Or else he is completely illogical and has no idea what was going on. (Not to mention — if Trayvon knew Zimmerman had just called the police, why on earth would Trayvon decide to attack him? Knowing that police would be there in moments?)

• Zimmerman was holding a flashlight in his hands when the fight started, and carried it for forty feet during the course of the fight, but failed to use this weapon to defend himself against an unarmed assailant. Actually, Zimmerman was holding two flashlights — the larger, difficult to turn on flashlight, and the keychain flashlight. (How he managed to pull out a phone to call 911, while standing at the T, when he was holding two flashlights already, is yet another question that is unanswered…) Although the small flashlight was dropped near the T, the larger one was carried nearly forty feet from where Zimmerman says he was first punched. But despite having in his hands a flashlight that he could have used as a weapon, when Zimmerman was attacked by someone only using fists, Zimmerman neither dropped the flashlight to defend himself, nor did he try to use the flashlight as a weapon. This is not a credible story. How does Zimmerman forget he was holding a potential weapon in his hands for at least the first ten seconds of the fight?

• Zimmerman’s failure to fight back is inexplicable. Zimmerman describes that, during the fight, Trayvon (1) used both hands to cover Zimmerman’s mouth, (2) punched Zimmerman with both hands, and (3) held Zimmerman’s head and slammed it to the ground. Zimmerman does not describe doing anything at all to protect himself through any of this — something he was unquestionably physically capable of. Most bizarrely of all, Zimmerman never even tried to put his hands over his face to stop either the beatings or the smothering .  That is absurd. Instinctively, Zimmerman would have done so, as he was physically able to do so according to his version of events. So why did Zimmerman just lay there and allow the punches to rain down on him, without making even a token effort to prevent them?

• Zimmerman had no defensive injuries, and Trayvon had no offensive injuries. That’s not possible, if an 80 second near-fatal beat down had actually just occurred, as Zimmerman claims. Unless of course the “fight” was more of a stand-off, with Zimmerman trying to grab the gun and Trayvon trying to prevent it. If there had really been a to-the-death fight going on for that long of duration, both Zimmerman and Trayvon should have had more serious injuries, regardless of who was the aggressor. Zimmerman’s arms and hands should have been bruised, battered, and scratched. Trayvon’s fists should’ve been bloody and ragged. Zimmerman was a physically capable man who had worked as a bouncer — and he was unable to injure the lighter and skinnier Trayvon in the tiniest bit, even in a fight for his life? Zimmerman didn’t even manage to bruise Trayvon with the flashlight he was holding? Or to land a single scratch anywhere on Trayvon’s hands or face or sides? He couldn’t even tear Trayvon’s hoodie, or bite a finger, or punch him in the leg? Dent Trayvon’s knuckle with a tooth? Over a minute of fighting, and Zimmerman just lays there and takes it, and does nothing to protect himself but to “squirm”? Why does Zimmerman fail to react instinctually, by bringing his hands and arms up to cover his face? Why doesn’t Zimmerman ever try to push Trayvon off? Zimmerman was a grown ass man. He’d been a bouncer, wanted to be a police officer, had substantial weight/muscle advantage over his “assailant”. He was calm and collected in his police statements that night. So why did he lay on the ground and accept the beating while only “squirming” to resist?

• Zimmerman’s injuries are not consistent with having been in a prolonged fist-fight — let alone at the losing end of the fight. Ultimately, Zimmerman’s total lack of defensive injuries is a far more severe problem to Zimmerman’s story, but Zimmerman also lacked the sort of blunt force injuries that he should have sustained, according to his version of events.  The head “wounds” were described by police who saw him that night as “abrasions, not lacerations,” and they were shallow. Medical evidence introduced by the prosecution has stated that Zimmerman’s injuries were insignificant, and the result of no more than a handful of contact injuries. Although Zimmerman has not yet had a chance to introduce his own medical evidence, it is doubtful that Zimmerman will be able to introduce anything particularly dramatic. The swelling on the right side of his nose is entirely gone by the time Zimmerman has his picture taken at the police station, showing it was the result of a mild blow, and the blood on his nose was from two tiny cuts on the nose tip, not a bloody nose. Zimmerman’s facial injuries are consistent with him having received a single punch to the face, and also a single smack to the back of the head. It is possible — if not likely — that Zimmerman’s injuries were caused by as many as four separate blows, but in no event did he receive the dozens of potentially fatal wounds that he claims. The fact Zimmerman was injured is not surprising — there is no doubt that there was a prolonged physical struggle between Trayvon and Zimmerman. But the utter inconsequentiality of those injures shows that Zimmerman’s recounting of the fight is either a deliberate lie, or else the result of Zimmerman’s being completely unable to recall what transpired in the fight.

• Zimmerman claims that, after he shot Trayvon, he checked Trayvon’s hands because he “thought Trayvon was holding something” — but if Trayvon had actually tried to smother Zimmerman with both hands, Zimmerman would have known for a fact that Trayvon’s hands were empty. Zimmerman was either lying about being smothered, or lying about checking Trayvon’s hands after Trayvon was shot. Or, if Zimmerman is telling the truth as he remembers it, his understanding of the situation was objectively unreasonable and cannot be trusted. Remember, Zimmerman also says he was holding hands with Trayvon at the moment he fired the shot. How could Zimmerman have thought Trayvon was holding anything? Zimmerman is, at best, paranoid and illogical, based on his story of how the fight occurred.

• Zimmerman probably isn’t dumb enough to forget that he was armed, and only remember that he had a gun when his assailant tried to grab the weapon from him. Zimmerman’s statements to police allege that he was afraid for his life for over 80 seconds, but that he did not remember that he had a weapon until mere seconds before he fired it. Zimmerman claims that he only remembered he had a weapon at all because his assailant became aware of the gun’s presence, and then tried to grab it.  But come on now — does anyone actually think Zimmerman is that stupid? Zimmerman was in a fight for his life. He  had followed a criminal suspect on foot, in the dark, while armed.  But when that suspect attacked him, Zimmerman forgot he had the gun for a minute and a half? And that it didn’t even occur to Zimmerman to defend himself with his gun? ….. People actually believe this?

• If the screaming on the 911 call was Zimmerman, then there should not have been yelling that could be heard in the seconds before the shot, at a period in time that Zimmerman alleges Trayvon was “smothering” him. Zimmerman’s story on this point is obviously incorrect. It’s possible that Zimmerman genuinely has no accurate memory of the fight, but if that’s the case, then there is no reason that the rest of his memory of events can be trusted to be accurate.

• If the screaming on the 911 call was Zimmerman, then the yelling should not have stopped simultaneously with the weapon firing. Zimmerman says that he did “not know” that he hit Trayvon, and that he “thought he missed.” If that is the case, then Zimmerman’s yelling had no reason to stop at the split second of the gun shot. Because if Zimmerman thought he missed his shot, then Zimmerman would still have believed he was in mortal peril. But the yelling ceases, ending absolutely, precisely when the gun was fired. If the yelling was Zimmerman, then his fear stopped the second he fired, and his story that he “thought he missed” is extremely implausible.

• Zimmerman says that after the gun shot, Trayvon said “you got me,” and that Zimmerman thought that Trayvon was indicating to him “okay, I see you have a gun, and I’m giving up now.” This is not consistent with Zimmerman’s story, which is that when Trayvon saw the gun, Trayvon’s reaction was not to ‘give up’ but to say ‘you die tonight motherfucker,’ and try to steal it. And more importantly, why did Zimmerman assume that the fact that he had a gun was news to Trayvon? According to Zimmerman, Trayvon had just tried to steal it from him.

• Zimmerman says that right before he fired a shot, Trayvon was in the middle of pounding his head into concrete — but the location of Trayvon’s body indicates that, if the two were locked in a struggle at the time of the shooting, it is impossible for Zimmerman’s head to have been in contact with concrete. Trayvon’s body was approximately 5 to 6 feet from the sidewalk. In order for Zimmerman’s story to be true, then after the shooting, Trayvon’s body would have had to have been rolled over three or four times away from where he was actually shot. However, the gun casing was found inches from Trayvon’s head, suggesting he was shot in or close to the location where he was found. There is also no testimony or evidence that suggests, even under a very generous interpretation, that Trayvon was moved more than 2 to 3 feet after his death.

• Zimmerman isn’t even sure if it was concrete or a sign that Trayvon was bashing his head against. Zimmerman is either lying or is so confused about what happened during the fight that he doesn’t even know what his head was hitting against.  There is in fact a sign, regarding poop scooping, that is located near the “T” and that Zimmerman’s head could have hit during a struggle. And it is easily possible that, if the two were engaged in a moving struggle while both were upright, Zimmerman’s head could have been pushed into the sign, thus explaining the abrasion injuries. This version of events would actually be consistent with all the physical evidence, and it also explains why Zimmerman says it could have been a sign that he was hitting. But the idea that you could confuse being bashed against an upright sign or against a sidewalk is nonsensical. Zimmerman likely dropped the fact that his injuries were received in part by contact with a sign, because it is inconsistent with his “I fell down in one punch” theory.

• Zimmerman says he went down in one punch, but multiple witnesses saw two figures chasing one another. Either Zimmerman is lying, or multiple witnesses who lived within feet of where the fight occurred — and who gave statements before they even knew who had been killed — are telling the same lie. Given that Zimmerman has stated that the fight traveled at least 40 feet, which necessarily means the fighting involved running and fighting between standing individuals, Zimmerman’s claim that he went down in one punch can be disregarded. This is either a lie, or yet another example that Zimmerman has no reliable knowledge of how the fight occurred.

• Zimmerman claimed he had no knowledge of Florida’s self-defense ‘Stand Your Ground’ law until after the shooting, but available evidence from teachers, friends, and firearm instructors strongly contradicts this claim.  In addition to the testimony of Zimmerman’s instructors that, contrary to Zimmerman’s claims on Hannity that he had no knowledge of self-defense law, Zimmerman’s initial written statement to police is pretty strong evidence, by itself, that he’d been trained in the legal requirements of self-defense. His statement is pretty much a textbook example of what to say. How convenient, that Trayvon should have “assured” Zimmerman of his intent to kill him, mere moments before Zimmerman made the calculated decision to fire his weapon. Apparently, even though Zimmerman subjectively thought he was about to die from having his head pounded in and having his airway cut off, Zimmerman didn’t even think to use his gun until Trayvon also gave his verbal assurance that he was, in fact, intending to kill Zimmerman.

As I slid the suspect covered my mouth and nose and stopped my breathing. At this point, I felt the suspect reach for my now exposed firearm and said “you gonna die tonight motha fucker.” I unholstered my firearm in fear for my life as he had assured he was going to kill me and fired one shot into his torso.

• Zimmerman is unsure of when exactly it was that Trayvon said “you’re going to die tonight motherfucker.” Zimmerman was careful to note, in all of his statements, that Trayvon directly informed Zimmerman that Trayvon intended to commit homicide. But Zimmerman is inconsistent about when exactly Trayvon said the magic words. Sometimes, Zimmerman says it’s while Trayvon was smothering him. Sometimes, Zimmerman says it’s while Trayvon has one hand on Zimmerman’s mouth and one hand on the gun. And sometimes, it’s while Zimmerman is holding Trayvon’s hands while Trayvon is touching the holster. Zimmerman’s changing stories about when it was said suggest that it is either a deliberate insertion into the narrative, or that, once again, nothing that Zimmerman says about the fight is reliable:

And he puts his hand on my nose and on my mouth and he says, “You’re gonna die tonight.” And I don’t remember much after that. I just remember, I couldn’t breathe, and then he still kept trying to hit my head against the pavement or…I don’t know if there was a sign or what it was.

• Zimmerman has never provided a complete explanation of his actions that night. Zimmerman has told his version of the fight many times, but he has never provided a version that can explain for the known timing and duration of the relevant events. Specifically, Zimmerman will not explain: (1) what he did for the two minutes between the end of his non-emergency phone call and the start of the fight, or (2) how the fight covered forty feet between the first punch and the gun shot. Zimmerman’s story (or at least his final version of it) lacks all details on these two points. It is deliberately generic: ‘he punched me, I went down, he bashed my head against concrete, he prevented me from breathing with his hands, I shot him.’ But when even these simple details get contradicted in retellings, or when physical evidence is not consistent with his version, Zimmerman’s defense falls back to the explanation that “his memory is fuzzy” or “he had head trauma” or “he can’t be expected to remember details.” This isn’t a sufficient answer — Zimmerman’s memory is pretty great concerning a lot of details that night, so why is it only the crucial ones he cannot recall? And that is probably the most decisive point, for me: if Zimmerman cannot explain, or cannot remember, how the fight transpired, then Zimmerman’s self-reported belief that he killed Trayvon in self-defense is not reliable evidence for reconstructing the events actually took place that night. And since Zimmerman is known to have acted irrationally in following Trayvon on foot,  and all other evidence suggests that Trayvon did not act in a manner justifying his killing, Zimmerman’s story is not entitled to belief.

Any of these points, taken alone, would not be sufficient to discredit Zimmerman’s descriptions of how the fight occurred. If there were one or two anomalies anomalies in his story, or perhaps only three or four, then the rest of Zimmerman’s story might be taken as roughly reliable, with some allowances made for a reasonably inexact recounting of a fight. But taken all together, with the outright contradictions combined with the weight of the many implausible claims, the veracity of Zimmerman’s story as a whole cannot be accepted, and the parts that are not directly contradicted by the evidence cannot be assumed reliable. It may be that Zimmerman is lying, or it may be that Zimmerman simply does not have in his own head an objective and accurate understanding of what occurred on the night that he shot Trayvon Martin. If you believe that Zimmerman is lying, then the case for murder 2 is plain; if you believe that he is hopelessly confused and reckless, then only a charge of manslaughter would be appropriate. As such, the defense’s goal in its case must be to avoid that question all together, by shifting the jury’s attention away from Zimmerman’s police statements and have then focus instead on the complicated morass of physical evidence. Because without Zimmerman’s self-impeachment, the case for guilt beyond a reasonable doubt becomes much, much harder.

-Susan

Closing arguments haven’t been made yet, but after the close of Zimmerman’s defense, my prediction is a manslaughter conviction, by a slight margin, with acquittal the next most likely option, and Murder 2 trailing as the least likely result. Call it a 45/40/15 split.

As far as I am aware, Zimmerman’s defense didn’t present any testimony or evidence concerning how the fight started. Their entire story of the shooting starts about halfway through the fight — call it the “Zimmerman is a fat and slow Dudley Do-Right who was getting his butt kicked” defense. Which is kind of a double edged sword for Zimmerman, because it means his case didn’t introduce any evidence that Trayvon started the fight. It’s counting on the jury to focus on the fact that, at the moment of the shooting, Zimmerman may have genuinely been in fear for his life — while steering the jury away from closely examining his conflicting police statements. The defense’s story is that Zimmerman is bumbling and quixotic, but too inept to be culpable for any harm that resulted.

So if there’s a conviction, it’s more likely to be manslaughter. The state’s strongest case for Murder 2 was always being able to show that Zimmerman intentionally deceived investigators about how the fight started, and that he used his knowledge of self-defense law to deliberately craft a story about why he was justified in killing Trayvon. But since the defense opted to avoid all together Zimmerman’s statements about who threw the first punch, Zimmerman’s veracity didn’t really come into play. The jury could buy that Zimmerman is a reckless fool, who was oblivious of his own limitations and too in love with the idea of playing the hero, but the state wasn’t able to show Zimmerman as calculating and malicious.

In a nutshell: if the jury believes Rachel Jeantel testified truthfully about what she heard on the phone that night, Zimmerman will be convicted of manslaughter. If they’re unsure of what she heard, then the odds are much less likely.

-Susan

In United States v. Windsor, there is one aside from Justica Scalia’s dissent, written in his trademark snarky fashion, which particularly stands out to me. Scalia, describing himself as being “wryly amus[ed]” (and by which he means “impotently furious”) at the majority’s approach to Article III’s case-or-controversy requirement, makes the following observation:

(Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.)

How very true. Alas, where was this Scalia in Kiobel? I seem to recall that, in that particular instance, he was quite content to join in with a majority opinion which happily forsook jurisdictional limitations, in favor of a mercurial, and curiously flexible, rule of statutory interpretation. And I can’t help but find this faintly hypocritical. At least when it comes to prudential standing, the Court is being perfectly honest about whose whim it is following. As opposed to the polite fiction now known as the presumption against extraterritoriality, which permits the Court to aver that it is merely following the whims of the legislature — after having ascertained those whims, of course, through the application of its own esoteric art.

But then again, I suppose Scalia always does save the mocking, legal realist jibes for his dissents. It often seems that his formalism is reserved solely for those occasions on which his opinion gets enough votes to be the majority.

-Susan

p.s. Someone should tell Scalia that citing reverently to Justice Taney in a civil rights decision is probably a bad idea.

George Zimmerman was acquitted in the killing of Trayvon Martin — a not wholly surprising result, but by no means an inevitable one. From what one can conclude about the jury’s deliberations, with their apparent focus on the elements of manslaughter, the jury wasn’t sold on Zimmerman’s self-defense claim, but they weren’t wholly buying some part of the manslaughter charge.

But the system worked in this case, or at least it worked as well as the system can ever be expected to. Zimmerman had to face trial for his decision to kill an unarmed kid, and was not able to skip away from the shooting without a proper investigation or prosecution. What should have been a routine matter was turned into a media circus, and the narrative of the killing usually vastly overshadowed the actual facts of the case, but that shouldn’t overshadow the basic success that was accomplished — which is that the procedures of the criminal justice system were complied with, no matter what one thinks of the substantive result.

Zimmerman won’t go to jail, because he was able to claim — with no supporting evidence from anything outside of his own police statements — that a kid walking home from the store tried to commit murder, for no better reason than the kid had his feelings hurt by Zimmerman’s decision to follow him in his car. But “not guilty” has never meant “acted in a manner worthy of respect,” and anyone who claims that the acquittal is a vindication of Zimmerman’s insane actions is not someone worth listening to. Zimmerman was irresponsible, and a teenager died as a result.

And, although it should go without saying, Zimmerman being found “not guilty” does nothing to imply, not even in the tiniest amount, that Trayvon was guilty of any criminal acts.

But while the not guilty verdict is disappointing, it’s not outrageous. And Zimmerman’s legal defense is not yet over, because of the fact that Zimmerman has received hundreds of thousands of dollars in donations — money that he is unlikely to prove, with probable cause, that he should be able to keep. While I don’t find the result of the criminal case particularly upsetting, I would be outraged if Zimmerman is able to financially benefit from his decision to kill a kid. Luckily, I don’t expect that to happen. There should be a civil suit here, and all of Zimmerman’s blood money should go to Trayvon Martin’s estate.

If Zimmerman has sense, he will settle any civil claims brought — but nothing Zimmerman has ever done has indicated he has much sense to begin with. Which means Zimmerman will have to produce comprehensive information under the civil discovery process about his actions that night, as well as take the stand himself. And Zimmerman’s criminal defense won’t be sufficient to withstand that.

The Homeowner’s Association for the Retreat at Twin Lakes already settled with Martin’s estate for something above the $1 million policy limit of the HOA’s insurance coverage. Although the specific terms are under seal, and there is no way to know for sure what motivated the HOA to settle, the rumors that have leaked out about the settlement suggest that the HOA had significant exposure on several fronts. Most significantly, it appears that (1) the HOA failed to properly complete the Neighborhood Watch certification requirements for its program, and (2) the HOA had knowledge, from complaints received by other residents, of Zimmerman conducting patrols while armed, in violation of Neighborhood Watch standards (and common sense) and did not take actions to stop it.

The HOA’s liability is nothing compared to Zimmerman’s, and his best move would be to follow the HOA’s lead and settle the civil claims brought against him. But here’s to hoping that he doesn’t take the easy way out — and he’s forced to take the stand.

-Susan

As some of you may have noticed, The View From LL2 has been on hiatus for the past few months as a result of some conflicts with its contributors’ other commitments. Although Michael must unfortunately retain his status as blogger emeritus, I am now able to resume blogging, and look forward to catching up on all the exciting recent developments on obscure jurisdictional provisions of international law.

I am hoping to kick things back up this weekend with some updates on the Supreme Court’s recent decision in Daimler AG v. Bauman, but in lieu of legal blogging at the moment, here’s a follow up to my armor for lawyers and armor for cats: a suit of armor for survivors of the zombie apocalypse, made out of bottle caps and pop tabs. Sure, maybe it wouldn’t stand up against a sword or arrow, but it’s more than good enough to repel a zombie bite. And it’s a heck of a lot lighter than steel.

Armor for the urban survivor of the zombie apocalypse.

Bottle cap armor, side view with sleeves.

The armored overcoat is made of bottle caps that have had holes punctured on four sides, and then connected with bronze 18 gauge rings with a 7/32″ diameter.

Haubergeon made out of pop tabs from cans. Lots and lots of pop tabs.

The pop tabs are connected using bronze 18g 1/4″ rings. The  tabs themselves were surprisingly good to work with, and they offer a lot of possibilities for how they can be assembled together. The green tabs that make up the border along the hem are from Bud Light Limes, and the orange tables along the neckline and halter are from Shocktops. The black tabs in the belt were from Miller 64 cans. (Unfortunately, there are no good beers that have colored tabs for their cans.)

Pop tab armor, back detail.

Side detail for of pop tab armor, showing expansions and contractions in pattern.

I tried to tailor the pop tab armor as much as possible, and while it is still pretty bulky, I was able to give it some shape by removing rows and columns from various points and connecting the edges.

Chainmail purse made out of pennies. Rings are same size as for bottle caps, 18 gauge 7/32″.

In addition to serving as armor, the overcoat can also be converted into a wall hanging by removing the sleeves:

Bottle cap wall hanging.

Close up of wall hanging.

I am not sure how many bottle caps and pop tabs it took to finish the suit, but I am very much indebted to all of my friends who saved up their bottle caps and pop tabs for me, and who made it possible for me to collect enough to finish the armor. Thanks guys!

And lastly, in addition to the zombie apocalypse armor, you can also check out my suit of dog armor (with close up of insignia), baby armor for Z., and a sleeveless hauberk made of steel rings with copper trim.

 -Susan

This week, the Supreme Court issued its decision in Daimler AG v. Bauman, holding that a U.S. District Court in California does not have personal jurisdiction over a German corporation to hear a foreign tort claim brought by Argentinian plaintiffs, even when that corporation has U.S. subsidiaries that do frequent business in California and can be said to be “at home” in California. Actually, the Court went much further than that: not only does the U.S. District Court in the Northern District of California not have jurisdiction to hear the claim against Daimler, the Court’s decision leaves the strong implication that neither would any other court in the U.S., whether state or federal. In Bauman, the Court was forced to assume that Daimler’s U.S. subsidiaries – who are incorporated in or have a principal place of business in New Jersey and Delaware –  were “at home” in California. Even then, the Court concluded that no jurisdiction over Daimler existed. Since bringing suit in a state where Daimler’s subsidiaries were “at home” was not sufficient to confer jurisdiction, the Bauman plaintiffs’ claims would apparently fail no matter where in the U.S. it had been brought.

What is also of particular interest in Bauman, though, is the majority opinion’s relatively detailed recap of the history of general jurisdiction and specific jurisdiction. In doing so, the Court portrays Bauman as the natural and predictable progeny of the Court’s 1945 decision in International Shoe Co. v. Washington, as well as an extension of its recent decisions in J. McIntyre Machinery, Ltd. v. Nicastro (2011) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). The Court’s decision reaffirms that, post-International Shoe, general jurisdiction has become the red-headed stepchild of the Supreme Court’s personal jurisdiction jurisprudence: yes, it does exist, but it’s not particularly significant, and whenever possible we’re going to try to focus on specific jurisdiction instead.

But the history of personal jurisdiction provided in Bauman neglects one very significant part of the story of how specific jurisdiction came to be. Specific jurisdiction has not “been cut loose from Pennoyer’s sway,” as the Supreme Court attempts to portray it, because specific jurisdiction was never an offspring of Pennoyer in the first place. Specific jurisdiction was instead a creature of corporate law, invented by states to regulate the interstate activities of corporate entities, and then later transformed into a constitutional due process doctrine that imposed federal limits on state attempts to regulate such commerce.  See, e.g., International Harvester Co. of America v. Kentucky, 234 US 579 (1914); and Whitaker v. Macfadden Publications, Inc., 70 App.D.C. 165 (1939).

Without corporations, specific jurisdiction would not exist. The doctrine initially came into existence as a statutory scheme enacted by state legislatures to ensure that corporations could be sued even when they were acting outside of their state of incorporation. Only later was it transformed, by the Supreme Court’s decision in International Shoe, into a constitutional basis for regulating the reach of state courts via the Due Process clause of the Fourteenth Amendment. But the resulting legal concept was not seamless, and specific jurisdiction’s doctrinally impure origins made it difficult to shoehorn into our previously-existing jurisprudence of personal jurisdiction, which was instead on limitations in a state’s inherent sovereign authority. As result, nearly 70 years after International Shoe, the Supreme Court is still grappling today with how to resolve this basic conflict between the competing sovereignty-based and due process-based regimes of personal jurisdiction.

First, as a background point, it is important to note that Bauman does not actually address whether U.S. district courts could themselves constitutionally exercise personal jurisdiction over either Daimler or Daimler’s subsidiaries. Under the current set-up of the federal court system, a district court (with some infrequent exceptions) does not determine whether it inherently possesses personal jurisdiction over a party. Instead, the court follows a choice of law provision which instructs it to examine whether or not a state court in the state where it sits could possess jurisdiction over the party. FRCP 4(k)(1)(a) (“[s]erving a summons or filing a waiver of service establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”). Daimler’s jurisdictional challenge is not directed to the inherent jurisdictional reach of the district court in which the suit was brought. Instead, Daimler’s challenge concerns the limits imposed on California state courts by the federal Constitution. These constitutional limits on the power of state courts were initially imposed by the Full Faith and Credit clause, and, later, by the Fourteenth Amendment’s Due Process clause. Although Constitutional limits on federal adjudicatory jurisdiction do exist, they are not implicated by the line of case law leading up to Bauman.

Second, as it is applied in state courts in the United States today, the modern concept of personal jurisdiction is a hybrid creature of both international and constitutional law. As applied today, personal jurisdiction is largely a due process doctrine, but the Court (with the exception of Justice Ginsberg) has been unwilling to sever personal jurisdiction’s last remaining ties to sovereignty-based conceptions of adjudicatory jurisdiction that were inherited from international law. Ginsburg’s majority opinion in Bauman, just like her majority opinion in Goodyear, meticulously avoids any references to sovereignty, and Ginsburg’s dissent in McIntyre was explicit in denying that sovereignty plays any role in state personal jurisdiction limitations. (Although Sotomayor signed on to Ginsburg’s dissent in McIntyre, she apparently has had second thoughts about it since then, as her concurrence in Bauman cites the majority opinion’s “undu[e] curtail[ment of] the States’ sovereign authority” as the first of four “deep injustices” she predicts will result from Bauman). Still, no other justice has affirmatively endorsed Ginsburg’s anti-sovereignty approach, and, in Bauman, even Ginsburg was forced to make vague references to the “risks to international comity” posed by general jurisdiction as a justification for her sovereignty-free approach to jurisdiction. For now, it is safe to assume that the Court still considers international law to be a part of our law of personal jurisdiction, and will continue to maintain that specific jurisdiction is both a question of sovereignty and a question of due process.

I. Personal Jurisdiction Under International Law

Personal jurisdiction, as understood by public law at the time of the Constitution, was entirely a matter of public international law, based on sovereign authority and a government’s physical reach. A state’s courts were nevertheless free to exercise any sort of personal jurisdiction that they wished, regardless of whether it complied with public law concerning personal jurisdiction. The fact that a given judgment may have breached international would not have been much consolation for a judgment debtor who was later found in that state, as the state was entitled to enforce a judgment entered in violation of international law if it wanted to. But if the debtor remained in a foreign state, he could rest easy, as traditional rules of comity held that the judgment of a foreign state issued in violation of international law was not entitled to any weight in the courts of other states.

Under this “old way” of doing personal jurisdiction, personal jurisdiction was always general jurisdiction; international law provided that if a sovereign had jurisdiction to issue any kind of judgment against an individual, it had jurisdiction to issue all kinds of judgments. “Personal jurisdiction” was in most respects synonymous with “served with process.” As such, in the United States, courts could hear any case against a defendant so long as one of two conditions was met: either the defendant was physically served with court papers while in the territory of the court’s state, or else the defendant consented to jurisdiction.

This model had the benefit of being easy to administer when dealing with natural persons. It was binary, as a person was either served with process in a state or they were not, or else they had either consented to jurisdiction or they had not. The rapid expansion of corporations in American economic life quickly made this system untenable, however, as courts struggled with applying the act of physically serving process on the legal fiction of a corporation. The question of whether a corporation has been served with process was nuanced and ambiguous – because what counts a physically serving and incorporeal entity?

Since obtaining jurisdiction on corporations through service of process was no longer a workable system, courts and legislatures initially responded by forgoing the jurisdiction-by-process method all together, and focusing on jurisdiction-by-consent instead. Even though a Virginia corporation could not be physically served in Maryland, Maryland could enact a statute mandating that corporations consent to personal jurisdiction in Maryland if they operate in its territory.

This “implied consent” scheme was never intended to supplant the role of sovereignty. As discussed below, however, the “implied consent” scheme’s eventual evolution into specific jurisdiction was done in a way that unmoored personal jurisdiction from its roots in international law.

II. Personal Jurisdiction Under the Full Faith and Credit Clause

Our current jurisprudence of personal jurisdiction grew out of a line of cases that were not concerned with the limitations imposed on personal jurisdiction by international law, but rather the limitations imposed by international law on the effect of a foreign state’s judgments in another state’s courts. This is in part because the limits of personal jurisdiction were rarely litigated in the 18^th and early 19^th centuries, as at that time a court’s issuance of a judgment that was beyond its jurisdiction was, as a practical matter, often not a particularly compelling concern. A defendant would not be likely to suffer significant harm as a result of such an improper judgment, since, by definition, that defendant would be outside of the sphere in which that court had any power to take action against him.

There were of course exceptions to this general situation. Prize cases, for instance, regularly raised questions of jurisdictional overreach, owing to the specialized character of admiralty courts and their application of the law of nations, as well as the frequent international travel of the subject property. This travel was, in the case of prizes, often unanticipated and unintended by the prizes’ previous owners – increasing the possibility that the prize could be transferred to a jurisdiction where previous adverse judgments had been rendered concerning the vessels. As a result, a court’s issuance of a judgment in a case that it had no jurisdiction over posed a more significant concern in prize cases than it did in other civil matters, where a judgment issued without jurisdiction would simply not be encountered again by the people or property it affected.

With the enactment of the Constitution, however, a court’s personal jurisdiction over the parties before it took on an important new significance, owing to the Full Faith and Credit Clause. Under the Full Faith and Credit Clause, a court’s personal jurisdiction to issue a verdict was very much of practical significance, as that judgment could now be enforced not only in the forum where it was rendered, but in any forum in the Union. The significance of a court’s judgment was thus no longer wholly dependent upon that court’s power over the person or property that the judgment concerned. The essential question became instead the court’s power to issue the render the judgment in the first place.

This was a novel situation. As attested by Edmund Randolph, at the time of the Constitutional Convention, the Founders were aware of “no instance of one nation executing judgments of the Courts of another nation.” (Although the Articles of Confederation had its own version of the ‘full faith and credit’ clause, courts considering it had held that the clause couldn’t possibly mean that “executions might issue in one state upon the judgments given in another.”) But the Constitution’s Full Faith and Credit clause did mean just that. Previously, if a court in South Carolina were to issue a judgment against a defendant whose only assets were located in New York, the fact the judgment had been rendered improperly might not be of significant concern to the defendant if he had no intention of ever possessing property in South Carolina. Under the Full Faith and Credit clause, however, the plaintiff in that case could follow the defendant to where his assets were and enforce the South Carolina judgment in New York courts.

In Mills v. Duryee, 11 US 481 (1813), the Supreme Court, in an opinion issued Judge Story, upheld the enforcement of a federal law enacting the Full Faith and Credit clause, finding that where “full notice” was given of a suit and a judgment was reached in one state, that judgment was conclusive not only in that state but in every other. The dissent in Mills, however, expressed concern at this understanding of the Full Faith and Credit statute, fearing that it would violate natural law principles requiring jurisdiction to be inherently territorial-based:

There are certain eternal principles of justice which never ought to be dispensed with, and which Courts of justice never can dispense with but when compelled by positive statute. One of those is, that jurisdiction cannot be justly exercised by a state over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction by being found within their limits.

The dissent’s fears remained unrealized, however. In Picquet v. Swan, 19 Fed. Cas. 609, no. 11,134 C.C.D.Mass. 1828, Justice Story further elaborated on the extent of the Full Faith and Credit clause, holding that ‘full notice’ is required in order for a judgment in one state to be conclusive in another. Notice alone was not sufficient to grant a court jurisdiction over a person not within that court’s physical territory, as that notice must be coupled with either that person’s consent to appear or by the existence of property owned by that person within that court’s territory:

Nor would it in such a case vary the legal result, that the party had actual notice of the suit; for he is not bound to appear to it. No sovereign has a just right to issue such a notice, and thereby to acquire a jurisdiction to draw the party from his own proper forum ad alium examen. Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced, on such process, against him. Where he is not within such territory, and is not personally subject to its laws, if on account of his supposed or actual property being within the territory, process by the local laws may by attachment go to compel his appearance, and for his default to appear, judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that except so far as the property is concerned, it is a judgment coram non judice. If the party chooses to appear and take upon himself the defence of the suit, that might vary the case, for he may submit to the local jurisdiction, and waive his personal immunity.

In D’Arcy v. Ketchum, 52 US 165 (1851), the Supreme Court confirmed that the Full Faith and Credit clause did not overthrow the principle of international law, as it existed before the Constitution, that a foreign judgment is void unless the defendant it was issued against had been provided with notice and an opportunity to be heard:

That countries foreign to our own disregard a judgment merely against the person, where he has not been served with process nor had a day in court, is the familiar rule; national comity is never thus extend. The proceeding is deemed an illegitimate assumption of power, and resisted as mere abuse. Nor has any faith and credit, or force and effect, been given to such judgments by any State of this Union, so far as we know; the State courts have uniformly, and in many instances, held them to be void, and resisted their execution by a second judgment thereon; and in so holding they have altogether disregarded, as inapplicable, the Constitution and laws of the United States. We deem it to be free from controversy that these adjudications are in conformity to the well-established rules of international law, regulating governments foreign to each other[…]

The international law as it existed among the States in 1790 was, that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process or voluntarily made defence, because neither the legislative jurisdiction, nor that of courts of justice, had binding force.

It is important to remember that these cases were not concerned with “personal jurisdiction,” per se, but instead with the enforceability of a judgment from one state in the courts of another state. A failure serve a defendant with process meant that another state would not be constitutionally required to enforce the resulting judgment in its own courts, but that did not affect the validity of that judgment in the state where the verdict was issued: “a judgment of a court of another State does not bind the person of the defendant, in another jurisdiction, though it might do so under the laws of the State in which the action was brought.” Grover & Baker Sewing Machine Co. v. Radcliffe, 137 US 287 (1890) (citing Steel v. Smith, 7 W. & S. 447 (1844)).

In short, prior to the Fourteenth Amendment, a state, as its own sovereign, was permitted to violate international law by having its courts render and enforce judgments which were beyond its sovereign authority. However, if a state chose to do so, the state lost its right to have that judgment enforced in the courts of its sister states. It could violate international law if it wanted to, and its own citizens and subjects couldn’t complain about a lack of personal jurisdiction, but the citizens and subjects of other states could object when those judgments were brought for enforcement in another state:

Of its own jurisdiction, so far as it depends on municipal rules, the court of a foreign nation must judge, and its decision must be respected. But if it exercises a jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded by foreign nations.

Rose v. Himeley, 8 U.S. 241 (1808).

III. Personal Jurisdiction Under the Fourteenth Amendment

Throughout the mid-19^th Century, the Full Faith and Credit clause’s requirement of notice and an opportunity to be heard became increasingly associated with the requirements of ‘due process.’ See, e.g., Galpin v. Page, 85 U.S. 350 (1873); and Rees v. City of Watertown, 86 U.S. 107 (1873). At that same time, developed in a separate line of cases, state courts also began to limit their jurisdictional reach on the basis of Due Process clauses in state constitutions.  These courts’ conception of “personal jurisdiction” were coextensive with “service of process.” They concluded that, without service of process on a defendant who was physically within the territorial bounds of that court’s sovereign, or without the consent of that defendant, the proceeding would amount to a divestiture of title without due process of law. See Campbell v. Campbell, 63 Ill. 462 (1874). In other words: without service of process, there necessarily cannot have been “due” process. Brewster v. Ludekins (Supreme Court of California, 1861) (“By the same Constitution [of California], ‘no person shall be deprived of life, liberty or property without due process of law.’ (Art. XI, sec. 8.) The notice in this case summoning the creditors to appear must be regarded as a process. It is equivalent to a summons and performs the same office. ‘Process is the means of compelling the defendant to appear in Court.’ (2 Chitty’s Blackstone, 13, title Process.) This is the only means by which the creditors are brought into Court, and unless it is a process it is nothing at all, and the Court cannot acquire jurisdiction over the creditors.”).

Following the ratification of the Fourteenth Amendment, these two lines of cases became conjoined in Pennoyer v. Neff, 95 US 714 (1878). In Neff, the Supreme Court found that the same due process requirements that were necessary for a judgment of one state to be enforceable in the courts of a different state under the Full Faith and Credit clause were now also necessary in order for a state to render a judgment in the first place:

Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.

The Fourteenth Amendment did not alter the existing requirements of service of process, or alter the generally understood concept of personal jurisdiction. The Fourteenth Amendment instead curtailed the sovereignty of the individual states by removing their ability to enact, even for themselves, judgments that the states had previously been free to issue and enforce in within their own borders, even though other states would not be constitutionally compelled to execute those judgments in their courts.

The particular requirements of personal jurisdiction that Neff found to be mandated by the Fourteenth Amendment no longer exist as requirements today. For Neff, service of process was the start and the end of the Court’s personal jurisdictional analysis, and as long as a plaintiff could show personal service of process, due process was satisfied. But in today’s courts, service of process is a necessary, but not sufficient, condition. The Neff Court, in contrast to today’s Court, would not have had the slightest hesitation in ruling that the plaintiffs in Daimler AG v. Bauman could proceed against Daimler – just so long as the judgment did not extend beyond the (quite sizable) value of the property that Daimler possesses in California:

Every State owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State’s jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident’s obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident have no property in the State, there is nothing upon which the tribunals can adjudicate.

Although Neff’s conflation of personal jurisdiction with the court’s physical reach would not survive, Neff’s invocation of the Fourteenth Amendment as a means by which improper personal service could be challenged has become a permanent fixture of the United States’ personal jurisdiction jurisprudence.

IV. Personal Jurisdiction in the Corporate Era

For the substantive requirements of personal jurisdiction, the new law of the land comes from International Shoe, which handed down (even if it did not name) the doctrine of specific jurisdiction. As the Court stated this week in Daimler AG v. Bauman,

Since International Shoe, “specific jurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction [has played] a reduced role.”  Goodyear, 564 U. S., at ___ (slip op., at 8) (quoting Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 628 (1988)).  International Shoe’s momentous departure from Pennoyer’s rigidly territorial focus, we have noted, unleashed a rapid expansion of tribunals’ ability to hear claims against out-of-state defendants when the episode in-suit occurred in the forum or the defendant purposefully availed itself of the forum.

What was the cause of this ‘momentous departure’ that the Court speaks of? The answer, in short, is that corporations did. The jurisdictional quagmires that were caused by corporate entity’s involvement in interstate commerce resulted in almost every state enacting, by the late 19th century, its own statutory scheme of corporate service of process, based not upon traditional notions of personal jurisdiction but instead upon theories of implied consent. This implied consent model negated any difficulties posed by a state court’s lack of physical or territorial sovereignty over a foreign corporation personal,  and the resulting lack of personal jurisdiction, as a defendant’s consent to jurisdiction was an independently sufficient basis under which the case could be brought.

The doctrine that would eventually become specific jurisdiction first came into being as a response to an early line of cases which effectively granted corporations immunity in every state other than the one in which they were incorporated. In the early 19^th century, state and federal courts had found that, under the common law, a corporation only existed within the state of its incorporation, and that serving process on a corporation’s officers outside of the corporation’s home state could not provide jurisdiction over the corporation. See, e.g., McQueen v. Middleton Manufacturing Co. (NY, 1818). But this “cause[d] much inconvenience, and often of manifest injustice. The great increase in the number of corporations of late years, and the immense extent of their business, only made this inconvenience and injustice more frequent and marked.” St. Clair v. Cox, 106 US 350 (1882).

Although the “home state only” provided a binary, bright-line rule for determining whether process had been served on a corporation, it became apparent that a new, less absolute test would be needed, under which service could be made on corporations in states other than where they were incorporated. This introduced a great deal of ambiguity into the question of personal jurisdiction, because the only existing model for serving process on a foreign defendant was by physically tagging the defendant with process while the defendant was physically in the territory of the issuing court.

It turned out that applying tag jurisdiction to corporations was just as unreasonable and unworkable as was the alternative “home state only” rule. Corporations are people that act through other people – oftentimes, lots and lots of other people – and corporations can be found wherever their people can be found. Corporations can even be found in places where they don’t even have people, if, for example, their articles of incorporation can be found there. So how were the courts to figure out which people needed to be tagged for personal jurisdiction to attach to a corporation? And what does it even mean to serve a defendant with process, when that defendant is only a legal fiction? As the Court said in St. Clair v. Cox, 106 US 350 (1882),

In the State where a corporation is formed it is not difficult to ascertain who are authorized to represent and act for it. Its charter or the statutes of the State will indicate in whose hands the control and management of its affairs are placed. Directors are readily found, as also the officers appointed by them to manage its business. But the moment the boundary of the State is passed difficulties arise; it is not so easy to determine who represent the corporation there, and under what circumstances service on them will bind it.

The courts initially solved the dilemma posed by the legal fiction of corporations with a legal fiction of their own: even though personal service could not be had on a foreign corporation, a foreign corporation can be constructively held to consent to a foreign state’s jurisdiction when doing business in that state. If there has been consent (whether express or otherwise) to a dispute being heard by particular forum, then the question of jurisdiction never arises in the first place.

In The Lafayette Ins. Co. v. French, et al., 59 US 404 (1855), the Supreme Court affirmed that service of process was effective on a corporation outside of its home state, so long as the process was served upon an agent of the corporation, who was in the territory of the issuing court while doing business on behalf of the corporation, if that state had enacted a statute requiring corporations to give constructive consent to process in that state:

This corporation, existing only by virtue of a law of Indiana, cannot be deemed to pass personally beyond the limits of that State. Bank of Augusta v. Earle, 13 Pet. 519. But it does not necessarily follow that a valid judgment could be recovered against it only in that State. A corporation may sue in a foreign state, by its attorney there; and if it fails in the suit, be subject to a judgment for costs. And so if a corporation, though in Indiana, should appoint an attorney to appear, in an action brought in Ohio, and the attorney should appear, the court would have jurisdiction to render a judgment, in all respects as obligatory as if the defendant were within the State. The inquiry is, not whether the defendant was personally within the State, but whether he, or someone authorized to act for him in reference to the suit, had notice and appeared; or, if he did not appear, whether he was bound to appear or suffer a judgment by default.

… We consider this foreign corporation, entering into contracts made and to be performed in Ohio, was under an obligation to attend, by its duly authorized attorney, on the courts of that State, in suits founded on such contracts, whereof notice should be given by due process of law, served on the agent of the corporation resident in Ohio, and qualified by the law of Ohio and the presumed assent of the corporation to receive and act on such notice; that this obligation is well founded in policy and morals, and not inconsistent with any principle of public law; and that when so sued on such contracts in Ohio, the corporation was personally amenable to that jurisdiction; and we hold such a judgment, recovered after such notice, to be as valid as if the corporation had had its habitat within the State; that is, entitled to the same faith and credit in Indiana as in Ohio, under the constitution and laws of the United States.

For the next few decades, the test for determining whether a court had personal jurisdiction over an out-of-state corporation was as follows:

First, it must appear that the corporation was carrying on its business in the State where process was served on its agent; second, that the business was transacted or managed by some agent or officer appointed by or representing the corporation in such State; third, the existence of some local law making such corporation amenable to suit there as a condition, express or implied, of doing business in the State. United States v. American Bell Telephone Co., 29 F. 17 (1886).

This change would make service on a corporation in a foreign state technically possible, but the actual requirements for perfecting such service were still left murky. Much of the relevant litigation focused on when a corporation could be said to be “doing business” in a state so as to trigger that state’s implied consent to process statute. The requirement that a corporation be “doing business” was a statutory requirement in order for a court to find implied consent to process. Prior to International Shoe, it had nothing at all to do with a court’s actual jurisdictional reach.

This statutory requirement was responsible, however, for the creation of the nascent “minimum contacts” test, as well as the concern with “fair play” and “substantial justice” which features so prominently in our modern scheme of personal jurisdiction. In interpreting the corporate implied consent statutes, courts concluded that in order to be “doing business,” so as to imply consent to service of process, a corporation had to have sufficient involvement and activity in a state so that the legal fiction of implied consent was not unreasonable or unwarranted, or else the court would risk letting “fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” McDonald v. Mabee, 243 US 90 (1917). That is to say, if a ‘legal fiction’ became so much of a fiction as to lack a reasonable relationship with reality, due process violations could be implicated.

The first real glimmers of our modern concept of “specific jurisdiction” arose in 1907. In Old Wayne Mut. Life Assn. of Indianapolis v. McDonough, 204 US 8 (1907), the Court found that where state law implies corporate consent to service of process, that implied consent need not be universal, but could be attached with contingencies regarding the type of process that service had been accepted for:

But even if it be assumed that the insurance company was engaged in some business in Pennsylvania at the time the contract in question was made, it cannot be held that the company agreed that service of process upon the Insurance Commissioner of that Commonwealth would alone be sufficient to bring it into court in respect of all business transacted by it, no matter where, with or for the benefit of citizens of Pennsylvania.

A foreign corporation’s implied consent to service of process no longer had to be all or nothing. In some circumstances, and under some state statutes, the courts would find that implied consent would not be an across-the-board grant of jurisdiction, but would only be implied consent for certain specific causes of action arising in that state:

But these possible inconveniences serve to emphasize the importance of the principle laid down in Old Wayne Life Association v. McDonough, 204 U.S. 22, that the statutory consent of a foreign corporation to be sued does not extend to causes of action arising in other States.

International Harvester Co. of America v. Kentucky, 234 US 579 (1914). See also People’s Tobacco Co. v. American Tobacco Co., 246 US 79 (1918).

This system of implied corporate consent survived for well over half a century. ‘General jurisdiction’ remained the only type of personal jurisdiction that existed, and it operated alongside the varying state statutes which mandated that foreign corporations give consent to process as a condition of their operation in that state. And then, in 1945, the Supreme Court issued its decision in International Shoe, and in doing so the Court took the the long line of case law addressing the statutory construction of corporate implied consent laws, and transformed it into a new constitutional doctrine of jurisdiction. The Court did so by simply obliterating the “implied consent” theory of corporate amenability to suit, and then announcing that ‘implied consent’ had never truly existed in the first place. In reality, the Court said, the basis of a court’s authority to hear a suit against a foreign corporation had never been ‘consent,’ but rather that the courts had possessed personal jurisdiction over these foreign corporations all along:

True, some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents. But more realistically it may be said that those authorized acts were of such a nature as to justify the fiction.

The Court also took the previous doctrine of contingent consent to process, as described in Old Wayne, and turned it into a rule of partial personal jurisdiction, in which personal jurisdiction is contingent upon the subject matter of the suit:

Conversely it has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation’s behalf are not enough to subject it to suit on causes of action unconnected with the activities there.

In the cases relied upon by International Shoe in making this assertion, courts had found that a corporation’s sporadic presence in a state could only imply consent to process in that state for actions arising from that sporadic presence. Those cases had not accepted (or even directly contemplated) that a corporation’s activities in a foreign state could actually have the effect of conferring the foreign state with personal jurisdiction over the corporation. These cases were, however based on the theory that due process limited how far the legal fiction of consent could be stretched — a doctrine which International Shoe kept, but altered so that it now held that due process places limitations on how far the legal fiction of presence can be stretched to maintain the fiction of personal jurisdiction.

This new doctrine, which eventually would be dubbed ‘specific jurisdiction’, is not personal jurisdiction as it was traditionally understood. Personal jurisdiction was originally a type of adjudicative jurisdiction under which the scope of a court’s power was determined by reference to its sovereign authority over a specific person or thing. Specific jurisdiction is instead a due process doctrine, created to address the unique problems posed by the rapid expansion of the corporate form in American economic life, under which the scope of a court’s power is determined by whether it would be reasonable for a court to hear a given case, with reasonableness determined by reference to the relationships among the defendant, the forum, and the litigation.

Justice Ginsberg has lobbied hard for sovereignty-based jurisdiction to be extinguished all together from our jurisprudence, and she has repeatedly called for the rest of the Court to finally acknowledge that sovereignty is not now, and has never been, a component of specific jurisdiction. So far, however, the rest of the Court has resisted this conclusion, and the other justices continue to labor under the fiction that specific jurisdiction can simultaneously be a matter of sovereignty and a matter of due process. In order to maintain this jurisdictional Frankenstein, the Court has set forth the proposition that specific jurisdiction is based upon ”whether a defendant has followed a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign, so that the sovereign has the power to be subject the defendant to judgment concerning that conduct.” McIntyre. This construction purports to reconcile the inherent contradictions of jurisdiction based on both sovereignty and reasonableness, but its application has proven in practice to be unclear and inconsistent. Without a more internally consistent theory of jurisdiction, we can expect that the question of personal jurisdiction over foreign corporate structures will continue to make regular appearances on the Court’s docket.

-Susan

Last week, the International Court of Justice heard three days of argument concerning Timor-Leste’s pending request for provisional measures in Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). The case was brought by Timor-Leste following Australia’s execution of a search warrant at the office of Timor-Leste’s Canberra-based attorney. Australia claimed that the warrant was appropriately issued for national security purposes, and used it to obtain extensive electronic and paper files concerning Timor-Leste’s pending arbitration against Australia before a Hague tribunal. In that arbitration, Timor-Leste is seeking to overturn a 2007 treaty between Australia and Timor-Leste, as a result of Australia’s espionage on Timor-Leste’s internal communications during the course of negotiations.

Australia claims that it was justified in seizing Timor-Leste’s legal files because Timor-Leste’s evidence of Australia’s espionage was provided by a retired Australian spy. That spy, dubbed “Officer X,” informed Timor-Leste of the 2004 bugging operation as a result of his belief that the surveillance had been conducted for improper commercial purposes, rather than national security interests.

It is a complicated and messy situation, both legally and politically, but the significance of Australia’s seizure of Timor-Leste’s legal files, as well as Australia’s prior espionage against Timor-Leste’s government, can only be understood in the context of the history of the past treaty negotiations between the two countries. To give some background for future posts concerning the legal claims being raised by Timor-Leste and Australia, provided here is a timeline of events leading up to the recent case before the ICJ.

The International Legal Context

The dispute ultimately concerns Australia and Timor-Leste’s competing claims to an expansive section of the Timor Sea between Australia and Timor-Leste. If you drew a line in the middle of the ocean that was equidistant from both Timor-Leste and Australia’s shores, the maritime area stretches north from that median line to within approximately 40 nautical miles of Timor-Leste’s shore. There is a lot of oil and gas in this area of the ocean, and both Australia and Timor-Leste claims to have the sovereign right to exploit those resources.

Australia claims that this area belong to Australia on the basis of historical precedence and on the basis of somewhat dubious allegations concerning the underwater geographical features of the Timor Sea. Timor-Leste claims that it belongs to Timor-Leste on the basis of the UN Convention on the Law of the Sea and the widely prevalent state practice of delimiting maritime boundaries of states with opposite coasts along a median line. Timor-Leste’s claims are generally considered more robust than Australia’s.

Although the strength of Australia’s legal claims to the territory may be questionable, it turns out that inconvenient little problem becomes entirely irrelevant if a legal challenge is never actually brought. Australia almost certainly recognizes that it will not be able to prevail in acquiring the territory for itself, and so rather than pursuing its own claims, it has instead strategically eliminated any opportunity for a legal challenge to be brought by Timor-Leste.

Two months before Timor-Leste became an independent nation that was capable of pursuing a claim before an international adjudicative body, Australia withdrew any dispute over maritime boundaries from the jurisdiction of the ICJ and ITLOS, preventing Timor-Leste from ever having had an opportunity to establish its legal claim to the Timor Sea. In the absence of a decision from the ICJ or ITLOS recognizing the likely legal reality of Timor-Leste’s claims to the disputed oil and gas fields, the territory will remain perpetually “disputed.” So long as there is legal limbo over the territory, Timor-Leste is unable to obtain the foreign investment necessary to develop the resources. Australia, in turn, can continue to demand that in exchange for allowing foreign investment into the maritime areas, Australia gets a substantial portion of any resulting revenues.

The Disputed Territories

Image from dollarsandsense.org, “Minding The Timor Gap: Billions of dollars in oil and gas revenues are at stake as Australia continues to bully East Timor out of its undersea energy resources.”

Joint Petroleum Development Area (“JPDA”): Area marked in yellow on map. Revenues derived from oil and gas fields in this area are split 90/10 between Timor-Leste and Australia, pursuant to 2002 treaty. Although the JPDA is the largest delineated area within the disputed maritime areas, its gas and oil fields are not as valuable as that of the non-JPDA areas.

Laminaria-Corallina Fields: Located in the western (left) horn of the light blue area. (Light blue area marks maritime territory that is disputed by Australia and Timor-Leste.) These fields have never been a part of any treaty between Timor-Leste and Australia, and Australia has at all times obtained 100% of government proceeds from them. The Laminaria-Corallina fields have now been 95% depleted of their resources, and, as a result, no longer plays a significant role in the dispute between Australia and Timor-Leste.

Greater Sunrise Fields: Located in the eastern (right) horn of the light blue area. (Light blue area marks maritime territory that is disputed by Australia and Timor-Leste.) The Greater Sunrise fields are estimate to contain twice as much LNG as the JPDA fields. A small portion of the Greater Sunrise fields (20%) is located in the JPDA, but most of the fields’ area (80%) lays outside of it, in the disputed territory over which both Australia and Timor-Leste. Under the 2002 treaty between Timor-Leste and Australia, Timor-Leste received 90% of the revenue from the sliver of the Greater Sunrise fields in the JPDA, and 0% of the revenue from the Greater Sunrise fields outside of it. (Or, 18% of the revenue from the Greater Sunrise fields as a whole.) Under the 2007 treaty, Timor-Leste and Australia each receive 50% of future revenues from the entirety of the Greater Sunrise Fields. As of 2014, the Greater Sunrise fields have yet to be commercially developed.

Timeline of Events

August 1974: Woodside Australian Energy (later Woodside Petroleum), an Australian energy company, discovers gas in the Greater Sunrise fields.

1975: Indonesia invades and annexes East Timor, making further development of the Timor Sea resources impossible.

1989 – 1991: Indonesia and Australia sign and ratify the Timor Gap Treaty (“TGT”), opening the possibility once again of exploration and development of the Timor Sea gas and oil fields. The Timor Gap Treaty does not establish maritime boundaries between the countries but instead equally splits proceeds derived from development of the oil and gas fields in a delineated portion of the Timor Sea between the countries, with each country receiving 50% of the total tax revenues. Many observers believe that this 50%/50% division is not supported by international law, but was instead agreed to by Indonesia as a concession in exchange for Australia’s recognition of its annexation of Timor-Leste.

1995: Australia, pursuant to the Petroleum (Submerged Lands) Act of 1967, its sovereign claim to the resources of its continental shelf, and the TGT, issues licenses to a joint venture between Woodside and Shell for exploration and drilling of the portions of the Greater Sunrise fields that lie outside of what will later become the JPDA. The largest portion is within permit area NT/RL2, with an additional small portion in NT/P55.

1997: The Woodside and Shell JV announce proposals to set up a liquefied natural gas (LNG) plant in Darwin, Northern Territory, with production scheduled to commence in 2005.

August 1999: East Timor votes for independence, potentially throwing long-term development plans in the Timor Sea into doubt, due to uncertainty over future treaties and boundary determinations.

1999: Three multinational corporations, headed by Woodside, begin oil production in the Laminaria-Corallina fields. Between 1999 and 2012, approximately 201 million barrels of oil are produced, with resulting tax revenues to Australia of approximately $2 billion USD.

February 2001: Woodside, Shell, and Phillips Petroleum Company sign a cooperative agreement, establishing a joint venture for development of both the Bayu-Undan fields (within the JPDA) and the Greater Sunrise fields (in both JPDA and outside of it). The consortium companies base their agreement on a belief that the majority of the Greater Sunrise fields are “located in Australian waters.”

July 2001: Timor-Leste, in advance of its independence from Indonesia, had made it clear that Timor-Leste would not be bound by treaties previously entered into by Indonesia, including the Timor Gap Treaty, which concerned the soon-to-be new nation’s claimed territories. As a result of historical factors, both Australia and East Territory lay claim to large, resource-rich maritime area in the Timor Sea, and the nations are unable to reach an agreement as to their respective maritime territorial boundaries. Australia and Timor-Leste instead reach a Memorandum of Understanding of Timor Sea Arrangement (MOU) (which will later be adapted into the Timor Sea Treaty) under which proceeds from development in the JPDA, will no longer be split 50/50, but will instead be split 90/10, with 90% going to Timor and 10% going to Australia. This agreement does not, however, address the proceeds from resources obtained in disputed territories outside of the JPDA area, and Australia continues to receive 100% of government revenues from the resources in these areas. The MOU also specifies that the Greater Sunrise fields are to be divided with 80% going to Australia and 20% going to East Timor, based upon Australia’s claim to the waters outside the JPDA.

The MOU also specifically preserves the Woodside/Shell/Phillips joint venture’s contracts to the portion of the Greater Sunrise fields located in the JPDA.

Early March 2002: Oceanic Exploration Company, an oil and gas exploration company interested in developing the Timor Sea oil and gas fields, ”offer[s] to finance a claim by East Timor in the International Court of Justice to support East Timor’s expanded seabed boundary claims in its dispute with Australia and to establish expanded boundaries for East Timor. Such expanded seabed boundaries, under applicable international law, would have tripled East Timor’s seabed hydrocarbon reserves.”

March 21 and 25, 2002: Australia files reservations with both the International Court of Justice (ICJ) and International Tribunal for the Law of the Sea (ITLOS), revoking Australia’s consent to jurisdiction before those tribunals for any disputes involving maritime boundaries. The apparent purpose is to prevent any claims arising from the Timor Sea dispute from being heard by either the ICJ or ITLOS, in anticipation of Timor-Leste’s rapidly approaching independence.

May 20, 2002: Timor-Leste gains independence from Indonesia. On the same day, Australia and Timor-Leste enter into the Timor Sea Treaty (“TST”) as an interim agreement to replace the Timor Gap Treaty (which went out of force with Timor-Leste’s independence). The TST continues the 90/10 split agreed to in the 2001 provisional agreement, and provides for a stopgap treaty concerning the division of the resources in the Timor Sea.

2002 – 2004: Timor-Leste and Australia engage in negotiations over the disputed territories outside of the JDPA area, but negotiations are unsuccessful. This is due in large part because Timor-Leste wants to establish its maritime territorial boundaries over this area, but under the provisions for maritime delineation in UNCLOS, Australia’s claims to the resources in the Timor Sea could be largely be extinguished. The two major oil and gas fields outside the JDPA are each subject to different pressures:

• Laminaria-Corallina Fields: Australia is at this time obtaining revenues from the Laminaria-Corallina fields in the amount of approximately $1 million per a day, and every day that passed without a treaty meant more revenues that Australia can claim entirely for itself. In contrast, every day that passed for Timor-Leste was another day in which it got no share of the revenues from the rapidly depleting fields, and would forever lose that source of revenue.

• Greater Sunrise Fields: In 2003, a multinational consortium, in which Woodside was once again the majority partner, obtained a license to development the resources contained in the Greater Sunrise Field. Due to the legal uncertainty caused by Timor-Leste and Australia’s disputing claims to the territory in which it was located, however, Woodside refused to fully invest in the fields until a firm agreement was established. For Australia, developing the Greater Sunrise fields would have been a good revenue source, but not if it came at the cost of its claims to the rest of the Timor Sea – which made Australia reluctant to open negotiations at all. For Timor-Leste, the revenues from the Greater Sunrise fields were urgently needed, but it lacked the resources to develop these fields on its own. Unless Australia would agree to resolve the territorial dispute, Timor-Leste could not obtain the outside investment required to obtain the resources.

As a result of the investors’ demands and Timor-Leste’s inability to proceed alone, Australia could effectively hold the Timor Sea territories hostage. By preventing any adjudication over Timor-Leste’s claims, Australia could prevent Timor-Leste from benefiting from the resources it was likely entitled to under international law, as well as continue to receive all revenues from the existing gas and oil production. Although Timor-Leste wanted to develop the remaining gas and oil fields (as well as lay claim to the existing revenue sources that Australia continued to receive), Timor-Leste lacked the infrastructure or financing to do so without foreign investment – and foreign investors refused to invest while Timor-Leste and Australia had disputing claims to the territory.

Australia could afford to be patient. As long as no action was taken, Australia would to continue obtaining 100% of the revenue from the existing fields, which had been developed prior to Timor-Leste’s independence and therefore before any legal dispute arose. Australia had no urgent need for the potential revenue that could be obtained from the other oil fields, especially when it was unclear that Australia would be entitled to any of that revenue at all – and when Timor-Leste was so desperate for that revenue that Australia could simply wait Timor-Leste out, and force it to voluntarily agree to give up is territorial rights in exchange for Australia allowing development to occur at all.

Consequently, during the 2002 to 2004 time period, negotiations are slow. Australia announces that it would wait 20 years to resolve the question if it had to, while Timor-Leste continued to petition Australia for a final agreement as to the boundaries. But this stalemate is eventually broken, thanks to the third party involved in the Timor-Leste/Australia treaty negotiations: the Woodside-led consortium, which was tired of delays, and waiting impatiently to develop the Greater Sunrise fields.

In 2003, Australia and Timor-Leste sign the Sunrise International Unitization Agreement (Sunrise IUA), but Timor-Leste’s parliament, believing it to be a bad deal, refuses to ratify it.

July 29, 2004: Woodside’s executive director personally flies to Timor-Leste to inform Timor-Leste’s prime minister that, if a treaty could not be reached by the end of the year, Woodside would terminate its operations in the Greater Sunrise fields and pull out its investment all together. At the same time, Woodside informed Australia of its strong interest in a quick resolution to the dispute over the Greater Sunrise fields. Following this political pressure, Australia and Timor-Leste begin considering a ‘creative solution’ to the problem, under which the question of territorial boundaries would be pushed off, and an agreement concerning resources would be reached.

September 20, 2004: Timor-Leste and Australia meet in Dili, Timor-Leste’s capital, to start a new round of negotiations concerning a treaty for the development of the Greater Sunrise fields.

October 2004: During the course of negotiations in Dili,

• Australian Foreign Minister Alexander Downer allegedly orders the eavesdropping of the Timor-Leste’s parliament’s discussions concerning treaty negotiations. The listening devices are to be planted by the Australian Secret Intelligence Service (“ASIS”), then headed by David Irvine.

• ASIS agents, posing as contractors for an Australian construction company, install recording devices in the offices of Timor-Leste’s cabinet and prime minister, allowing Australia to eavesdrop on Timor-Leste’s internal discussions concerning treaty negotiations. Australia is likely able to obtain detailed information on Timor-Leste’s planned negotiation strategies and the vulnerabilities it would face if talks fell through. Possible (and very hypothetical) scenarios that could provide particularly strong support for Timor-Leste’s current claim to overturn CMATS might include Australia learning through surveillance (1) that Timor-Leste did not believe Woodside’s bluff that it would pull out, but that if Woodside went through with it, it would have to capitulate; (2) that East Timor had other possible avenues to development it could use as an alternative, which Australia took steps to remove once it learned of it; or (3) information concerning the pending bribery claims in a U.S. federal court, accusing ConocoPhillips (the company with the second largest share, after Woodside, in the Greater Sunrise Joint Venture) of bribing Timor-Leste’s Prime Minister to obtain development contracts for oil fields located in the JPDA.

• The negotiations begin to break down when Australia makes it clear it will not agree to any discussions about the disputed maritime boundaries, and that the only concession Australia was willing to negotiate about was a monetary one. Australia would provide financial compensation to Timor-Leste, and would allow Woodside to proceed with development of the Greater Sunrise fields, if Timor-Leste would agree to forfeit any ability to attempt to establish the maritime boundary through any other mechanism.  Timor-Leste was willing to agree to defer on claims to its territorial boundaries, but wanted to participate in the development of the gas and oil fields – a request Australia refused to consider. Australia would agree to give Timor-Leste a portion of the revenues as a pay out, but it would not have any role in the actual development and production of the gas and oil extracted.

November 17, 2004: Woodside’s deadline passes, with Australia and Timor-Leste having failed to come to an agreement to a permanent treaty. Woodside pulls out of its operations in the Greater Sunrise fields, stating that the uncertainty caused by the lack of an established legal framework for the area makes long-term investment untenable.

March-April 2005: Timor-Leste and Australia resume negotiations, this time in Canberra.

April 29, 2005: After three days of talks in Dili, Australia and Timor-Leste reach a draft agreement on development of the Greater Sunrise fields, the terms of which are finalized in the Treaty on Certain Maritime Arrangements in the Timor Sea (“CMATS”). The CMATS is a great deal for Australia; it makes no concessions to Timor-Leste beyond a strictly monetary 50/50 division of revenues between Australia and Timor-Leste from the Greater Sunrise fields.

It is not a particularly good deal for Timor-Leste. The deal concerns only the Greater Sunrise fields, and not any of the other maritime areas which are in dispute. All areas not within the Greater Sunrise fields or the JDPA remain unaddressed. Financially, Timor-Leste now secures a right to 50% of the Greater Sunrise revenues, when previously Australia had only agreed not to contest Timor-Leste’s right to 18%. But obtaining 50% of revenues is not necessarily an achievement, when there is a good chance a court would have awarded you 100%.

And, perhaps worst of all, CMATS contains a severe ‘moratorium,’ pursuant to which Timor-Leste effectively agrees not to try and establish its territorial boundaries. Article 4 provides that:

1. Neither Australia nor Timor-Leste shall assert, pursue or further by any means in relation to the other Party its claims to sovereign rights and jurisdiction and maritime boundaries for the period of this Treaty.

2. Paragraph 1 of this Article does not prevent a Party from continuing activities (including the regulation and authorisation of existing and new activities) in areas in which its domestic legislation on 19 May 2002 authorised the granting of permission for conducting activities in relation to petroleum or other resources of the seabed and subsoil.

3. Notwithstanding paragraph 2 of this Article, the JPDA will continue to be governed by the terms of the Timor Sea Treaty and associated instruments.

4. Notwithstanding any other bilateral or multilateral agreement binding on the Parties, or any declaration made by either Party pursuant to any such agreement, neither Party shall commence or pursue any proceedings against the other Party before any court, tribunal or other dispute settlement mechanism that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea.

5. Any court, tribunal or other dispute settlement body hearing proceedings involving the Parties shall not consider, make comment on, nor make findings that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea. Any such comment or finding shall be of no effect, and shall not be relied upon, or cited, by the Parties at any time.

6. Neither Party shall raise or pursue in any international organisation matters that are, directly or indirectly, relevant to maritime boundaries or delimitation in the Timor Sea.

7. The Parties shall not be under an obligation to negotiate permanent maritime boundaries for the period of this Treaty.

Essentially, through CMATS, Australia has solidified its ability to hold the disputed territory hostage for 50 years – because under CMATS, Timor-Leste cannot pursue any legal claim which could, even “indirectly,” legally establish its claims to the Timor Sea. Moreover, if a court does go ahead and make a ruling on Timor-Leste’s territorial boundaries anyway, Timor-Leste is prohibited from even mentioning the court ruling. And by the time those 50 years expire, there won’t be much oil left for the parties to argue over.

Australia, for its part, did very well in obtaining such an expansive prohibition. The fact that Australia’s claims in the Timor Sea are likely wrongful and in violation of international law was effectively rendered irrelevant as a result of the treaty, and Australia’s ability to develop any areas outside of the JDPA or Greater Sunrise fields was left unaffected.

January 12, 2006: Australia and Timor formally sign CMATS, which comes into force in 2007.

January 2008: Alexander Downer retires from politics and establishes a boutique lobbying firm, Bespoke Approach. Woodside becomes a client of Bespoke Approach, and through his lobbying firm, Downer ends up on the payroll of Woodside.

2008 – 2012: Development on the Greater Sunrise fields does not proceed, in large part due to disputes between Woodside, Australia, and Timor-Leste as to how and where the extracted oil will be diverted for processing. At an unknown date in this time period, a retired ASIS Agent, dubbed “Officer X,” who had been in charge of carrying out the 2004 surveillance operation against the Timor-Leste cabinet, contacts Timor-Leste’s government to inform them of the surveillance. Officer X  stated that he “decided to blow the whistle when he learned that in his life after politics, Alexander Downer had become an advisor to Woodside Petroleum through his lobbying firm, Bespoke Approach.” He provides Timor-Leste with an affidavit “refer[ring] to the 2004 bugging operation as ‘immoral’ and ‘wrong’ because it served not the national interest, but the commercial interest of big oil and gas.”

December 2012: Timor-Leste sends a diplomatic note to then-PM Julia Gillard, informing her of the espionage that was conducted during the 2004 negotiations, requesting that Australia reopen discussions with Timor-Leste about CMATS. Australia ignores the request.

April 2013: Timor-Leste initiates arbitration proceedings against Australia under the 2002 TST, seeking a declaration that the CMATS agreement is voided due to Australia’s failure to negotiate in good faith by conducting espionage on Timor-Leste’s internal treaty discussions.

May 3, 2013: Australian Minister for Foreign Affairs Bob Carr announces in a press release that Timor-Leste has initiated arbitration concerning the validity of CMATS, and that “Timor-Leste argues that CMATS is invalid because it alleges Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage.”

Late November 2013: As part of pre-hearing arbitration procedures, Timor-Leste and Australia meet to discuss preliminary procedural issues and to exchange information. Timor-Leste provides Australia with a list of witnesses that it intends to call at the upcoming arbitration hearing, including the name of Officer X, as well as tree other “whistleblowers” who are prepared to testify to Australia’s espionage.

December 2, 2013: David Irvine, the former head of ASIS and the current Director-General of the Australian Security Intelligence Organisation (“ASIO”), Australia’s internal intelligence agency, requests the issuance of a warrant to search to conduct a search of Timor-Leste’s Australian attorney, whose office is located in Canberra. The Australian Attorney General, George Brandis, approves the request, and a warrant is issued under  section 25  of  the  ASIO Act,  “for  the  purpose  of  collecting  intelligence  on  a  matter  affecting  the security of Australia, concerning possible espionage.”

December 3, 2013: The ASIO carries out the search warrant, seizing materials and documents from the office of Timor-Leste’s attorney. Although Timor-Leste’s attorney has already left for the Hague in preparation for the upcoming arbitration hearing, “[o]ne of Mr. Collaery’s legal assistants, Ms Preston, was alone in the office at the time. The officers presented the warrant authorizing the entry and seizure of documents, but never told Ms Preston what exactly they were seeking, or why. In the pressure of the moment Ms Preston sought to read the warrant but felt so intimidated by the presence of over a dozen ASIO personnel that she could not finish it. Moreover, many of the words in it were blacked out. Her request for a copy was refused on the grounds that it was a matter of national security.”

Additionally, ASIO officers also go to the house of Officer X, where he is interrogated for several hours, and has his passport cancelled. All of this occurs a mere two days before a scheduled hearing before the Hague tribunal, on December 5, 2013, at which the parties were to determine how the whistleblower witnesses would be handled. Australia has denied that preventing Officer X’s appearance at the Hague played a role in the timing of its actions, but has conceded it does intend to prevent his testimony from being introduced.

December 18, 2013: Timor-Leste institutes proceedings against Australia before the ICJ, in Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). Timor-Leste also files a request for a provisional (and expedited) order from the Court instructing Australia to return the seized materials while a final decision on the merits is pending.

-Susan

In 1974, with the prospect of an Indonesian annexation of Timor on the horizon, Australia faced an important question: would Australia receive more favorable access to the gas and oil fields in the Timor Sea if Timor had an (a) Portuguese government, (b) Indonesian government, or (c) independent government?

At the time, Australia believed the answer was (b): an Indonesian Timor would give Australia the best outcome when it came to negotiating a seabed boundary in the Timor Sea. In a 1974 Policy Planning Paper, the Australian government reasoned that, since Indonesia had already given Australia such a favorable result in a similar seabed boundary negotiation, Indonesia would likely give Australia a similarly favorable deal for the seabed territory offshore from Timor. As a result, Australia was cautious about entering into any final seabed boundary delineations with Portugal. The political situation was likely to change, and there would be advantages in waiting for a more favorable government to gain control of the island territory:

We should press ahead with negotiations with Portugal on the Portuguese Timor seabed boundary, but bear in mind that the Indonesians would probably be prepared to accept the same compromise as they did in the negotiations already completed on the seabed boundary between our two countries. Such a compromise would be more acceptable to us than the present Portuguese position. For precisely this reason however, we should be careful not to be seen as pushing for self-government or independence for Portuguese Timor or for it to become part of Indonesia, as this would probably be interpreted as evidence of our self-interest in the seabed boundary dispute rather than a genuine concern for the future of Portuguese Timor. We should continue to keep a careful check on the activities of Australian commercial firms in Portuguese Timor.

(Policy Planning Paper, Canberra, May 3, 1974).

In other words, Australia should continue to engage in negotiations with Portugal to avoid the appearance of any impropriety, but it should take care that the negotiations did not actually culminate in an agreement.

Although Australia’s economic and foreign interests were best served by an Indonesian Timor, it was for precisely that reason that Australia wanted to avoid any appearance that it had any stake in Timor’s outcome. If seen to support Indonesia’s annexation of Timor, it would likely be viewed as doing so for self-serving commercial reasons. At the same time, neither did Australia wish to be seen as supporting a Portuguese Timor or an independent Timor, because doing so might have the effect of promoting either of those outcomes. Taking such a position (or appearing to take such a position) would also pose a risk of complicating its relationship with Indonesia.

There was also the risk that, at some future date, Timor would eventually achieve independence. Such an event would undermine the durability of any seabed boundary agreement that Australia had entered into, whether it was with Portugal or Indonesia. If Australia succeeded in negotiating a favorable seabed boundary in the Timor Sea, only to have Timor later gain independence after all, Australia would face significant pushback from the world community for having plundered a tiny nation’s “only major asset” before that nation had the ability to protect itself:

if Portuguese Timor achieved independence and believed such a prior [seabed boundary] agreement was not in its interests, there might be strong criticism of Australia for making an agreement with Portugal over Timor’s head to deprive Timor of what may be its only major asset–oil. If Australia thus became a focus of antagonism, we would almost certainly lose much of our capability to influence or assist newly independent government. On the other hand, if a boundary line negotiated now gained wide acceptance this would in turn allow petroleum exploration to proceed with more confidence than at present. Moreover, a newly independent government in Timor might not wish to upset relations with Australia by seeking to renegotiate an established boundary line albeit one negotiated by its former colonial rulers. (However, it could be unwise to rest too heavily on this assumption.)

(Cablegram, September 26, 1974).

Australia was well aware that an Indonesian annexation of Timor would create the potential for future upheaval and revolution in East Timor. If and when that eventuality finally came to pass, Australia would have a much stronger position if it did not have any culpability for the original Indonesian take-over. So, although Australia “favoured association of Portuguese Timor with Indonesia,” Australia had a significant long-term interest in avoiding any perception that it was “hand[ing] over” Timor to Indonesia. Instead, Australia wanted to maintain a public perception of being committed to “self-determination,” and to avoid any appearance that Australia was assigning Timor to Indonesia without the consent of Timor and against Timor’s own self-interest:

The second part of our policy flows from our commitment to self-determination. This stems from the Government’s general philosophy-in the United Nations and elsewhere-but also from an assessment that to decide the future of Portuguese Timor against the will of its inhabitants might well lead to instability and trouble later on. Moreover, some Australians, with the example of Irian Jaya in mind, would be very sensitive to any appearance that decisions on Portuguese Timor’s future were being taken without proper consultations with the people there.

(Draft Submission, December 5, 1975).

Aside from more general (although still very significant) concerns about how Timor would affect Australia’s relationship with Indonesia, the delineation of the seabed boundary — and consequently the division of control over the Timor Sea’s petroleum — was Australia’s sole policy interest in Timor itself. An example of this is shown in a 1974 memo concerning how to word a policy statement on the Timor situation. Australian officials wanted to minimize any perceived interest in Timor, but felt that they could not credibly deny having any interest in Timor. The following proposal was suggested:

Australia naturally has important particular interests in Portuguese Timor (for example, in oil exploration in the delineation of the continental shelf) but we have no ambition to achieve a special position there.

The euphemistic amendment of the “in oil exploration” to “in the delineation of the continental shelf” was accompanied by a note making it clear that the Timor Sea gas and oil fields — which Australia’s access to would be determined by any seabed delineation — was in fact Australia’s predominant concern in the island:

Timor was of little intrinsic interest to Australia. Our commercial and trade interests are minor. Our only substantial interest in bilateral relations is in delineation of the continental shelf. Our special interests stern from the problem of P[ortuguese] Timor as a factor in our relations with Indonesia.

(Minute, September 20, 1974).

The May 3, 1974 planning paper, supra, further discussed Australia’s interests in the Timor Sea oil resources, but that portion has been redacted and is not available for public review. The note concerning the redaction acknowledges, however, that Australia’s concern was with the sovereignty over gas and oil fields in the Timor Sea, and how Australia’s commercial activities in Timor were in conflict with UN resolutions on self-determination by Portuguese colonies:

Sections omitted [with the May 3, 1974 Paper] deal with Australia’s limited commercial and aviation interests in Portuguese Timor and possible oil concessions in as yet undelineated areas of the Timor Sea. In 1973 UN resolutions called on governments to discourage participation in commercial enterprises contributing to Portugal’s domination of its colonial territories or detrimental to the interests of their inhabitants. While it could be argued that Australian commercial activities were incompatible with support for those resolutions, the lack of ‘significant political agitation’ or Indonesian interest in the territory meant that its status was unlikely to become an issue at the UN in the short term.

In the end, Australia tacitly acquiesced to the Indonesian annexation, believing that the Timor Sea could be delineated in a way most favorable to Australia if Timor were under Indonesian control:

We are all aware of the Australian defence interest in the Portuguese Timor situation but I wonder whether the Department has ascertained the interest of the Minister or the Department of Minerals and Energy in the Timor situation. It would seem to me that this Department might well have an interest in closing the present gap in the agreed sea border and that this could be much more readily negotiated with Indonesia by closing the present gap than with Portugal or independent Portuguese Timor.

I know I am recommending a pragmatic rather than a principled stand but this is what national interest and foreign policy is all about, as even those countries with ideological bases for their foreign policies, like China and the Soviet Union, have acknowledged.

(Letter from Richard Woolcott, Australian ambassador to Indonesia, August 17, 1975).

It’s not that Australia was unmoved by the humanitarian concerns caused by Indonesia’s invasion; Australian officials acknowledged that the Timorese people had been deprived of their right to self-determination, and expressed concern about that result. Ultimately, however, Australia decided on a path of acquiescence to the Indonesian annexation, and in January 1976, shortly after Indonesia had moved into Timor, Australia’s Indonesian ambassador acknowledged that Australian’s long-term national interest was best served by a “Kissingerian” approach to the Timor situation:

On the Timor issue…we face one of those broad foreign-policy decisions which face most countries at one time or another. The Government is confronted by a choice between a moral stance, based on condemnation of Indonesia for the invasion of East Timor and on the assertion of the inalienable right of the people of East Timor to the right of self-determination, on the one hand, and a pragmatic and realistic acceptance of the longer-term inevitabilities of the situation on the other hand.

It is a choice between what might be described as Wilsonian idealism or Kissingerian realism. The former is more proper and principled but the longer-term national interest may well be served by the latter. We do not think we can have it both ways.

(Letter from Woolcott, January 5, 1976).

Although Australia chose to take what it saw as the path of realism, rather than idealism, it is unclear if Australia’s long-term national interests were ultimately served by that decision. It’s possible that Woolcott got it backwards; the ‘realist’ response may have instead served Australia’s short-term interests, at the expense of longer-term advantages. With the benefit of hindsight, it is abundantly clear, at least, that an Indonesian Timor did not result in political stability. While it saved Australia from bearing the expenses and entanglements of supporting a newly independent neighbor in 1975, that outcome was only delayed, not avoided.

And the choices Australia made prior to the Indonesian annexation have resulted in significant prejudice to Australia’s current position in the Timor Sea. Over the next 22 years, between 1976 and 2002, there would be three very important developments that would radically change the legal and political landscape (seascape…?) of Timorese maritime boundary delineation:

• First, international law of the sea would go through a period of extensive development and codification. One very significant change in this body of law would be the entry into force of the UN Convention on the Law of the Sea, in 1994. In general, these legal developments were not favorable to Australia’s claims to sovereignty over much of the Timor Sea. Although the precise boundary between Australia and Timor-Leste remains undelineated to this day, if determined according to the provisions of UNCLOS and modern international practices of apportionment along median lines, Australia’s jurisdiction would not include much of the petroleum in the Timor Sea that Australia had intended to develop.

• Second, Timor-Leste would eventually obtain independence after all, following a 1999 referendum. Because Timor-Leste did not consider itself bound by the unfavorable territorial treaties that had been negotiated by Indonesia on its behalf, Australia and the newly formed nation of Timor-Leste would need to re-negotiate how governmental control over the Timor Sea would be divided between them.

• And, third, Australian companies would go on to invest approximately $250 million in the Greater Sunrise gas fields, in anticipation of being able to exploit the natural gas reserves found there, the total amount of which is valued in the billions. As a result of this significant outlay, the corporations that made up the Greater Sunrise joint venture agreement would have an intense interest in preserving Australia’s bureaucratic control over the gas fields, as well as in preserving favorable tax rates and ensuring the existence of a stable legal regime that would create a more favorable climate for further investment.

From Australia’s perspective, these developments have not been in harmony with one another. Australia now faces significant (and well-funded) internal pressures from domestic corporations who have a strong interest in Australia maintaining control over the Timor Sea, and yet Australia’s claims to sovereignty over this territory have grown increasingly inapposite to international law.

And, once again, Australia’s response to this conflict has been to pursue a strategy that, while nominally “realist,” runs a real risk of coming at the expense of its longer-term political, economic, and legal interests.

-Susan

In 1976, the Australian ambassador to Indonesia wrote that, in deciding whether to support the right of the Timorese people to self-determination or to instead accede to Indonesia’s annexation, Australia faced a choice between “Wilsonian idealism” and “Kissengerian realism.” For reasons having a lot to do with petroleum, Australia decided to go with what it saw as the latter option.

Today, the Timor Sea dispute remains unresolved, and it is clear that Australia still has not decided to go with the “Wilsonian idealism” option. But if Australia thinks that its strategy has instead been one of “Kissengerian realism,” then it is sadly flattering itself. Australia’s strategy isn’t “realist” – it’s petty bullying motivated by a very narrow political economy concern.

The short-term results for Australia have been somewhat favorable, if mixed, but there is reason to doubt that this strategy will ultimately be in Australia’s long-term interests. Thus far, Australia has now spent over forty years pursuing a sovereignty claim that was long ago discarded by international law, and, so far, its reach has continually exceeded its grasp.

I. Australia Overplays its Hand with Indonesia

In the early 1970s, Australia was fighting a losing battle under international law. The law of the sea had begun to coalesce around the concept of the Exclusive Economic Zone (EEZ), which would grant states a right to exploit the natural resources that were within 200 nautical miles of its shores. Australia — which happens to enjoy extremely long, sloping continental shelves off of its coasts — was attempting to also obtain recognition for its claim to the resources within the “natural prolongation” of its continental shelf, even where this prolongation extended beyond its 200 mile EEZ.

But the rest of the world wasn’t buying it. Australia did its best to advocate for its continental shelf claims, but itwas well aware that international law was trending against it.

In 1971 and 1972 however, Australia was able to enter into seabed boundary treaties with Indonesia that largely reflected Australia’s “natural prolongation” position. By general consensus, Australia succeeding in taking “Indonesia to the cleaners” in reaching these agreements, as the resulting treaties were drawn much closer to Indonesia’s shores than to Australia’s, and adhered to a dying position under international law. Indonesia’s acceptance of these borders can be explained by political factors, more so than legal ones, as it was clear even in 1972 that the natural prolongation principle was becoming rapidly becoming disfavored under international law.

The treaties with Indonesia did not establish the maritime boundary between Australia and Portuguese Timor, however, which resulted in the infamous “Timor gap.” Portugal insisted that any maritime boundary between Timor and Australia be drawn along a more equitable division, on a median line that was equidistant between the shores, as provided by not-yet customary international law. The dispute became even more acute in 1974, Portuguese Timor leased out mining rights in the Timor Sea to a U.S. corporation, for a portion of the seabed expanse lying on Timor’s side of the equidistant line. Australia protested, as it had already leased out that territory itself, to what was then Woodside-Burmah Oil. Although Australia knew its claims to the seabed were disputed, Australia had made assurances to Woodside-Burmah, and to other corporations with leases in the Timor Sea, that the Australian government would defend its claims to that territory should there ever be any international conflict as to Australia’s title. 

So Australia made the deliberate choice not to enter into any conclusive agreements with Portugal concerning its maritime boundaries with what is now Timor-Leste. Rather than accept an equitable seabed division, Australia gambled on a chance to acquire a much more extensive portion of the Timor Sea, by standing by and awaiting a more amenable government to come into power in Timor-Leste.

Describing what Australia did as “standing by” is something of an understatement, in truth. Australia’s involvement in the annexation was not entirely passive acceptance. In the months prior to the invasion, Indonesia had not made East Timor a priority, and, if anything, Indonesia indicated a great deal of ambivalence towards its role in the island’s future. Afterwards, once the invasion had taken place, Indonesia repeatedly expressed its belief that Australia “green lighted” the takeover of Timor —  a claim which Australia would describe as simply a unfortunate misunderstanding on Indonesia’s part. It’s not difficult to see where Indonesia got the impression from. There was an undeniable “nudge nudge, wink wink” quality to the Australian Prime Minister’s pre-invasion statements to Indonesia, such as his announcement that “an independent Timor would be an unviable state and a potential threat to the area.” (Two years later, the Indonesian Foreign Minister would deny that Australia told Indonesia to go ahead with the invasion – instead, Australia merely told Indonesia that it accepted the invasion was inevitable, so Indonesia “should do it as quickly as possible.”)

Australia had imagined that, once Indonesia was in control, Australia would be able to easily secure a boundary agreement that drew a straight boundary line across the East Timor maritime area, between the very favorable Indonesian-Australian maritime boundaries to the east and west of East Timor:

The blue line shows the Indo-Australian maritime boundary, as established in the parties’ 1971 and 1972 treaties. The green line shows the median boundary line between Australia and the island of Timor.

But in the end, the Indonesian annexation of East Timor did not work out as Australia had anticipated. As it turned out,  although Indonesia had previously so accommodating with its seabed boundaries, by 1977 it was no longer quite so keen on accepting maritime treaties that disproportionately favored Australia’s interests over its own. Indonesia resisted Australia’s attempts to secure an inequitable seabed delimitation, and it was not until 1991, a full fifteen years after Indonesia’s invasion of East Timor, that the Timor Gap Treaty came into effect between Indonesia and Australia.

And then, a mere eight years later, Timor-Leste gained independence after all, and all of Australia’s hard work in securing the Timor Gap Treaty was wiped away. The treaty was so blatantly indefensible that Timor-Leste had little difficulty in convincing the world that Timor-Leste, as the successor state, would not be bound by its terms.

II. Australia Overplays Its Hand with Timor-Leste

After Timor-Leste came into existence, Australia was forced to renegotiate the division of the Timor Sea, in order to secure its access to the seabed resources on Timor-Leste’s side of the median line. Going into treaty negotiations, Australia had every advantage over Timor-Leste in terms of size, power, infrastructure, capital, and statecraft experience, but Timor-Leste had at least one thing in its favor. While Timor-Leste was weaker than Australia on every other conceivable measure, Timor-Leste had the stronger claim under international law.

Australia responded the same way every powerful nation does, when it finds itself on the wrong side of international law in a dispute with a weaker nation: it did everything it could to remove international law from the equation. After years of negotiations – during which Australia’s negotiation strategies included economic blackmail and espionage, and likely bribery as well – Australia eventually succeeded in inducing Timor-Leste to enter into to a series of treaties that eliminated any possible recourse to international law to resolve the parties’ conflicting territorial claims. (*1)

And this strategy made sense. States are encouraged to negotiate with one another to resolve disputes regarding the delimitation of their respective EEZs or continental shelves, and there’s nothing wrong with Australia’s hardline position in negotiating over the Timor Sea’s petroleum. (Well, nothing wrong with it aside from the whole espionage part, anyway.) UNCLOS provides that the agreements over the division of the seabed boundaries should be reached “on the basis of international law,” but that doesn’t mean that any resulting treaty has to divide the territory in the manner that international law would dictate. States are free to reach treaty terms that, while based on international law, deviate extensively from how the ICJ might have accomplished the territorial division, had the task been given to the ICJ instead.

But in the case of the Timor Sea Treaty, and the International Unitisation Agreement for Greater Sunrise, and the Certain Maritime Arrangements in the Timor Sea Treaty, it looks as if Australia may have grossly overplayed its hand. These treaties were not simply the result of Australia driving a hard bargain over a disputed point of international law – they were the result of a decades-long strategy of coercive bargaining aimed at securing sovereignty over territory to which it had no defensible legal claim.

And the end result? Australia’s great prize has been an expensive, unproductive, and uncertain stalemate. It has been fifteen years since Australia first began to negotiate with Timor-Leste’s emergent government over the division of the Timor Sea, and the Greater Sunrise gas fields are no closer to completion today than they were on the day that Timor-Leste voted for independence. The corporations that hold mining rights in the disputed seabed territories do not have any more legal certainty today than they had forty years ago, before Indonesia’s annexation of East Timor.

Australia is also now facing proceedings in both the International Court of Justice and the Permanent Court of Arbitration, as a result of its dubious activities in pursuing these strategies. There is also a non-zero risk that Australia’s treaties with Timor-Leste will ultimately be annulled for its bad faith negotiations, and Timor-Leste may eventually even succeed in kicking out the existing consortiums and attracting investment from other corners of the world.

But even if Australia ultimately succeeds in keeping control of the seabed territory and manages to siphon off its percentage of the petroleum revenues, it will have come at the cost of decades of uncertainty and wasted expense. If Australia wins now, will its Timor Sea strategy still have provided a net financial benefit to Australia, as compared with what Australia might have obtained under a less extreme strategy? Possibly – only Australia has the numbers to evaluate that. But if nothing else, its profit margin is getting smaller with every year that passes.

III. The Long-Term Interests Served by Australia’s Timor Sea Policy

The Timor Sea maritime delimitation remains unresolved today because Australia has insisted, at every opportunity, that any division of the Timor Sea must be based too much on the relative strength of its political and economic power, and too little on the relative weakness of its legal position.

But the potential benefits to Australia in taking this position just aren’t grand enough to justify the headache it has caused. This was never a situation where Australia risked walking away empty-handed, and any deal that Australia struck with Timor-Leste was always going to wind up with Australia getting a bigger piece of the pie than it was strictly entitled to under international law. But, by attempting to achieve a treaty arrangement that so disproportionately favors Australia over Timor-Leste, and which goes so far beyond what might have been expected based on the parties’ initial bargaining positions, Australia ensured that any victory it did obtain would necessarily be inconclusive.

International law obviously presents a big disadvantage to Australia in its claims to the seabed on Timor-Leste’s side of the median line. But Australia has given insufficient credit to the benefits that come with complying with an international legal regime. Even when international law does not favor a state’s interests in a particular dispute, it still provides one very significant advantage to all parties: the stability and relative legal certainty that comes from an agreement backed by international law. Legal resolutions have their weaknesses, true, but they are much less subject to future challenges on the basis of changes in political or economic circumstances. This is in direct contrast to agreements and concessions that are based on comparative force and economic machinations, which are not likely to outlive any changes to the underlying conditions that gave rise to those agreements or concessions in the first place. Australia’s policy in Timor has always been based on the political conditions du jour, and so, despite its far stronger political position, Australia has never been able to enjoy any certainty in its position in the Timor Sea.

In 1974, if instead Australia had accepted Portugal’s offer to establish a seabed boundary along the median line, then there is every reason to believe that the dispute could well have been conclusively resolved then and there, never to be revisited again. But that didn’t happen. Australia decided to take its chances with Indonesia instead, and Australia lost that gamble.

And then in 1999, if Australia had realized that claiming the lion’s share of the petroleum in the Timor Sea was no longer a viable strategy, and had, for example, been more willing to give up tax revenues in exchange for control of the commercial infrastructure, then it is likely we’d already have production from Greater Sunrise. But instead of trying something different when Timor-Leste gained independence, Australia decided to try the exact same strategy once again, and once again, it’s not working. Sure, this time around Australia did give a slightly larger cut of the profits to Timor-Leste than it had been willing to give to Indonesia, but that’s hardly a concession when the legal field has completely turned against you in the intervening period.

Hindsight suggests that Australia’s better course might have been to secure a treaty that, while still disproportionately favorable to Australia, was not quite as grossly disproportionate as the ones it ultimately obtained. If Australia had taken a more moderate path, and if the Timor Sea Treaty had been slightly more equitable the first time around, then perhaps it would have become a settled part of the legal landscape, avoiding any need to later negotiate the IUA or CMATS, or to engage in the present Hague arbitration and ICJ case brought by Timor-Leste.

But as it stands, the resulting treaties are so peculiarly at odds with customary international law that Timor-Leste doesn’t have much to lose by continuing its collateral attacks to the treaties’ validity. And whether or not Timor-Leste ultimately succeeds, Australia can’t wind the clock back – Australia has already caused the Greater Sunrise fields to remain untapped for 40 years since their discovery.

This is not to say that Australia’s Timor Sea strategy has been wholly self-defeating. There have been some significant advantages that Australia has been able to secure for itself, and which it would have lost had it acquiesced to international law at an earlier date. One major upshot for Australia has been the chance to deplete the Laminaria-Corallina gas fields while the legal dispute was unsettled, allowing Australia to retain 100% of the bureaucratic control and tax revenues, while Timor-Leste got 0%. Australia also succeeded in maintaining the lion’s share of the bureaucratic control over Bayu-Undan, along with the rest of the petroleum in the JPDA. And, as a bonus, Australia even gets to keep 10% of the profits from the JPDA, too — when international law would have given it 0%.

But Laminaria-Corallina was always a sideshow in terms of total energy resources in the Timor Sea, and, while the JPDA arrangement is exceedingly favorable to Australia, in comparison to its actual legal position, Australia still viewed even that as a concession to Timor-Leste. But this deal was only a ‘concession’ if viewed in reference to the prior sovereignty claims that Australia championed (but international law ultimately rejected) in 1975, and which are no longer supportable under international law.

Perhaps the most important prize for Australia, however, has been preserving Australian corporations’ favored status as leaseholders for mining rights in the Timor Sea. If Portugal’s median delimitation had prevailed in 1974, then the Bayu-Undan gas fields (and all the rest of the resources in the JPDA) would have gone to Oceanic, and other corporations that were granted leases to those mining rights while Timor was still under Portuguese control. Through Indonesia’s annexation of East Timor in 1975, however, all the leases issued by Portugal were effectively annulled. Since then, those same core consortium of companies have been able to maintain their rights to the seabed that Australia originally granted in the 1960s and 1970s. Australia’s treaties with Timor-Leste have all contained special provisions ensuring the continuity of Woodside’s and ConocoPhillips’ existing leases, and, before that, Australia’s treaties during the time of Indonesian Timor all came with sweetheart deals for corporations that held pre-1975 mining rights

So Australia has gained some important outcomes through its Timor Sea strategy. But, has all of that been worth the costs?

Billions of dollars in petroleum is a lot of petroleum, and the oil and gas fields in the Timor Sea are a significant prize. But Timor-Leste is still only one very small country, and the Timor Sea is only one very small sea. (And besides – if it is truly is the tax revenues that Australia is most concerned about losing, then surely it could try and make some of that up by shaving off some of the tax concessions that it has granted to the petroleum consortiums?)

No matter what Australia wins in the Timor Sea, Australia has another foreign policy concern that is much bigger than Timor-Leste could ever be: China.

Because China, too, has made expansive claims to maritime territories, despite the lack of a plausible basis for these claims under international law. And China, like Australia, is also able to assert these territorial claims due to its vastly greater strength and power, relative to its maritime neighbors. And China, like Australia, has pursued a strategy of eliminating any opportunity for its territorial claims to be challenged before an international tribunal.

But Australia’s claims in the Timor Sea are chump change, compared to China’s claims in the Nine-Dashed Line. That is a true example of a realist strategy; Australia’s pandering to energy companies doesn’t hold a candle to China, when it comes to “Kissengerian realism.”

And while Australia’s dispute with Timor-Leste carries no risk of escalation, China’s claims in the South and East China Seas pose a serious security threat to everyone in the Pacific. Whatever financial benefit Australia ends up obtaining from its claims in Timor-Leste’s half of the Timor Sea, would it be enough to offset the cost of any disruption, should China decides to back its own maritime claims up with force?

Australia, by itself, can’t stop China’s expansionism, of course. But by maintaining its current policy toward Timor-Leste, Australia has forfeited its ability advocate for the legal resolution of China’s unlawful territorial claims. And, more generally, Australia also undermines whatever institutional force that international law might have to help peacefully resolve disputes over maritime territories.

Given those potential costs, is Australia correct in believing its Timor Sea strategy to be a shrewdly realist foreign policy, which serves Australia’s long-term national interests by providing a possible opportunity to increase its annual tax revenue by .3%? (*2) Or is it a short-sighted economic policy that provides a minimal financial benefit at the cost of harming Australia’s broader foreign policy interests?

-Susan

Google Earth is an amazing thing, and it’s hard to understand what’s truly going on in the Timor Sea simply by looking at pictures, so I’ve created a Google Earth collection that shows the coordinates provided in the major treaties affecting the region: the 1972 Indonesian-Australian Seabed Boundary Agreement [PDF], the 1981 Provisional Fisheries Surveillance and Enforcement Arrangement [PDF], the 1989 Timor Gap Treaty, the 1997 Water Column Boundary Agreement, the 2002 Timor Sea Treaty, and the 2006 Sunrise IUA/CMATS.

The Google Earth collection for the Maritime Boundaries in the Timor Sea can be downloaded here.

if you display all of the treaties at once, it kind of looks like a rainbow threw up in the Timor Sea

If you’re interested in figuring out how all these treaties work together, it is probably more useful to just go ahead and play around with it on Google Earth, but I’ve provided a visual summary below using screencaps from the collection.

I. The Indonesian-Australian Seabed Boundary Agreement (1972)

In the beginning, there was the gap:

1972 Seabed Boundary, with coordinates

Australia and Indonesia entered into the 1972 seabed boundary treaty, which established a maritime boundary that was significantly north of the median line between Indonesia and Australia. The boundary in front of Portuguese-controlled Timor remains unfixed.

In 1975, Portuguese exited the scene, and Indonesia promptly invaded. Indonesia and Australia try, and fail, to enter into an agreement establishing the maritime boundary between Australia and Indonesian Timor.

II. The PFSEL (1981)

In 1981, Indonesia and Australia still had not entered into any permanent treaty arrangements over their maritime boundaries, but they did succeed in reaching a Memorandum of Understanding concerning the Provisional Fisheries Surveillance and Enforcement Arrangement. This MOU did not establish any agreement as to the seabed resources, but provided a working arrangement for other maritime concerns in the region by establishing the Provisional Fisheries Surveillance and Enforcement Line (PFSEL). The PFSEL was drawn roughly along the median between the coasts of Timor and Australia, and this line would later be largely replicated as the water column boundary in the 1997 Treaty between the Australia and Indonesia, establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries

1972 seabed boundary (red) and 1981 PFSEL (white)

III. The Timor Gap Treaty (1989)

In 1989, Australia and Indonesia entered into the Timor Gap Treaty, which came into effect in 1991. The TGT, if taken in a generous light, could be described as a “creative compromise.” It was ultimately reached by simply setting aside the question of maritime boundaries, and instead establishing three ‘zones of cooperation’ in which Australia and Indonesia could jointly produce the petroleum found in the disputed Timor Sea region. Tax revenues from Zone A were split between Australia and Indonesia 50%/50%; in Zone B, Australia paid Indonesia 10% of the tax revenues it collected; and in Zone C, Indonesia paid Australia 10% of the tax revenues it collected.

The three ‘Zones of Cooperation’ established by the Timor Gap Treaty (1989)

The coffin-shaped design of the Zone of Cooperation Whole (“Zone”) was a deliberate choice made by Indonesia and Australia, and it does not directly reflect maritime boundaries that would be suggested by international law. Essentially, the parties agreed that the widest part of the Zone would be placed where the “Timor gap” lay, in between the opening left by the 1972 seabed boundary line, and the Zone would then become narrower both to the north and south of the Timor gap.

Northern and Southern Boundaries of the Zone

The northern and southern boundaries of the Zone have a relatively objective basis for their placement. The northern boundary of the Zone is drawn along the deepest point of the Timor Trough, and represents the full extent of Australia’s claim to the Timor Sea under its “natural prolongation” principle. Australia’s maritime claims are based on its belief that it has sovereign rights to the entirety of its continental shelf — which in its view, extends to the lowest point along the seafloor between two adjacent states:

Eastern boundary of the Zone of cooperation, with elevation profile showing Timor Trough/Northern boundary of Zone

In contrast to the northern boundary, the southern boundary of the Zone is drawn along a line 200 nautical miles off the coast of the island of Timor. This represents the fullest possible extent of a state’s claim to an EEZ under UNCLOS. When the sea between two adjacent states is less than 400nm (as is the case in the Timor Sea), both states are unable to have a full 200-mile EEZ, and instead the EEZ is typically drawn along a median line. However, when negotiating the Timor Gap Treaty, the parties’ compromise in setting the Zones of Cooperation is that it would reflect both Indonesia and Australia’s maximum possible maritime territorial claims.

Southern boundary of the Zone is 200 nautical miles off from Timor’s coast

Internal Zone Boundaries

The division between Zone A and Zone B is drawn along the median between Australia and Timor. This boundary is close — but not identical — to the median line established in the Provisional Fisheries Surveillance and Enforcement Arrangement, along the PFSEL. (Side note: the 1997 water column agreement between Australia and Indonesia establishes a median line that is identical to the PFSEL for every point outside of the Timor Gap. Inside the Timor Gap, the points of the 1997 boundary correlate to the points of the Timor Gap Treaty, but with coordinates that run slightly to the north of the TGT’s points.)

Close-up of the western leg of the boundary between Zone B (south, green) and Zone A (north, blue), showing the coordinates from PFSEL (black dot, purple text) and the 1997 Water Column treaty establishing the median boundary (white),  as well as the identical coordinates of the Timor Gap Treaty (1989) and Timor Sea Treaty (2002)  (overlapping, depicted  in green in screen cap).

The division between Zone C and Zone A lies somewhat close to the original 1972 seabed boundary, but the angle of the division does not all match the angle of the 1972 division. Instead, it appears as if Zone C was demarcated on the basis of seabed features, as it appears to track a ridge on the southern side of the Timor Trough, where the “canyon” levels off somewhat (marked with red arrow on map, elevation data shown on bottom), which leads to the northern and southern boundaries of Zone C being somewhat parallel:

Southern plateau of Timor Trough, marking southern boundary of Zone C

Western Lateral Boundaries of Zones A and B

The lateral boundaries of the Zone (marking the width of the Zone as it runs east-west) are more arbitrarily drawn than the longitudinal boundaries. The western lateral boundary of the Zone is particularly odd, as it is in fact two different boundaries. Unlike the eastern boundaries for Zones A and B (which are roughly identical) the western boundaries for Zones A and B show a marked and unexplained divergence. It appears that the western boundary of Zone A (in royal Blue) was established by a line drawn from the mouth of the Kamanasa River through the point of A17, which then terminates where it meets the median boundary between Australia and Indonesia (in white), to intersect at the point marked by point B(e). The western boundary of Zone B (in cyan), although roughly similar, runs at a different angle from Zone A’s boundary. Zone B’s boundary appears to have been established by drawing a line from the mouth of the Tafara River through point B(e), which then terminates where it meets the 200 nautical mile line of Timor’s EEZ (the southern border of Zone A), to intersect at the point marked by B(d):

Eastern and Western lateral boundaries of Zone of Cooperation, extended to shore of Timor
(The points marking A(c) and A(n) are not pictured, because their coordinates are the same as points A16 and A17 from the 1972 Seabed Treaty. Note that A16 and A17 are the bookends to the “Timor gap”.)

The logic behind the placement of the Zone’s western boundary is not immediately apparent. It is often said that the western boundary is a “simplified” equidistant line that divides the territorial seas between Portuguese Timor and Indonesia, but there is reason to question this assumption. First, the western lines simply don’t appear to be an equidistant boundary, as it is claimed; it may perhaps be a “simplified” line of equidistance, but if so, it’s an unintuitive approximation of that. Second, the boundaries of the Zones are unerringly straight; they draw direct line into the coasts, and not angled in a manner that would suggest they are following an organic boundary division. And, third, based on the historical context, it makes little sense for the lateral boundaries of the Zone to have been drawn along a line of equidistance. In 1989, there was only a single sovereign on the island of Timor, and that was Indonesia. The purpose of the Timor Gap Treaty was to resolve the division of an undelimited maritime boundary between a sovereign that held the entirety of the north and a sovereign that held the entirety of the south; there was absolutely no need to calculate the boundary of two adjacent sovereigns on the northern side, or to have the division of the Zone reflect that. The Zone was plainly a compromise, as shown by its Trough-marked northern border and 200nm southern border, and there is no reason to assume that the western and eastern border were not also based on pragmatic considerations — as opposed to reflecting the sovereign territory of the state of Timor-Leste, which no longer existed.

And from the maps, it does very much appear that the western boundaries had been drawn in reference to geographic features on Timor. Both the Zone A and Zone B western boundaries line up directly with river mouths on Timor’s shore:

Extension of western boundary of Zone B (green) and Zone A (blue) to Timor shore

If the Zone established by the Timor Gap Treaty were the result of compromise and pragmatically drawn boundaries (which, from all the evidence, appears to have been the case) then it makes more sense that the western boundary was not intended to represent the then-nonexistent Timor-Leste’s territorial waters, but instead was chosen on the basis of other concerns. Yes, using the Tafara and Kamanasa Rivers to establish the western boundaries for the Timor Gap Treaty would be somewhat arbitrary, as these two rivers are not themselves significant boundary markers, but that further suggests that the boundary had little or nothing to do with Timor-Leste. The mouth of the Massin river, called the Mota Talas, is a far more significant geographical marker. The Massin River, which is the river immediately to the west of Tafara and Kamanasa, is the is the boundary between Timor-Leste and Indonesia today. If the Zones of Cooperation had truly been drawn to delineate the territorial sea of what was Portuguese Timor, then you would expect the western boundary of the Zone to lead directly to Mota Talas.

But it doesn’t. Below, Mota Talas has been marked with a black pushpin, and the boundary line from Mota Talas to point B(e) has been marked in black, showing what a boundary from Mota Talas would look like, compared to a boundary from either Kamanasa or Tafara:

Angle of hypothetical boundary drawn from the Timor-Leste/Indonesian border through the point marked B(e) from Timor Gap Treaty (in black)

Close-up of the theee rivers where western lateral boundaries converge on shore of Timor

So why draw the western boundary from Tafara or Kamanasa instead of Mota Talas? Admittedly, this distinction doesn’t make a huge difference in terms of total sea area — using the boundary drawn from Tafara, marked by the cyan line, instead of the boundary drawn from Mota Talas, marked by the black line, would exclude approximately 131 square nautical miles from the shared territory of Zone A, leaving it exclusively in Australia’s possession.

Given this marginal difference in total area, even if the lateral boundary should have been drawn from Mota Talas, is Timor-Leste truly prejudiced today by having a territorial sea that is drawn from the Tafara or Kamanasa, instead of from Mota Talas?

Well, yes. One reason why Australia may have chosen not to use Mota Talas becomes immediately apparent once you turn on the markers for the Laminaria-Corallina gas fields:

Close-up of western boundary of Zone A, showing boundary line of Zone A (blue), boundary line of Zone B (green), and a hypothetical boundary line drawn from Mota Talas line (black). Note the convenient placement of Laminaria-Corallina wells, which would all have bee enclosed in the JPDA/Zone a had the boundary been drawn from the actual border of Timor-Leste and Indonesia. By drawing the line instead from two rivers farther along Timor-Leste’s coast, Australia can claim 100% of the tax revenues from  the Laminaria-Corallina fields.

It could be a coincidence. But you can understand my skepticism.

In any event, if the western lateral boundary of Timor’s EEZ and territorial sea were to be re-drawn today (and, if I were in charge of the world, the one that I would I draw),a more appropriate division might be provided by the proposed boundary depicted below, in yellow:

Alternative western lateral boundary between Australia, Indonesia, and Timor-Leste (yellow)

This boundary preserves the angle established by the Timor Gap Treaty (and the Timor Sea Treaty), which is not terribly far off from the angle of an equidistant line, but it shifts the maritime boundary’s starting point to its appropriate beginning at Mota Talas.

This proposed division also reflects the equidistant-influenced 1972 Seabed Boundary. Although the 1972 line was drawn to reflect Australia’s “natural prolongation” claim, the ultimate boundary was a compromise between a continental shelf division (which lies along the Timor Trough) and an equitable division based upon the shape of the Timorese and Australian coast line. The boundary line that runs between points A18 and A17 of the 1972 treaty partially reflect the straightening of Timor’s coast, as it turns to run more directly east — and this straightening in the coast begins just before the border of Indonesia and Timor-Leste. This would also suggest that a more appropriate maritime boundary between Timor-Leste and Indonesia would fall somewhere west of A17 and east of A18, instead of on A17 itself.

Eastern Lateral Boundaries of Zones A and B

The eastern lateral boundaries of Zones A and B are nearly aligned, with angles that have only the barest degree of difference. The boundary has been established along a line that starts in the middle of the island of Leti (at mile 4 of an 8-mile island), and then moves southwest until it meets the 200nm boundary south of Zone B. Its angle is somewhat arbitrary, though; instead of drawing the eastern boundary through A16, as might be expected, the line intersects the 1972 boundary between A16 and A15. In some respects, it could have been drawn to represent a “simplified” line of equidistance. But, once again, as with the western boundary, there is only an approximate resemblance to the hypothetical equidistant line, and it has a more pronounced convergence away from Timor than would be expected, if the boundary were based on a territorial division between Indonesia and Timor-Leste. And, also like the western boundary, there is no reason to expect that, in 1989, Indonesia and Australia would have established the eastern boundary of their Zone of Cooperation so as to reflect the appropriate territorial division between Australia, Indonesia, and a nonexistent third state.

The eastern boundary may also have been established simply to mirror the angle of the western boundary, and provide for a more symmetrical Zone. Whatever the reason, the eastern boundary goes from Leti Island on a westerly angle to where it intersects the median line, at the point marked by A(m) (which is now point M from the Timor Sea Treaty), before finally terminating at the 200nm line, at the point marked by B(b).

But the angle created by starting the boundary at Leti is unequitable and arbitrary when applied to a territorial division between three sovereigns. When the eastern boundary was created, that wasn’t an issue, since all of the islands were Indonesian; Leti served as a convenient geographical base to use as a reference point in plugging up the Timor Gap, and the boundary did not need to take into account the competing claims of a sovereign state across the channel from Leti. A more equitable line might be something approximately along the boundary line shown below, in yellow. This boundary represents an equidistant division beginning at the median of Leti and Jaco, but which angles back towards the west to represent the effect of Indonesia’s straight baselines. The territory covered by the Sunrise IUA has also been shaded in, in orange, for reference:

Alternative eastern lateral boundary between Australia, Indonesia, and Timor-Leste (yellow)

Once again, the result of this change is small, but significant. Timor-Leste’s territory would encompass an approximately 70% of the Sunrise-Troubadour field region, as opposed to the 20% that falls within the JPDA today.

Eastern and Western Lateral Boundaries of Zone C

The lateral boundaries for Zone C (which converge closer towards Timor) are almost entirely arbitrary: they were established by taking the northern-most point on the Australian coast that lies to the east of the Timor gap (Melville Island) and the northern-most point that lies to the west of the gap (Long Reef) and then drawing a line from those geographical features through points A16 and A17, respectively. Those lines then terminate where they intersects with the Timor Trough (northern boundary of Zone C).

The western and eastern lateral boundaries of Zone C are shown below, with extensions drawn to the northernmost points of Long Reef and Melville, for reference:

Lateral boundaries of Zone C, drawn from Melville Island through A16 to the Timor Trough (eastern), and from Long Reef through A17 to the Timor Trough (western)

Timor Gap, All Lateral Lines

Finally, by extending the lateral boundaries of Zone B south, to where they meet the Australian coast, and north, to where they meet the coast of Timor, you can see the truly inequitable shape created by the Zones of Cooperation (and, subsequently, by the JPDA):

IV. Timor Sea Treaty (2002) and the Joint Petroleum Development Area 

Following Timor-Leste’s independence, Timor-Leste and Australia negotiated the Timor Sea Treaty. The TST essentially preserved Zone A of the TGT, shown below in royal blue, and provided for a division of control and tax revenue from petroleum production in that area. Following the TST, the status of the areas to the east and west of the JPDA that lie between the red and white lines remained uncertain.

V. The Sunrise IUA and CMATS (2006)

Following the boundary lines established by the TST, approximately 80% of the resource-rich gas fields known as Greater Sunrise remained in no-man’s land. Although the 20% of Greater Sunrise that lies within the JPDA would be governed by the TST (with revenues split 90%/10% in Timor-Leste’s favor) the other 80% of Greater Sunrise was unaccounted for by the TST. Under the Certain Maritime Arrangements in the Timor Sea treaty, which put it into place the earlier (but unratified) Sunrise IUA, a Greater Sunrise area was established, shaded in orange below, which provided for Timor-Leste and Australia to split the revenues from production within the area 50%/50%.

VI. The Lowe Opinion

The Lowe Opinion (2002) is a paper that was prepared at the behest of an energy company that had previously been divested from any opportunity of developing the oil and gas fields in the Timor Sea. Following Timor-Leste’s independence, corporations who were not among the select consortium that had an enshrined right in the Australian-issued leases (i.e., everyone other than Woodside and its JV buddies) had a financial stake in encouraging Timor-Leste to take a more aggressive stance in negotiations with Australia regarding the delimitation of the seabed boundary.

The Lowe Opinion was intended to encourage Timor-Leste to do just that, and, in order to show Timor-Leste the full extent of what was potentially on the bargaining table, it proposed an alternate plan for establishing the maritime boundaries between Timor-Leste and Australia that was tilted in Timor-Leste’s favor. It did so primarily by drawing the southern/northern boundary along the median boundary (in white), and then re-drawing the lateral boundaries in an, err, aggressively equitable fashion, so that Timor-Leste had more maritime territory to the east and west of the JPDA. The proposed lines from the Opinion are shown below in neon pink:

The proposed maritime boundaries of the Lowe Opinion

The eastern lateral boundary shows two hypothetical lines — one is a median line drawn equidistant between Timor and Leti’s coasts, while the line farther east is drawn so as to give only a partial effect to the Leti Islands, owing to their smaller size.

The Lowe Opinion does correctly point out that points A17 and A16 from the 1972 Indonesian-Australian Seabed Boundary are arbitrary points that reflect what was convenient to the drafters of the Timor Gap Treaty, rather than reflecting what international law would provide for. Although the Opinion’s western lateral boundary is overly generous, and just as arbitrary as the JPDA’s current western boundary, it does represent a good faith claim Timor-Leste could have asserted when going into negotiations with Australia. (And it is certainly far more reasonable, and far more in good faith, than Australia’s own starting position was.) The eastern lateral boundaries proposed in the Lowe Opinion range from fairly reasonable to, at the most extreme, a fairly unreasonable discounting of Indonesia’s own territorial seas. The effect the Lowe Opinion’s proposed eastern lateral boundaries would have, if adopted, would be to place all, or substantially all, of Greater Sunrise within the EEZ of Timor-Leste.

-Susan

In its recently released decision in Al Shimari v. CACI International (4th Cir. 2014), the Fourth Circuit followed a recent trend that has emerged in alien tort statute (“ATS”) cases, post-Kiobel. Like other courts grappling with questions of subject matter jurisdiction under the ATS, the Fourth Circuit purported to apply the presumption against extraterritoriality (“PAE”) in assessing whether it had jurisdiction over the plaintiff’s ATS claims. Also like other courts, however, the Fourth Circuit’s invocation of the PAE was pretense; it instead applied an entirely different doctrine which has, at best, only a passing connection to the PAE, or at least the PAE as it existed pre-Kiobel.

The plaintiffs in Al Shimari are four Iraqi citizens who allege that CACI, a U.S. government contractor providing “interrogation services” to the Department of the Interior, violated international law by torturing and mistreating prisoners at Abu Ghraib. Following the Supreme Court’s decision in Kiobel, however, the district court dismissed their claims under the alien tort statute (“ATS”), concluding that, under Kiobel’s newly issued guidance, there was no subject matter jurisdiction to hear the case, as the alleged torts all took place extraterritorially in Iraq. The plaintiffs appealed.

Constrained by Kiobel’s dictates, the Fourth Circuit analyzed its jurisdiction to hear the suit by applying what it described it called the PAE. After reviewing CACI’s “ties to the territory of the United States,” the court concluded that the plaintiffs’ ATS claims “touch[ed] and concern[ed] the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.”

But the judicial doctrine that the Fourth Circuit applied was the PAE in name only. The analysis it performed was a lengthy balancing test, and, absent a single, perfunctory reference to congressional intent in enacting the TVPA, contains nothing that could be described as statutory construction (slip op., at 31).

This is hard to reconcile with the court’s claim that it was applying the PAE. The PAE is a longstanding canon of construction, with a well-developed pedigree, in which courts presume that a stature regulates domestic conduct unless otherwise specified. In Kiobel, however, the Supreme Court announced that, in interpreting the jurisdictional scope of the ATS, the PAE required the Court to construe the statute in a manner that precluded jurisdiction over a foreign plaintiff’s claim against a foreign defendant for foreign conduct. The First Congress had not intended for the ATS to regulate non-domestic conduct (or so SCOTUS claimed – as I’ve discussed in prior posts, this claim is not necessarily support by history), and, as a result, when a plaintiff brings a case in which “all the relevant conduct took place outside of the United States,” the ATS does not provide the federal courts with jurisdiction to hear it.

The true crux of Kiobel, however, is not its specific holding, but rather the Court’s deliberately ambiguous bit of dicta, in which it noted that “even where [a plaintiff’s] claims touch and concern the territory of the United States,” in order for there to be jurisdiction under the ATS the claims “must do so with sufficient force to displace the presumption against extraterritorial application.”

What “touch and concern” actually means is anyone’s guess. That include the Court itself – Kiobel was a unanimous opinion, but of the nine justices who adopted Roberts’ majority, were a minimum of four different (and contradictory) opinions on what the phrase was intended to signify.^fn1

But the lower courts, left with the unenviable task of trying to apply this cipher, have largely done so by simply discarding Kiobel’s purported concern with territory, and replacing it instead with a concern for state responsibility for internationally wrongful acts. In effect, recent ATS cases have been reading Kiobel to say, “[E]ven where [an ATS claim] touch[es] and concern[s] the [international responsibility] of the United States, [it] must do so with sufficient force” to render the case justiciable in a U.S. court.

This re-written version of Kiobel was applied by the Fourth Circuit in Al Shimari to conclude that when a plaintiff sues a U.S. government contractor, alleging that the government contractor committed acts of torture in a foreign territory, the plaintiff’s claim is not extraterritorial at all. To explain this incongruous result, the Fourth Circuit found that the PAE contains the additional caveat — previously overlooked by all other courts — which provides that the PAE should only be applied when doing so serves the policies that the PAE was intended to promote:

[W]e observe that mechanically applying the presumption to bar these ATS claims would not advance the purposes of the presumption. A basic premise of the presumption against extraterritorial application is that United States courts must be wary of ‘international discord’ resulting from ‘unintended clashes between our laws and those of other nations.’

But that’s not how the PAE works. The PAE does not say “a U.S. statute can apply extraterritoriality so long as it doesn’t cause the discord with other states.” It is not a case-by-case balancing test.

Or at least it wasn’t prior to Kiobel. The PAE, as it was understood for the bulk of the 20th century, is used in interpreting how a statute applies to all cases, without consideration for the particularized facts of any individual suit. Although the PAE exists, in part, as a prophylaxis against international discord, its underlying policy considerations are not incorporated into its operation: a statute reaches extraterritorial conduct based on whether congress affirmatively indicated an intent for it to do so, without regard to whether the statute does or does not pose a risk of international discord. As the Supreme Court held in Morrison v. National Australia Bank, Ltd. (2009), the PAE “applies regardless of whether there is a risk of conflict between the American statute and a foreign law.”

The PAE is used to establish a statute’s geographical area of effect. Once this determination is made, the statute’s territorial boundaries are fixed; they do not flex and bend to accommodate the unique policy interests raised by an individual lawsuit. If a person commits in an act within that territorial boundary, the statute applies. If that same person commits an identical act in a different location, outside that territorial boundary, then the statute does not.

But this isn’t what the recent ATS cases have done. Post-Kiobel, the ATS’s geographical scope could not be drawn on a map, because it is given a new delimitation for every case. Just look at Al Shimari – there, the Fourth Circuit concluded that the ATS’s jurisdiction extends to torture committed in Iraq because of the following factors:

[P]laintiffs’ ATS claims “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application based on: (1) CACI’s status as a United States corporation; (2) the United States citizenship of CACI’s employees, upon whose conduct the ATS claims are based; (3) the facts in the record showing that CACI’s contract to perform interrogation services in Iraq was issued in the United States by the United States Department of the Interior, and that the contract required CACI’s employees to obtain security clearances from the United States Department of Defense; (4) the allegations that CACI’s managers in the United States gave tacit approval to the acts of torture committed by CACI employees at the Abu Ghraib prison, attempted to “cover up” the misconduct, and “implicitly, if not expressly, encouraged” it; and (5) the expressed intent of Congress, through enactment of the TVPA and 18 U.S.C. § 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad.

But only one of these factors – the allegation that CACI’s U.S.-based management tacitly approved of the conduct – is concerned with territorial location in any meaningful way. And that factor provides exceedingly weak support to the Fourth Circuit’s conclusion that ATS jurisdiction does extend to the plaintiffs’ claims in Al Shimari. Under the traditional PAE, as it was understood pre-Kiobel, extraterritorial conduct is not transformed into territorial conduct on the basis of corporate activity in the United States that supported or planned the foreign acts. For instance, in EEOC v. Aramco (1991), the Supreme Court invoked the PAE to conclude that Title VII does not extend to a U.S. corporation that recruited a U.S. citizen through recruitment efforts that occurred in the U.S., when the U.S. citizen is employed to work abroad and is fired abroad. And in Morrison, the plaintiffs “contended that they seek no more than domestic appli­cation [of the securities statute], since Florida is where [the defendant] and its senior executives engaged in the deceptive conduct of manipulating [its] financial models.” But the fact that U.S.-based corporate management planned the foreign conduct was not sufficient to escape the Court’s application of the PAE to the security statute, because the critical factor “is not upon the place where the [planning of the tortious conduct] originated, but upon [where the tortious conduct occurred].”

So if the courts aren’t applying the PAE, what are they applying?

This new doctrine, the PAE-for-ATS, is a PAE in name only. Its closest doctrinal kin are not canons of construction, which are concerned with statutory interpretation, but avoidance doctrines, which are concerned with justiciability. And as used by the lower courts so far, the PAE-for-ATS has had nothing to do with interpreting the text of the ATS, and everything to do with allowing the federal court system to avoid cases which are not appropriate for it to decide. The PAE-for-ATS therefore bears a much closer relationship with the political question doctrine (“PQD”) than it does to the PAE as it was known prior to Kiobel.

The PQD, like the PAE-for-ATS, is a case-specific balancing test which categorizes cases as justiciable or non-justiciable based on the existence of another governmental body’s competing and superior interest in the case’s subject matter. In applying the PQD to cases involving military operations (such as in Al Shimari, which, in addition to finding jurisdiction under the ATS, also remanded the case to the district court to further develop the PQD issue), the courts do so by “gaug[ing] the degree to which national defense interests may be implicated in a judicial assessment” of a claim, and then decline to adjudicate those cases which are fundamentally political, not legal. Taylor v. Kellogg Brown & Root Services (4th Cir. 2011). Through use of the PQD, would-be plaintiffs in cases concerning national defense are thereby deprived of the ability to “reshape the national response to threats of hostile [ ] attack through the mechanism of tort law.” Tiffany v. United States (4th Cir. 1991). The PQD recognizes that “some questions beyond judicial competence. Where the performance of a ‘duty’ is left to the discretion and good judgment of an executive officer [or the legislative branch], the judiciary will not compel the exercise of his discretion one way or the other, for to do so would be to take over the office.” Baker v. Carr (1962).

The PAE-for-ATS operates in the same way, except that where the PQD’s concern is with decisions that have been exclusively committed to a separate branch of the federal government, the PAE-for-ATS’s concern is with decisions that have been exclusively committed under international law to a non-domestic entity. And since the U.S. has no business in adjudicating a foreign sovereign’s responsibility to an alien arising from a breach of the foreign sovereign’s international obligations, the PAE-for-ATS quite appropriately excluded the federal courts from deciding the plaintiffs’ claims in Kiobel. U.S. courts should not be deciding questions which, under international law, they lack the adjudicative jurisdiction to consider.

But a state has every right (and often, in fact, an obligation) to evaluate its responsibility for a breach of its own international obligations. And that dovetails perfectly with the reason the ATS was enacted in the first place: to ensure that the federal government had the ability to redress injuries of foreign nationals that were caused by a breach of the U.S.’s responsibilities under international law. And a state also has every right to evaluate a foreign actor’s violations of its international obligations to the adjudicating state – such as in the case of pirates, who violate the rights of all nations.

Thus, lower courts have been implicitly concluding that, under the PAE-for-ATS, cases are sorted as justiciable or nonjusticiable based on whether they “touch and concern” the international rights or responsibilities of the United States with “sufficient force” to support U.S. adjudicative jurisdiction. The court have found, for instance, that they can properly hear an ATS claim brought against a U.S. citizen who assisted, managed, and advised a foreign nation’s violations of international law (Sexual Minorities Uganda v. Lively (D. Mass. 2013)); a claim brought against U.S. citizens and a U.S. organization who organized and funded terrorist bombings in Sri Lanka (Krishanti v. Rajaratnam (D.N.J. 2014)); a claim brought by foreign nationals injured in a foreign terrorist attack against a U.S. embassy in a foreign state (Mwani v. Laden (D.D.C. 2013)); or a claim against a U.S. company and citizen that created technology used by China “to identify and torture dissidents” (Daobin v. Cisco (D. Md. 2014) (assumied without deciding)).^fn1

On the other hand, the courts have found that a case involving a U.S. corporation whose foreign subsidiaries aid-and-abet a foreign state’s breaches of international law, by doing business in that state, is not a case which should be heard in a U.S. court, or at least not in the absence of some additional set of facts that might create a compelling link implicating U.S. responsibility (Balintulo v. Daimler (2d Cir. 2013)). Nor should federal courts be adjudicating a claim brought by a Bangladeshi plaintiff against a Bangladeshi business and citizen for torture occurring in Bangladesh also does not implicate U.S. responsibility (Chowdhury v. Worldtel (2d Cit. 2014)); a claim brought by Chinese citizens and residents against a Chinese media executive who promoted the torture of Falun Gong practioners in China (Gang v. Zhizhen (D. Conn. 2013)); a claim brought by Indian citizens against an Indian political party for organizing acts of genocide, rape, torture, summary execution, and extrajudicial killing, all of which took place in India (Sikhs For Justice Inc. V. Indian National Congress Party (S.D.N.Y. 2014)); a claim of extrajudicial killing and torture brought by relatives of an Iranian citizen against the Islamic Republic of Iran and the Revolutionary Guard (Mohammadi v. Islamic Republic of Iran (D.D.C. 2013)); or a claim brought by a former Ukrainian prime minister against a Swiss corporation that allegedly bribed Ukrainian officials to have her “prosecuted on unfounded, politically-motivated criminal charges,” as revenge against the prime minister for enactment of a policy that caused the corporation commercial harm (Tymoshenko v. Firtash (11th Cir. 2014)).

Two things stand out from these cases. First, it is simply not possible to predict whether a court will find jurisdiction in an ATS case by looking at the GPS coordinate of the jail cell where alleged acts of torture occurred. But it does appear to be possible to predict whether a court will find jurisdiction based on whether or not the claim is based on a breach of the United States’ obligations or rights under international law.

Second, although there are only a limited number of post-Kiobel cases so far, they are already difficult to reconcile with one another, if understood as in the context of the PAE. For instance, when applying the PAE, it is very hard to square’s Balintulo finding that ATS jurisdiction did not extend to conduct by a U.S. corporation’s foreign act with Al Shimari’s finding that foreign torts are not extraterritorial where, inter alia, managers at the U.S.-based corporate headquarters “attempted to ‘cover up’ the misconduct”, or with Krishanti’s conclusion that jurisdiction exists against a corporation that raised funds in the U.S. to support a terrorist bombing in Sri Lanka.

These cases are consistent with one another, however, when considered under the newly created PAE-for-ATS, as the defendants in Krishanti and Al Shimari took actions which could implicate U.S. responsibility on the international plane, while the Balintulo defendants did not.

For now, the federal courts are bound by Kiobel’s pretense that it applied the PAE, and must continue to awkwardly retrofit a PAE analysis onto a decision based on international responsibility rather than territory. But if the Court were to announce that the ATS’s version of the PAE is not the same as the traditional version, what should the standards of this new doctrine look like?

The standards applied in PQD cases would be a good place to start. Under the PQD, there are six primary factors which courts consider in determining whether a case is nonjusticiable:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Because the PQD and PAE-for-ATS serve the same principles (but differ in that first doctrine addresses only an intra-governmental division of power, while the latter addresses both intra-governmental and inter-governmental divisions), these factors would work well for evaluating ATS cases. Under the PAE-for-ATS, courts would find that:

Prominent on the surface of any case held to involve a question of foreign international responsibility not involving U.S. interests, and therefore not appropriate for a U.S. court to adjudicate, are [1] an international norm committing the issue to a foreign sovereign or IGO; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without a foreign policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect to a foreign sovereign; or [5] a need for adherence to an international obligation of the United States which would prohibit the U.S. from adjudicating and enforcing a particular case; or [6] the potentiality of embarrassment from multifarious pronouncements by various branches of the U.S. government on one question.

Finally, in addition to an adapted version of the Baker factors, courts applying the PAE-for-ATS should also look at factors that support the case’s adjudication in a U.S. court. These factors are: (1) the need for adherence to an international obligation of the United States which would require (or strongly urge) the U.S. to adjudicate and enforce a particular case; (2) whether the plaintiff’s claims allege conduct by the defendants for which the U.S. could bear international responsibility; (3) whether the foreign sovereign(s) whose rights(s) are implicated by the suit have indicated their support for the adjudication of the suit by a U.S. court; (4) whether the executive branch has indicated that adjudicating the suit is consistent with the U.S.’s international obligations; or (5) the existence of an internationally wrongful act that violates the U.S.’s rights under international law, for which the U.S. is entitled to seek redress (such as in the case of pirates or terrorist acts against the U.S.).

-Susan

^fn1. Also left unanswered is why, in describing this new test, SCOTUS chose to adopt a phrase which was originally used as a test to evaluate covenants on the use of real property. I’m just waiting for a creative ATS defendant to argue that, by using the phrase “touch and concern,” the Court was subtly implying that ATS cases, like real covenants, can only be upheld if they are “so related to the [United States'] land as to enhance its value and confer a benefit upon it.”

^fn2. Although the issue has yet to be decided, post-Kiobel, I suspect that the courts would find that “harboring” cases — cases in which, like Filartiga and Samantar, a foreign official has moved to the U.S. after committing violations of international law in his home state — are also within the reach of the PAE-for-ATS. Offering sanctuary and immunity to a violator of international law could implicate the U.S.’s responsibility under international law, depending on the specific facts of a case. For instance, whether or not the deposed dictator’s home state opposed or supported the U.S.’s adjudication of the dispute would be very much relevant to the determination. And, if the PAE-for-ATS were officially recognized for what it is, the courts could easily take this factor into account, either through letters from the executive branch, or from the foreign state itself.

In a 2-1 decision issued last month, the Eleventh Circuit granted Chiquita’s motion to dismiss Cardona v. Chiquita Brands Int’l, Inc., a longstanding ATS case brought by four thousand Colombians alleging that, as part of its business operations in Colombia, Chiquita supervised and supplied a campaign of torture and murder conducted by Colombian terrorist organizations. In doing so, the Eleventh Circuit promptly broke the recent trend I sketched out in my previous post, by correctly applying the presumption against extraterritoriality to conclude that the ATS does not confer jurisdiction over “torture [that] occurred outside the territorial jurisdiction of the United States.”

The majority opinion also explicitly rejected the nascent “international rights and obligations” test that the Fourth Circuit applied in Al Shimari. Judge Martin’s dissenting opinion just as explicitly adopted that test, and would have found jurisdiction over Chiquita on the grounds that “the United States would fail to meet the expectations of the international community were we to allow U.S. citizens to travel to foreign shores and commit violations of the laws of nations with impunity.” But writing for the majority, Judge Sentelle (of the D.C. Circuit, sitting by designation) summarily dismissed Judge Martin’s argument as a statement of policy rather than an applicable principle of law, finding that “[e]ven assuming the correctness of the assumption that the present complaint states violations of the law of nations, the dissent’s observation is not relevant to our determination in this case.” In other words: the presumption against extraterritoriality has no relationship with the U.S.’s foreign policy interests in complying with international obligations.

Chiquita is therefore the first firm rejection of the specialized (and misnamed) version of the presumption against extraterritoriality (a.k.a, the PAE-for-ATS) that the lower courts have distilled from Kiobel’s intentionally ambiguous holding. Although the Second Circuit has previously declined to find jurisdiction in a post-Kiobel ATS case on similar grounds, that case, Balintulo v. Daimler, is unlike Chiquita in that the Second Circuit would have reached the same result regardless of whether it applied the PAE or the PAE-for-ATS. In Chiquita, by contrast, application of the PAE-for-ATS should have resulted in a finding of jurisdiction. But the Eleventh Circuit instead took the Supreme Court at its word, and applied the “traditional” PAE.

The allegations in Balintulo were largely premised on a theory of “aiding and abetting” liability arising from the defendants’ foreign investments in apartheid-era South Africa. The Balintulo plaintiffs alleged that the defendants had

committed both direct and secondary violations of the law of nations by engaging in workplace discrimination that mimicked and enhanced apartheid, suppressing union activities, manufacturing military vehicles for the South African security forces in the face of worker protests, and assisting security forces in identifying and torturing anti-apartheid leaders. . . . [B]y providing the computer hardware, software, maintenance, and support necessary for the South African Government to carry out geographic segregation and denationalization. [By] employment practices[ ] which furthered the geographic segregation of the races as well as economic marginalization of black South Africans. . . [B]y supplying vehicles, parts, and other equipment to the apartheid security forces. . . .[B]y providing the computer systems necessary to restrict black South Africans’ movements, track dissidents, and target particular individuals for repressive acts. . . [B]y providing financial support to the apartheid regime and the security forces through the purchase of bonds and the provision of loans, as well as by permitting directors to serve on an advisory board to the South African Defense Forces. . . [And b]y providing armaments and military equipment necessary to suppress dissent, control the population, and carry out extrajudicial killings.

In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 242-43 (S.D.N.Y. 2009).

Despite the fact these torts had occurred in South Africa, the plaintiffs argued that jurisdiction existed “because of the compelling American interests in supporting the struggle against apartheid in South Africa.” In its post-Kiobel decision, the Second Circuit rejected this “American interests” argument:

These case-specific policy arguments miss the mark. The canon against extraterritorial application is ‘a presumption about a statute’s meaning.’ Its ‘wisdom,’ the Supreme Court has explained, is that, ‘[r]ather than guess anew in each case, we apply the presumption in all cases, preserving a stable background against which Congress can legislate with predictable effects.’ For that reason, the presumption against extraterritoriality applies to the statute[.]. . . . Applying this approach in Kiobel, the Supreme Court held as a matter of statutory interpretation that the implicit authority to engage in common-law development under the ATS does not include the power to recognize causes of action based solely on conduct occurring within the territory of another sovereign.

Balintulo v. Daimler AG, 727 F.3d 174, 191-92 (2d Cir. 2013) (emphasis supplied in original) (quoting Morrison v. National Australia Bank, 561 U.S. 247 (2010)).

But while Balintulo rejected application of the PAE-for-ATS, finding instead in favor of applying the traditional PAE, the plaintiff’s claims in Balintulo would not have been cognizable in U.S. courts under either doctrine. The factual allegations in Balintulo did not implicate U.S. responsibility under international law to any significant degree, and certainly not in any way that could be analogized to the kinds of U.S. foreign responsibility under international law that would have been contemplated in 1789. Balintulo is almost entirely premised on the defendants’ passive investment in South Africa during that nation’s domestically initiated apartheid regime. The defendants did not directly implement violations of international law, advocate for violations of international law, or act for the specific purpose of causing those violations to occur. The conduct in that case was also overseen by South African subsidiaries, and not by U.S. corporate entities. The U.S. corporations were enablers, but not directors, of South Africa’s human rights violations.

Chiquita’s role in Colombia was not nearly so passive. The defendant was a single U.S. corporation that actively procured the services of a foreign terrorist organization as part of, and for the benefit of, its independently-run foreign business operations. And those services included breaches of international law.

And beyond the specific factual conduct involved, there existed other important differences between Chiquita and Balintulo that would result in the PAE-for-ATS conferring jurisdiction over the former, but not the latter. The most notable of which would be the starkly opposite positions of the United States government with respect to each case. In Balintulo, as noted by the Second Circuit in its 2013 decision, the U.S. Government had filed a statement of interest in which the executive branch specifically indicated its disapproval of the case being adjudicated by a U.S. court. (Although this statement was originally made in 2003, the U.S. government reaffirmed this position in 2010). In its statement of interest, the executive branch advised the court that it was

concerned that adjudication of the apartheid cases may deter foreign investment where it is most needed. The United States relies, in significant part, on economic ties and investment to encourage and promote change in the domestic policies of developing countries on issues relevant to U.S. interests, such as respect for human rights and reduction of poverty. However, the prospect of costly litigation and potential liability in U.S. courts for operating in a country whose government implements oppressive policies will discourage U.S. (and other foreign) corporations from investment in many areas of the developing world.

Thus, Balintulo did not pass the PAE-for-ATS, as it fails two of the test’s most important factors: the existence of an infringement of the U.S.’s international rights or obligations and the existence of governmental support from other branches of the U.S. government and relevant foreign sovereigns.

But Chiquita, unlike Balintulo, did not involve the conduct of a foreign sovereign, and adjudication of the case by a U.S. court would not have created the potential for conflict with another branch of the U.S. government. In fact, the executive branch had, only a few years previously, successfully brought a criminal action against Chiquita for precisely the same conduct that formed the basis of the Chiquita plaintiff’s civil suit. And, unlike the Balintulo defendants, who had knowledge that they were conducting business in a state that violated international law but did not directly benefit from those violations, Chiquita intentionally procured terroristic acts for its own commercial benefit, in order to ensure that Chiquita could “operate its banana production in an environment free of labor opposition and social disturbances.”

As the Eleventh Circuit correctly concluded, however, none of these factors are relevant to the question of whether the ATS confers jurisdiction over the Chiquita plaintiffs’ claims. Kiobel announced that it was applying the PAE, under which the ATS cannot confer jurisdiction over tortious conduct that occurs on foreign soil.

But while Chiquita is thus consistent with Kiobel, it is not consistent with early U.S. case law on jurisdiction over extraterritorial violations of international law.

In Talbot v. Jansen (1795), for instance, Justice Paterson concluded that:

The principle deducible from the law of nations, is plain; — you shall not make use of our neutral arm, to capture vessels of your enemies, but of our friends. If you do, and bring the captured vessels within our jurisdiction, restitution will be awarded. Both the powers, in the present instance, though enemies to each other, are friends of the United States; whose citizens ought to preserve a neutral attitude; and should not assist either party in their hostile operations. But if, as is agreed on all hands, Ballard first took possession of the Magdalena, and if he continued in possession, and brought her within the jurisdiction of the United States, which I take to be the case, then no question can arise with respect to the legality of restitution. It is an act of justice, resulting from the law of nations, to restore to the friendly power the possession of his vessel, which a citizen of the United States illegally obtained, and to place Joost Jansen, the master of the Magdalena, in his former state, from whence he had been removed by the improper interference, and hostile demeanor of Ballard.

In other words: if you commit, while abroad, a violation of the U.S.’s neutrality, and bring your financial windfall from that violation within the jurisdiction of a U.S. court, jurisdiction over the extraterritorial tort will lie within our courts. And, as Justice Iredell concluded,

[t]hat notwithstanding an apparent contrariety of opinions on this subject, it would be easy to shew, upon principle, if not by authority, that such hostility committed without public authority on the high seas, is not merely an offence against the nation of the individual committing the injury, but also against the law of nations, and, of course, cognizable in other countries: But that is not material in the present stage of the enquiry, which affects only the conduct of our own citizens in our own vessels, attacking and taking, under colour of a foreign commission, on the high seas, goods of our friends.

This is so palpable a violation of our own law (I mean the common law, of which the law of nations is a part, as it subsisted either before the act of Congress on the subject, or since that has provided a particular manner of enforcing it,) as well as of the law of nations generally; that I cannot entertain the slightest doubt, but that upon the case of the libel, prima facie, the District Court had jurisdiction.

What makes Talbot especially significant, for ATS purposes, is that it was an appeal from a district court decision which had invoked both admiralty and the ATS as the source of its jurisdiction to hear the dispute. As such, it is not a leap to suggest that, although the Supreme Court’s decision did not explicitly reference the ATS, its basis for invoking federal jurisdiction can be understood to apply equally to both the Court’s admiralty powers and the subject matter jurisdiction that Congress conferred on it through the ATS.

And the Supreme Court in Talbot specifically found that it had jurisdiction over the case because the case involved an infringement of the U.S.’s neutral rights — that is to say, it created the possibility that the U.S. would become liable to another sovereign (here, the Netherlands) for a breach of the U.S’s international obligations (here, its obligation, as a nation at amity with the Netherlands, to not interfere with its neutral merchants on the high seas). If a French privateer had been responsible for the capture, there would have been no jurisdiction in U.S. courts, because such an act could not have implicated U.S. obligations under international law. But a French privateer had used an American agent in making the capture — and so the capture was not a French prize at all, but a piratical act by a U.S. citizen. And because “the United States ha[s] a neutral character to maintain, and neutral duties to discharge. . . . [b]y respect for our own sovereignty, and by regard to the law of nations,” jurisdiction therefore exists in a U.S. district court to hear a claim by a Dutch citizen for an extraterritorial tort committed by a U.S. citizen operating in a joint venture with a French citizen. Jansen v. the Vrow Christina Magdalena (District of South Carolina, 1794) (finding jurisdiction under the clauses of the Judiciary Act which provide that “[t]he court shall have exclusive original cognizance in all civil causes of admiralty and maritime jurisdiction; and concurrent jurisdiction with the courts of the several states, or the circuit courts of the United States (as the case may be) where an alien sues for a tort only in violation of the law of nations, or a treaty of the United States”).

As noted in L’Invincible, 14 U.S. 238 (1816), this jurisdiction does not extend to every foreign tort for which the monetary spoils can be found in the United States. Where there is no violation of a U.S. right, the jurisdction does not extend:

Every violent dispossession of property on the ocean is prima facie a maritime tort; as such, it belongs to the admiralty jurisdiction. But sitting and judging, as such courts do, by the law of nations, the moment it is ascertained to be a seizure by a commissioned cruiser, made in the legitimate exercise of the rights of war, their progress is arrested, for this circumstance is in those courts a sufficient evidence of right.

But while international law provided that exclusive jurisdiction over a prize goes to the court’s of the prize’s captor, there was an important exception to this rule. A neutral court did have authority to inquire into its own jurisdiction over a prize, by investigating whether or not the U.S.’s own international rights and obligations were impacted by the capture:

That the mere fact of seizure as prize does not, of itself, oust the neutral admiralty court of its jurisdiction is evident from this fact, that there are acknowledged cases in which the courts of a neutral may interfere to divest possessions — to-wit, those in which her own right to stand neutral is invaded — and there is no case in which the court of a neutral may not claim the right of determining whether the capturing vessel be in fact the commissioned cruiser of a belligerent power. Without the exercise of jurisdiction thus far, in all cases, the power of the admiralty would be inadequate to afford protection from piratical capture.

L’Invincible (emphasis added).

Although normally the United States was obligated to not interfere in one sovereign’s capture of another sovereign’s ship, interference was not so proscribed when the United States’ neutral rights had been implicated.

In The Divina Pastora (1819), the Supreme Court concluded that U.S. jurisdiction over a tort in violation of international law was dependent upon whether the tort implicated the United States’ obligations or rights under international law. The case was brought by a Spanish Consul in Boston, seeking recovery of a Spanish ship from American “privateers” flying under an Argentinian flag. At that time, Spain was at war with its former colony, and, if an Argentinian ship had seized a Spanish vessel, then Argentina was entitled to a belligerent status, and only Argentinian courts could adjudicate the prize. But the Divina Pastora was not seized by an Argentinian privateer; she was seized by U.S. citizens, acting under color of law of the Argentinian sovereign. As a result,

[The Spanish Consul] contended that the district courts of the United States are courts of the law of nations, and that a general allegation of a marine tort, in violation of the law of nations, is sufficient, prima facie, to give them jurisdiction, where the captured property is brought within our territory. As a general allegation of prize is sufficient, so is a general allegation of an unlawful capture. It then becomes incumbent upon the captors to show, that the capture was made under a commission from a sovereign power in amity with the United States. A neutral tribunal has a right to inquire [w]hether the commission was regularly issued by a competent authority, in order to see whether the capture was piratical, or [whether the capture was] in the exercise of the lawful rights of war. The general rule, unquestionably, is, that the courts of the captor’s country have the exclusive cognisance of all seizures as prize: but to this rule there are exceptions, as ancient, and as firmly established as the rule itself. Among these is the case of a capture made by an armament fitted out or augmented within neutral territory. A capture thus made in violation of the neutral sovereignty, deprives the courts of the belligerent country of their exclusive jurisdiction, and confers it on the courts of the neutral state, who will exercise it by making restitution to the injured party. The acts of congress, and the Spanish treaty, prohibiting the equipment of armed vessels in our ports; and imposing the obligation to restore captures made by them, are merely accumulated upon the preexistent law of nations, which equally prohibited the one, as an injury to friendly powers, and enjoined the other, as a correspondent duty.

But even if this were not the law of nations, the treaty with Spain and the acts of congress make it the law of this court. “Every treaty,” says Sir W. Scott, “is a part of the private law of that state which enters into it.” This principle of public law is expressly recognised by our municipal constitution, in which treaties entered into by the United States, are declared to be a part of the supreme law of the land. [As] [t]he Spanish treaty and the acts of congress pronounc[e] the illegality of captures in violation of our neutrality, [then] the duty to restore the captured property to the original owner follows[] as a corollary. Supposing the allegations to be sufficiently pleaded, the proofs willfully authorize the court in decreeing restitution to the original Spanish owners in this case.

The Supreme Court sided with the Spanish consul, and concluded that U.S. jurisdiction over an extraterritorial breach of international law is entirely proper — even when it might cause a conflict with a foreign sovereign — where that breach of international law also raises a question of the U.S.’s international obligations:

Unless the neutral rights of the United States, as ascertained by the law of nations, the acts of congress, and treaties with foreign powers, are violated by the [defendants' marine torts], [any marine torts] by them are to be regarded by us as other [torts] are regarded; the legality of which cannot be determined in the courts of a neutral country. If, therefore, it appeared in this case, that the capture was made, under a regular commission from the government established at Buenos Ayres, by a vessel which had not committed any violation of our neutrality, the captured property must be restored to the possession of the captors. But if, on the other hand, it was shown, that the capture was made in violation of our neutral rights and duties, restitution would be decreed to the original owners.

As the Court went on to discuss in a lengthy footnote, the United States’ neutral rights could be impacted by a capture in a number of different fashions. The question of whether there had been territorial conduct — that is, whether the seizure had been made in U.S. territorial waters — was a relevant consideration, but it was far from the only consideration. It was but one basis for U.S. jurisdiction among many:

The capture of a vessel from a belligerent power, by a citizen of the United States, under a commission from another belligerent power . . . is an unlawful capture, and the courts of the United States will decree restitution to the original owner. . . . If the capture be made within the territorial limits of a neutral country, into which the prize is brought, or by a privateer which has been illegally equipped in such neutral country, the prize courts of such neutral country not only possess the power, but it is their duty, to restore the property so illegally captured to the owner. . . . All captures made by means of such equipments of vessels, or augmentation of their force, within the neutral territory, are illegal in respect to the neutral nation, and it is competent for its courts to punish the offenders,

In sum, as these early cases demonstrate, the jurisdiction of a U.S. court to hear a civil claim for violations of international law is not contingent on whether or not that violation had been extraterritorial. The fact that a violation had not been extraterritorial could, indeed, be one such basis for a federal court’s jurisdiction, but it was far from the only one. The violation of the U.S.’s neutral rights was an equally important consideration.

The Kiobel Court’s response to these early cases would likely be that there is a distinction between the high seas and a foreign territory, and that these cases only prove that the ATS should reach conduct that occurred in U.S. territory and the high seas. But Kiobel itself invented this distinction between “foreign territory” and “the high seas” — the PAE previously presumed that statutes are equally inapplicable to all areas that are not U.S. territory, whether the relevant conduct occurred within the territory of a foreign sovereign, the high seas, or terra nullius. See, e.g., Sale v. Haitian Centers Council, Inc. (1993); Smith v. United States (1993). Moreover, the ATS cannot be said to evidence a congressional intent that it apply to the high seas, in addition to U.S. territory. The ATS’s purpose could not have been to extend federal court jurisdiction to breaches of international law on the high seas, as that jurisdiction was already entirely accounted for under admiralty jurisdiction. If anything, ATS jurisdiction should be excluded from conduct occurring on the high seas.

Besides: even though cases like Talbot, L’Invincible, and The Divina Pastora involved conduct on the high seas, the cases themselves make it abundantly clear that this was not the deciding factor. In analyzing their own jurisdiction to hear a case, the federal courts showed, again and again, that the deciding factor was whether the tortious conduct “was made in violation of our neutral rights and duties,” Divina Pastora, as a result of “which [the United States'] own right to stand neutral is invaded.” L’Invincible. Where the U.S.’s international obligations were impacted by a violation of international law, the United States “ha[d] a right therefore to protect its own sovereignty from violation, and to punish the offenders; and, as far as is in its power, to restore the parties injured by the illegal act to the same situation, in which they were before it was committed.” L’Invincible (Circuit Court, D. Mass. 1814).

The Supreme Court’s early decisions, in the decades following the enactment of the ATS, are squarely in line with the Judge Martin’s dissent, which found jurisdiction to be sufficiently established where, in its absence, “[t]he United States would fail to meet the expectations of the international community.” Although her 18th century predecessors would have understood it to be a question of the U.S.’s sovereign right to protecting its own neutrality, rather than a question of the U.S. failing to meet some affirmative obligation, the ultimate sentiment is the same: where the U.S. international liability has been directly implicated, jurisdiction will lie.

-Susan

Like everyone else in the world, I’ve been listening to Serial. For those who haven’t listened in yet, Serial is a weekly podcast covering the murder of 18-year-old Hae Min Lee, who was killed on January 13, 1999. Her ex-boyfriend, Adnan Syed, was subsequently convicted of first-degree murder and kidnapping, and is currently serving a life sentence. (And if you haven’t listened to the podcast yet, turn back now and come back when you have. Otherwise, the minutiae of these cell phone records won’t be interesting in the slightest.)

The evidence against Adnan was complicated and deeply ambiguous. That’s unsurprising — after all, there’s a reason his case was chosen to be the subject Serial’s first season. But while there’s much we do not know about the the investigation into Hae’s murder and the state’s case against Adnan, based on what the show has covered so far, and what has been made publicly available about Adnan’s two trials, there are many reasons to be unsettled by his conviction. Even for those who think Adnan probably did plot and carry out the murder of his ex-girlfriend — and there are plenty who do — it is hard to say that there wasn’t room for some very reasonable doubts about his guilt.

Legally, there was sufficient evidence to support Adnan’s conviction; he’s not going to win any appeals there. An eye witness — Jay, Adnan’s weed dealer and casual friend — testified to his guilt. But while the jury always has the right to determine whether a witness is telling the truth, it does not appear that, in this case, there was any objective basis for crediting Jay’s testimony against Adnan (as discussed in further detail at Serial: Why Jay’s Testimony Is Not Credible Evidence of Adnan’s Guilt).

Other than Jay’s testimony, the only evidence that Adnan had any connection with Hae’s murder came from his cell phone records. As a result, understanding what those cell records show, and do not show, is a highly significant part of the case. Provided below is a summary of the data from each of the 31 calls made to or from Adnan’s cell phone that day — including the time, who the call was to, the duration, and the cell phone tower that the call was routed through — and a summary of how that data compares to the testimony and statements given by key witnesses in the case.

A note on the significance of the location data: It should be stressed that the tower data — that is, the record of the tower and antenna that a call was routed through — provides us with a probabilistic (and not determinative) location for where each call was made or received from. Moreover, the maps below use an oversimplified division of likely cell tower territories based purely on distances between towers, and does not take other factors into account. The fact that any particular call may have been routed through any particular tower and antenna does not mean that the call was actually made or received from within the territory immediately adjacent to that tower/antenna; calls can be routed through towers other than the one they are closest to for any number of reasons, and two calls made from the exact same location, within minutes of one another, could end up being routed through different towers. As a result, it should be assumed that some of the 31 calls made from Adnan’s phone that day were made or received from a tower other than the one the phone was closest to at the time of the call.

Taken in the aggregate, however, the tower data is very useful for assessing the likely path followed by whoever had the cell phone that day. Additionally, by comparing the tower data against both the witnesses’ known events of the day, and with the movement of the cell phone as shown from the calls that occurred before and after, we can make a good prediction as to the accuracy of the tower data for each call individually.

Call 1.
Time: 10:45 a.m., January 13, 1999
To: Jay
Duration: 0:28

Adnan Calls Jay to Ask if Jay Has Gotten a Present for Stephanie

Prosecution’s Story:

On the morning of January 13th, Adnan calls Jay from school, and then during his free period drives over to Jay’s house to pick him up. Adnan plans to kill Hae that afternoon, so he leave his car and cell phone with Jay, so that Jay can pick him up after the murder has been committed.

Adnan’s Story:

According to Adnan, he called Jay from school to make sure Jay remembered to get a birthday present for his girlfriend, Stephanie. Adnan and Stephanie are also close friends, and he did not want her to be upset if Jay forgot to get her something:

I kind of had a feeling that maybe he didn’t get her a gift. And I had free periods during school. So it was not abnormal for me to leave school to go do something and then come back. So I went to his house. And I asked him, did you happen to get a present for Stephanie? He said no. So I said, if you want to, you can drop me back off to school. You can borrow my car. And you can go to the mall and get her a gift or whatever. Then just come pick me up after track practice that day. (Episode 1.)

Jay’s Stories:

Jay says that, on the morning of January 13th, Adnan called him from school and then drove over to pick him up, and they go shopping together. In some of Jay’s statements, he claims that this was the first time he learned of the murder plan. In other statements, he claims he had learned of the plan the previous day. Although he sometimes also claims that parts of the murder were planned over the phone, Jay’s stories generally claim Adnan enlisted his help in carrying out Hae’s murder while the two of them were on a shopping trip together. However, he is inconsistent as to which shopping trip this was.

The Shopping Trip on January 12th: One of Jay’s stories involves Adnan and Jay discussing Hae’s murder during a shopping trip that occurred on January 12, 1999 — the day before Hae’s murder. Jay informs Jenn of Adnan’s plan to murder Hae, but she does not react to this news:

[I] went shopping with a friend of mine, an ex-friend of mine and ah, we ah, went to ah, ah, I just believe we went to Wal-Mart. . . . We had had a conversation. . . During the conversation he stated, um, that he was going to kill that bitch, referring to Hae Lee. . . .  Ah, I didn’t, I took it with contexts and stand out my inaudible. We went, he dropped, he returned me to my house ah, I paged [Jenn] um no I’m sorry. Yes I paged [Jenn], um, we went to the [ ] park. . . There I told her the conversation me and Adnan had had earlier that day. And her reaction was just about the same and then . . . Returned home about 10 o’clock, received
another call from Adnan. This time he had told me ah, that we’re gonna hook up tomorrow. And that was it for the 12th. (Jay’s Second Interview on March 15, 1999) (herein “Int.2″).

The Shopping Trip on January 13th: Jay’s other story involves a shopping trip that instead takes place on January 13th, before Hae’s murder. Adnan calls Jay from school (the 10:45 a.m. call), and then goes to pick Jay up at his house:

I believe [Adnan] called me first. Um, he probably showed up at about 11, a little after 11 , 11:30, 11, 11:30 (Int.2 at 5).

 

That morning [on January 13th] [Adnan] called me and we took …. we were going to the Mall. He asked me if I could do him a favor. . . [Adnan called my house] a little after ten, about ten forty-five, quarter to eleven. I woke …. that is when I woke up. I showered so it was about an hour before I left. Ah we left the house, on the way to the Mall he asked me if I could do him a favor. . . (Int.1 at 2.)

 

Jay also confirms, in response to a detective’s question, that Adnan “came to [Jay’s] house about quarter of twelve, [ ] about an hour [ ] after he called” (id.).

In his statements concerning the shopping trip on January 13, Jay’s stories about what mall he and Adnan went to are not consistent. He names two different locations:

[W]e headed toward Westview mall. Um, we did a little shopping together. (Jay’s First Interview on February 28, 1999) (herein “Int.1″).

We went to Security Square Mall. (Int.2.)

Call 2.
Time: 12:07 p.m.
To: Jenn Home
Duration: 0:21.

Jay Borrows Adnan’s Cell Phone and Car, and Drops Adnan Back Off at School

Explanatory Note: This call is likely a good example of the tower data not guaranteeing that a call was made/received from the area typically covered by the the tower/antenna it ends up being routed through. There is no reason for the 12:07 p.m. call to have been made in the shaded territory — it doesn’t fit any narratives, and no other calls are ever routed through L668. The most likely explanation is that the call was made within the territory typically covered by the tower directly to the west of L668, which is L651 – the Woodlawn tower.

Prosecution’s Story:

Jay and Adnan go shopping together for a little while at Security Square Mall (just south of Best Buy (“BBPL”). Adnan tells Jay of his plan to kill Hae.

Adnan’s Story:

Adnan says he did not go shopping with Jay, and went back to school at around 11:30 a.m. However, he let Jay borrow his car and cell phone,  so that Jay could go buy a birthday present for Stephanie, who is also a close friend of Adnan’s. He tells Jay he will call after track practice so that Jay can come pick him up.

Jay’s Story:

In his second interview, Jay tells the police that Adnan comes over and they go shopping for a birthday present for Stephanie. After a while, Jay says,

We left the mall. I took him to school. I dropped him off in the back of the school. He went up to class. He left his cell phone in the car with me, told me he’d call me. I went back to my friend Jenn’s house and waited for him to call. (Int.1 at 7.)

When asked what time he dropped Adnan back off at school, he says it was between 12:45 and 1:15 p.m. (id.).

At trial, Jay testified that:

On the way [back] to school, [Adnan] talked about his relationship with Hae, and said it was not going well. [Jay] testified that [Adnan] seemed hurt rather than angry. [Jay] then testified that [Adnan] said Hae made him mad and said, “I am going to kill that bitch.” [Adnan] told [Jay] he could drop [Adnan] off at school and take [Adnan’s] car as long as he picked [Adnan] up later. [Adnan] gave [Jay] [Adnan’s] cell phone so that he could call [Jay] when he was ready to be picked up.” (Appellant’s Brief at 7.)

Jenn’s Story:

Jenn says that on the morning of January 13th, she and Jay made plans to hang out:

From work I called Jay. I asked if he wanted to come to my house and hang out. He said “sure swing by and pick him up.” Um then he got back in touch with me to let me know not to come and get him that he would be at my house. Between . . . Twelve-thirty and one I got back to my house, between one and one-thirty Jay arrived at my house. (Jenn Int. at 1.).

What the Cell Phone Records Show:

This call indicates that Jay is not at Jenn’s house as of 12:07, as Jay would not have any reason to call “Jenn Home” if he were.  Since Jenn says she was at work and did not get home until 12:30 or 1 p.m., Jay could not have spoken to her when he called her home. This means that this call cannot be the call that Jenn mentions when she says that Jay “got back in touch with me”; it is unclear how Jay got in touch with her.

Call 3.
Time: 12:41 p.m.
To: Jenn Home
Duration: 01:29.
Jay Still Has the Cell phone, and is Not at Jenn’s House

Prosecution’s Story:

After Adnan and Jay go shopping, Jay drops Adnan back off at school, and then drives Adnan’s car to Jenn’s house where he hangs out while awaiting Adnan’s call.

Adnan’s Story:

Adnan is back at Woodlawn.

Jay’s Story:

Jay says that he dropped Adnan back off at school after class. In both his first and second statements to the police, the detectives make sure that Jay clarifies he dropped Adnan off in the rear of the building (Int.1 at 3, 5; Int.2 at 6).

In his first statement, Jay said that after dropping Adnan off, he immediately went to his friend’s Jenn’s house. Jenn was not home, so he started playing video games with Jenn’s 15-year-old brother, Mark. Then, “a little while [later] [Mark’s] sister [Jenn] came in the house,” at approximately 12:45 p.m. (Int.1 at 5).

In his second statement, Jay claims that he gets to Jenn’s house at around 12:30, and Jenn gets home “probably about 1:30″ (Int.2 at 8-9). He claims that after Jenn arrives at the house, they hang around all day, only leaving her house once:

Later that afternoon we had went out to her car. I think we had ran to the store, come back to get some soda or something like that. And we sitting in [Jenn’s] car and I told her that ah, I think that ah, Adnan was gonna kill Hae. (Int.2 at 9.)

At trial, Jay’s story changed somewhat (perhaps to account for the fairly obvious fact he did not spend the whole afternoon at Jenn’s house, as he claimed in his first two police statements). He testified that, after dropping Adnan off at school, he called his friend Jenn at 12:07 p.m., and then “went to her home and played video games with Jen’s brother Mark for about 30 minutes. Jen[n] was not home. [Jay] then left with Mark to go back to the mall. . . [H]e and Mark returned to Mark’s house and Jen[n] was there.” (Appellant’s Brief at 7-8.) Jay also does not testify, like he told the police in the second interview, that he informed Jenn of Adnan’s plan to kill Hae.

Additional note: to date, I have seen no explanation for why Jenn’s 15-year-old brother was at home playing video games at noon on a Wednesday.

Jenn’s Story:

In her statement to the police, Jenn claimed that she arrived at her home first, and Jay showed up about an hour later:

So want to say I got home probably between twelve-thirty and one and than I want to say that Jay got there probably between one and one-thirty, maybe as late a two, but I don’t want to… I don’t think it was that late. I think it was around one-thirty. So Jay gets there around one-thirty and we played video games, hang out. (Jenn’s Police Interview at 6) (herein “Jenn Int.”).

 

I remember Jay got to my house, he said he was wait… he sat the phone down on the coffee table and he said  “I’m waiting for a phone call.” I was like you know, “who’s going to call you, what’s” you know his cell phone… cell phone’s out whatever, like it’s just a cell phone… he was like “I’m suppose to get a call around three thirty” and I said “okay” and he said “that’s when I’m leaving, around three-thirty when I get the phone call.” (Jenn Int. at 9.)

Jenn says Jay later left her house sometime between 3:45 and 4:15 (Episode 4).

At trial, Jenn testified that on January 13, 1999, “[Jay] came over to her house in a tan car to hang out with her and her brother. [Jay] was acting different, not relaxed, and had a cell phone which was unusual. [Jay] said he was waiting for a call.” (Brief of Appellant at 12-13.)

What the Cell Phone Records Show:

The fact that Jay calls “Jenn Home” shows that Jay is not at Jenn’s house at 12:45 that day. Although this contradicts Jay’s first story to the police, in which he claims to have gotten to Jenn’s at around 12:30 p.m., by the time of Adnan’s trial his story has been changed to say that he did not get to Jenn’s house until around 1 p.m that day.

The timeline of when Jay and Jenn arrived at Jenn’s house is never resolved, however, as both Jay and Jenn claim to have been the first person to have arrived at Jenn’s house. Jay’s first story is that he arrived at 12:30 p.m. and Jenn arrived at 1:30 p.m.; Jenn’s story is that she arrived at 12:30 p.m., and Jay arrived at 1:30 p.m. At trial, Jay tells a completely new story to try and explain this fact: he claims that he went to Jenn’s house at around 1 p.m., but she was not home, so he and Jenn’s brother went to the mall to shop. When Jay and Jenn’s brother returned from shopping, Jenn was home.

Significantly, the tower data for the 12:41 p.m. call contradicts all known narratives of what was occurring during this time period. The call pings a tower fives mile to the east of Jenn’s house, close to downtown Baltimore, which makes its very unlikely that Jay was at Jenn’s house at 12:41 p.m., or even that he was near Woodlawn or Security Square Mall. There is no explanation for what Jay was doing downtown at this time.

Call 4.
Time: 12:43 p.m.
To: Incoming
Duration: 0:24.

 Jay Still Has the Cell phone, and is Not at Jenn’s House

Prosecution’s Story:

Same as Call 3.

Adnan’s Story:

Same as Call 3.

Jay’s Story:

In Jay’s first statement, Jay only mentions receiving or making one call before Hae’s death, and that is a call from Adnan to the cell phone at 3:40 p.m. to tell Jay to pick him up. Jay says he received this call while at Jenn’s house:

Detective: About three o’clock, so he . … you’re waiting around, he finally calls about three-forty?
Jay: Yes.

In Jay’s second statement, Jay says that he had left Jenn’s house and was driving somewhere else when Adnan called for a pickup. He says instead that he received three calls on the cell phone from Adnan while at Jenn’s house, but that none of these calls were requesting a pickup:

Detective: [H]ow many phone calls did you receive?
Jay: 3.
Detective: And what was the nature of the calls?
Jay: Um, one was ah, to check and see if the phone was on.
Detective: And who made that call?
Jay: Adnan. Um, the other, the other was ah, the other was, I was telling him that I was gonna be there. That’s where I was gonna be at, that was the 2nd one. And the 3rd one, I can’t, it was very short, I can’t remember what we conversated about. (Int.2 at 11.)

This indicates that the detectives have showed Jay the call records, and have asked Jay to explain each call on the list. The three incoming calls Jay is talking about must necessarily be the 12:43, 2:36, and 3:15 p.m. calls. At trial, the prosecution disregards this statement from Jay, and argues that the 2:36 p.m. call is Adnan’s “come-and-get-me-call” from Best Buy. At the time of Jay’s second interview, however, this theory had not been developed yet, and the detectives are still accepting Jay’s story that Adnan did not call for a pick up until about 3:40 p.m. So their questions assume these three calls were made while Jay was at Jenn’s.

This left the detectives with a problem. Since Adnan’s cell records show no incoming call at 3:40 p.m., how did Adnan call at 3:40 p.m. for a pickup? Simple — he must have called Jenn’s landline! So they ask Jay about that:

Detective: Had you gotten a phone call from him?
Jay: Yes on the cell phone.
Detective: While you were at Jenn’s house?
Jay: Not on the cell phone while I was at Jenn’s, he had called on a hard line, while I was at Jenn’s and then um.
Detective: Adnan had called on the cell phone?
Jay: Yes.
Detective: Inaudible.
Jay: I know, I’m sorry, Adnan had called on the hard line while I was at Jenn’s house. (Int.2 at 10.)

When asked to explain what he and Adnan discussed during the landline call, though, Jay gives an answer that does not help the detectives, because he doesn’t say it was the “come-and-get-me” call:

Jay: Um, [Adnan] had told me he was, he inaudible, he was gonna need me to pick him up at a certain time, that was 3:30. I waited until 3:30, he didn’t call, I left he house, ah with his car and cell phone. (Int.2 at 11.)

A little while later, the detectives ask Jay about the landline call again, suggesting that Adnan had given instructions to Jay, and asking Jay to describe those instructions. Instead, Jay just gives a new answer entirely:

Detective: And that [landline call] was giving you instructions or what was the phone conversation?
Jay: Ah, I’m leaving school. He told me he was leaving school then. (Int.2 at 11.)

Jay claims that the “come-and-get-me” call did not occur until a few minutes later, after leaving Jenn’s house:

Jay: I left Jenn’s house because [Adnan] didn’t call me at the time that he said he was. And at that time I was half way between my house and [redacted]’s house. And he told me to meet him at Best Buy. (Int.2 at 12.)

Jenn’s Story:

Jenn says that she and Jay spent the afternoon “at [her] house, talked, listened to the radio played video games, played with my dog” (Jenn Int. at 9.) While Jay was at her house, Jay received two phone calls:

Um I don’t want to say ….. I want to say that he wasn’t ….. they weren’t very long, they …. I think they were like inaudible and to the point like I don’t think they sat down like inaudible or whatever on the phone. I don’ t think… I mean I really don’t remember exactly but I. (Jenn Int. at 9).

What the Cell Phone Records Show:

The cell phone is almost certainly not at Jenn’s house, but is instead closer to downtown Baltimore.

Call 5.
Time: 2:36 p.m.
To: Incoming
Duration: 0:05.

The Prosecution’s “Come-and-Get-Me” Call

The Prosecution’s Story:

After Woodlawn let out at 2:15 p.m., Adnan caught a ride in Hae’s car, and then strangled her to death in the Best Parking Lot (“BBPL”). At 2:36 p.m., Adnan used a pay phone outside of Best Buy to call his cell phone (which Jay had), and Adnan told Jay to pick him up. (Note: For various reasons, the prosecution’s theory of the 2:36 call is not likely to be correct. It is not based on the testimony of any witness, and cannot be squared by known timelines, but it is the only call the prosecution can identify that might have come from Adnan. It is much more likely, however, that as of 2:36 p.m., Hae was still alive.)

Adnan’s Story:

After school let out, he probably would have gone to the library and checked his e-mail, while waiting for track practice to start, which either begins at 3:30 (Episode 1), (Appellant’s Brief at 5); or at 4:00 p.m. (Episode 5).

Jenn’s Story:

Jenn says that Jay was waiting for a phone call, and planned to leave her house when he received it. Jay received several calls while he was at her house, but that he did not leave her house until sometime between 3:45 and 4:15 p.m.:

[Jay] just said he was waiting for a call and it was going to come around three-thirty, three forty-five, um Jay got a call and then I don’t know what was said to him in conversation um than Jay got another call, got off the phone and then another call came in and I don’t know if it was the same person or who it was and I don’t know whether it was on my phone or whether it was on the cell phone that Jay had. Um then Jay left my house, probably around three-thirty, four, four-fifteen, well after three forty-five, between three forty-five and four-fifteen. (Jenn Int. at 1-2.)

Jay’s Story:

In Jay’s first interview, he says he spent the day at Jenn’s house waiting or Adnan to call. Adnan told Jay he would call at around 3 p.m., but he actually calls at around 3:40 p.m.:

Jay: I was sitting play waiting game, you know, he’s like “I’m going to call you, I need a ride.”
Detective: So you’ re playing this waiting game, waiting for him to give you a call?
Jay: Uh huh.
Detective: Does he call you at some point in time?
Jay: Yeah.
Detective: What time does he call you?
Jay: Um, time I remember talking to him, actually having a conversation with him, was about three-forty something.
Detective: Going back to when you dropped him off, does he give you a time that he’s going to call you?
Jay: He told me about three o’clock.
Detective: About three o’clock, so he . … you’ re waiting around, he finally calls about three- forty?
Jay: Yes. (Int.1 at 6.)

In Jay’s second interview, he gives the exact same time for the call:

Detective: Okay, um, at some point you left [Jenn’s house]?
Jay: Um-hum.
[. . .]
Detective: Do you have any idea what t ime that was?
Jay: About 3:40.
Detective: 3:40?
Jay: Yeah.
Detective: Was Jenn still there?
Jay: Yes. (Int.2 at 10.)

Jay is very consistent about Adnan calling to be picked up at 3:40 p.m.; however, we know from the cell phone records that his claim cannot be true.

What the Cell Phone Records Show:

The cell phone records show that, at 2:36 p.m., the cell phone was pinging through the Woodlawn tower. Because the phone records also show that Jay was not at Jenn’s house from 12pm to 3:40pm (as he and Jenn have claimed), that leaves us with the following: (1) Jay was in vicinity of Hae’s last-known location at the time that she went missing; and (2) Jay has no alibi for where he was during that time period.

Additional Note: Jay’s explanation for why he lied about where the trunk pop occurred is completely nonsensical — or, at least, it is if you assume that Jay isn’t lying about everything else. Jay’s answer only makes sense if, in fact, that is the only question that Jay has actually answered truthfully. He’s telling the truth about why he lied.

Because the reason Jay lied about where Hae was murdered was because he was worried there might have been cameras at that location. And if the police checked those cameras, they would see that it had been Jay, not Adnan, who was in the parking lot with Hae. Hence, in Jay’s first statement, he gave the police a made up location, far away from Best Buy. But by the time of Jay’s second interview, he had learned that Jenn had told the police about where Hae had been killed, and that there were in fact no cameras at that location.

Call 6.
Time: 3:15 p.m.
To: Incoming
Duration: 0:20.

Jay Is Near Woodlawn at the Time of Hae’s Disappearance

The Prosecution’s Story:

After receiving a call from Adnan at 2:36 p.m., Jay picks up Adnan from the Best Buy Parking Lot. Adnan then shows him Hae’s body in the trunk of her car. They leave the Best Buy, with Adnan driving Hae’s car and Jay driving Adnan’s car, and head to the I-70 Park’n’Ride (“I70PnR”), where Adnan ditches Hae’s car. Both Jay and Adnan get into Adnan’s car and drive away.

Adnan’s Story:

Adnan says he was still at Woodlawn or at the library, waiting for track practice to begin.

At trial, Inez Hendricks testified that that Adnan “was on the track team, and practice begins by 3:30 p.m.” (Brief of Appellant at 5).

Jay’s Stories (Five Versions):

In Jay’s first interview, Jay tells the police that he was at Jenn’s house from a little after noon until “Adnan called him about 3:45 p.m. saying ‘come pick me up.’” Jay explains that he went to pick Adnan up at a location 20 minutes away (marked above with an asterisk), “from off of Edmondson Avenue at a strip,” and that when Jay got there, Adnan “popped the trunk open,” revealing Hae’s body (Jay’s 2/28/99 Interview).

In Jay’s second interview, Jay says that when Adnan called Jay at 3:40 p.m., Adnan told him that “that bitch is dead. Come and get me. I’m at Best Buy.” In the same interview, Jay explains why he lied about where he saw the body the first time:

Detective MacGillivary: “Why did you lie about the location?”

Jay: “Uh, I figured there was cameras there or somebody had spotted him doing what he was doing.” (Id.)

In Jay’s third interview, on April 13, 1999, Jay “told police that [Adnan] killed Hae in Patapsco State Park, and that [Adnan] paid him to help” (Brief of Appellant at 11).

Jay’s fourth story, which he tells his friend Chris, is that he was at a pool hall in Catonsville when Adnan called. Adnan then drove to the pool hall in Hae’s car, and that is where the “trunk pop” occurs.

Jay’s fifth story, which he tells his friend Tayyib, is that:

Jay told Tayib that Adnan had called Jay the day before asking for his help in the murder. Jay said his reply to Adnan was that he would not help in the killing of Hae, but he would help Adnan bury the body. Jay further went on to tell Tayib that he met Adnan on the day of the incident at a gas station w[h]ere Adnan showed Jay the body. (Comment on Tayyib’s Statement.)

Jenn’s Story:

Jenn initially said that Jay was still at her house at the time of this call, because he was there until “well after three forty-five, between three forty-five and four-fifteen.” Accordingly, Jay would still have had Adnan’s phone at the time of this call. However, at trial, Jenn changes her story, and says instead that Jay left her house that day sometime between 3:00 and 3:30 p.m. (Brief of Appellant at 13).

What the Cell Phone Records Show:

Whoever has the cell phone appears to have been at or near Woodlawn. There is no evidence as to whom the 3:15 p.m. call was from.

Call 7.
Time: 3:21 p.m.
To: Jenn Home
Duration: 0:42.

Jay Is Still Near Woodlawn, Shortly After Hae’s Probable Time of Death

The Prosecution’s Story:

After ditching the car at the Park’n’Ride, “to hear Jay tell it, [he and Adnan] just kind of tool around Baltimore County together for a while as if nothing had happened— buy some weed, cruise around, make some calls. After a while, Jay drives Adnan back to Woodlawn High School.” (Episode 1.) While in Adnan’s car, with Adnan, Jay makes a call to Jenn to see if his weed dealer, Patrick, is at his home.

Adnan’s Story:

Adnan says he was still at Woodlawn or at the library, waiting for track practice to begin.

Jay’s Stories:

Jay claims he was at Jenn’s house until 3:40 p.m., which means he should still have been at Jenn’s house at the time of this call.

If you instead use the timeline offered by the prosecution at trial, which disregards Jay’s timeline and claims instead that Jay picked up Adnan from Best Buy shortly after 2:36 p.m., then the 3:21 p.m. call occurred sometime around when Adnan and Jay are at the Park’n’Ride.

In Jay’s first and second police statements, he makes no mention of any call to Jenn during the afternoon. Instead, Jay claims, in the ride-along with the police on March 18, 1999, that after ditching Hae’s car at the Park’n’Ride, he and Adnan wanted to find some weed. They then called Jay’s friend “Patrick”** to see if he could sell them any, but Patrick was not home, so Jay left a message on Patrick’s answering machine (Episode 5). (**Note: The transcript identifies the friend as “Pete,” but the call records identify him as “Patrick.” It is possible that this is a mistaken transcription, and that Jay said “Pat” during the statement, and it was misheard as “Pete.” I have been unable to confirm what Jay actually says, but for now I will assume “Patrick” and “Pete” are the same individual, and refer to him as Patrick.)

At trial, in order to explain this discrepancy, Jay testified that, after ditching Hae’s car at the Park’nRide, “he called Jenn [ ]  first, at 3:21 to find out if Patrick was home” (Episode 5). When Jenn did not know where Patrick was, he and Adnan then tried calling Patrick, before later giving up and driving to Forrest Park to buy weed from a corner salesman. Jay testified that this call to Jenn was made after he and Adnan had left the Park’n’Ride, and were driving south on Cooks Lane towards Patrick’s house (which is off of Edmondson):

Prosecutor: Do you remember making [the 3:21 p.m.] call?
Jay: I believe so, to ask her if he was on or if he was home, one of the two, meaning if he had marijuana.
Prosecutor: Whose number was line 26 again?
Jay: Jay: That’s Jenn Pusateri’s.
Prosecutor: Oh.
Jay: Jay: I was calling her, hey is “P” on, do you know if “P” is on again, do you know if he is home?
Prosecutor: This was after you had dropped off the car at the Park and Ride?
Jay: Jay: Yes.

Whatever version of the story you go by, Jay’s story has two big problems here. First, the Patrick call doesn’t happen until 3:59 p.m., a full 40 minutes after Jay made the 3:21 p.m. call to Jenn. And second, the call records show that the call was made while in the area close to Best Buy — not the Park’n’Ride, and not on the way to Patrick’s house. Jay is lying about where this call was made, and almost certainly the why as well.

Jenn’s Story:

Jenn testified that Jay would not have called her to find out where Patrick was, because “[t]hats just not a thing that would have happened” (Episode 5). This contradicts Jay’s story.

It is unclear whether, at trial, Jenn denies ever receiving a call from Jay at 3:21 p.m., or if she only denies that it was to ask about Patrick.

What the Cell Phone Records Show:

Jay cannot be at Jenn’s home, as he and Jenn repeatedly told the police and testified at trial. The cell phone records show that the phone was near Woodlawn for the entire time of Hae’s probable abduction and/or murder, and that the phone was being used to call “Jenn Home” during this same time period. As Adnan has no reason to call Jenn, it is virtually certain that the call was made by Jay.

Jay’s police statements are also inconsistent with this call. In his first interview, he does not mention ever making any calls to Jenn, at any point. In Jay’s second interview, he tells the police that after he and Adnan left the Park’n’Ride, he decided to call Patrick to buy some weed. It is not until trial that Jay claims to have called Jenn, in order to find out if Patrick was home.

Call 8.
Time: 3:32 p.m.
To: Nisha
Duration: 02:22

“The Nisha Call”

Explanatory Note: For a more in-depth discussion of the Nisha Call and why I believe it to be significant, please see Why the Nisha Call Shows That Hae Was Murdered at 3:32 p.m..

Of all the phone calls made on the day of Hae’s murder, this one is the hardest for all sides to explain. Because even though three people were involved in the call — Nisha, Jay, and Adnan — not a single one of them seems to remember this conversation taking place, at least not on the date and at the location shown in the cell phone records.

But because Nisha is only friends with Adnan, and because Jay has no apparent reason to call her if he is not with Adnan, this one is hands-down the worst evidence for Adnan’s case. If Adnan was at track, as he says, he could not have made this call. However, neither the prosecution, Jay, or Nisha have a plausible explanation for this call, either. Given that Nisha’s number was saved at the top of the list in Adnan’s cell phone, and given that Jay’s explanation for the call (as discussed below) does not appear to be true, this call casts doubt on Adnan’s case but is far from conclusive.

The Prosecution’s Story:

Adnan and Jay are in Adnan’s car, having ditched Hae’s car. Adnan calls Nisha, and then puts Jay on the phone to talk to her. (This means that Hae’s car must have been ditched at this time – if it hasn’t, then both Adnan and Jay could not have spoken on the phone.)

Adnan’s Story:

Adnan says he is at track practice and does not have the phone.

Jay’s Story:

Although Jay claims he did not leave Jenn’s place until 3:45 p.m. (and therefore would not be with Adnan at the time of this call), Jay does say he remembers the call with Nisha. In his written itinerary on 3/18/99 (after, it should be noted, he has already been repeatedly confronted with the cell phone records), Jay says Adnan did call Nisha while he and Jay were driving around getting his, and that after he called her, “Adnan handed the phone to Jay at the golf course on West Forest Park Avenue” (Episode 5).

Jay’s story is not supported (although not disproven, either) by the tower data, as the pings for all calls from 2:36 p.m to 3:59 p.m., including this call, hit tower L651, which is the tower that is very close to both Best Buy and Woodlawn High School. This makes it unlikely (but again, not impossible) that the call occurred as Jay says it did.

Nisha’s Story:

Nisha testified that she recalled having a phone conversation with Adnan when he put Jay on the phone. But there’s a problem with this story — Nisha remembers the call happening at night, and while Jay and Adnan were at a video store that Jay worked at. But the call that happened on January 13, 1999, happened in the middle of the afternoon, and Jay would not begin working at the video store until weeks after Hae’s murder.

This makes the phone call Nisha remembers unlikely to be the same phone call as the one that happened on the day Hae died, but it does nothing to explain what conversation did happen that day.

What the Cell Phone Records Show:

Although the Nisha call is currently unexplained by all theories of the case, the cell phone records do confirm that – whatever the circumstances under which it was made – a call was likely placed by someone using Adnan’s phone, from somewhere in the Woodlawn area, to Nisha.

Call 9.
Time: 3:48 p.m.
To: Phil
Duration: 01:25.

The Cell Phone Has Probably Moved to the I-70 Park’n’Ride (or Somewhere Close By) So That the Killer Can Stash Hae’s Car Until Dark

Explanatory Note: At this point, I have not seen anything explaining who Phil is, but he is presumably Jay’s friend, and not Adnan’s.

The Prosecution’s Story:

Adnan and Jay drive around in Adnan’s car and smoke weed for a couple hours.

Adnan’s Story:

Adnan says he was at track practice or waiting for track to begin, which would have been at 3:30 or 4:00 p.m.

Jay’s Story:

To my knowledge, Jay has never once identified “Phil” or explained why Phil was called. Phil is not mentioned at any point during either Jay’s first or second interviews. Jay may have discussed Phil at trial, but if so, I have seen nothing referencing it.

The Phil call is interesting, however, in that it was made at 3:48 p.m. — which is almost exactly the same time that Jay claims Adnan called him from Best Buy, asking Jay to come pick him up. But under the state’s timeline (which has Jay going to pick up Adnan at 2:36 p.m.), by the time of the 3:48 p.m. call, Jay and Adnan must be on their way to Forest Park to buy weed, having ditched the car at the Park’n’Ride

Perhaps, however, part of Jay’s story about the “come-get-me” call is true. Hae’s murderer did indeed place a call at 3:45 p.m., asking a friend for help in disposing of Hae’s body… but the caller was Jay, and the friend was the mysterious Phil, of whom we know almost nothing.

What the Cell Phone Records Show:

The cell phone continues to ping the L651 tower. Based solely on tower data, it appears that the cell phone (whether it is in Jay’s possession alone, or whether it is with both Jay and Adnan) is still in the vicinity of where Hae was murdered, but it could also be explained by the killer driving Hae’s car to the I-70 Park’n’Ride. The call does ping an antenna eastward from where it had pinged in the three calls in the previous half hour, and it is well within reason that a call from the Park’n’Ride would route through a cell phone tower to the west (particularly given the topography of that area). Also possible, however, is that the cell phone has not moved during this time period, and the killer is still in the same location as the crime scene, with both Adnan’s and Hae’s cars. Perhaps that is why whoever has the cell phone is calling friends, to see if anyone can lend a hand.

Call 10.
Time: 3:59 p.m.
To: Patrick
Duration: 0:25.

The Cell Phone Has Moved to the I-70 Park’n’Ride (or Somewhere Close By) So That the Killer Can Stash Hae’s Car Until Dark

The Prosecution’s Story:

Adnan and Jay continue to drive around in Adnan’s car and smoke weed.

Adnan’s Story:

Adnan would be at track practice, which starts either at 3:30 or 4:00 p.m.

Jay’s Stories:

In Jay’s first interview, Jay does not ever mention calling any of his friends. There is no discussion of Patrick, or a call made to Patrick, or of going somewhere to buy weed. Jay says that immediately after ditching Hae’s car at the Park’n’Ride,

we went um we dropped an L back in the woods, back at [Patapsco] State Park (Int.1 at 10).

Jay and Adnan are at the cliffs at Patapsco for approximately half an hour. At approximately 4:30 p.m., Jay drives Adnan back to Woodlawn, and drops him off at track practice (id. at 10-11).

In Jay’s second interview, Jay says that, after dropping Hae’s car off at the Park’n’Ride, he calls his friend Patrick to see if they can buy some weed, but Patrick is not home, so he leaves a message. When asked how long he was on the phone, Jay say:

Um, the machine it’ll ring 4 or 5 times before the machine’ll pick up. There’ s a long song on there. Um, then his sister comes on, maybe like 4 minutes. (Int.2 at 16.)

The call was actually only 25 seconds long, so his claim about 4 minutes is way off. The claim that it lasted “like 4 minutes” is, however, intriguingly close to the time the call was made — 3:59 p.m. In light of the extensive coaching that the detectives provide to Jay during his second interview, it is possible that Jay has been shown the call records and asked to explain them, and mistakenly believed the call to Patrick lasted 3 minutes and 59 seconds, rather than that it had been made at 3:59 p.m.

Regardless of this mistake about the duration of the call, however, there is a problem with this story – Jay also claims that he and Adnan spoke to Nisha while they were in Forest Park. But that call was thirty minutes earlier, at 3:32, and Jay says that he and Adnan didn’t go to Forest Park until after he called Patrick – at 3:59 p.m. Both things can’t be true. Either Jay and Adnan drove to Forest Park after calling Patrick to ask about the weed, or else they did so before calling him. But in any event, both stories appear to be equally false, because they are not supported by the tower records.

Also — everything else aside, this is a really really odd story. Jay and Adnan have a body in the trunk, and their reaction is to call around to score some weed? Come on. From everything we know about both Jay and Adnan, neither of them are that monumentally stupid. And everything we know about human nature suggests that someone who has committed a carefully premeditated murder does not then go drive around the city calling people and hoping to score weed. Whoever made these calls, and whoever the killer is, I would bet an awful lot of money that the 3:48 and 3:59 p.m. calls had nothing to do with scoring weed and everything to do with a panicky murderer (or murderers) trying to figure out next steps.

In any event, Jay claims that after leaving the Park’n’Ride and calling Patrick’s answering machine, he and Adnan

head to Forrest Park to see if we couldn’t find that corner salesman there um. We go down there, we buy 2 dime sacks. Um, we turn around, I believe we stopped to get blunts on um, Rogers and Gwynn Oak, Gwynn Oak and Rogers on the corner of Gwynn Oak and Rogers. (Int.2 at 16.)

What the Cell Phone Records Show:

The cell phone continues to ping the L651 tower, possibly indicating that the killer is still at the Park’n’Ride with Hae’s vehicle.

If so, the 3:58 call may in fact be the real “come-and-get-me” call. One (very speculative) scenario: after killing Hae, if Jay decided to move her car to a new location away from the scene of the crime, Jay would be stuck with a two-car problem. After abandoning Hae’s car (either at the Park’n’Ride, or somewhere near — a call from the Park’n’Ride could have been routed through L651, so that remains a possibility), he would either have a long walk back to Adnan’s car (approximately forty minutes, if at the Park’n’Ride), or else he would need someone to pick him up and drive him back. The 3:48 and 3:59 p.m. calls could then be explained by Jay calling his friends to see who could give him a lift. Jay might have called Phil first, and when Phil wasn’t available, Jay tried a friend and/or drug dealer. (Come to think of it, if you need a getaway vehicle, calling up a drug dealer buddy might be a smart idea — “Hey Pat, this is Jay — I’d love to buy some weed, can you hook me up? Except, small problem, I don’t have a ride — but if you swing by and pick me up, we can then go and smoke some of what I buy?”). Whatever happened during these two calls, it appears that, based on the tower data from the call following this one, Patrick might have come through for Jay.

Call 11.
Time: 4:12 p.m.
To: Jenn Home
Duration: 0:28.

The Cell Phone Travels Away From the Crime Scene, and Goes to Either the I-70 Park’n’Ride or to Forest Park

The Prosecution’s Story:

Adnan and Jay drive continue to drive around in Adnan’s car and smoke weed.

Adnan’s Story:

Adnan says he is still at track practice.

Jay’s Stories:

In Jay’s first and second interviews on 2/28/99 and 3/15/99, and in his written itinerary on 3/18/99, Jay tells the exact same story: that at 4:30 p.m., he and Adnan drive to Patapsco State Park to smoke weed and watch the sunset, which would have occurred at 5:05 p.m. (Episode 5).

In Jay’s third interview with the police, on 4/13/99, Jay states that – rather than travel to Patapsco after the crime – Adnan killed Hae in Patapsco State Park, and that Jay was there too, because Adnan had paid him to help with the murder and/or body disposal. This story is contradicted by all of Jay’s other versions of what happened, and – based on the timelines – it is pretty much impossible. Actually, it’s entirely impossible, it simply could not have happened.

Likely realizing this (or, more likely, being instructed on this by a prosecutor and/or defense attorney), Jay does not testify about any Patapsco trip at Adnan’s trial. The whole visit to the cliffs there to smoke weed just falls out of the story completely. Instead, Jay’s trial testimony just has him and Adnan driving around aimlessly for a bit, until eventually Jay drops Adnan off at track practice.

Jenn’s Story:

As discussed supra, Jenn says she got home from work a little after 12pm, and Jay showed up a little while after that. She and Jay

hung out at my house and th[e]n I guess around three-thirty, three forty-five[,] Jay got a call and then . . . Jay got another call . . . and then another call came in and I don’t know . . . Whether it was on the cell phone that Jay had. [ ] [T]hen Jay left my house, probably around three-thirty, four, four-fifteen, well after three forty-five, between three-forty and four-fifteen. I left my house between four-fifteen and four-thirty to go pick up my parents from work.”

At Adnan’s trial, Jenn testified that on January 13th, Jay came over “to hang out with her and her brother,” and that “[a]t 3:00-3:30 p.m., [Jay] left her house. After 4:30 p.m., Jennifer called her friend [Cathy’s] house and [Jay] was there.” (Brief of Appellant at 12-13.)

What the Cell Phone Records Show:

Jenn is lying. If Jay was at her place until “well after 3:45,” and she left pretty much immediately after, how is Jay calling “Jenn Home” at 4:21? And why doesn’t Jenn tell the police that Jay called her immediately after he left her house?

The most plausible explanation for Calls 10 and 11 is that:

1. Jay got help either in moving Hae’s car to the Park’n’Ride (if two cars were driven there), or Jay got a ride back from the Park’n’Ride (if only Hae’s car was driven there). The calls at 3:48 and 3:59 p.m. are from Jay, either (i) after he has driven Hae’s car somewhere to ditch it, and calling to ask for a ride back from the Park’n’Ride (or other parking lot near Woodlawn), possibly under the pretext of buying weed from the mysterious Phil and Patrick, or (ii) while Jay is still at the crime scene, and calling to straight up ask for help in transporting Hae’s and Adnan’s car to the Park’n’Ride. If the latter option is what occurs it could be that Jay finally got through to Patrick, who agrees to help, and Jay does the infamous “trunk pop” to Patrick when he arrives. Jay then ditches Hae’s car and is reunited with Adnan’s car, with an assist from Patrick; and,
2. At 4:21 p.m., after recovering Adnan’s car, Jay calls “Jenn Home” to see if she’s around. She is. Jay then goes to Jenn’s house at around 4:30 p.m. for them to hang out, while Jay tries to figure out what the hell to do next. (Interesting note: it’s only a 20-minute walk from the Park’n’Ride to Jenn’s house. Perhaps this could explain some of Jay’s movements.) While at Jenn’s house, Jay is in fact “waiting for a phone call,” as Jenn will later testify. Because the phone call that Jay is expecting is from Adnan — calling to tell Jay to pick him up from track, just like he and Jay had agreed upon. At 4:58, Jay gets that call and goes to get Adnan, before they both go to Cathy’s.
3. At 6:00 p.m., Jenn calls Cathy’s apartment, and Cathy tells Jenn that Adnan and Jay are at her place. This is why in Jenn insists that Jay left her house “after 3:45 p.m.” (police statement) or at “3:00-3:30 p.m.” (trial testimony), but also insists that when she calls her friend Cathy “after 4:30 p.m.,” Cathy tells her that Jay is already there. These two events (Jay leaving Jenn’s, and Jenn calling Cathy to learn that Jay is there) really do happen about an hour apart — but they occur at 5pm and 6pm, not 3:30 p.m. and 4:30 p.m.

In fact, the only way all the timelines can fit together — without simply deciding that the trip to Jenn’s or the trip to Cathy’s or the trip to Woodlawn never occurred at all — is if Jay’s visit to Jenn occurs after Hae is already dead. That’s why Jay is “acting weird” when he’s at Jenn’s house. That’s why Jay tells Jenn that he is “waiting for a phone call” — because Adnan told Jay he would be calling for a pickup after track was over. And the 4:12 p.m. call is Jay calling to see if Jenn is home, either asking for help, or telling her he is coming over.

And that’s also why Jenn and Jay both insist over and over again that Jay was at Jenn’s until “well after 3:45″ — because Jenn’s story about Jay being at her place until “3:45 p.m.” is something she was told to say in order to give Jay an alibi. If Jay killed Hae, then Jay might know that Hae was killed a little before 3:45 (i.e., a little before the call to Phil at 3:48). Even though the police have some mistaken theory about Hae dying at 2:30 p.m., Jay knows it was at least an hour later — and in case the police know that to, Jay has to make sure his alibi accounts for that time period.

So even though the call records show that Jay was probably at Jenn’s house from 4:30 p.m. to 5:00 p.m. on January 13 (assuming he was there at all), Jay has told Jenn to make sure her story includes that he was at her place until “after 3:45 p.m.” Because that is the critical window.

This would also mean that neither the Patapsco trip nor any of the other side quests Jay has mentioned ever happened at all. The trip to buy weed, if it actually happened (I’m skeptical), is the sole detour that even could have possibly occurred, according to the call records, but that call could just as easily show instead a ping from the Park’n’Ride.

Additional Note: Here is where the real speculation comes in. Remember Neighbor Boy? The friend of Jay’s, who told one of his neighbors that he had seen Hae’s body in the back of a trunk? It may have been simply been bunk, some kid trying to make himself sound cool by telling a story. But I would be awfully curious to know if there is any connection between Neighbor Boy and either Phil or Patrick…

While I have not been able to obtain any information on Phil, I was able to find one very speculative, but possibly interesting, bit of information about Patrick. In 1999, Patrick’s home address was for a road off Edmondson Ave — a few blocks down from where Hae’s car was abandoned after her burial.

Call 12.
Time: 4:27 p.m.
To: Incoming
Duration: 02:56.

The Cell Phone Travels From Forest Park to Jay’s House

The Prosecution’s Story:

Adnan and Jay drive continue to drive around in Adnan’s car and smoke weed. Maybe they went to White Castle or something, idk.

Adnan’s Story:

Adnan says he was at track from the time it started (at 3:30 p.m., or maybe 4 p.m., witnesses testify to different times).

Jay’s Story:

Jay says that, after driving around and smoking for a while, Adnan “told [Jay] that [he] had to take him back to school because he needed to be seen” at track practice, so that he could establish an alibi for Hae’s murder (Episode 1). Adnan told Jay he would call him to pick him up when track was over.

In Jay’s first police statement, Jay said that he went back to his home after dropping Adnan off at track, and that he was still at home when Adnan called him to ask to be picked up.

In Jay’s second police statement, Jay said that, after dropping Adnan at track (which the detectives carefully specify was done in the front of the building, on the circle), he went to a park to smoke a blunt, and then went to Cathy’s apartment where he smoked some more:

Detective: You go to Gelston Park.
Jay: Yeah.
Detective: You smoke another blunt?
Jay: Right.
Detective: Ah, after you smoke a blunt you go to Cathy and Jeff’s?
Jay: Yes.
Detective: Was anyone there?
Jay: Yes.
Detective: Who?
Jay: Ah, both Cathy and Jeff were home. (Int.2 at 21-22.)

At Adnan’s trial, Jay testified at trial that, after dropping Adnan off, he “went to [Cathy’s]  house, smoked some marijuana, and debated about what to do. [Cathy] and her boyfriend were there.” (Appellant’s Brief at 9.) Then, “[a]bout 30 minutes later, [Adnan] called and [Jay] went to school to get him” (id.). The story about Jay going to “Cathy’s” apartment after dropping Adnan at track is unverified by any other source that I am aware of, and appears to be a fabrication — because Cathy did not arrive home until after 5:00 p.m. that day.

Jenn’s Story:

At trial, Jenn says that “after 4:30 p.m.,” she called her friend Cathy, and Jay was at Cathy’s apartment at that time (Brief of Appellant at 13). However, based on Cathy’s testimony, it seems almost certain that Jenn’s call to Cathy occurred after 6 p.m., because Cathy says she did not get home until after 5:00 p.m., and that when Jenn called her, both Adnan and Jay were at her apartment.

Cathy’s Story:

We know that Jay does go to Cathy’s apartment at some point on January 13th, but it was almost certainly after picking Adnan up from track, and not before track like Jay claims. Why? Because Cathy testified that she did not arrive home until “5:00-5:15 p.m.” that day, and that Jay and Adnan showed up “later” (Brief of Appellant at 13). Cathy said, in her statement, that:

while Jay and Adnan were there, Jenn called the apartment. Or maybe it was she that called Jenn . . . But she does remember talking to Jenn and saying, ‘Jay’s here with some kid who’s practically passed out on the cushions.’ And Jenn thought that was curious, like, ‘what’s Jay doing there?’ She told Cathy that Jay had been acting weird earlier in the day too. (Episode 6.)

What the Cell Phone Records Show:

The tower records show that the cell phone was near both Jay’s house and Jenn’s house from 4:30 to 5:00 p.m. — and therefore wholly inconsistent with Jay going to Cathy’s before getting Adnan from track. In fact, the three calls we know for certain were made from Cathy’s — the 6:07, 6:09, and 6:24 p.m. calls — all pinged towers farther south, close to Cathy’s, as expected, but the 4:27 and 4:58 p.m. calls both ping towers to the north of Cathy’s, next to Jenn’s and Jay’s places.

This cell phone data is consistent with Jay committing the crime alone. After ditching Hae’s car at the Park’n’Ride, Jay either goes to Jenn’s place or returns to his home. It is now 4:30 p.m., and Jay is aware that Adnan will soon be calling to tell Jay to pick him up from track. There would not have been enough time for Jay to dispose of Hae’s body (and also it would have been too risky to do so in the daylight). If Jay goes to Jenn’s house, then this perfectly explains Jenn’s police statement (see Call 11) in which she describes Jay receiving several calls. These are the 4:27 and 4:58 p.m. calls. Perhaps after leaving Jenn’s house, Jay returns home to get shovels for later use, and puts them in the trunk of Adnan’s car. After all, Jay says it takes him 15 minutes to pick up Adnan from practice after Adnan calls, and a drive from Jenn’s to Jay’s to Woodlawn would have taken about 13 minutes.

Call 13.
Time: 4:58 p.m.
To: Incoming
Duration: 0:19.

Adnan Calls Jay to Pick Him Up from Track

The Prosecution’s Story:

At trial, the prosecution’s story is that, at the time of this call, Jay and Adnan are in Forrest Park buying weed.

Adnan’s Story:

After track, Adnan says he would have called Jay to pick him up. The 4:58 p.m. call would likely have been Adnan calling his cell phone to let Jay know he was done.

Jay’s Story:

In Jay’s first statement, Jay said that he and Adnan were in Patapsco State Park smoking weed at the time of this call.

In Jay’s second statement, Jay claimed that he dropped Adnan back off at Woodlawn for track practice at about the time this call occurred.

At trial, Jay testified that he and Adnan were buying weed in Forrest Park at the time of this call.

What the Cell Phone Records Show:

This call was almost certainly from Adnan, telling Jay that track is over and to come pick him up. That would be consistent with  everything we can establish about the witnesses’ timelines.

It is virtually certain Adnan was at track that day. Why? Because regardless of whether Jay is guilty or innocent, his testimony about Adnan going to track is credible – Jay has no reason to lie about that specific fact, and many reasons to tell the truth.

If Jay did kill Hae, then when the police interviewed him and made it clear that they thought Adnan was their suspect, Jay would have been given a motive to frame Adnan. However, since Jay knew that he had picked up Adnan from track practice that day, Jay’s story had to include the fact that Adnan went to track – because Jay knew that people had seen Adnan at track, and Jay assumed that people would remember that. (In fact, only a single witness has specific memories of Adnan being at track that day. Other witnesses have also stated that they believe Adnan was there that day, even if they do not have a specific memory of it, because if Adnan had not showed they would have remembered that.)

On the other hand, if Jay’s story about Adnan killing Hae is true, then he likewise has every reason to tell the truth about track practice. If he says Adnan did not go to track, but someone remembered seeing him there, Jay’s story would begin to look questionable. Additionally, Jay has no reason to misremember dropping Adnan off at track.

Call 14.
Time: 5:14 p.m.
To: Incoming/Voicemail
Duration: 01:07.

After Jay Picks up Adnan, Adnan Calls His Voicemail

What the Cell Phone Records Show:

The 5:14 call was almost certainly a call made by Adnan, in order to check his voicemail. This is consistent with Jay having picked Adnan up after track practice.

Call 15.
Time: 5:38 p.m.
To: Krista
Duration: 0:02.

Adnan and Jay Drive to “Cathy’s”

Prosecution’s Story:

It is unclear how exactly the prosecution explains this call. The call is made to one of Adnan’s friends — Krista — which should suggest that Adnan has the phone. But Jay’s story claims he does not pick up Adnan from track until about 6:00 p.m.

Adnan’s Story:

After Jay picks him up from track at around 5:15 p.m., he and Jay go over to Cathy’s apartment. Adnan does not know Cathy, but Jay knows Cathy through Jenn, as she is Cathy’s sorority sister.

Jay’s Story:

In Jay’s first statement, Jay claims that after track practice (at around 7 p.m., so much later than the call records can support) he and Adnan go to a McDonald’s off of Rolling Road and have dinner.

In Jay’s second statement, Jay claims he and Adnan go to Cathy’s apartment at around 6:15 p.m., so a little after this call. Jay also claims that, at around 5:45 p.m., Adnan calls from track to ask to be picked up — a claim that cannot be reconciled with the 5:38 p.m. call to Krista.

What the Cell Phone Records Show:

As much as anything about the timeline of that day can be called established fact, the time period from about 5:30 p.m. to 6:30 p.m. appears to be the most well accounted for.

At approximately 5:15 p.m., Jay picks Adnan up from track, and they then go to “Cathy’s” (not-her-real-name’s) house. Cathy is a friend of Jenn’s. Cathy sort of knows Jay, through Jenn, but Adnan and Cathy had never met before that day. Adnan almost certainly has his cell phone back again by the time of this call — Krista is a friend of Adnan’s, not Jay’s, and Jay is unlikely to be calling her.

The tower ping at L653 could show that Adnan and Jay are driving from Woodlawn to “Cathy’s” house. Or, as Jay says, they could be at a McDonald’s getting dinner. And by “getting McDonald’s,” what I actually mean is “getting high and then really needing some Chicken McNuggets.”

Call 16.
Time: 6:07 p.m.
To: Incoming [Likely Hae’s brother (see Episode 6)]
Duration: 0:56.

Adnan and Jay Smoke Weed at “Cathy’s”

Explanatory Note: There is little/no dispute that Jay and Adnan arrived at Cathy’s sometime between 5:30 p.m. and 6:00 p.m, where they hung out and smoke weed until approximately 6:30 p.m., before both left in Adnan’s car.

Prosecution’s Story:

Jay and Adnan go to Cathy’s after track practice, although the precise time is hard to reconcile between Jay’s and Cathy’s testimonies.

Adnan’s Story:

After Jay picked Adnan up from track, they smoke some pot, and then Jay takes them to Cathy’s apartment.

Cathy’s Story:

At trial, Cathy testified that:

On January 13,  1999, at 5:00-5:15 p.m., she arrived home, and her boyfriend Jeff [ ] was there. [Jay] and [Adnan] arrived later . . . They all watched television at about 6:00 p.m. Appellant was lying on some pillows on her floor when he asked, ‘how do you get rid of a high?’ (Brief of Appellant at 13-14.)

Note that this is somewhat inconsistent with Jay’s testimony, which is that he was at Cathy’s before leaving to pick up at Adnan, and then returning to her house. Cathy (and apparently Jeff) never confirm that Jay had already been at their house earlier that afternoon.

Also, according to Cathy, Jay and Adnan just showed up at her place out of the blue:

I was kinda surprised and a little confused because [Jay] didn’t call me unless he was with Jenn and nobody had called to say ‘hey are you guys home? Do you guys want to hang out?’ Nothing like that. So it was a little strange that he would just pop up at the door. I remember him being like, ‘do you want to smoke? Do you wanna hang out?’ And I remember being like, ‘well hang on a second,’ and asking Jeff if he wanted to– ‘Jay’s at the door!’ Jeff was like, ‘for what?’ ‘Well he wants to hang out.’ And Jeff was like, ‘that’s cool.’ So Jay came in and he introduced his friend, I don’t think he introduced him by name, I think he was just like, ‘this is a friend of mine.’ (Episode 6.)

Note that this is somewhat inconsistent with Jenn’s testimony. According to Jenn, she and Jay “had plans to go to [Cathy’s] house together that evening” (Brief of Appellant at 13). So why does Cathy seem to think it was a total surprise to see Jay there?

Call 17.
Time: 6:09 p.m.
To: Incoming [possibly from Aisha (see Episode 9)]
Duration: 0:53.

Adnan and Jay Continue to Smoke Weed at “Cathy’s”

Cathy’s Story:

Cathy recalls that Adnan received a call from someone, but that it was “not lengthy.” After the call, Adnan was asking, “what if they come talk to me, what should I say, [ ] what should I do.”

What the Cell Phone Records Show:

It is not firmly established who the 6:09 call was from, but Sarah Koenig gives a fairly convincing explanation on the podcast – it was from Adnan’s friend, Aisha, telling Adnan that she had told the police to speak with him about Hae:

So maybe Aisha called Adnan at 6:09, says “I just talked to the police and they’re going to get in touch with you too.” Aisha says that Adnan was annoyed. Maybe that’s what Cathy interpreted as panicked. I think we can all stipulate that Adnan was super stoned. He told me he had weed in the car and was worried the cops were going to find it if they came to talk to him. So, imagine for a second that Adnan is talking to Aisha and says something like . . . What am I gonna do? What am I gonna say? They’re gonna come talk to me. What am I supposed to say?” (Episode 9.)

Additionally, although this call pings a different tower from the 6:07 p.m. call, it is virtually certain that the cell phone remains at the same location – Cathy’s house – at all times between 6:07 and 6:24.

Call 18.
Time: 6:24 p.m.
To: Incoming [likely the call from Detective Adcock to Adnan (see Episode 6)]
Duration: 04:15.

Adnan and Jay Continue to Smoke Weed at “Cathy’s”, Officer Adcock Calls Adnan to Ask About Hae

Explanatory Note: This call was almost certainly from the police, asking if Adnan has seen Hae. As Koenig describes the start of the investigation:

“Hae’s brother called the cops that afternoon. Officer Scott Adcock arrives from the Baltimore County PD. His initial report records the time as 5:12 p.m. Adcock calls Aisha and Adnan asking if they’ve seen Hae.” (Episode 9.)

Officer Adcock’s Story:

Office Adcock testified that, during this phone call, Adnan told him he’d asked Hae for a ride, but that he’d been “held up” at school and missed the ride. (One of Hae’s friends, Becky, gives a somewhat similar story – she says that Adnan asked Hae for a ride, but that at 2:20 p.m., Hae tells Adnan that she won’t be able to give him a ride, and Adnan says “OK, I’ll just ask someone else.”

Adnan’s Story:

Adnan says that he remembers this phone call:

“Oh no, uh, I do remember that phone call and I do remember being high at the time because the craziest thing is to be high and have the police call your phone. I’ll never forget that.” (Episode 6.)

But Adnan does not recall asking Hae for a ride that day, or telling the officer that he asked for one.

Jay’s Story:

In Jay’s first police statement, Jay says that Officer Adcock calls while he and Adnan were at McDonald’s.

In Jay’s second police statement, Jay says that Officer Adcock called when he and Adnan were “leaving [Cathy’s] apartment,” and were “stepping from the foyer into the hallway.” Jay says he then begins to panic.

Cathy’s Story:

Cathy says that, a little while after receiving a phone call, Adnan just leaves, heading out the door, and Jay follows Adnan out, leaving his “hat and smokes” at Cathy’s (Episode 6). Adnan and Jay go downstairs and get into Adnan’s car. Cathy sees them stay there, for “[l]ike a minute . . . just sitting out in the car.”

What the Call Records Show:

Based on the timing of the 5:38, 6:07, 6:09, and 6:24 calls, what appears to have happened is that, after Jay picked up Adnan from track, Jay and Adnan go to smoke. Adnan gets really, really high. Jay and Adnan then show up at Cathy’s sometime between 5:40pm and 6:00pm. At 6:07, Hae’s brother calls asking about Hae. At 6:09, Aisha calls, and tells Adnan that the police are going to call him. Adnan freaks; he is super high, and the police are about to call him, and he starts asking, “What do I do if the cops call me? How do I get rid of a high?” Ten minutes later, he and Jay leave Cathy’s apartment. In the hallway, Officer Adcock calls Adnan, and Adnan and Jay get into Adnan’s parked car while speaking to the officer for a little over 4 minutes. They then drive away.

Call 19.
Time: 6:59 p.m.
To: Yaser Cell
Duration: 0:27

The Cell Phone Returns to the Woodlawn Area

Yaser’s Story:

To my knowledge, Yaser has never been questioned about this phone call. Yaser was a friend of Adnan’s, although it’s unclear how close they were. Yaser is also the individual identified by the anonymous caller as someone the police should speak to, because Yaser, according to the caller, knows something about Adnan’s involvement in the murder.

Adnan’s Father’s Story:

Adnan’s father testified at trial that, on January 13, 1999, Adnan “attended religious services with [him] from 7:30 p.m. to 10:30 p.m.” (Brief of Appellant at 16). Adnan’s mosque was close to his home, and is marked above with an asterisk.

Jay’s Story:

Jay testified that “after the Adcock call, he and Adnan left Cathy’s and then they do a bunch of different things: they drive to Jay’s house for shovels, then to I-70 Park & Ride for Hae’s car, then Jay goes to McDonald’s back by school to wait for Adnan, says he’s there waiting for about 20 minutes, then they drive all around for awhile back over to Patapsco, then up Dogwood, to Security, before they finally get to Leakin Park.” (Episode 5.) There’s a huge problem with Jay’s story though. Doing what Jay describes “takes an hour and twenty minutes. Twice as long as, in other words, than the call log accounts for.” (Id.).

What the Cell Phone Records Show:

The 6:59 p.m. call pings a tower that covers Adnan’s home and mosque, but not Jay’s house. Jay does claim that he went to the McDonald’s by school to wait for Adnan for 20 minutes after picking up Hae’s car, but Jay does not explain why on earth he and Adnan would add this trip to their itinerary. One possible explanation is that it’s an attempt to explain why the 6:59 call and the 7:00 p.m. call pinged at Woodlawn.

Call 20.
Time: 7:00 p.m.
To: Jenn Pager
Duration: 0:23

The Cell Phone Is Still in Woodlawn Area

Adnan’s Story:

According to Adnan, “he’s pretty sure he was with his phone at that time after track. Again, his memory is vague, it’s full of I probably would haves. But he says that from what he can remember of the evening, after he got the call from Office Adcock, he remembers dropping Jay off at some point and then he says he would have gone to the mosque for prayers. It was Ramadan. He doesn’t say he lent his phone out or his car to Jay or anyone else that evening.”

But if Adnan did kill Hae, this is quite possibly the most baffling thing Adnan could say. Why on earth would his story be that he is “pretty sure he was with his phone” at that time, when, if he is guilty, he knew full well that is exactly when Hae was buried? Why would he lie about everything else, but tell the truth about this damning detail — when he could just as easily have said instead that he let Jay borrow his phone that evening? Or even just say that he “might’ve” let Jay borrow his phone? Why would Adnan make such a bold-faced lie about going to mosque that evening (when there could potentially be dozens of witnesses who could confirm that he did not go to mosque), but then not go a tiny step further and say he doesn’t remember having his phone, but he frequently lent it out to Jay, and might have done so that night?

A simpler explanation is that Adnan really just doesn’t remember letting Jay borrow his phone and car while he was at mosque. Which isn’t an entirely satisfying explanation, but it makes more sense than a guilty Adnan lying about everything else and telling the truth about this single incriminating thing. After all, it is pretty much established fact that Adnan was as high as a kite at 6:30pm that night; him being fuzzy on the details is at least explainable. And if Jay had asked to borrow the the car, wouldn’t Adnan have probably agreed, based on his willingness to allow Jay to borrow it earlier? After all, he’s going to be in mosque for a couple hours, it wouldn’t be any inconvenience to him. Alternatively, perhaps Adnan felt he was too high to drive, e.g., “How do you make a high go away?” In which case Jay “offered” to drive an impaired Adnan to mosque, and then needed to “borrow” the car to drive back to Cathy’s — while promising Adnan he’d return the car when mosque was out.

Jay’s Story:

At trial, Jay testified that, he “was supposed to meet [Jenn] at 7:00 p.m., so he paged her at 7:00 p.m. from Leakin Park” (Appellant’s Brief at 9). Jay does not explain why he was supposed to meet Jenn at 7:00 p.m., or when he and Jenn made this agreement.

Jenn’s Story:

In Jenn’s police statement, she says that,

between six-thirty, anytime, after I got home from picking my parents up, to seven-thirty. I guess it’s between that. I was in my bedroom ah getting dress because I knew I was going out later to just hang out at my friend Cathy’s house. (Jenn Int. at 13.)

While getting ready to go to Cathy’s, she then gets a message from Jay. Or maybe two messages. The source of this message is very unclear; Jenn gives a laundry list of answers of where this message might have come from:

that’s when I got the page that was a voice message from Jay saying to get him from the park and then when I …. and then like maybe actually maybe I knew to pick him up from the park earlier I had talked to him, but I’m not sure. He left a message on the machine telling me something about either to come and pick him up at the park or he was going to be later than what he thought, so don’t go to the park yet. I think I got two messages, maybe on my pager, one saying to pick him up and the next message saying “I’m going to be later don’t pick” you know “don’t pick me up at the park” or “I’ll call you when I need you” or something. I was confused… there was confusion in his message so I felt it necessary to contact him to find out where I was suppose[d] to get him from.” (Jenn Int. at 13.)

So Jenn either got a “page that was a voice message” (technically possible — a portable voicemail service was available in Baltimore, although the service shut down sometime in 1999), or “like maybe actually maybe I knew to pick him up from the park earlier I had talked to him.” Or maybe she got two messages. The two messages seem to make the most sense — the first message, via an unknown medium, was to tell Jenn that he needed the ride from the park, and the next message was to say that he needed her to pick him up later.

Either way, I believe we can be safe in assuming that one of these two communications was the 7:00 p.m. page. Jenn pretty much clarifies that at another point in her statement:

I believe that I got a voice message from Jay like um telling me to get him from the park and around between seven and seven-thirty I think it was and for some reason the message was like very confusing or something (Jenn Int. at 12).

The park Jenn identifies is this park located “off of Crosby and Chesworth,” but is not “the one that the pool’s on” (id.). This would make it Western Hills Community Park — a three minute walk away from Adnan’s mosque.

Now that’s an interesting coincidence. Why would Jay be calling Jenn to ask for a ride from a place across the street from Adnan’s mosque at 7 or 7:30 p.m.? Perhaps because Jay knew Adnan would be driving there, after leaving Cathy’s?

What the Cell Phone Records Show:

There are two big problems with Jay’s trial testimony about paging Jenn from Leakin Park. First, the cell records show that the 7:00 p.m. call was most likely made from the Woodlawn area, not Leakin Park. Second, Jay’s story has him in Adnan’s car — but not with Adnan – at 7:00 p.m. So how could he have paged Jenn at 7:00 p.m., if Adnan was calling Yaser at 6:59? Jay testified at trial Adnan drove him to Jay’s house, where they got “two shovels . . .  and put them in [Adnan’s] car” (Brief of Appellant at 9.) They then “drove to pick up Hae’s car, and [Adnan] got in Hae’s car. [Jay] followed [Adnan] around for 45 minutes, and they ended up in Leakin Park.” (Id.) Which means that Adnan and Jay were in separate vehicles at 7:00 p.m., if Jay’s story is true.

An alternative explanation for the cell phone data is that Jay borrowed Adnan’s car and phone while he was in mosque. After leaving Cathy’s, Adnan is dropped off at the mosque near his house, and Jay drives to Hae’s car (which is either at the Park’n’Ride or at a mall parking lot near Woodlawn). He then drives Hae’s car to Leakin Park, taking the phone and the shovels with him from Adnan’s car, and buries her. He returns Hae’s car to where it was stashed earlier, gets back in Adnan’s car, and heads back to the mosque to return the car and phone to Adnan when mosque is out at 9pm.

The fact that Jay left Jenn a message asking Jenn to pick him up from a park near Adnan’s mosque further supports this theory. If Adnan did kill Hae, and recruited Jay to help him bury her, is no explicable reason why Jay would be calling Jenn’s pager from Adnan’s phone, and leaving Jenn a message asking to be picked up from the park near the mosque. Such a call could be explained, however, if Jay had been unaware that he would be unable to use Adnan’s car and cell phone. If Jenn and Jay had spoken on the phone while Jay was at Cathy’s (we know that Jenn called Cathy around 6:00 – 6:30 p.m. that night), then Jay may have asked for a ride from Jenn then, planning to have her take him to Hae’s car after Adnan dropped him off on his way to mosque. Jay’s plans may have changed when Adnan ended up letting Jay borrow his car while he was in mosque. The 7:00 p.m. call would then be Jay notifying Jenn that he no longer needed the pick up from the park near the mosque, but that he would need her to pick him up later.

Call 21.
Time: 7:09 p.m.
To: Incoming [possibly Jenn returning the call to her pager]
Duration: 0:33.

The Cell Phone Goes to Leakin Park

The Prosecution’s Story:

Adnan and Jay picked up Hae’s car from the I-70 Park’n’Ride, and then drive into Leakin Park via N. Franklintown Road, where they body Hae’s body. The route from the Park’n’Ride to the place where Hae’s body was found takes approximately four minutes.  Although it is unclear why this specific location is chosen for the burial site, it appears, from Google Maps, that the section of N. Franklintown Road that Hae’s killer(s) would have used to enter the woods does not have a guardrail up. Although there are now concrete barriers in place, it seems very likely that, in January 1999, those barriers were not there, allowing whoever buried Hae to pull off at the side of the road there. As Gwynns Falls Trail was under construction at that time, there was likely ample room for Hae’s car to be parked (without blocking N Franklintown Road) while a grave was dug and Hae’s body was transferred into it. (For comparison purposes, note that the “Warning This Park is Patrolled” sign behind the concrete barriers matches the sign described in Episode 3 and shown on the Serial website.)

Adnan’s Story:

Adnan is at mosque.

Jay’s Story:

Jay testified that “[w]hile [he] and [Adnan] were digging, [Jenn] called the cell phone, returning [Jay’s] page [at 7:00 p.m.]. [Adnan] allegedly answered and told [Jenn] they were busy and hung up.” (Brief of Appellant at 9.)

Jenn’s Story:

Jenn has stated that either the 7:09 or 7:16 p.m. call came from her. Jenn told the police in her taped interview that she called Jay because although he had left her a message earlier, asking her to pick him up, “there was confusion in his message so [she] felt it necessary to contact him to find out where [she] was suppose[d] to get him from.” (Jenn Int. at 13.) She says this call occurred

I guess I’d say between six- thirty and seven-thirty. . . I knew that I was dialing [Adnan’s] cell phone, the cell phone number.” (Jenn Int. at 13.)

“When I called them, um, Adnan answered the phone and said ‘Jay will call you back when you’re re–’ when he’s ready for you to come and get him, or for you to come and meet him, or whatever. ‘Jay will call you when he’s ready.’ And um, so that’s all like, he was very quick and very ‘bye’ you know.” (Episode 6.)

But at trial, she gave a different story. She testified that when she called the cell, someone other than Jay answered the phone and said, “Jay will call you back when he is ready for you to come and get him, he is busy” (Brief of Appellant at 13). She stated that “[t]he voice on the cell phone was an older male, deep, not like a kid, and it was not [Jay]” (id.). But Jenn does not identify the voice as belonging to Adnan – even though she knows him, and even though she had previously identified the speaker as Adnan in her police interview.

It should also be noted that Jenn’s statement (as well as Jay’s) does not match the known duration of the call. At 33 seconds, whatever conversation occurred must have been longer than the brief exchange Jenn describes, which would have taken less than 10 seconds.

But aside from that, why on earth would Adnan know that Jenn was calling to find out when to pick Jay up? And why would he even answer the phone? Surely after burying Hae’s body, Jay would have preferred to take his accomplice home himself — rather than forcing a third party to come pick him up, and potentially become involved.

What the Cell Phone Records Show:

The 7:09 p.m. and 7:16 p.m. calls are the two most significant calls in the case, because both calls were routed through L689B — which is the tower/antenna whose range is almost exclusively limited to the southwest leg of Leakin Park, where Hae was buried. We can say with almost complete certainty that whoever had the cell phone at that time was in Leakin Park, burying Hae’s body.

Why? Because we have independent evidence confirming that Hae was buried between 6:30 p.m. and 8:00 p.m. on January 13, 1999. (1) The first witness statement in the case came from Jenn, in her statement to the police on February 27, 1999, when she told them that Jay asked her to pick him up “some time after eight o’clock” (Episode 6). Jenn said that “[a]fter they’d driven a little ways, Jay mention[ed] shovels. The shovels Adnan had used to dig in the park to bury Hae.” (Episode 4.) She has no apparent motive to lie about the timing of when she picked up Jay, and there is no evidence that she had seen the cell phone records at that point, or was matching her story to them. (2) Cathy, who has no motive to lie and whose testimony could apparently be verified by her boyfriend, Jeff, states that Adnan and Jay were at her house until 6:30 p.m. that evening.

So Hae was buried in Leakin Park during that hour-and-a-half window. Of the 52 outgoing and incoming malls made to Adnan’s cell phone on January 12 and 13, 1999, exactly two calls were routed through L689B, which is the tower and antenna that covers the southwest portion of Leakin Park (and covers almost nothing that isn’t Leakin Park). In fact, only one other call was even routed through tower L689, despite the fact it is adjacent to the towers covering Woodlawn and Cathy’s house — and that’s the 4:12 p.m. call, when Jay would have been parking Hae’s car immediately next to Leakin Park, at the Park’n’Ride.

This is very strong evidence that the reason the 7:09 and 7:16 p.m. calls were routed from the Leakin Park tower is that the cell phone was, in fact, in Leakin Park. The odds are too much against this being a mere coincidence — because over the course of 48 hours, only two calls are routed through L689B, and both occur precisely within the one-and-a-half hour window in which we know the killer was in Leakin Park burying Hae’s body. This is a sufficient basis from which to conclude that the killer had the phone while burying Hae.

Call 22.
Time: 7:16 p.m.
To: Incoming
Duration: 0:32.

The Cell Phone Is Still in Leakin Park

Adnan’s Story:

Adnan says he is at mosque.

Jay’s Story:

At trial, Jay testified that, shortly after the call from Jenn (at 7:09), “while [Adnan] took Hae’s body to the shallow grave and put dirt on her to cover her, he received another call. He spoke part in Arabic and part in English.” (Brief of Appellant at 9-10.) Adnan does not speak Arabic, or any similar languages (Episode 5), so Jay’s testimony is hard to explain.

What the Cell Phone Records Show:

This call, like the previous call, pings the tower in Leakin Park. Whoever has the phone is likely burying Hae’s body.

Call 23.
Time: 8:04 p.m.
To: Jenn Pager
Duration: 0:32.

Cell Phone Is on Edmondson Avenue/Jenn and Jay Give Untruthful Statements

Jenn’s Stories:

Jenn’s Police Statement: During her interview with the police, Jenn says she picked Jay up sometime after 8 p.m., because she had “arranged to meet [Jay] in the parking lot of Westview Mall” (Episode 6). Jenn drove to Westview Mall, where she “saw [Jay and Adnan] arrive in Adnan’s car.” (Episode 6.). She told the police that,

“Jay mentioned to me that he knew where Adnan dumped the shovel or shovels. I don’t know how many there were – but he mentioned to me that he know that where Adnan put the shovels.” (Episode 4.)

Jenn then tells the police that, after picking Jay up and leaving, “she drives Jay back to Westview Mall to the dumpsters back there so that Jay can retrieve the shovels and wipe the handles clean in case of fingerprints” (id.). “After that, Jay came back, got in [Jenn’s] car, and he was really shooken up. . .  He was like you have to take me to go see my girlfriend now” (id.).

Jenn’s Trial Testimony: At trial, Jenn testified that “[b]etween 8:00-8:15 p.m., [she] got a message from [Jay] to pick him up at Westview [“WV”] Mall in 15 minutes, so she left and picked him up in front of Value City.” (Brief of Appellant at 13.) Jenn arrived there first. When Jay and Adnan arrived, “[Adnan] was . . . driving, and said hello to [Jenn]. [Jay] got in her car and said . . . ‘[Adnan] strangled Hae in the Best Buy parking lot. [I] saw her body in the trunk.’ . . . [Adnan] used [Jay’s] shovels to bury her and [Jay] wanted to make sure there were no fingerprints on them.” (Brief of Appellant at 13.) Jenn further “testified [Jay] told her he wanted to go check on Stephanie to make sure she was okay. They went to Stephanie’s house between 8:30-9:00 p.m.”  (Id.)

Jay’s Story:

After burying Hae, Jay claims he and Adnan got back into their respective cars, and drove to a neighborhood off of Edmondson Avenue (Route 40), where Hae’s car was abandoned.

Jay says that at some point after this, Jenn picks him up. But where? Jay has given a lot of different answers about where Jenn picks him up from, and it’s not clear which (if any) are true (Brief of Appellant at 11).

Jay’s story at trial is that after ditching Hae’s car, he and Adnan “went to Value City [located in Westview Mall, off of Route 40] and threw away some of Hae’s belongings and some other evidence in a dumpster. [Jay] paged Jen again. [Adnan] allegedly drove [Jay] home and [Jay] changed his clothes and put them in a bag. Jen came to pick up [Jay] at his home and took him to Super Fresh where he threw the shovels and his bag of clothes away in a dumpster.” (Brief of Appellant at 10.)

Call 24.
Time: 8:05 p.m.
To: Jenn Pager
Duration: 0:13.

The Cell Phone is on Edmondson Avenue/Jenn and Jay Continue to Give Untruthful Statements

Why Jenn and Jay Are Both Lying about the 8:04 and 8:05 p.m. calls: 

(1) Did Jenn see Jay arrive at Westview, or did Jay page Jenn to pick him up while he was at Westview? Because Jenn says when Jay paged her to pick him up, she went to Westview, where shortly after Adnan and Jay pulled up. In contrast, Jay says he paged Jenn while he was already at Westview, and Adnan then dropped him off at Jay’s house, where Jenn later picked him up.

These stories are completely irreconcilable, and cannot be explained by simple memory lapses. Why would Jenn forget where Jay told her that Adnan had killed Hae? And why would Jay forget where Jenn picked him up?

(2) Where were the shovels (or shovel) thrown away? In Westview Mall or at Super Fresh?

Jenn says that Jay told her they were tossed at Westview – and that, after picking up Jay at Westview and driving off somewhere, she and Jay later drive back to Westview, so that Jay can retrieve the shovels and wipe them clean. But Jay says (at trial) that he only threw away some of Hae’s belongings at Westview – and that he didn’t toss the shovels until after Jenn picked him up at his house, and drove him to Super Fresh, where he dumped the shovel(s) in a dumpster. So were they thrown away at Westview or Super Fresh? And why would Jay have needed to have Jenn drive him away from Westview, and then later drive him back to wipe down prints?

Any why the heck wasn’t Adnan concerned about wiping down prints, if he did it? And for that matter, why would Adnan be letting his pot dealer handle the huge responsibility of disposing of the evidence? If Adnan did kill Hae, I just cannot imagine him leaving such an important detail for Jay to handle.

(Incidentally, Super Fresh is out westward on Route 40, on the way to Patapsco State Park. Perhaps this somehow works in to Jay’s whole nonsensical Patapsco story somehow? Given how often Jay repeats it, it would be beyond bizarre if nothing about Hae’s murder was linked to there. Something about Jay’s claims about Patapsco are true, it’s just hard to know what.)

What the Cell Phone Records Show:

The 8:04 and 8:05 calls show that whoever has the cell phone was probably somewhere along Route 40/Edmondson Avenue. As Edmondson Avenue is where Hae’s car was abandoned (Jay later led police to where the car had been ditched), these calls are almost certainly showing the killer abandoning the car after burying her body.

If Jay killed Hae, acting alone, then he still has a two-car problem to deal with in disposing of Hae’s body and car — as he would have parked Adnan’s car in one spot, and then driven Hae’s car to a different spot, with no way to get back to Adnan’s car. The cell phone records do suggest an explanation for what was going on. As all of the calls made from 7:00 p.m. to 8:05 p.m. are to Jenn’s pager, this indicates that not only did Jay have the phone, but that he had something urgent to communicate with her about.

The most likely thing Jay needed to talk to Jenn about was getting a ride after leaving Hae’s car. If Jenn was telling the truth about picking Jay up from a strip mall –- and her story on this point seems more credible than Jay’s — then that would explain how Jay was able to solve the two car problem. After dropping Adnan at mosque at 7:00 p.m., he drove Adnan’s car to Hae’s car (probably at the Park’n’Ride), drove Hae’s car to bury Hae’s body, then ditched her car off Edmondson Avenue. Getting from the Woodlawn area, to the Park’n’Ride, and then to the burial spot would take about fifteen minutes (five minutes for each leg, plus five minutes to switch cars.) Jay said that burying the body took 20-25 minutes. That would mean Jay was ditching the car at around 7:45 p.m., and from where her car was left, there are at least a couple strip malls within a 20-minute walk, if you’re walking a little faster than average.

That would provide a possible explanation for the two pages to Jenn in rapid succession, at 8:04 p.m. and 8:05 p.m. — at right about the time Jay would’ve gotten to a strip mall. The double page could have acted as the signal for Jenn to come and pick him up at a pre-arranged location.

In reality, if Jay was the sole killer, there are many ways he could have handled ditching Hae’s car after burying her body (such as parking it back at the Park’n’Ride and moving it over to Edmondson later, for instance). But whatever method was used, I think it is a fair inference that Jay’s multiple calls to Jenn from Leakin Park that night were related to the cover up of Hae’s murder — because why would someone burying a body repeatedly page a friend, unless the pages were related to said body burying? It’s not exactly a time that you would be worrying about making social arrangements, that’s for sure.

Additional Note: I’m not trying to say Jenn had knowledge of Jay killing Hae, or that she was actively involved in disposing of Hae’s car. That’s not what the timeline seems to imply. Her testimony is that her assistance was limited to disposing of clothes and boots, and it’s entirely possible that’s true. It’s also perfectly possible she would have fully believed Jay, if Jay told her Adnan had done it. Her decision to distort her testimony to protect Jay, then, might have only been intended to help an innocent friend not take the rap for a murder he didn’t commit. But her statement to the police has been cooked.

I will note, however, that I actually do believe most of Jenn’s story. Her description of events seems mostly accurate — but she has changed the timeline and the details to make sure Jay can “prove” to the police that he was not involved in the actual murder.

Call 25.
Time: 9:01 p.m.
To: Nisha
Duration: 01:24.

The Cell Phone and Car Are Returned to Adnan, and Adnan Goes Home

Adnan’s Story:

Adnan does not have clear memories of what happened that night after he went to mosque.

Jenn’s Stories:

This is going to get confusing, because Jenn describes at least three different series of events that occur after she picks up Jay from Westview. Those three versions are:

1. Pick up Jay at Westview → Return to Westview to wipe down shovels → Go to Stephanie’s house → Go to the Cathy’s house (Jenn Int. at 2-4).
2. Pick up Jay at Westview → Go to Stephanie’s house → Return to Westview to wipe down shovels → Go to Cathy’s house → Go to UMBC for friend Mike’s birthday party (id. at 18-20).
3. Pick up Jay at Westview → Go to Stephanie’s house → Go to UMBC for friend Mike’s birthday party → Go to Cathy’s house (id. at 21).

Regarding the trip to Stephanie’s, Jenn says that they went either after rerturning to Westview to wipe down the shovels or before returning to Westview for the shovels (or after leaving Westview and never returning), and that the trip took about 15 minutes. After Jenn picked up Jay from Westview for the first time, Jay told her that “he wanted to go check on Stephanie to make sure she was okay,” so “[t]hey went to Stephanie’s house between 8:30-9:00 p.m.” (Brief of Appellant at 13). But Jenn is ambiguous in the wording she uses to describe this trip:

We, I want to say that we went to Stephanie’s house, his girlfriend, I want to say that we went there ’cause I think that I remember Jay saying that he wanted to go see Steph, he wanted to go and give her a hug and see her and make sure she was okay and everything[.] (Jenn Int. at 18.)

Jenn also said (in her trial testimony and police statement) that the following day she took Jay “to F&M drugstore to get rid of clothing and boots in a dumpster” (Brief of Appellant at 13). In her police statement, she was consistent with this trial testimony, and stated that,

sometime during the 14th . . . I went to see Jay again at his house. I picked him up and and he had his boots with him as well as his inaudible jacket that he had on the night before and he asked me if I would take him to F & M parking lot. I took him to F & M parking lot and we drove around the back until we saw a dumpster . . . and Jay threw his clothes boots in the dumpster. (Jenn Int. at 23.)

Cathy’s Story:

Cathy testified that, on January 13, 1999, after Jay and Adnan left her house a little after 6:30 p.m., “[Jay] returned hours later with Jennifer, but [Adnan] was not with them.” (Appellant’s Brief at 14).

Cathy had no reason to lie, and Jenn and Jay returning to Cathy’s is consistent with Jenn’s claims that she and Jay had plans to go there that night. It appears that Jay may even have testified that he and Jenn returned to Cathy’s at 11:30pm that night. But in that case, what did Jenn and Jay do from around 8:30 p.m. until 11:30 p.m.? And why did he and Jenn not go to Stephanie’s, as they claim?

Jay’s Story:

In Jay’s first interview, Jay says that after ditching Hae’s car,

I drive myself home and on the way home he’s like “stop here.” We stopped at ah Westview and one of the dumpster’s behind Westview he threw all the stuff in. Um. . . Um we argue um we argue some more, went to the 7 -11 and then inaudible. (Int.1 at 20-21.)

In Jay’s second interview, Jay also claims in the first interview that he throws his clothes away in the trash outside of his house:

Detective: Where did you discard the clothing?
Jay: Um I put mine in the trash at my house, put it out in the trash? (Int.1 at 22.)

Jay says that after ditching Hae’s car,

I get out of [Adnan’s] car, I go in my house, Jenny calls me back, I tell her I need, I need to talk to her, um, its real important. And for her to come and get me. She comes right over, um, I take my clothes from that day, I put them in a plastic bag. Um, I go out to to the car with Jen. I tell her what happened. She ah, she says to me urn, she really can’t believe it, and I tell her stay away from him. And I tell her if I get locked up that she’ll, she’ll be the one person that really knew that I didn’t Hae. (Int.2 at 39.)

Jay says that Jenn picked him up at his house, and then took him to the dumpster at the “F & M, the one behind the ah, F & M inaudible on Route 40,” where he threw away “[a]ll [his] clothes, it was ah, they were in a giant plastic bag” (Int.2 at 41). However, Jay “think[s] [he] may had held on to [his] boots until the day after” (id.).

So while Jay and Jenn agree that Jay threw his boots away on the 14th, Jay and Jenn disagree on just about everything else.

Stephanie’s Story:

Stephanie says that she did not speak to Jay until 11:30 p.m. on January 13th. This does not match Jay and Jenn claims they went to Stephanie’s at 8:30-9:30 p.m. that night.

What the Cell Phone Records Show:

The 9:01 p.m. call to Nisha strongly suggests that Adnan, and not Jay, had the phone at this time. But the call is also made from L651 – the same tower covering Adnan’s mosque and home.  Although Adnan’s cell phone spent the previous two hours in Leakin Park and along Route 40, the only calls made during that time were to Jenn’s pager. Not a single call was made to one of Adnan’s contacts, which is consistent with the phone not being in his possession during that time.

Call 26.
Time: 9:03 p.m.
To: Krista
Duration: 05:28.

The Cell Phone is at Adnan’s House

What the Cell Phone Records Show:

Once again, the records support a finding that (1) Adnan has his phone, as Jay would have no reason to call Krista, and (2) Adnan was at home, as shown by the tower the call connected through.

Call 27.
Time: 9:10 p.m.
To: Krista
Duration: 08:41

The Cell Phone is at Adnan’s House

What the Cell Phone Records Show:

Same as Call 26.

Call 28.
Time: 9:57 p.m.
To: Nisha
Duration: 0:24.

The Cell Phone is at Adnan’s House

What the Cell Phone Records Show:

Same as Calls 26 and 27.

Call 29.
Time: 10:02 p.m.
To: Yaser cell
Duration: 0:06.

The Cell Phone is at Adnan’s House

Explanatory Note: This call is another good example of a call routed through a cell tower outside of its normal range. There is no reason to believe — regardless of which witness’s testimony is accepted — that Adnan was anywhere other than at his home at this time, or that he was out somewhere moving around at 10:02 p.m. at night. Adnan was almost certainly at home, and, by chance, his call to Yaser was routed through the tower directly south (L698), rather than through the tower that calls made from Adnan’s home are most commonly routed through (L651).

What the Cell Phone Records Show:

Same as Calls 26-28.

Calls 30 & 31.
Time: 10:29 p.m./10:30pm (two calls).
To: Saad/Ann.
Duration: 0:18/01:44.

The Cell Phone is at Adnan’s House

What the Cell Phone Records Show:

Same as Calls 26-29.

-Susan

In a later post, I plan on expanding further on Adnan’s cell phone records and the related witness testimony, and discussing what we can reconstruct about Hae’s murder from the existing evidence. This post, however, is not about the evidence that we have. It’s about the evidence that we don’t have — and that’s evidence that Jay is telling the truth about Adnan’s involvement in Hae’s death.

Now, it’s possible that Adnan is still guilty of Hae’s murder, and that the state managed to get the right guy, even if they didn’t have much to go on. Possible. The fact that Jay is a completely incredible witness is not evidence that Adnan is innocent. But that doesn’t change the fact that the state’s evidence was based entirely on the uncorroborated testimony of a self-acknowledged liar with a motive to falsely incriminate Adnan.

The state has itself acknowledged that Jay was the alpha and the omega of its case against Adnan. At trial, the prosecutor told the jury, “Let’s talk about Jay [ ] because, clearly, this case hinges on his testimony” (Brief of Appellant at 40). But while the prosecution then went on to continually assert, at every opportunity, that Jay was a “credible” witness, there was simply no objective basis for believing that Jay was likely to tell the truth when he testified at Adnan’s trial.

I’m not trying to be hyperbolic here, or to exaggerate for effect. I know that’s a pretty expansive claim to make. But it also happens to be accurate. We know that Jay had every motivation to lie and no motivation to the tell the truth; had a demonstrated history of lying when it was to his own advantage; and lacked corroborating evidence in support of his claims. Even assuming that Adnan is guilty of Hae’s murder, there was still no objective reason to find Jay’s testimony on that point to be credible.

How can a thing like that be evaluated? Well, the credibility of a witness’s testimony — that is, roughly speaking, the testimony’s evidentiary value — is judged in reference to four basic factors. Those factors are sometimes formulated in different ways, or split into additional categories, but they  can be summarized as the following:

1. Inherent Credibility. A witness’s general character for truthfulness and honesty.
2. Bias or Interest. A witness’s motive to lie in a particular circumstance.
3. Inconsistent Statements. Whether a witness’s statements have been internally consistent.
4. Corroboration by Other Evidence. A witness’s credibility is enhanced when his testimony matches known evidence.

With those factors in mind, how does Jay’s testimony stack up?

The Witness’s Inherent Credibility

Some witnesses have inherent credibility. Call it demeanor, call it character, whatever, but the factfinder in a trial is entitled to conclude that a witness is simply not the type of person who would lie, and credit their testimony based on that alone. Personally, I think this is the most useless way to evaluate testimony, because humans just aren’t natural polygraph machines — as a general rule, we’re really bad at this. Juries always overestimate their own ability to distinguish the liars from the truth tellers simply by observing them.

But sometimes, it is very easy to make an assessment of a witness’s inherent credibility. And that is when a witness informs you that he has none.

Jay is that witness.

Jay told the police and the jury, again and again, that he was willing to lie in order to avoid criminal punishment. He was not shy about this fact. Ask Jay why he lies, and he’ll tell you: he lies because he didn’t want to get in trouble.

For instance, in Jay’s third police statement, he gave a completely different story than he had give in his first two statements. And when the cops asked why he has not told the truth before, Jay “admitted that he lied on the two previous occasions to cover up the fact that he bought and sold marijuana” (Appellant’s Brief at 12).

And in one of Jay’s first two interviews, a detective asked Jay “what [Adnan] ha[d] over [him],” and noted that he could not understand why Jay would have voluntarily helped cover up Hae’s murder unless Adnan had some sort of leverage. Jay responded,

“Like I said, he knows I sold drugs, I mean . . . that was, I mean, that’s . . . he could get me locked up for that, I mean.” (Episode 4.)

In Jay’s second interview — which, again, was radically different from what was said in his first interview, and also radically different from what he would later say in his third — Detective MacGillivary pointed out all of the known lies that Jay had told so far, and asked Jay why he had not simply told them the truth during his first interview. The following exchange occurred:

Detective: “Why did you lie about the location [where Hae was killed]?”

Jay: “Uh, I figured there was cameras there or somebody had spotted him doing what he was doing.”

Detective: “But if you actually didn’t assist with her murder . . .”

Jay: “But I’m associated. I’m associated.” (Episode 4.)

Ignoring the truthful response that Jay’s answer inadvertently contains (that Jay lied because he was concerned there would be video footage showing who committed the murder), we have yet another example of Jay fully disclosing to the police that when he believes the truth will get him in trouble, he is going to lie instead.

And if Jay is willing to repeatedly lie to the cops in order to avoid getting in trouble for buying and selling pot, why on earth would he not also be willing to lie in order to avoid getting in trouble for murder?

The Witness’s Bias or Self-Interest

A witness’s credibility is affected by the witness’s “biases, prejudices, or ulterior motives . . . as they may relate directly to issues or personalities in the case at hand.” Davis v. Alaska, 415 U.S. 308 (1974). Bias exists when there is a “relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party,” and biased “may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.” United States v. Abel, 469 U.S. 45 (1984).

Does Jay have a bias which might lead him to slant his testimony against Adnan? Well, since not testifying against Adnan could very well have resulted in Jay serving the life-plus-thirty sentence that Adnan got, I’m going to say yes, he did in fact have a bias that might cause him to not tell the truth about Hae’s murder.

It was obvious to Jay that the police were looking at him as a possible suspect. Jenn had already told the cops that Jay was throwing away shovels and clothes after Adnan had, supposedly, disposed of Hae’s body by himself — and the cops knew, even if Jenn didn’t, that Jay’s story about not being involved in the burial was utter horseshit. So Jay’s claims about not being involved at all in Hae’s death were not going to get him very far. That cat was already out of the bag, because the police knew he had at least helped bury the body. And Jay had a very strong self-interest in making sure that the police believed his involvement went no further than that.

Jay also knew that the cops were running with the theory that Adnan had done it — after all, that’s why they pulled Adnan’s cell phone records. And Adnan being responsible matched the story that Jenn had already given them, via Jay’s previous statements to her. At that moment, regardless of whether Adnan was guilty or innocent, Jay had every reason in the world to say, “Yep, Adnan did it. He told me he did it. He forced me to help bury the body. If you’re looking for the murderer, he’s your man.”

But it gets worse. Once Jay’s plea agreement was in place, Jay’s motive to lie only increased. The plea agreement provided, at Sec. 1(a),

The Defendant represents that he/she has fully and truthfully responded to all questions put to Defendant by law enforcement authorities during all prior interviews. If at any point it becomes evident the Defendant has not been truthful concerning his involvement in this incident, the State is immediately released from any obligation under this agreement, the agreement becomes null and void, and the State is free to bring any charge against the Defendant supported by the evidence. The Defendant shall continue to cooperate fully with the State by providing full, complete and candid information concerning the murder of Hae Min Lee of which Defendant has knowledge.

So Jay “represent[ed] that he[ ] has fully and truthfully responded . . . during all prior interviews”? Well, shoot. That’s not good for Jay. He has already admitted that he lied in every single interview he gave. And, “[i]f at any point it becomes evident [Jay] has not been truthful concerning his involvement in this incident, . . . the agreement becomes null and void”? Hmm, that’s not good for Jay either. Since Jay definitely was not truthful in his police statements, he might reasonably think the state could void his agreement at any time. That’s a pretty tenuous position for anyone to be in — what was Jay supposed to do? “The Defendant shall continue to cooperate fully with the State by providing full, complete and candid information concerning the murder of Hae Min Lee. . .” Ah-ha, there we go. There’s something Jay can work with. “Cooperate fully.” In other words: Jay would not be crazy for thinking that if he did not “cooperate fully” with the state — by testifying to what he knew they wanted to hear — then he would be facing a lot of jail time.

Is anyone surprised that Jay did go on and testify exactly as the state wanted him to? At trial, he told a new version of his story — one that he had never told in any of the prior police interviews, but which was selectively woven together from the most believable portions of his prior statements. And following Adnan’s trial, he was given a sentence that let him avoid spending so much as a day in prison.

The Witness’s Consistent or Inconsistent Statements

When a witness’s testimony at trial is either internally inconsistent, or inconsistent with the witness’s prior statements, the factfinder is left with a question. Was the witness lying a trial, and telling the truth before? Was he lying before, and telling the truth now? Or did the witness just lie both times? Are the witness’s inconsistencies a result of the witness deliberately changing his story, or are they a result of the witness not being able to remember what he had said in his previous stories?

All of these questions raise serious doubts as to the credibility as the witness’s testimony. And particularly where a key witness did himself have the opportunity to actually be the perpetrator of a crime, the fact that the witness’s “statements to the police were replete with inconsistencies [ ] would . . . allow[ ] the jury to infer that [the witness] was anxious to see [the defendant] arrested for [the victim’s] murder. ” Kyles v. Whitley, 514 U.S. 419 (1995).

So how does Jay stack up in terms of consistency? To hear the state tell it, Jay is a daggum straight-shooter who sticks by his word. During opening arguments, the prosecutor told the jury,

“The main plot points in Jay’s story have been consistent. He tells them that consistently, Jay ‘has always given the same story about what the defendant did where. Consistently, he tells Jennifer a consistent story, he tells police a consistent story about the defendant, he tells consistently the defendant’s involvement, the defendant’s actions on that day. He has never wavered on that point.’” (Episode 5.)

On the podcast, after quoting this portion of the prosecutor’s opening argument, Koenig makes the following remark:

That is a lot of consistently-s and while, maybe it’s not great oratory, it does have the advantage of being true. In Jay’s statements, while the particulars shifted, the spine of his story did not.” (Episode 5.)

Wait, what? Jay tells a “consistent” story? Jay has been “consistent” on the main points?

Koenig keeps using that word. I don’t think it means what she thinks it means.

Both the prosecutor and Koenig seem to think Jay has earned the distinction of being “consistent” because Jay has been consistent about the fact that Hae was murdered and that Adnan is the one who did it. Okay yes, it is true, Jay’s stories have been completely consistent on those points. But that’s not the kind of “consistency” that makes a witness’s testimony credible.

Let’s review some of the things that Jay has not been consistent about. But keep in mind — I don’t have access to the full police statements or the trial transcripts. I have only seen the bits that were deemed interesting enough to make it onto the show or the appellate briefs. And when a witness is lying, it is often in the boring questions, in the innocuous minutiae, that a witness’s lies start falling apart. It’s not so hard to remember one big story, but it’s awfully hard to remember all the practical details of an imaginary event. So whatever inconsistencies I have laid out here, I can promise that there are going to be a whole helluva lot more in the totality of the transcripts.

But just from the excerpts that are publicly available, the list of things Jay has been inconsistent about is already getting pretty dang impressive.

Reasons Why Adnan Killed Hae:

1. Because “Hae made him mad” (trial testimony).
2. Because Hae “had broken his heart” (Jay’s Second Interview).
3. Because “Adnan confronted Hae about flirting with . . . a car salesman and when she called Adnan crazy, he snapped and strangled her” (Episode 8) (Jay’s Story to Chris).

Whether Adnan Planned Hae’s Murder in Advance:

1. Yes (Jay’s Second Interview) (Adnan told Jay, “I think I’m going to kill her, yeah I’m going to kill her.”).
2. No (Episode 8) (Adnan “snapped and strangled her.”).

Number of Times Adnan Told Jay That He Was Going to Kill Hae:

1. Once (Trial Testimony).
2. A lot (Jay’s Second Interview).

Number of Days Before Hae’s Murder That Adnan Told Jay He Was Going to Kill Her:

1. Same day (Jay’s First Interview).
2. One day (Jay’s Second Interview).
3. Four to five days (Jay’s Second Interview).

When Does Adnan Ask Jay to Help Dispose of Hae’s Body:

1. On the morning of January 12th, while he and Jay are shopping (Jay’s Second Interview) (Detective: “However, the whole purpose of him being with you that day was to ask you for your assistance?” Jay: “Yes.” Detective: “Of killing her?” Jay: “Yes, not some much in killing her, but in dispose.”).
2. On the evening of January 12th, while he and Jay are talking on the phone (Jay’s Second Interview) (Detective: “What was that conversation. What made you think that ah, January the 13th, would be the day that Adnan would kill Hae?” Jay: “He told me um, that we’re gonna hook up the next day and that, he said, he said that’s what he said, I gonna do it, I’m gonna kill her.”).
3. On the morning of January 13th, while he and Jay are shopping (Jay’s First Interview) (“On my birthday, on the evening of my birthday um Adnan called me and we chatted ah we made plans for the next day evening. That morning he called me and we took …. we were going to the Mall. He asked me if I could do him a favor.”).
4. On the afternoon of January 13th, when he makes the “come-and-get-me” call (Jay’s Second Interview) (“[Adnan] never asked me until like, he asked me to come and get him. It’s wasn’t anything of disposing the body. He never asked me none of that until the actual day.”).

Whether Jay Tells Jenn that Adnan Had Plans to Kill Hae:

1. Yes, on January 12th (Jay’s Second Interview) (“I told [Jenn] what the conversation me and Adnan had had earlier that day [about killing Hae]. And he reaction was just
   about the same”).
2. Yes, on January 13th, before going to pick up Adnan from Best Buy (Jay’s Second Interview) (Detective: “Jenn never really like Hae, correct?” Jay: “Yeah, I mean.” Detective: “So I mean, did she actually even care?” Jay: “Not really.”).
3. No (Trial Testimony).

Places Where Adnan Killed Hae:

1. In her car in the parking lot at the Best Buy (Jay’s Second Interview).
2. In her car in the parking lot at the Woodlawn Library (Jay’s Story to Chris).
3. Jay has no idea (Jay’s Story to Jenn).
4. Patapsco State Park (Jay’s Third Interview).

Places Where Adnan Showed Hae’s Body to Jay:

1. At Edmondson Avenue (Jay’s First Interview).
2. At the Best Buy (Jay’s Second Interview).
3. Never, Jay was with Adnan in Patapsco State Park when he killed her (Jay’s Third Interview).
4. At Franklintown Road (Brief of Appellant at 12) (Detective MacGillivary testified “that [Jay] told him that [Adnan] showed him Hae’s body in the trunk on Franklintown Road”).
5. At a pool hall in Catonsville (Episode 8) (“[Jay] was shooting pool, Adnan called him he was like ‘yo, I gotta talk to you,’ and he was like ‘yo I’m busy.’ ‘Yo, where are you’ and he told him where he was. Adnan showed up and he’s like ‘oh I gotta talk to you’ and he’s like– this was a little tug of war for a while and Adnan eventually convinced him to come outside with him and his car or, I.”).
6. At a gas station (Jay’s Story to Tayyib).
7. Outside of Jay’s grandmother’s house (Intercept Interview).

Did Adnan Show Jay Hae’s Body When It Was in a Car Trunk:

1. Yes, the body was in the trunk of Hae’s car (Trial Testimony).
2. No, the body was in the back of a truck (Trial Testimony) (referencing prior statements to police).

When Does Jay Go to McDonald’s:

1. After picking Adnan up from track (Jay’s First Interview).
2. While waiting for Adnan to come back from the Park’N’Ride with Hae’s car so they can bury the body (Episode 5).

When Does Jay Go to Patapsco State Park:

1. After 2:15 p.m., to help Adnan kill and/or dispose of Hae, because “[Adnan] killed Hae in Patapsco State Park,” and “[Adnan] paid [Jay] to help” (Jay’s Third Interview).
2. At 4:30 p.m., after ditching Hae’s car and after buying weed. Once there, while “standing . . . at this cliff and [Adnan] starts telling [Jay]about how it was when he killed her,” while they watch the “[s]un getting ready to hit mountain tops”  (Episode 5). They are there for “[t]wenty minutes to a half an hour” (id.). (And yet somehow Adnan makes it back to Woodlawn in time for track.)
3. After 6:30 p.m., after leaving Cathy’s and retrieving Hae’s car (Episode 5).
4. Never (Trial Testimony).

Malls that Jay Says He Went Shopping at to Get a Present for Stephanie:

1. Westview Mall (Jay’s First Interview).
2. Security Square Mall (Jay’s Second Interview).

People Who Smoke Weed After Ditching Hae’s Car:

1. Jay and Adnan (Trial Testimony from First Trial).
2. Just Jay (Trial Testimony from Second Trial).

Person Who Drives Adnan’s Car to the Park’n’Ride After the Police Call Adnan to Ask About Hae:

1. Jay (Jay’s First Interview) (“[Adnan] said take him back to the Park and Ride, I took
   him back to the Park and Ride um he told me follow him, drove me all around inaudible“).
2. Adnan (Jay’s Second interview) (Detective: “And you get back in the car?” Jay: “Yes we get back in his car, he’s driving.” Detective: “And were do you go?” Jay: “We go back to 70 Parking Ride.”).

Time that Hae Was Buried in Leakin Park:

1. Around 7:00 p.m. (Jay’s First and Second Interviews and Trial Testimony).
2. Midnight (Intercept Interview).

People Who Dug Hae’s Grave:

1. Just Adnan (Jay’s First Interview).
2. Adnan and Jay (Jay’s Second Interview).

Number of Shovels Used to Bury Hae:

1. One shovel (Jay’s First Interview) (“Um, you guys might be able to find some dirt in [Adnan’s] car . . .[f]rom both of our[ shoes], a shovel was in there to.”).
2. Two shovels (Jay’s Second Interview) (“There’s two shovels that are kept with tools next to my porch. . . Um, he grabs the shovels and says we have to get rid of the body.”).

Where the Shovel(s) Used to Bury Hae Were Thrown Away:

1. Super Fresh (Trial Testimony).
2. Westview Mall (Jay’s Story to Jenn).

Where Jay’s Clothes and Boots Were Thrown Away:

1. At Jay’s house, on the night of the murder (Jay’s First Interview).
2. At the F&M, on the night of Jay’s murder, except for his boots, which were thrown away at Jay’s house on the day following the murder (Jay’s Second Interview).
3. At the Super Fresh, on the night of Jay’s murder (Appellant’s Brief at 10).

Where Jenn Picked Up Jay After Hae’s Body Was Buried:

1. At Jay’s home, where Adnan had dropped him off (Trial Testimony).
2. At Westview Mall in front of Value City (Int.2 at 58-59) (discussing statements made in first interview).
3. Other places (Trial Testimony) (noting that “[Jay] told the police different stories about where Jenn[] picked himup on January 13″).

Where Adnan Removed Hae’s Belongings from Her Car and Put Them in His Car:

1. At the I-70 Park’n’Ride (Jay’s Second Interview) (“We went to the Route 70 parking lot . . . he got out of the car and proceeded to go through the trunk and the back seat and ah, several items he picked up . . . And then he came over to his car, um, told me to pop the trunk. I popped the trunk, he placed a whole bunch of items in the trunk. . . Um, I know one of them to be his track bag. It’s a black bag with ah, white writing on it. The other look like a book bag, a black book bag with a brown bottom and ah, like her keys, um, and her wallet”).
2. At Edmondson Avenue, after ditching Hae’s car (Jay’s Second Interview) (“Um, oh he stops and he digs in [Hae’s] car some I don’t know what he was getting, he dug in the car some more, parked it, took the keys with him and came and got in the other car . . . Um, the only items I definite that were hers that he had, he had her wallet with all of her, all of her identification, um credit cards, all that, her keys definite.”); (Jay’s First Interview) (“After he moved [Hae’s car] to the second spot [off Edmondson] then he got out [her] car and acted like he was carrying her purse and her wallet [and her book bag] and he had some other stuff in his hand and ah.”).

Number of Times Jay Goes to Cathy’s House That Day:

1. Zero times (Jay’s First Interview).
2. Three times (Jay’s Second Interview).

Does Adnan Threaten to Have a “West Side Hit Man” Kill Jay:

1. Yes (Jay’s First Interview).
2. No (All Other statements).

Times That Jay Promised He Is Telling The Truth But Later Admits He Was Lying:

1. Jay’s First Interview (Jay: “I was as honest as I possibly can remember – I mean, truthfully honest.”).
2. Jay’s Second Interview (Detective: “The taped interview that you’ve given us right now – is that the truth?” Jay: “To the best that I can possibly, humanly at this point and time remember. That is the truth.”)
3. Jay’s Third Interview (“[Jay] gave a third statement on April 13, 1999, and admitted that he lied on the two previous occasions to cover up the fact that he bought and sold marijuana.”) (CoSA Opinion at 6-7).

And that’s just the tip of the iceberg. But you know what? All of those inconsistencies are irrelevant, compared to this final one:

Number of Pretrial Statements in Which Jay Lied to the Police:

1. All of them. (Brief of Appellant at 40) (“It was not contested [at trial] that [Jay] had lied in every pretrial statement he gave to the police.”).

Keep in mind, there were at least four of these pretrial statements: the February 28, 1999 interview; the March 15, 1999 interview; the March 18, 1999 written itinerary; and the April 13, 1999 interview. And Jay gave different stories in all of them. Not to mention that he later gave a completely new story still, in his testimony at trial.

In fact, on the day of Jay’s first interview with the police, he gave at least two entirely different stories. The first story, which was not tape recorded, was wholly different from the taped interview, and according to a detective, it had “a lot of inconsistencies. . . too many to go over”:

Detective: Prior to us turning the tape on – we had a conversation with you.
Jay: Yes.
Detective: And during that conversation we spoke probably for about a half hour, forty-five minutes, the information that you provided during this interview was it the same information that you provided during the first interview?
Jay: No.
Detective: During the first interview there were a lot of inconsistencies.
Jay: Yes.
Detective: And there are too many to go over but you kind of disassociated yourself from all the information you provided in this interview. Why is that?
Jay: Scared.
Detective: All the information you provided during this interview has it been the complete truth?
Jay: To the best of my knowledge. (Int.1, at 24-25.)

So right off the bat, Jay’s stories are wildly inconsistent — both internally inconsistent, and inconsistent with statements that he makes at later times. In fact, throughout all of Jay’s stories, only the following facts remain consistent: (1) Adnan killed Hae sometime in the afternoon of January 13, 1999; (2) Jay was at Jenn’s house until 3:40 p.m.; (3) Hae’s car was initially ditched at the Park’n’Ride; (4) Adnan went to track practice that day; and (5) she was later buried in Leakin Park. Nothing else stays the same.

Corroboration of the Witness’s Testimony By Other Evidence

A witness’s testimony may be shown credible, even if that witness does not have inherently credibility, is biased, or has given inconsistent statements, when his testimony is nevertheless corroborated by other evidence. However, in order for evidence to be corroborative — that is, to be able to demonstrate that a witness was telling the truth — the evidence must have come from a source that is independent of the witness’s testimony. When such corroborative evidence does exist, that corroboration is objective evidence from which it can be concluded that the witness was likely to be telling the truth — at least in that particular aspect of his testimony.

Jay’s testimony was in fact corroborated in significant respects:

1. Jay’s testimony that he buried Hae was corroborated by the fact he knew where she was buried, and how she was positioned in the grave.
2. Jay’s testimony that he ditched Hae’s car was corroborated by the fact that he knew where her car had been left.

So even though Jay is not a credible witness, we can, with a fair amount of confidence, credit those two major portions of his testimony, as they could be verified by independent and external evidence (i.e., Jay’s story about the burial did in fact match what police discovered at the scene, Jay’s story about the car was true because he did in fact lead the police to it). As a result, Jay’s involvement in both the burial and disposing of the car are about the most solidly confirmed facts that we have in this case.

But even if Jay’s testimony is corroborated in those respects, that does not mean his testimony provides credible evidence against Adnan. Because even though Jay’s testimony is corroborated as to his involvement in Hae’s murder, his testimony is not corroborated as to Adnan’s involvement in the murder.

Not a single claim that Jay has made about Adnan’s culpability for Hae’s murder can be verified by independent and external evidence. Not the time that Adnan allegedly called Jay for a ride after killing Hae (there’s no 3:45 p.m. incoming call), not that Adnan was in Leakin Park on the night of Hae’s murder (cell records show no calls to Adnan’s friends from 7 p.m. to 9 p.m.), not that Adnan buried Hae’s body (no physical evidence at crime scene), and not that Adnan had any contact whatsoever with Hae after 2:15 p.m. that day (no witnesses or physical evidence that Hae and Adnan were ever in contact after school let out).

Although the state claimed that Jay’s testimony was corroborated by Adnan’s cell phone records, this is not the case. Because in order to be corroborative, evidence must not only be consistent with a witness’s testimony, it must also be independent of it. Jay’s testimony at trial may have had some demonstrable consistencies with the cell phone records (although there were still mountains of inconsistencies between his story and the records, even at trial), but the cell phone records were not corroborative, because they were not independent from that testimony.

First, as a simple matter of math, the more stories that a witness tells, the more likely it becomes that the witness will have told a story that actually matches up with the truth. For example, if a witness is asked to identify the make of a defendant’s getaway vehicle, and says, “Hyundai, Ford, Jeep, Tesla, Lamborghini,” then that witness’s testimony about seeing the car drive away from the crime scene cannot be said to have been “corroborated” if it later turns out that the car was, in fact, a Ford.

That’s what happened here with Jay’s police statements. He gave details about Hae’s murder — lots of details. And while most of his stories were clearly fabrications, some of the bits and pieces that he told to the cops were not so obviously false. For example, Jay told one friend that the murder happened in Catonsville, told another friend that the murder happened at Best Buy, and told the cops that the murder happened at Edmondson Avenue. But which is the “true” answer? Well, the cell phone records show that two of those stories can’t be true, but they don’t disprove the Best Buy story. So the cops went with that, because hey, it’s confirmed by the evidence, isn’t it?

This method of developing Jay’s story left the prosecution with a lot of options to choose from, when it came to figuring out what their star witness was going to be bound by his plea bargain to say at trial. In making it’s case against Adnan, the state could rummage through Jay’s testimony, take little from column A, take a little from column B, add in a little bit of totally new stuff, and voila — they’ve got testimony which sort of matches the physical evidence and communications data! Or, at least, which can’t as easily be shown to have been a blatant lie.

But it gets worse than that. Jay did not just have an opportunity to make lots of guesses, and then pick and choose from those guesses later when developing his trial testimony. Jay was actually permitted to make statements that were based on the investigator’s independent evidence of what had occurred on that day:

“[Detective] MacGillivary interviewed [Jay] a second time on March 15, 1999, with [Adnan’s] cell phone records, and noticed that [Jay] statement did not match up to the records. Once confronted with the cell phone records, [Jay] ‘remembered things a lot better.'” (Brief of Appellant at 11.)

In order for evidence to corroborate a witness’s story — that is, to demonstrate that a witness was telling the truth — the corroborating evidence has to come from an independent source. But when a witness’s story is created by using the “corroborating” evidence as a reference, then that evidence doesn’t prove anything about the veracity of the witness’s account. Because, as should be self-evident, if you tell a witness, “I know your story is a lie if you tell me you did something other than ‘XYZ,'” and the witness then tells you, “I did ‘XYZ,'” that’s not evidence that the witness is telling the truth. It’s just evidence that the witness is not a complete idiot.

Here, Jay was told what portions of his story were contradicted by the cell phone records, and also why those portions were contradicted. For instance, when Jay claimed, on March 18th, that he and Adnan had called Patrick to buy weed immediately after ditching Hae’s car at the Park’n’Ride, Jay was confronted by the police with the fact that his story could not be true, because he had made a call to Jenn at 3:21 p.m., before ever calling Patrick to “look for weed” (Episode 5). So by the time trial comes around, Jay has fixed his story: “oh, I was calling Jenn because I needed to find out if Patrick was home.”

By giving Jay at least four interviews and a ride-along, and by challenging Jay each time his story did not match the known evidence, the police informed Jay of what parts of his story they could disprove, and — just as significantly — they also implicitly told Jay which parts of his story they could not disprove. For instance, in the second interview, when questioning Jay about where Hae’s body was discovered, they (1) explicitly alerted Jay to the fact that another witness (Jenn) was giving a story that didn’t match his; and (2) implicitly alerted Jay to the fact that they had not discovered any evidence — such as security cameras — that could prove or disprove that the murder happened there.

So it’s no surprise that, as the investigation went on, and as Jay was interviewed more and more often, the story that Jay told began to fit the evidence “a lot better.” And the resulting consistencies between his story and the known facts are in no way evidence that Jay had finally decided to start telling the truth.

Conclusion:

The ultimate question here is not whether or not we can determine if Jay is telling the truth about Adnan’s involvement in Hae’s murder. The question is whether Jay’s testimony is significant evidence of Adnan’s guilty.

And it is not. The testimony that Jay gave at Adnan’s trial can be equally explained by the theory that Adnan murdered Hae, or by the theory that which Jay murdered Hae without Adnan’s involvement. Because regardless of what actually happened, Jay could be expected to give the exact same testimony. Jay’s testimony therefore does not increase or decrease the probability that Adnan is actually guilty of Hae’s murder.

-Susan

A few days ago, the transcripts were released from Jenn’s recorded police interview (from 3:45 p.m. on February 27, 199), Jay’s first recorded police interview (from 12:30 a.m. on February 28, 1999), and Jay’s second recorded police interview (from March 15, 1999). I’ve been trying to update my earlier post on how the witness statements compare to the cell phone records, based on the new information.

But it’s slow work. Because good god, Jenn and Jay’s statements are a complete train wreck. Trying to create a timeline out of their statements made me truly understand what Sarah Koenig and Dana Chivvis were talking about, in Episode 5, while trying to track Jay’s movements on the day of Hae’s murder:

Koenig: I’m trying to think of an analogy of what the uselessness of what we’re trying to do by recreating something that doesn’t fit, it’s like a– like trying to plot the coordinates of someone’s dream or something . . .

Chivvis: I think they call that a fool’s errand.

Because here are a couple of quick examples of what we’re dealing with from these transcripts:

Jay: [Adnan] wanted me to revisit the body.

Detective: And when did that conversation take place?

Jay: Um prior to Hae Lee’s death. (Int.1 at 27.)

And:

Detective: What happened after the conversation with the officer?

Jay: Um ah he ah he got kind of frantic and we had to go back and get the car, we went back and got the car and ah then we went back to my house. I gave him a shovel, gave him a pick. He ah.

Detective: When you go back to your house , who drives, drives Hae Lee’s car?

Jay: We didn’t have Hae’s car then.

Seriously now. What am I supposed to do with that? Adnan and Jay discuss revisiting Hae’s body, and this conversation occurs prior to Hae’s death? Jay and Adnan “went back and got the car” and went to Jay’s house, but then they didn’t have Hae’s car when they were at Jay’s house?

There are dozens of these chronological paradoxes in Jay’s police statements. (And just to make things even more fun, Jenn’s statements during her interview are equally incomprehensible.) As a result, I’m not even sure a meaningful comparison of the various police statements can be done at all — it’s completely impossible to set down a definitive narrative of “this is Jay’s story in the first interview” or “this is Jay’s story in the second interview,” and then look at the differences between them. Because the stories Jay tells in his police interviews have more continuity errors than a bad 90’s sitcom.

And all of these bizarre claims aren’t just misstatements or slips of the tongue that we’re talking about here. Or, if they are, then that alone is grounds for tossing out the entirety of what he told the police — because if that’s the case, Jay is so hopelessly confused that we cannot assume he actually meant any of what he said. If every chronology he gives might have been nothing more than another misstatement, how can we know that anything Jay says is “the truth”?

But of all the things that didn’t happen the way Jay says they happened, there is one thing that didn’t happen the most: his stories about how Hae was buried in Leakin Park. To get an idea of how irreconcilable Jay’s statements are, that is a good place to start.

Jay’s First Recorded Statement

In Jay’s first recorded statement, Jay tells the detectives how he and Adnan leave the McDonald’s after shortly after Adnan gets a call from a detective who is looking for Hae. Jay then says that the following happens:

Jay: [Adnan] said take him back to the Park and Ride, I took him back to the Park and Ride um he told me follow him, drove me all around inaudible. Got back to Leakin Park he said um . . . I pulled up next to him he’s like “we’ll park up around the corner. I’ll be there in a second.” Um I went up a round the corner, after a while it was like ten minutes, fifteen minutes.

Detective: You go up around the corner, you still within a view of ah Hae Lee’ s car?

Jay: No.

Detective: Was it way out of sight?

Jay: Yes.

Detective: How did he knew that you just didn’t leave him there?

Jay: He didn’t .

Detective: So you’re up around the corner, so then what happened?

Jay: We dropped her car back around the corner and um I was turned around so he thought I left him. He’s walking around the streets and I picked him up and ah.

Detective: What does he say to you?

Jay: He says “she was heavy” and um he starts to throw up and than he ah was like “you got to take me back there. I got to bury her.” And then ah we argue um for about five minutes so we go back, we park the car and pull off up the side of the road. [ . . . ] I went back there and ah she’s kind of like laying against a log and he asked me to help him dig. We argued some more than ah I started digging a hole and.

Detective: Who started digging a hole?

Jay: Adnan started digging and um threw up once more and he ah finished the hole and put Hae in there, face first.

[. . .]

Detective: Where is Hae Lee’s body when he’s digging the hole?

Jay: Right next to where he’s digging.

Detective: After he completes digging the hole, than what happened?

Jay: He throws her in there.

[. . .]

Detective: How long does it take Adnan to dig the grave?

Jay: Like a half an hour.

Detective: And during the digging process do you assist him at all?

Jay: No, not at all. I sat there and smoked a cigarette on a log. It’s kind of like I don’t believe what happened.  . . . he throws up first then he covers her up. . . . Then we left um.  [I got into] [t]he ah Accord [and Adnan gets into] Hae ‘s car, the silver car. (Int.1 at 14-16, 18-19.)

Go ahead, read that statement through as many times as you want. Take your time.

But it’s never going to start making sense.

Why? Because Jay is almost certainly describing something that never happened. In reality, there was probably only one car involved in Hae’s burial — and that’s the reason why the two cars in Jay’s story keep vanishing and magically reappearing out of thin air. Jay doesn’t know how the story is supposed to work when two cars are involved, because the only experience he has to draw from is on how it occurred when there is only a single car involved. So when he is telling his story to the cops, the details just don’t line up right. It was too hard for him to think up, on the fly, what tweaks needed to be made to his story to account for the presence of a second car.

Here’s a challenge for those of you who disagree, and still think that Jay’s testimony about how Adnan buried Hae is credible: try and turn the Jay’s word salad into some kind of coherent narrative of events.

Here’s my best shot: Jay and Adnan are out together, eating at a McDonald’s, which they drove to in Adnan’s car. After the call from Officer Adcock, Adnan gets “frantic” and tells Jay to take him to Hae’s car. Jay drives Adnan back to the Park’n’Ride, and Adnan gets out and tells Jay to “follow [him],” and then gets into Hae’s car. Adnan proceeds to drive “all around” Baltimore for a while, with Jay following, before Adnan leads him “back to Leakin Park” (interestingly, this would seem to imply that they had been their earlier in the day as well). Once in Leakin Park, Adnan and Jay pull up beside each other, blocking both lanes of traffic, while they quickly talk. Adnan instructs Jay to go “around the corner,” where they will park their cars, and tells Jay that he will be there “in a second.” Jay then drives Adnan’s car down the road, out of sight of Adnan (and Hae’s car), where Jay then waits for 10 to 15 minutes.

And then this happens:

We dropped her car back around the corner and um I was turned around so he thought I left him. He’s walking around the streets and I picked him up and ah. [ ] He says “she was heavy” and um he starts to throw up

We know, from Adnan’s comment, that Adnan has (presumably) just removed Hae’s body from the back of her trunk. But nothing else about Jay’s statement describes a series of events that could have actually occurred in real life. We know that Adnan (and Hae’s car) are somewhere up the road, out of Jay’s sight. And we know that Jay is sitting “around the corner” in Adnan’s car, waiting for Adnan as instructed. But somehow, the very next event that happens is, “We dropped her car back around the corner.” But this doesn’t work: (1) Jay could not have dropped Hae’s car back around the corner, because he is already back around the corner, and (2) “we” could not have done anything, because only Adnan is with Hae’s car, Jay is not with him.

It gets weirder. Because suddenly Adnan is “walking around the streets.” And, for some reason, he thinks Jay has “left him,” because Jay has turned around. But why would that make Adnan think Jay had left him? Adnan just told Jay to go park around the corner, which is what Jay did; the fact that Jay “turned around” wouldn’t have given the appearance of Jay leaving. But more importantly — why is Adnan walking around on the street? Why does Jay need to “pick[] him up” off the side of the road? Adnan was driving Hae’s car, but now Adnan is suddenly walking around on foot? Why did Hae’s car poof our of existence, leaving Adnan to hitchhike through Leakin Park?

According to Jay, after he picks Adnan up from the side of the road,

[Adnan] was like “you got to take me back there. I got to bury her.” And then ah we argue um for about five minutes so we go back, we park the car and pull off up the side of the road.

So wherever they are when Jay picks Adnan up, it’s not near Hae’s grave. They have to go “back there.” Jay agrees to take Hae back, and they pull up at the side of the road, where (apparently) Adnan had previously removed Hae’s body from her car.  Adnan and Jay get out of the car and walk back into the woods, where Jay sees Hae’s body leaning against a log. Jay and Adnan argue some more, and then Adnan digs a hole next to Hae’s body. (But did you notice this slip? Jay first says that after arguing some more, “I started digging a hole.” It’s only when the cop asks Jay to clarify that Jay’s story changes: “Adnan start[ed] digging a hole).

While Adnan is busy digging the hole, good ol’ Jay sits on a log and has a smoke. A half-hour later, Adnan finishes the hole and throws Hae’s body in, using the shovel to cover herup. Jay and Adnan walk back to the road — and when they get there, Hae’s car has magically reappeared again. Jay gets into Adnan’s car, and Adnan gets into Hae’s car, and they drive away.

By the way – during the course of this entire recorded interview, the cops never once question Jay about the fact that his story makes no sense. They just roll with it.

Here are two more weird things about this narrative:

(1) Why would Adnan tell Jay to go “around the corner” in the first place? This is never explained. According to Jay, Adnan’s next move was to get Hae’s body out of the car — but why does Jay need to go wait around the corner for that?  Perhaps because there’s not enough room for two cars to park at the side of the road there, I suppose. That could make sense…  except for the fact there should have been enough room for two cars to park there, sense they could have driven onto the pathway next to the road. But, perhaps they didn’t want to draw more attention to themselves by having two cars pulled over at the same spot. But if that’s the case, why did Adnan tell Jay “we’ll park up around the corner,” when there’s nowhere around the corner for the cars to park? As Jay explains in the second interview, Adnan chose to bury Hae where he did because it was “only [parking spot] that was open” “up and down the road,” as “[a]ll the rest had been buried up” (Int.2 at 30). So if Hae was buried at the only parking spot that was open, why is Adnan telling Jay that they’ll go park both cars around the corner, where they have already determined there is nowhere to park?

(2) Notice anything important that’s missing from Jay’s story? Like, say, Jenn? In telling the detectives how Hae was buried, Jay makes no mention of the calls that were made to and from Jenn while the cell phone was in Leakin Park. The way Jay tells it, no calls are made, no calls are received, they simply did not happen. In fact, Jay is adamant about not needing a ride home from Jenn, because after he and Adnan ditch Hae’s car off Edmondson, Jay “drive[s] [him]self home and on the way home [Adnan’s] like ‘stop here.’ We stopped at ah Westview and one of the dumpster’s behind Westview he threw all the stuff in.” (Int.1 at 20.) So there was no reason for Jay and Jenn to be communicating anyway. (Also, in addition to there being no reason to communicate it, Jay could not have known that he needed to communicate to Jenn that she should pick him up from Westview. According to Jay, Adnan chose it at random on the way home. But according to Jenn, Jay told her 20 minutes in advance that she needed to pick him up from Westview. Hard to reconcile those two claims.)

Jay’s Second Recorded Statement

In the second taped interview with the police, Jay says that, after leaving Cathy’s place, he asks Adnan for a ride home. (Jay does not explain why he left Cathy’s, or asked for a ride home with a murderer, when he and Jenn actually had plans to hang out at Cathy’s that night.) They drive to Jay’s house, but when they get there, Adnan blackmails Jay, telling him that he will “turn [Jay] into the Authorities” if Jay doesn’t help bury Hae’s body. Jay, who is definitely the dumbest person on earth, actually believes Adnan’s threats, and thinks there is a real possibility that the guy who just murdered someone and showed Jay the body is going to call the cops on Jay for selling pot. So Jay agrees.

According to Jay, Adnan grabs “[two] shovels,” and

put[s] them in the back of his car, in the back seat. Um, he still driving, now we proceed from my house to 70 Parking Ride. . . . Um, we leave the 70 Parking Ride, he’s driving Hae’s car now and I’m following him, um, we end like I said, we drove around the lot, we end up going down Franklintown Boulevard. (Int.2 at 28).

They don’t go straight to Leakin Park, though — it’s time for another side quest to Patapsco State Park! Because after leaving the Park’n’Ride, “for about an hour before [they] came out [Leakin] Park [they] went up to Patapsco State Park” (Int.2 at 55). Later, they rejoin the main storyline, and once back in Leakin Park,

Jay: [Adnan] ah, he stops her car, actually he pulls over to the side and tells me to ah, ask me if I could help him and I told him fuck no, I’m not touching none of her stuff. I’m not helping you drag her out of the car, none of that, you know. And um, he says okay. So then he drives her car up around the corner and ah, parks its and we park his car down at the burial site and.

[. . .]

Detective: Now do you park around the corner?

Jay: Not, not now. We’re, we’re sitting um, side by side, blocking both lanes. And he’s talking to me, he asked me am I gonna help him. Like get out of the car and stuff and I, I told him no, hell no, fuck that. And so then he’s like okay and he drives her car up around the corner and ah, I follow him. Once we get up around the corner, he gets back in his car. We come back down um, we pull into this little ah, spot, it has like white pillar that are there from the highway. And we go 20 yards back or so and ah, he start digging.

Detective: Why did you pick this location?

Jay: That’s were he wanted. Ah, I couldn’t convince him to do anything like, he he, anything I said it just kind a, it was like I don’t know. (Int.2 at 28-29.)

So Adnan and Jay stop in the middle of Leakin Park, blocking both lanes of Franklintown Road (or does Adnan pull over to the side? Jay says both happen, who knows). Jay and Adnan argue for a bit over whether or not Jay is going to help Adnan bury the body. Jay tells him “fuck no,” and Adnan finally gives up on asking. So they drive both cars “around the corner,” where they park Hae’s car. Adnan gets in his car with Jay, and Jay drives back to the burial site. He pulls Adnan’s car up at the spot with the “white pillar” and parks it. Adnan and Jay head back into the woods 20 yards and start digging a hole.

And then, in another Jay Paradox, Jay and Adnan simultaneously dig a hole with the shovels and without the shovels:

Detective: Do you have the digging tools at this point?

Jay: No.

Detective: What happens?

Jay: Um, dig a small hole, put the shovels back in the back seat of his car. (Int.2 at 32-33.)

So according to Jay, he and Adnan get to the grave site and start digging. They do not have the shovels. Then they spend “20-25 minutes” digging a hole (Int.2 at 33), before putting the shovels back in the back seat of Adnan’s car. Makes perfect sense. But this time around, at least, Jay at least does more than sit on a log and have a smoke break. He and Adnan both dig the hole — although it turns out one of them is a slacker, because Jay “wouldn’t say” that the two of the did “equal work” (Int.2 at 34).

After digging the hole, Jay says that,

Um, I get in the driver seat of his car, he gets in the passenger seat. I drive him back up around the corner to Hae’s car. Um, he asked me to help him again up there. Like I said before I told him no I’m not touching none of her shit, none of her, none of that stuff. He ah, he gets back in Hae’s car, he drives back down around the corner. A long time goes by maybe like, almost a half an hour. And ah, after that he reappears back around the corner. Um, he gets back in his car, um, instructs me to drive down to the small, excuse me, the small parking lot area. Um, to get out of his car um, bring the shovels. He ask me to help him bury her; I, we argue. Um, he throws dirt on top of her and she was already, I’m sorry. Um, we we we pull back into the parking lot and on the way back there, there’s a coat laying there on the ground. And ah, I said who’s coat is that and he picks it up, and like flings it way back in the woods. And ah, then I walk up and Hae’s laying in the hole with her head facing away from, on her, on her stomach face down with her arm behind her back. And ah, he ask me if I was gonna help. And I told him fuck no and he starts to shoveling dirt onto of her. And after ah, we leave there um, ah . (Int.2 at 33.)

The story is actually coherent this time — or at least it no longer violates basic laws of physics. The cars no longer poof into and out of existence. But Jay’s new version of events has Jay and Adnan acting in bizarre and illogical way; for instance, in order to bury Hae, they choose a method that requires them to make four separate trips to the pull-up next to the burial site, and three separate trips to the grave site itself. First, Jay and Adnan pull up next to the grave site and argue, befor going “around the corner” for unspecified reasons. Then drive Adnan’s car back to the grave site pull out, walk back to the woods dig a hole, and then go back to the car and drive it around the corner. Adnan then gets in Hae’s car and drives back to the grave site, and is gone for half an hour. Presumably, Adnan spends that half-hour transferring Hae’s body from her car to the hole they had just dug. Adnan then “reappears,” and gets back in Adnan’s car. (I spoke too soon — no word on where Hae’s car is now, it’s poofed out. We won’t hear about it again until a detective reminds Jay it should still exist.) Adnan tells Jay to drive them back to the white pillar parking spot, and orders Jay to bring the shovels with him to the grave site (because apparently Jay and Adnan brought the shovels back to the car after digging the grave, but before covering up the body). (Also, Adnan is such a jerk. Jay is doing him a huge favor helping him dispose of this body, so why is he ordering Jay to carry both shovels back to the grave, instead of offering to carry one himself?)

They walk back to the grave, where Jay finds Hae’s body already in the hole. But Jay decides he is not going to help with covering Hae up, because really now, that’s just too much for Adnan to ask of him — Jay’s not going to help anyone bury a body. Dig a hole for the body to be buried in? Sure. But fill the hole in? “[F]uck no.”

But why on earth do Jay and Adnan go back to grave? The hole had already been dug, and covering it up won’t take more than a few minutes — so why does Adnan return “around the corner” once more, and bring Jay back, so that Jay can stand there uselessly and watch Adnan shovel dirt onto the body? There is no need for this this trip to the grave site.

The cops, of course, do not question Jay about he and Adnan’s bizarre actions. Once again, they just roll with it.

At this point in the interview, Jay makes an interjection, unprompted by the detectives, and adds this:

Um, d[ur]ing the time of this digging we received a phone call to ah, cause I was suppose to meet some people in ah, a couple of minutes. And I remember when I was waiting um, for him, when I, when he was trying to pick out the spot, I had remembered I suppose to meet some people and received a phone call from them. And I didn’t even get a chance to talk to um, he told ah, that ah, I was busy and that I have to call them back. . . . I later learned that it was [Jenn]. (Int.2 at 33.)

Let’s break this down. The phone call Jay is reference is, presumably, the 7:09 p.m. call, although it could also be the 7:16 p.m. call. But even though Jay is now discussing a call made to Adnan’s phone, Jay’s story still doesn’t include him making any calls from the phone. In Interview #2, like Interview #1, Jay never once says that he actually paged Jenn at 7:00 p.m. (although at trial he will testify that he did).

But who was this call from? Jay says he “was suppose[d] to meet some people.” Not that Jenn was supposed to “pick him up,” just that he was meeting unspecified people. Jay “remembered [he was] suppose[d] to meet some people” in “a couple minutes” and, coincidentally, he then “received a phone call from them” — despite the fact he is not even late for the party yet. And all of this occurred while Jay “was waiting um, for [Adnan], when I, when he was trying to pick out the spot.”

(Catch that slip? “When I, when he was trying to pick out the spot…” Jay initially starts to say that he was the one picking out the burial site, before correcting himself. Could it have been a simple case of Jay misspeaking? Sure. But it’s an awfully curious mistake, either way. Because if Jay is trying to “pick out the spot,” this either means that: (1) He and Adnan are driving around, still looking for where to go, in which case Jay would have no idea about the call from Jay’s friends, because he and Adnan are not in the same car; or (2) they are actually at the burial site — in which case Jay’s statement that he was “waiting um, for [Adnan]” at that time can’t be true, because according to Jay, there was no waiting then. They parked the car(s), walked back, and started digging.)

But when asked about this phone call by the investigators, Jay clarifies that “[he] didn’t even get a chance to talk to um,” because Adnan “told ah [that] [Jay] was busy and that [he] have to call them back.” This is significant; Jay is denying having any knowledge that it was Jenn calling the cell phone. He’s very careful about it, too — he avoids using her name, to keep up the fiction that, at the time the call happened, he didn’t have a damned clue who was calling. He only “later learned” that it was actually Jenn.

Which leaves one to wonder… Why is Jay so insistent on lying about his contact with Jenn that night? And why does his testimony completely change at trial?

Finally, Jay tell the cops that after they finish burying Hae’s body, “we[ ] get[ ] back in his car” and “we drive to Westview on, I told him take me home” (Int.2 at 34-35). No mention of Hae’s car is made until a detective interrupts him:

Detective: You got 2 cars?

Jay: Oh I’m sorry, I apologize. Um, I’m missing.

Detective: Okay.

Jay: Top spots. Um, yes I’m sorry. We leave, we we still do have 2 cars. Um, he he ah, motion for me to follow him.

It’s funny how often that happens in the second interview. Jay keeps forgetting his story — he’s so lucky he has the detectives there to remind him.

Comparison of the First and Second Taped Interviews

In Jay’s first two recorded statements about how Hae was buried, almost no two events occur in the same sequence. Adnan and Jay do go to the Park’n’Ride before they go to Leakin Park, but other than that, the timeline is completely fluid. But of all the discrepancies between the statements, perhaps the most glaring is the question of when Hae’s body was placed in the hole. In Jay’s first story, Adnan removes the body from the car and places it in the woods, and then he digs a hole while Jay watches, and drops the body in the hole. In Jay’s second story, Adnan and Jay dig a hole first, and then Adnan gets the body and puts it in the hole while Jay is waiting in a car “around the corner.”

Why on earth does Jay screw this up? There is no conceivable benefit to him in lying about it, so it cannot be explained that way. But there is no conceivable reason that he would forget something like that, either — this is not the kind of sequence of events that gets jumbled around in your head. It’s hard to think of any explanation for the inconsistency, other than that Jay is simply making a story up, and can’t remember what happens when.

The other inconsistencies are not quite as incomprehensible, but still jarring. For instance,

• In the first interview, Jay simply agrees to help Adnan dispose of Hae’s body, without making a fuss. Adnan gets frantic, so Jay drives him back to his house, gives him the pick and shovel, and then takes him to Hae’s car. In the second interview, Jays only agrees to help bury Hae’s body after Adnan threatened to call the police and tell them Jay was a weed-dealer.

• In the first interview, Jay gives Adnan a shovel and a pick. In the second interview, Adnan takes two shovels for himself.

• In the first interview, Jay drives Adnan to the Park’n’Ride. In the second interview, Adnan drives Jay to the Park’n’Ride.

• In the first interview, Jays says that Adnan throws up twice: one while digging the grave, and once after putting Hae in the grave. In the second interview, Jay says that Adnan threw up twice: once after taking Hae’s body out of the car and driving “back up around the corner” to get Jay, and once after Jay and Adnan were getting “getting back in his car” after finishing burying Hae.

On the other hand, despite all the inconsistencies between the two statements, there is one consistency that is as equally glaring as the inconsistencies, if not more so. In both statements, Jay never pages Jenn before or during the trip to Leakin Park — something we know, for all but certain fact, actually did occur. Only according to Jay, it never happened at all. True, in the second statement, someone who turns out to be Jenn does make a call to Adnan’s cell phone — but in neither version does Jay ever page or call Jenn, or communicate anything to her in any fashion.

-Susan

Full disclosure: this post is something of a cop-out, since I probably will not have time to write another substantive post until this weekend. But while I already addressed a lot of the oddities in Jay’s police interviews, in my previous post about Jay’s descriptions of how Hae was buried, people have been asking about  the rest of Jay’s transcripts. So even though, at this point, I am beating a horse that is extremely deceased, I have cleaned up some of my notes on the rest of Jay’s transcripts. But you’ve been warned — unless you happen to have an interest in the smallest details of Jay’s police statements, this post is not for you.

Also, I want to preface this by noting that, from the comments I have received on my previous posts about Jay’s questionable trial testimony, it would appear there is a large segment of Serial listeners who find all of this irrelevant and pointless. A common response seems to be, “Well of course Jay lied about everything — we already know that. But the fact Jay was never able to tell the truth about what happened does not mean that Adnan is innocent, it just means Jay helped Adnan kill Hae.” And I promise that I am getting to that; there is definitely an important discussion to be had about everything in the prosecution’s case that was not based on Jay’s testimony.

But the fact that Jay lied throughout all of the statements he gave cannot be dismissed as blithely as some people would seem to like. First, although Jay’s lies are often excused on the basis that they were only told  either to minimize his role in the crime, or to protect Jenn, that simply cannot explain the bulk of Jay’s lies. Yes, some of his lies do appear to have been directed at protecting Jenn, and that is an important piece of the puzzle. (And I would fully agree that all of Jay’s lies are designed to protect himself from being charged with a more serious crime.) But most of Jay’s lies are not about things that could alter his culpability for any crimes — in fact, Jay’s statements grow steadily more inculpating as his interviews go on. (Alhough, if anyone would like to theorize about why lying about Patapsco State Park was so crucial to Jay’s defense, please be my guest.)

Second, while it is true, like I mentioned earlier, that one witness’s fabricated testimony cannot be used to prove Adnan’s innocence, by the same token that fabricated testimony cannot be used to prove Adnan’s guilt, either. Because once you agree that Jay’s story is unreliable, inconsistent, and manufactured, then the only way to conclude that Adnan is guilty is to discard everything in Jay’s statements that is inconsistent with the theory that Adnan and Jay worked together to kill Hae (which is a lot of things to discard), and to also assume the existence of a whole host of additional facts that were not contained in Jay’s testimony, or anywhere else.

But once your theory of the case is based on accepting only those parts of Jay’s testimony that are consistent with Adnan’s guilt, and by speculating about the existence of additional sets of facts to which Jay has never testified — well, how is that any different from simply writing a piece of fiction? By using that approach to Jay’s testimony, it is possible to invent a narrative that supports the guilt of just about any individual connected to Woodlawn.

The Evolution of Jay’s Statements Throughout the First Two Police Interviews:

The transcripts we have from Jay’s first two recorded police statements are not complete records of his interviews with the police on those days. Prior to both the February 28th and the March 15th interviews, the detectives spent a lot of time talking to Jay without the tape rolling. As discussed in Episode 8 of Serial,

This is what’s called the pre-interview, and [Jim] Trainum says, that’s where the mischief can happen. (Episode 8.)

And we know for a fact that, during these pre-interviews, Jay made some pretty significant statements to the police. Statements that were wholly different from we have in the taped portion of the interview:

Detective: And during that conversation [before the recorded interview] we spoke probably for about a half hour, forty-five minutes, the information that you provided during this interview was it the same information that you provided during the first interview?
Jay: No.
Detective: During the first interview there were a lot of inconsistencies.
Jay: Yes.
Detective: And there are too many to go over but you kind of disassociated yourself from all the information you provided in this interview. Why is that?
Jay: Scared. (Int.1 at 24-25.)

We also know that, prior to the interview on March 15, 1999, there was a pre-interview that lasted even longer than the one before the first interview — approximately three hours in total. Later that evening, throughout the “real” interview (the taped interview), the detectives repeatedly referred to Jay’s statements during the pre-interview to prompt Jay into including details he had forgotten to include for the taped portion:

Detective: After you go to Best Buy parking lot, you said in the, the pre- interview that there may of been a reason why he picked that particular spot? (Int.2 at 51.)

Detective: During the pre, pre-interview you said um, maybe you wanna try her new boyfriend that she may be with him? (Int.2 at 63.)

This is significant because of how much power it puts in the detectives’ hands to shape the narrative, even if they do nothing else to distort Jay’s statement. Because if Jay said anything troubling to their case during the “pre-interview” phase, then the detectives can simply fail to bring it up during the “real” interview. Conversely, if during the “pre-interview” Jay said anything particularly useful for their case against Adnan (even if Jay also gave contradictory evidence at the same time), the detectives can be sure to selectively bring the useful portion up in the “real” interview, while neglecting to prompt Jay to discuss any of the more troubling portions of his earlier statements.

This is not to say that the way the detectives questioned Jay was somehow “wrong” or prohibited; all of this was permissible, at the time. But while not unethical, the detectives’ method of questioning of Jay now leaves us with many reasons to be skeptical about the information he provided. Because not only were his statements inconsistent, they also often seem to have originated from a source other than himself.

Again and again throughout the interviews, the detectives try to pin Jay down by asking him aggressive questions designed to confirm the detectives’ theory of the case. The detectives propose a theory, and when Jay says “yes, that’s what happened,” the detectives simply accept his answer, even though the suggestion originally came from the detectives, not from Jay. Or, sometimes, the detectives do even try to confirm that Jay’s “yes” answers are legitimate, by asking Jay to provide additional details. But when Jay is completely unable to provide those additional details, the detectives simply move on, completely ignoring the fact he was unable to verify his prior responses.

Let’s take an example from the first interview. The following exchange occurs when the detectives are asking Jay about what happened when he picked Adnan up from Edmondson Avenue:

Detective: You arrive twenty minutes later at this location on Edmondson Avenue, then what happens?
Jay: Um I drove… I followed him to…. I followed him out into…
Detective: Do you get out of your car when you get on Edmondson Avenue and have any conversation with him?
Jay: Uh huh, yeah.

This excerpt is particularly interesting, because we now know that the Edmondson Avenue story was complete bollocks. So, with that in mind, it seems like there is an obvious reason why Jay is having trouble thinking of an answer to the detective’s question: because he is making the whole thing up. But look at how Jay’s responses conform to the detective’s suggestion. When trying to explain what happens after he arrives at Edmondson, Jay starts stammering, unable to answer, and appears to be immediately jumping to the portion of the story in which he follows Adnan to the I-70 Park’n’Ride (“Um I drove… I followed… I followed…”). But this is not how the story is supposed to go — there is supposed to be this whole scene where Adnan performs the infamous “trunk pop.” Only Jay has completely omitted it.

So the detective cuts in and saves Jay from screwing up his story, by suggesting something that might have happened while he and Adnan were still on Edmondson Avenue: “Do you get out of your car . . . And have any conversation with him?” Jay takes the detective’s suggestion and runs with it, answering, “Uh huh, yeah.”

The detective then asks Jay a follow-up question, apparently trying to induce Jay to give the trunk-pop story. But when Jay is asked to talk more about what this imaginary “conversation” actually entailed, it does not work:

Detective: Tell me about that.
Jay: Um we got out, oh and we… He’s walking around with red gloves on um. (Int.1 at 7.)

Jay initially starts to stammer an answer, but he is unable to describe the conversation he had with Adnan; he apparently does not remember that he is supposed to be talking about the trunk pop. So Jay starts describing Adnan’s gloves, before launching into a story about a conversation he and Adnan had about those gloves:

Jay: Yeah, they’re like wool with ah leather palms and … and that sparked you know, “what the fuck you walking around with gloves on for,” and then, I’m sorry, um and then he goes “I did it, I did it. You don’t fucking believe me, I did it.” He pops the trunk open and he’s like “she’s all blue up in there inaudible in the trunk.” (Int.1 at 8.)

There is something odd about this exchange that I will discuss more in a bit.¹ Notice how, after Jay initially tries to describe the conversation about the red gloves, Jay suddenly stops himself, says, “I’m sorry,” and begins describing an entirely different conversation instead? Why exactly is Jay apologizing here?

But aside from the odd apology, you can also see how the detective’s question appears to be directing Jay to give a particular statement, cuing him in to the fact that he needs to talk about how Adnan showed him Hae’s body. Because if the detective had not stopped Jay, it seems like he was going to launch straight into the story of how they went to the Park’n’Ride.

Things get worse in the second interview. The leading questions from the first interview were not particularly unreasonable, in themselves, but by the time the second interview comes around, the questions are no longer simply “leading.” The detectives are not just prompting Jay to give a specific answer — they are prompting Jay to change answers he has already given. There are numerous examples of this throughout the transcript: Jay will answer one of the detectives’ questions, but the detective will indicate dissatisfaction with Jay’s response — and Jay will respond by instantly reversing himself, giving a completely new answer to the question than he had before.

For example, while discussing the conversation Adnan and Jay supposedly had at Patapsco State Park, the following exchange occurs:

Detective: Did [Adnan] name any locations [where he could bury Hae’s body]?
Jay: None at all.
Detective: Um, he didn’t say, you know what about here you know, he didn’t name up a half dozen locations and you gave him thumbs up or thumbs down?
Jay: Um, I just nah he ah, said something to me ah, to the effect of the State Park, where we were, a little bit up the river, but I told him people walk up and down there. That was the only thing that. (Int.2 at 18-19.)

Note here how Jay gives a very direct answer to the detective’s question — “none at all.” But the detective immediately pushes back, asking, “Are you sure that this hypothetical conversation didn’t happen, where Adnan names places to bury Hae’s body and you gave approval or criticism to his ideas? Like, perhaps, did Adnan maybe suggest what about burying the body here?” And Jay stammers for a moment, begins to repeats his answer of “no,” and then suddenly changes his story to match the detective’s question, flipping his answer from “none at all,” to “ah, yes, actually, something exactly like you suggested did occur.”

A similar exchange occurs later on, when the detectives are questioning Jay about why Adnan chose the spot on Franklintown Road to bury Hae:

Detective: Did it seem like he had been there [to that spot] before?
Jay: Possibly. (Int.2 at 30-31.)

But the detective doesn’t seem to like that answer. A moment later, he asks Jay the exact same question once again:

Detective: Did he give you the impression that he had been there before?
Jay: Yes.
Detective: Why?
Jay: Why, because he knew that there was ah, I had heard a noise and I looked up and inaudible a small creek that ran behind there. (Int.2 at 31.)

Even though that exact same question had been asked literally seconds before, the second time the question is asked Jay gives a new answer, this time one which supports the detective’s premeditation case. But when the detective tries to ask Jay for more details in support this new answer, Jay completely falls apart. He can’t do it. Look at how nonsensical his response is — how could Jay have possibly gotten the impression that Adnan had been there before based on the fact that Jay heard a noise, looked up, and saw a creek? Note that Jay is not claiming Adnan ever told him about this creek — he just launches into a story about what he heard that night as he walked out into the woods. (Besides — if Adnan had been to this spot before, why does Jay also say that Adnan spent 45 minutes driving to Patapsco and back looking for a grave site? And why does Jay also say that Adnan only chose this spot because it was the only spot in Leakin Park where they could find somewhere to park?)

There are numerous other examples of how the detectives keep asking Jay the same questions until they get an answer they like. For instance, Jay’s initial story was that Adnan only told him about the murder on the day that it occurred, and Jay had not believed him. In the first interview, Jay said this about his conversations with Adnan, when Adnan was talking about killing Hae:

Detective: Did you believe ah [Adnan] during this conversation?
Jay: Not in the context of the conversation, it didn’t, no. (Int.1 at 4.)

And at the start of the second interview, Jay tries to stick with this same story:

Jay: During the conversation [Adnan] stated, um, that he was gonna kill that bitch, referring to Hae Lee. Ah, I didn’t, I took it with contexts and stand out my inaudible. (Int.2 at 4.)

But the detectives clearly are not satisfied with this answer (likely because they are looking to beef up their premeditation charge against Adnan, and need some firm evidence from Jay that Adnan planned the murder in advance). So after Jay finishes his initial statement in the second interview, the detectives immediately begin to push back against Jay’s claim that he thought Adnan was joking:

Jay: [Adnan] told me, he said, almost jokingly, I think I’m gonna kill her, yeah, I think I’m gonna kill her.

Detective: However, the whole purpose of him being with you that day was to ask you for your assistance?
Jay: Yes. (Int.2 at 4.).

Note how Jay tried to keep going with the story that Adnan seemed like he was “joking” when he talked about killing Hae. But as soon as Jay did so, the detective jumped right in to correct him: “However,” the detective informs Jay, the real purpose of your shopping trip was to discuss your cold-blooded plans to kill Hae, correct? And Jay dutifully answers yes.

And again, in the following excerpt, you can see that the detective pretty much stops pretending to be seeking answers from Jay about how he and Adnan planned Hae’s murder. Instead, the detective describes to Jay how it happened, and asks Jay to confirm that is what occurred:

Detective: But he told you he was, he was gonna kill her?
Jay: Yes.
Detective: Because she had broke his heart?
Jay: Yes.
Detective: And that night he contacted you again?
Jay: Yes.
Detective: And made plans to meet with you on the 13th?
Jay: Yes, to come, I’m sorry.
Detective: Where he could give you his car and cell phone to assist him?
Jay: Yes.
Detective: And you’ll explain that later correct?
Jay: Yes. (Int.2 at 5.)

It is hard to say that Jay is even giving a police statement here. All he is doing is saying “yes,” while the detective provides his own answers.

And here is another example of where Jay starts to stray off of the narrative again:

Detective: So you knew the night before, what time does this conversation take place?
Jay: About 11 [p.m.], but it wasn’t like, I don’t know um, I’m sorry inaudible…
Detective: So he calls you sometime around 11 o’clock, this is your birthday and says, something to the effect tomorrow I’m gonna do it.
Jay: Yeah.
Detective: And you interpret that was, tomorrow sometime he’s gonna kill…
Jay: So he says yes. (Int.2 at 45-46.)

And another:

Detective: And where do you go?
Jay: We go back to 70 Parking Ride. Um, he gets out of his car, tells me to follow him. We get. he gets into her car um, he drives it we drove um, a round to a whole bunch of different places. Ah, some off of ah, Ro[lling] Road, ah, some off of Dogwood Road. Um, finally he he goes down pass [Leakin] Park, he ah, he um, no this is wrong, I’m sorry I miss something. We leave Cathy’s and Jeff’s and ah, I asked him to drop me off. And we go back to my house and when we’re standing on my porch that’s when he tells me that we have to go back, we have to get rid of the body, we have to get rid of the body.

And another:

Detective: But apparently you took him at heart because after he told you that, later that day you and Jenn went to Gelston [ ] Park and you told Jenn that.
Jay: Yes.
Detective: That Adnan was gonna kill Hae Lee. So apparently he said some thing that made you think that he was actually gonna go through with it.
Jay: Yes he did, it wasn’t, I mean it was just I’m sorry.
Detective: He was no no longer joking around that he was gonna do it?
Jay: Right it wasn’t like you know, you can look in somebody’ s face and see a chuckle or a smile it’s stone cold, I think I’m gonna kill that bitch.
Detective: You took it so seriously that you told Jenn.
Jay: Yes. (Int.2 at 48.)

Notice a common theme here?

Take a look what happens every time Jay starts to give an answer that does not conform to the “Jay and Adnan planned this days in advance and buried her together” narrative: he says “I’m sorry” and changes his story. In fact, throughout all of the second interview, Jay apologizes to the detectives eleven times. In contrast, throughout all of the first interview, Jay apologized only twice — once in the first example, given above, and once more in an unrelated context, when Jay is identifying the name of Woodlawn High School.

So why has Jay started apologizing so much in the second interview? And why do all these apologies happen whenever Jay either gives an answer the detectives don’t like, or when he seems to have forgotten what he was going to say next?

Well, just from my own experience in sitting through depositions, and later wading through the transcripts, one possible explanation does come to mind: Jay is saying “I’m sorry” in response to non-verbal cues from the detectives. Intense stares, skeptical glances, or exchanges of knowing looks between the interviewers — it is impossible to tell what exactly is going on here. But something sure seems to be happening that is causing Jay to apologize every time he gets his story wrong.

Or take this example, of Jay describing what happened after leaving Hae’s car at the I-70 Park’n’Ride:

Detective: What do you do then?
Jay: Um, we leave there, ah, on the way to Forrest Park, I place a phone call to ah, a friend of mine ah, see if he could get any weed. We ah, I took, I, I didn’t talk to him, I got his machine, he wasn’t home.
Detective: Who is that?
Jay: Ah, Patrick.
[. . .]
Detective: And why did you call him?
Jay: To get . . . Marijuana.
[. . .]
Detective: During the trip from ah, Route 70, over to Forrest Park were you ah, buy marijuana?
Jay: Yes.
Detective: You made the phone call to your friend?
Jay: Yes.
Detective: First.
Jay: Oh. (Int.2 at 14-16.)

Jay’s “Oh” says it all. The detective has just reminded him that he screwed up his story once again — because the phone call to Patrick was the fourth call after the Park’n’Ride, based on the cell records. The first three were to Jenn, Nisha, and Phil. But Jay’s narrative completely forgets to mention any of these, and you can see how the detective not-so-subtly cues Jay into this fact: “First.“

The detective then tries to help Jay recover, asking him, “Did anybody else use the phone?” (Int.2 at 16.) And right on cue, Jay launches into the Nisha story:

Jay: Yeah um, Adnan, I can’t remember whether he received a c all or placed a call, but I do remember he was talking to a girl um, I can’t remember her name. He put me on the phone with her for like 3 minutes.
[. . .]
Detective: Is there anything significant about this conversation that you remember?
Jay: No nothing out of the ordinary. (Int.2 at 16-17.)

In fact, Jay can literally remember only a single thing about this ten-minute phone call: that the girl lived in Silver Spring.

Here’s another example from the second interview. But this one cannot really be described as “witness coaching” — it is more like “witness telling.” As Jay is describing what happened when he and Jenn returned to Cathy’s apartment that night, the detective literally instructs Jay to give a different answer from the one he initially offered:

Detective: Did you tell [Cathy and Jeff] [about Adnan killing Hae].
Jay: Ah, maybe later, at that time I don’t, I don’t remember what I, I may had told Jeff, I may had told [Cathy’s] boyfriend Jeff, but I know I didn’t tell…
Detective: What did you tell Jeff?
Jay: Um, if I had told him, my exact words were would of been that dude killed his girlfriend.
Detective: Not if you told him.
Jay: Okay I’m sorry.
Detective: What did you tell…
Jay: That dude killed his girlfriend.
Detective: And what did Jeff say . . . to you?
Jay: For real. Ah, snap.
Detective: That it. Were you guys getting high then?
Jay: Yes. (Int.2 at 43-44.)

Jay states, pretty clearly, that he does not remember telling Jeff anything about Hae’s death, although he continues his response by giving the hypothetical answer of “if I had told him, I would have said….”

But then the detective stops him: “Not if you told him.” (Int.2 at 44) (emphasis added). Jay promptly apologizes to the detective: “Okay I’m sorry.” The detective then clarifies what response he wants Jay to give (“What did you tell…”), and Jay obediently gives this new answer, stating that, yes, in fact, he did tell Jeff about Hae’s murder, describing what was said during this (totally real and completely not imaginary) conversation.

There are many more examples of this throughout the transcript, but there is one more oddity in particular that is worth highlighting. The following exchange occurs when Jay describes what happened after he and Adnan left Leakin Park:

Detective: What do you do then?
Jay: Um, hum, we drive to Westview on, I told him take me home. And on the way going home we pass by Westview and he says I better get rid of this stuff.
Detective: You got two cars?
Jay: Oh I’m sorry, I apologize. Um, I’m missing.
Detective: Okay.
Jay: Top spots. Um, yes I’m sorry. We leave, we we still do have two cars. (Int.2 at 35.)

Look at what Jay says here: “I’m sorry, I apologize. [ ] I’m missing . . . Top spots. [ ] I’m sorry.”

This is, well, weird. What is Jay talking about ? What exactly is he “missing”? And what are the “top spots” he is referring to? I am not sure, but I do wonder: does Jay mean that he is missing something he needs in order to finish his statement — such as, perhaps, some sort of written reference material he can rely on, for when he forgets his place?

The Weird Lies About the Phone Calls by Adnan to Jenn’s House:

One of the more bizarre portions of the second transcript is the discussion concerning how Adnan made the “come-and-get-me” call. Here is how it starts:

Detective: Okay, um, at some point you left . . . Jenn’s house?
Jay: Yes.
Detective: Do you have any idea what time that was?
Jay: About 3:40.
Detective: 3:40?
Jay: Yeah.
Detective: Was Jenn still there?
Jay: Yes.
Detective: And where were you going?
Jay: I was going to pick up Adnan.
Detective: Had you gotten a phone call from him?
Jay: Yes on the cell phone.
Detective: While you were at Jenn’s house?
Jay: Not on the cell phone while I was at Jenn’s, he had called on a hard line, while I was at Jenn’s and then um.
Detective: Adnan had called on the cell phone?
Jay: Yes.
Detective: Inaudible.
Jay: I know, I’m sorry, Adnan had called on the hard line while I was at Jenn’s house. (Int.2 at 10.)

I really wish we knew, here, what the detective was saying in the portion of the transcript that he was “inaudible.” Because this exchange certainly looks pretty suggestive.

There are two ways of interpreting it. The more benign way is that Jay is simply lying again, and getting his lies mixed up, since Jay has never before  mentioned (and as far as I know, does not ever again mention) that Adnan called Jay on Jenn’s home landline. But that still leaves us with a question — why would Jay be lying about a landline call in the first place?

The other explanation, the less benign one, is that what we are seeing here is the prosecution’s (failed) attempt to shoehorn Jay’s story into matching the cell phone records. Because throughout all of his interviews with the police, Jay has adamantly insisted, over and over again, that, on the day of Hae’s death, Adnan called him at 3:40 p.m. to request a pick up. In fact, the 3:40 p.m. claim is the single most consistent claim made in all of Jay’s stories — one he never waivers on, and one he never forgets to include.

But that is pretty darned inconvenient for the prosecution. Because the cell phone records prove that the 3:40 p.m. call never happened.

From the above excerpt, though, it appears that, at one point, the prosecution thought it had found a solution for this little wrinkle — what if the 3:40 p.m. call was not made to Adnan’s cell phone, but to Jenn’s landline instead? That certainly appears to be the story that the detectives are spooning to Jay in this excerpt. And it is a good story; it could have worked to reconcile Jay’s timeline with the cell phone records, and allow the prosecution to argue that a come-and-get-me call was made at 3:40 p.m., just as Jay has said all along.

Only Jay screws it up. He forgets to say that Adnan called him on Jenn’s landline, and says instead that Adnan called him “on the cell phone.” Immediately after Jay says this, the detective jumps in to interrupt him, asking Jay to clarify once more: “While you were at Jenn’s?” And Jay instantly tries to change his story, offering up a denial that Adnan ever called Jay on the cell phone while he was at Jenn’s: “Not on the cell phone while I was at Jenn’s, he had called on a hard line, while I was at Jenn’s.”

But Jay still appears to be confused, and when asked once more to clarify whether the call was to the cell phone or the landline, Jay claims again that the call was to the cell phone. The detective says something inaudible, and Jay responds by instantly apologizing (“I know, I’m sorry”) and correcting his story (“Adnan had called on the hard line.”).

If this reading of the transcript is correct, then to call these questions “leading” would be a vast understatement. But it very much seems like that is what is going on here — Jay gives one story (about Adnan calling on the cell phone), and when the detectives ask him to clarify if he really meant that the call was on the cell phone, Jay says he is sorry and gives a new story instead (about Adnan calling on the landline). But a few questions later, Jay is already veering off narrative again, trying to describe cell phone calls he previously claimed had not happened, and describing a landline call about something totally different than it was before. Jay just can’t keep all these stories straight.

The resulting transcript is not pretty, and once again Jay winds up massively contradicting himself within a single page of transcript. Because in his initial statement about the calls he received from Adnan while at Jenn’s house,  Jay explains that while he was at Jenn’s house: (1) he did not receive any calls from Adnan on the cell phone; and (2) he received a call from Adnan on Jenn’s landline, and that this call was to tell Jay “he was gonna need [Jay] to pick him up at a certain time, that was 3:30.”

But a few seconds later, after a series of prompting questions from the detective, Jay gives a a new answer entirely, explaining that while at Jenn’s house: (1) he received three phone calls from Adnan on the cell phone;² and (2) he received a fourth call from Adnan on Jenn’s landline, and that in this fourth phone call, Adnan “told [Jay] he was leaving school then. . . . he just said he was leaving school” (Int.2 at 11).

Two completely different stories, only two pages apart. And both of them are still completely blatant fabrications — because Jay still keeps insisting that at 3:40 p.m., he received a call from Adnan asking to be picked up. Something that we know could not have happened.

Answers Showing that Jay Knows Too Much:

In addition to the portions of the transcript that show where Jay’s testimony has been coached, corrected, and supplied by the detectives interviewing him, there are other portions of the transcript that seem to show Jay has knowledge of things that, if Adnan were truly the killer, Jay could not have known. Because Jay seems to know an awful lot about things going on inside of Adnan’s head. Things like Adnan’s subjective state of mind, objects that Adnan observed when Jay was not around, and the reasons that Adnan made certain decisions.

Here is one example, for instance, of something Jay could have actually learned from Adnan, but where the conversation Jay describes seems… well… highly unlikely, to say the least. The detective is asking Jay about the clothes that Hae was wearing when she was buried, and Jay gives the following answer:

Detective: What happened to her shoes?
Jay: He told me he left them in the car.
Detective: He told you he left them in the car?
Jay: Uh huh. (Int.1 at 17.)

Is it possible that Adnan decided to inform Jay what happened to Hae’s shoes?

Sure. Some time during Jay and Adnan’s post-murder road trip through western Baltimore, Adnan could have turned to Jay and said, “By the way, I’m leaving Hae’s shoes in her car.” But does that really sound plausible? Adnan told Jay about what he had decided to do with Hae’s shoes? Of all the things they could talk about, of all the things Adnan might have told Jay, one of them was, “Oh by the way, Hae’s shoes are in her car”?

Jay’s response would be understandable if he had asked Adnan anything else about the plan for the murder or the cover up. But Jay doesn’t. In the entire first interview, he never indicates that he has, at any point, asked Adnan a single question about what they are going to do, or how Hae was killed. He does not question Adnan about any part of the murder or the disposal of the body of the evidence, or ask for any details, or suggest that he expressed any concern or curiosity about any part of Adnan’s plans. If Jay asked Adnan about Hae’s shoes, then according to his first interview, this is the one and only question that Jay ever asked Adnan that day.

More importantly, the transcript shows that Detective Ritz is surprised by Jay’s answer. As soon as Jay answers the detective’s question, he repeats Jay’s question, word for word, clarifying that Jay gave the answer he thought he heard. I would bet dollars to donuts that if we had the audio for this interview, we would hear a note of surprise or skepticism in the detective’s voice — because Ritz has sat there with Jay for several hours at this point, and this statement about Hae’s shoes is completely disconnected from everything else Jay says about the crime.

Of course, there’s another explanation for why Jay knows where Hae’s shoes were left. Because he’s the one that left them there. And saying “Adnan told me” is simply Jay’s way of answering everything every question the detectives ask about things only Adnan should have knowledge of.

But sometimes, Jay does not even bother to offer the excuse of “Adnan told me.” Sometimes, Jay simply knows exactly what Adnan is thinking, even when the two of them could not have been communicating at the time:

Jay: And um he figured to leave it on the strip since it was hot anyway, he would just inaudible and ah he didn’t like that one so we drove back on this side of town and down off of Route 40 or Edmondson Avenue, which I do not recall, ah we went to a strip up there and parked the car back back in ah inaudible strip I mean off ah a little side street.
Detective: After he parks the car there, than what happens?
Jay: He moves it… he didn’t like that spot so he moved to another spot. After he moved it to the second spot then he got out the car and acted like he was carrying her purse and her wallet and he had some other stuff in his hand and ah. (Int.1 at 19.)

There are two things that are suspicious about this exchange. The first is really only of minor concern, but notable nonetheless. According to Jay, the reason Adnan thought about leaving Hae’s car on “the strip” was because her car “was hot anyway.” But this seems like such an incongruous thing, compared to everything else that we know about Adnan — did he really have this kind of experience with stolen vehicles? Why would Adnan be describing a car as “hot”? Maybe not a big deal, but it is odd.

But the second issue is much more problematic for Jay. Because regardless of whether Adnan would have used that type of jargon, what Jay is describing in this exchange is Adnan’s inner monologue while driving around in Hae’s car. Remember, according to Jay, he is just following Adnan around, in a different car, without really knowing what the heck is going on. Adnan and Jay aren’t talking.

And yet, somehow, Jay has very detailed knowledge of Adnan’s thoughts and feelings during this time period. Jay tells the detectives that he knows Adnan “figured to leave it on the strip because it was hot anyway” — but how could Jay possibly have known that Adnan considered that? Jay does not mention them ever discussing this. Nor does it seem likely that something so precise would come up in conversation.

But the only other way Jay could know what the person driving Hae’s car was “figuring” to do is if Jay was, in fact, the one driving Hae’s car, trying to figure out what to do.

And then in Jay’s second interview, he does the same thing all over again. After initially forgetting (as discussed above) that he and Adnan were in two different cars when they left Leakin Park, the detectives remind him of that fact, and then Jay says the following:

Jay: We leave [Leakin Park], we we still do have 2 cars. Um, he he ah, motion for me to follow him. I follow him, we’re driving around all in the city. I asked him were in the hell are we going and um, he says where’s a good strip at, I need a strip. So we drive ah, down Edmondson Avenue, off of one of those cross streets before you get to the brake, you know were I’m talking about. And um, it seems like he knew were this place was cause there’s a parking lot, but it’s in the middle of whole bunch of houses. (Int.2 at 35.)

But if Jay and Adnan are driving around in separate cars, and they only have one cell phone between them, how does Jay ask Adnan “where in the hell are we going”? And how does Adnan ask Jay “where’s a good strip at”?

And why did the detectives not think to ask Jay about such an obvious impossibility?

Finally, there is one last comment from Jay’s second interview that is worth pointing out, even if it is too subjective to show much. But the following comment seems very peculiarly phrased indeed:

Jay: I asked [Adnan] a questions, I said ah, grant it you didn’t like her, but ah, you you really think she deserve to die. And he said that anyone who who treats him like that, anyone who could stand in his face and be that heartless deserves to die. (Int.2 at 19.)

“Granted you didn’t like her”? What a very odd thing for Jay to have said. The state’s theory of the case was that Adnan was obsessively in love with her, and/or hated her, because Hae had “broke[n] his heart.” And Jay’s statements to the police supported this theory — Adnan’s feelings towards Hae are never described anywhere else as being a simple matter of “not liking” Hae. So why, in asking Adnan about whether Hae ‘deserved to die,’ would Jay preface his question with something as neutral as “granted you didn’t like her”?

Incidentally, we do know that Jenn didn’t like Hae (Int.2 at 48). I wonder if, perhaps, Jay didn’t like her either.

-Susan

FN.1. Actually, there is one other odd thing about this excerpt that is worth noting too. The fact that Jay was able to remember the two kinds of materials used in Adnan’s gloves stands in stark contrast to most of Jay’s statements in the interviews. There is a level of precise detail here that is not present in most of his answers, as most of the time Jay’s responses tend towards vague generalities. Who knows – maybe Jay just really likes clothes, and takes careful note of what those around him wear. But it is still odd, and there is room for us to wonder why his memory is so sharp on this minor point.

FN.2. The three phone calls that Jay describes also show evidence of coaching from the detectives:

Detective: [H]ow many phone calls did you receive?
Jay: 3.
Detective: And what was the nature of the calls?
Jay: Um, one was ah, to check and see if the phone was on.
Detective: And who made that call?
Jay: Adnan. Um, the other, the other was ah, the other was, I was telling him that I was gonna be there. That’s where I was gonna be at, that was the 2nd one. And the 3rd one, I can’t, it was very short, I can’t remember what we conversated about. (Int.2 at 11.)

But why would Jay have such precise memories of exactly three phone calls being made on the cell phone that afternoon — when he literally has no memory of what one of those phone calls was about? (And for that matter, why would Adnan have called Jay three times to tell him such dumb things?) The answer is obvious: Jay has been informed that there were three incoming calls to Adnan’s cell phone during the time period he claims to have been at Jenn’s house —  the calls at 12:43 p.m., 2:36 p.m., and 3:15 p.m. — and therefore Jay’s statement is required to explain what these three calls were about. Or at least attempt to explain what they were about — Jay couldn’t quite do it. He was able to think up with three weird reasons that Adnan might have called him that day, but Jay was unable to think up a fourth. So he simply went with “I can’t remember what we conversated about” instead.

What is really interesting here, though, is that  this mean’s Jay’s police statement in his second interview is an explicit denial that the 2:36 p.m. call was the “come-and-get-me” call. It seems that, at this point, the prosecution was still very much going with the theory that the “come-and-get-me” call had been made at 3:45 p.m., just like Jay had told them over and over again. It appears to have been only later, at trial, that the prosecution abandoned this theory, having realized that it was impossible to construct a tenable case based Jay’s claim that the call was at 3:40 p.m. (because Jay had screwed up the story about Adnan calling on the “landline,” there was no longer a viable way to explain how the call had been made at that time). They were therefore forced to distort their timeline to try and make the 2:36 p.m. call the Best Buy call — even though, throughout Jay’s police statements, the detectives had completely accepted it as a fact that Hae had been killed a little before 3:40 p.m., just as Jay had told them.

(One last note. (And I promise this is actually the last one.) This could explain, perhaps, why Adnan’s defense counsel was so unconcerned by Asia’s supposed alibi for Adnan, even though Asia placed Adnan in the library at 2:30 p.m. — because throughout all of the pre-trial investigation, and throughout at least Jay’s first two interviews, everyone was working under the theory that the murder occurred just before 3:40 p.m., and a 2:30 p.m. alibi would be meaningless.)

In previous posts, I’ve dissected both Adnan’s cell phone records and also Jay’s statements to the police and his testimony at trial. This post, rather than focusing on any single piece of the state’s case, is an attempt to assemble and review all available evidence that supports the state’s case against Adnan. If any readers think there is evidence that I’ve left off, please let me know — all reasonable evidence will be added. My goal is to have as complete a record as possible, with links to the available primary documents. Even for those of you who don’t agree with my analysis, hopefully it will be still be helpful to have a collection of the known evidence collected in one place.

Where relevant, I have also noted which of the three categories the state’s evidence falls into: (1) evidence that the prosecution could and did use against Adnan at trial; (2) evidence that the prosecution could not use against Adnan at trial, but somehow was able to get admitted at trial anyway; and (3) evidence that the prosecution could not use or did not have at the time of Adnan’s trial, but which we have now because it has been made available on Serial. That way, people can evaluate the case against Adnan in light of both the evidence that the prosecution should have been able to use at Adnan’s trial, and also in light of all evidence that is currently availability, regardless of its admissibility for trial purposes.

Summary of the State’s Case

There was no physical evidence linking Adnan to Hae’s murder. It should be noted that this was not because of any lack of effort on the state’s part; in developing a case against Adnan, investigators compared soil found on Adnan’s boots to soil samples where Hae’s body was found, looked for Adnan’s fingerprints in Hae’s car and at the crime scene, tried to match fibers and hairs found at the crime scene with Adnan’s hair and clothes. But all of that came up empty.

And by itself, that might not mean anything. Sometimes criminals are really careful about not leaving trace evidence behind, or just get really lucky. But that does mean that the state’s evidence against Adnan did not consist of any evidence that could show a physical link between Adnan and any of the crime scenes. Instead, the state built its case out of three main pillars: Jay’s testimony, Adnan’s cell phone records, and evidence suggesting that Adnan is the kind of person who could have killed his ex-girlfriend in a vengeful rage.

The first two points I have already addressed in detail (in posts outlining the lack of any objective basis for concluding that Jay’s testimony was credible; the contradictory and dreamlike nature of Jay’s statements concerning Hae’s burial; the indications from the transcripts of Jay’s police interviews that hist statement was coached by detectives; and a comparison of the data from Adnan’s cell phone records and the witness statements). While I have also provided a brief (well, sorta brief…) summary of those topics below, please check the prior posts for the complete discussion on those issues.

That leaves us with the third type of evidence in the state’s case against Adnan: evidence suggesting that Adnan is the kind of person who could have killed Hae. This category include evidence based on witness’s perceptions of an individual’s behavior or character, when that perception had been informed by the perceiver’s knowledge of that individual’s possible involvement in a crime. It includes, for example, evidence that is introduced to show that someone’s reactions to an event were not what his or her reaction “should have been,” or that the way someone had been acting was odd or shady, or that someone was “the kind of person” who might commit a crime.

And I’ll go ahead fully disclose my biases now: as far as I’m concerned, this sort of post hoc, perception-based evidence is the modern day successor to phrenology and tarot card readings. Because I don’t care what kind of person Adnan is or was; I don’t care if he stole candy from babies, or smoked a bowl of weed every morning, or if he bullied kids for their lunch money. I also don’t care if he pauses too long (or not long enough) when answering questions, or if he shows insufficient anger about being imprisoned, or if he was born a Pisces with Jupiter rising. None of that has even the slightest relevance to the question of whether he killed Hae. If Adnan had previously tried to kill someone he was in an intimate relationship with, or even used physical violence against them — well, I would care about that, that would have some relevance, but as far I know there is no evidence whatsoever to suggest anything along those lines. And by the same token, I don’t care what kind of person Jay is or was, either. I don’t care if he has a criminal record, I don’t care if he dealt drugs, and I don’t care if he tried to stab a friend because the friend needed to know what being stabbed felt like. (And I definitely do not care if he owned a rat-eating toad.)

So while I have tried to list all of the state’s evidence against Adnan in this post, I make no promises about giving any serious consideration to “evidence” consisting of things such as “I can tell that Adnan is a sociopath because he once described his facial expression to someone he was speaking to on the phone” is not going to make the cut. You are, of course, free to disagree with me on the significance of that kind of evidence. However, any time the state’s case is based upon a suggestion that Adnan was a “bad person,” and therefore could have been capable of killing Hae, I would encourage you to consider whether or not that sort of amateur psychoanalysis can truly serve as a replacement for evidence demonstrating that Adnan actually killed Hae.

(1) Jay’s Testimony that Adnan Killed Hae.

Jay’s testimony is the crux of the case against Adnan. Without Jay testifying at trial, the prosecution’s case could not have withstood a motion for judgment of acquittal.

But since Jay would have been expected to give precisely that same testimony regardless of whether Adnan was guilty or innocent, there is no reason to assume that it proves — let alone proves beyond a reasonable doubt — that Adnan was actually the murderer. Although the jurors at Adnan’s trial chose to credit Jay’s testimony, we also know, from Episode 8, that at least one of the jurors based that belief on a mistaken assumption about the nature of his testimony. The juror stated that she had chosen to credit Jay because it

struck [her] that “why would [Jay] admit to doing something that drastic if [Adnan] hadn’t done it?” You know what I mean? For what reason? What was he going to gain from that? He still had to go to jail.

But we know exactly what Jay was going to gain from that. During initial police interviews, Jay’s “admission” to helping bury Hae provided Jay with a way to avoid police scrutiny into his own responsibility for Hae’s death. And at Adnan’s trial, Jay was given both a carrot, in the form of an amazingly favorable plea bargain if he stuck with the prosecution’s script, and a stick, in the form of threatened jail time if he failed to do so.

Moreover, the timing of Jenn’s and Jay’s initial contacts with the police, and their subsequent interviews, show us the series of events that led to Jay making the rational choice to “confess” to his role in the cover up of Hae’s murder. On February 27, 1999, Jay walked into a police interview with two detectives who were already convinced of Adnan’s guilt, and had the testimony of one witness — Jenn — to back it up. And while we do not know the details of what occurred during Jay’s “pre-interview” that day, it does not take a great leap of the imagination to think that the detectives’ approach to the interview was something along the lines of, “C’mon, Jay, we know you helped Adnan bury the body. We got a witness saying you were there. We got evidence showing you were there. We got evidence that you and Adnan talked the night before the murder to plan it all out. And if you don’t start talking now, we’re going to assume you had something more to do with it than just helping with the disposal.”

[Edit, 12/22/2014: It was far more blatant than that. The police informed Jay that if he did not implicate Adnan in Hae’s murder, then Jay would be getting charged with the murder”

In light of that, there should be no question as to why Jay would have implicated Adnan in Hae’s death. Jay has said it himself — he accused Adnan of murder so that he could avoid being charged with the murder himself.]

In addition, the precise details of Jay’s plea deal, and the arrangement through which a private defense counsel that was hand-selected for him by the prosecutor, was not disclosed to the defense in advance of trial, which prevented them from being able to make the greatest use out of this striking information. Like Jay testified, something “smelled fishy” about the way he obtained his defense counsel, and he has suspicions that his counsel was representing the prosecutor’s interest and not his own (Appellee’s Brief at 12-13).

Jay might very well have been right about that — the most obvious explanation for why the prosecutor was so eager to handpick a private defense attorney for Jay is because the prosecutor was concerned that a PDS attorney might have advised Jay against pleading to a felony, as the state’s only evidence against Jay was his own (possibly improperly Mirandized) statements.

So Jay making a sweet deal to save himself from a much worse criminal charge is not reliable evidence of Adnan’s guilt. Jay’s testimony only becomes evidence of Adnan’s guilt if the factfinder believes that he or she possesses a special ability to act as a human polygraph machine, with the power to sort truth from lies merely by observing someone speak. And that is not something humans are actually capable of doing. It was undisputed at trial that Jay had lied in every police statement he had ever given; why should anyone expect he started telling the truth at Adnan’s trial?

(2) Adnan’s Status as Hae’s Ex-Boyfriend.

At trial, the prosecution argued that Adnan’s status as Hae’s ex-boyfriend was evidence that he was guilty murdering Hae. And that is a fine argument for them to have made, to the extent that it sets the stage for the alleged motive for the offense, but that is as far as that evidence can take you. I have seen a lot people, however, trying to argue that Adnan is almost certainly guilty of Hae’s murder simply because, statistically, intimate partners are responsible for most homicides with female victims, and therefore it is overwhelmingly likely that Adnan was the killer. But this murder-by-numbers approach to crime solving makes two huge mistakes: it relies on inaccurate numbers and faulty application of the data.

First, let’s look at the numbers. Of all female murder victims, somewhere between two-fifths and one-third are killed by an intimate partner (defined as a current or former spouse or boyfriend/girlfriend). Although the precise numbers depend on which study you are relying on for your data, one Bureau of Justice Statistics Report released in 2001 found that, from 1993-1999, a total of twenty-two percent of female homicide victims between the ages of 16-19 were killed by an intimate partner.

This is a significant number, and Adnan should absolutely have been on a list of people to be investigated in Hae’s death. But if you are looking at crime statistics to solve this murder, then you would now have to conclude that Adnan is almost certainly innocent, or at least that there is no way the government could have proven his guilt beyond a reasonable doubt. After all, that means there is only a 1 in 5 chance he did it, right? (Actually, less than one in five — Adnan was not Hae’s only intimate partner. We know of at least one other, which means that, statistically, there can only be a 1 in 10 chance that Adnan is guilty!) (/s.)^fn*

But the published statistical reports are irrelevant. Because crime statistics cannot provide evidence of Adnan’s guilt, no matter what the precise numbers might be. While this kind of data is very useful during the investigation stage, and provides detectives with a way to identify potentially productive leads, it has no use when it comes to demonstrating that a specific suspect committed a specific crime.

For that reason, Adnan’s status as Hae’s ex-boyfriend is as irrelevant as is the chatter about Jay’s criminal record. Yes, when looking at crime statistics, it may be possible to conclude that individuals with a history of certain violent offenses are more likely to commit homicide. But that data is meaningless, because this isn’t a sociology project. And neither the prosecution (or Serial listeners) are ever going to get closer to figuring out who is responsible for killing Hae Min Lee by choosing to follow general statistical trends rather than the evidence.

(3) Adnan Asked Hae for a Ride on the Day of Her Disappearance.

One of the prosecution’s more intriguing and confusing pieces of evidence against Adnan is testimony suggesting that, on the day of Hae’s disappearance and presumed death, Adnan had asked Hae for a ride. Here is what we know so far, from both the podcast and the available court records. On April 9, 1999, Becky, one of Hae and Adnan’s classmates, was interviewed by the police. Notes from that interview provided the following:

Sometime earlier that day, apparently [Adnan] asked her to take him possibly to get car before lunch because it was in the shop. Heard about it at lunch.  . . . Hae said she could, there would be no problem. At end of school I saw them. She said ‘Oh no I can’t take you, I have something else to do.’ She didn’t say what else. Approximately 2:20.  . . . He said, ‘Okay I’ll just ask someone else.’ . . . He told her goodbye.

Did not see Hae after that. (Episode 2.)

In the podcast, however, Becky states that she “remember[s] that there was talk about” Adnan asking Hae for a ride. This makes it sound as if Becky did not actually witness Adnan asking Hae for a ride (which means her testimony would not have been admissible at trial, and could explain why she was not called by the prosecution). Moreover, it is also not clear from Becky’s statements when the “talk about” Adnan asking for a ride occurred — from available context, it seems she may be referring to talk that occurred after Hae’s disappearance, or even after Adnan’s arrest, rather than talk that occurred on the day of Hae’s disappearance. The police statement itself is equally vague, using the word “apparently,” and not specifying whether the source of Becky’s information was first-hand or the talk that she had heard at school.

Krista, another friend of Hae and Adnan’s, also stated the following on the podcast:

If I remember correctly (laugh) I think Adnan and I were taking– ah, had a class together, um our first period class was Photography, and she– they passed each other in the hallway and I was with him and I remember somebody saying or him saying something about ‘Can you give me a ride after school?’ (Episode 2.)

Again, we have a maddeningly ambiguous witness statement. Did Krista hear Adnan saying something about a ride, or somebody saying something about Adnan asking for a ride?

Officer Adcock, who called Adnan at 6:24 p.m. on the night of Hae’s disappearance, testified to the following at trial:

I spoke to Mr. Syed and he advised me that, ah, he did see the victim in school that day, and that um, he was supposed to get a ride home from the victim, but he got detained at school and she just got tired of waiting and left (Episode 2.)

Later, on February 1, another detective called Adnan to ask about Hae, and

[a]sk[ed] him ‘did you tell Officer Adcock you’d asked Hae for a ride?’ . . . Adnan says this was incorrect because he drives his own car to school. (Episode 2.)

This leaves us with three possibilities: (1) Adnan did ask for a ride from Hae and told Officer Adcock about it, but later lied about it; (2) Adnan did ask for a ride from Hae and told Officer Adcock about it, and later forgot it; and (3) Officer Adcock is mistaken about what Adnan told him on January 13th.

If Adnan did ask Hae for a ride on January 13th, that alone is not significant evidence. Since Jay had his car, Adnan might have just wanted to get a ride to the 7-11. On the other hand, if Adnan asked for a ride and later lied about it — that could be very significant.

But just to make this all the more confusing, here is what else we know. Inez, who ran the concession stand at the school, says that she saw Hae at around 2:20 p.m., when Hae parked her car by the gym, engine still running, and ran in to get some snacks. Inez also says Hae told her “to tell the bus not to leave her,” implying that Hae would be back to catch the bus to the boy’s wrestling match (since Hae was a team manager and needed to be there to keep score). But Inez also says she did not see Adnan anywhere nearby at the time — and if Hae was trying to leave school quickly that day (as Hae’s friend Debbie has said), then she presumably left campus straight from the concession stand, leaving Adnan no time to get in her car.

And then we have Jay. Jay, as usual, tells us a lot of things on this subject, but unfortunately none of those things are consistent. In his first interview, Jay says the following about why Adnan gives him his car that day:

Detective: Why does he give you his car?

Jay: Um so I could finish doing, while he was in school and what. (Int.1 at 3.)¹

Later though, at Jay’s second interview, his story changes, and he gives the following two explanations:

Detective: Ah, does [Adnan] tell you how he’s gonna do it [when you and Adnan went shopping together on January 12th]?

Jay: No, but he tell me that ah, he’s gonna do it in her car. Um, he said to me that he was going to ah, tell her his car was broken down and ah, ask her for a ride. And that was, and that was it, that. (Int.2 at 4.)

Detective: And the reason you have the car and the cell phone was why?

Jay: To pick him up from wherever he was gonna do this at. . . .  He he , that day he told me yes. He told me um, I’m gonna leave you with my cell phone and my car, I need you to come get me, yes. (Int.2 at 7.)

Both of Jay’s new answers contradict his statement in the first interview, and while the new answers are not necessarily mutually exclusive, they are different. Did Jay did Adnan give Jay his car so that he could tell Hae it was broken down, or did Adnan give Jay his car so that Jay could pick him up later? Either, both, neither? No way to tell — as I have already discussed at length elsewhere, Jay’s statements during his second interview cannot be assumed to be statements about his own knowledge, due to the extensive pre-interview prepping and mid-interview coaching that went on. So his answers in the second interview are useful for showing one thing only: that by March 15, 1999, the investigators have a theory that Adnan asked Hae for a ride on the day of her murder.

And in any event, by the time we get to trial, Jay has totally discarded the story about Adnan telling Hae his car was broken down. It is just not part of the story. Jay claims the whole conversation on January 12th never even occurred in the first place. Instead, all that happened is that Adnan “told [Jay] he could drop [Adnan] off at school and take [Adnan’s] car as long as he picked [Adnan] up later. [Adnan] gave [Jay] [Adnan’s] cell phone so that he could call [Jay] when he was ready to be picked up.” (Brief of Appellant at 7.)

But Jay’s testimony provides some even more confusing evidence about the claim that Adnan asked Hae for a ride on the day she went missing. Because if Adnan did tell Officer Adcock that he had asked Hae for a ride that day, why on earth does Jay not remember this? Because Jay clearly remembers the phone call with Officer Adcock, but he does not recall anything about Adnan having asked for a ride.²

Here’s what he has to say about the call in the first interview:

Jay: [B]efore that happened we were … we were eating and ah police officer called him on the phone and then we cut the meal short because we got to go back to the Park and Ride.
Detective: When a police officer called him on the phone, do you recall what time that was?
Jay: No I don’t, but I remember it, I remember ’cause he kept saying … yes no …. yes no …
Detective: Did he tell you he was talking to a police officer?
Jay: Uh huh.
Detective: Did he tell you what that conversation was about?
Jay: Ah he said that Hae didn’t pick up her cousin, they already looking for her. (Int.1 at 12-13.)

And by the time of the second interview, Jay has this to say:

Detective: How how do you know Adnan got a call from the Police Department?
Jay: Um, because that’s what he does, he holds the phone away and says police. And at that time I started panicking.
Detective: Were you inside the apartment or outside the apartment.
Jay: We’re in, we were just leaving. We were stepping from the foyer into the hallway. And ah, he he he, he talks to the cops and um, I hear the beginning of the conversation he lied to him and tells him he doesn’t, he doesn’t know were she is, he hasn’t seen her. Tells him to look for her old boyfriend um, that, that ah, that’ s just how she is. She’s a flighty person like that, um, check with her friends. (Int.2 at 25.)

Detective: Okay do you recall what kind of statements he made to t he police?
Jay: Um, I knew them to be totally false, he told them he had no knowledge of were she was. Um, he gave them other people’s name to try to look for her and told him that that was her personality.
Detective: Said that, find inaudible, go over that again. During the pre, pre-interview you said um, maybe you wanna try her new boyfriend that she may be with him?
Jay: Yes.
Detective: And also that he and ah, [Hae and Adnan] had been broken up for awhile?
Jay: Yes.
Detective: You also said that she may have just ran off and also told them that he may wanna check with some of her friends?
Jay: Yes. (Int.2 at 63.)

But completely absent from any of Jay’s statements about the Officer Adcock call are any references to Adnan having asked Hae for a ride.

So that’s what we do know about the claim that Adnan asked Hae for a ride that day. There are still a lot of unknowns regarding it — I probably have more questions about this piece of the prosecution’s evidence than I do about any other, simply because so little has been released to us so far. Because the evidence we have right now points in too many directions; it is hard to conclude which factual scenario is most likely.

First, we have Krista’s and Becky’s statements. Neither are completely clear about the source of their information — about whether they directly witnessed Adnan asking Hae for a ride, or whether they simply heard “talk about it” — and neither appears to have made any statements about Adnan asking Hae for a ride until a long time after Hae’s disappearance. Why didn’t they? Surely Becky would have thought that was important information to tell someone, but her police statement was dated April 9th, nearly three months later.³ And why are Becky and Krista so sure that Adnan asked Hae for a ride on the day she went missing? If these statements came only months later, is it possible that they are conflating two events that happened on different days? (Or could it be possible that their memories are conflated with some kind of memory of Hae asking Adnan for a ride? Because, interestingly, we do know Hae’s car had broken down in the days preceding her death, and on that occasion Adnan had been the one to drive her home. Perhaps Adnan had also given Hae a ride from school to pick up her car after it had been fixed?)

And then we have Officer Adcock’s testimony. But without the transcripts or corresponding police records, I am not sure what to make of it. The appellate briefs do not reference it, and our only information about the call comes a brief mention in Episode 2, and an even briefer mention in Episode 6. And while we know that there was a written police record concerning Adnan’s second call with the police (on February 1st) which notes that Adnan denied telling Officer Adcock that he had asked Hae for a ride, we have no idea if there are any written records concerning Officer Adcock’s original call on January 13th, or if instead all we have to go on is Officer Adcock’s own recollections. Is it possible Officer Adcock confused Adnan with someone else he talked to that day? After all, he was calling a bunch of Hae’s friends to find out if anyone had seen her, and if there are no written notes from those conversations, I am less certain about how much we can trust Officer Adcock’s memory of his call to Adnan. Because if Adnan did make the statement to Officer Adcock, then why doesn’t Jay remember it at all, when something like that would have been so beneficial for his story?

So right now, there are a lot of unanswered questions about this part of the state’s case, and I hope we do get more information at some point about what was going on. But at the end of the day,  whatever factual scenario the prosecution decides to run with, they still have a big problem with trying to use this evidence to show that Adnan committed murder — because the evidence that Adnan asked Hae for a ride thoroughly contradicts the prosecution’s theory of the case. While evidence that Adnan asked for a ride from Hae could have been useful to the prosecution as evidence as to how Adnan may have been able to accomplish the crime, the very existence of that evidence also has the effect of completely undercutting their case. Having multiple witnesses who could testify about Adnan’s request for a ride is strong evidence against the prosecution’s premeditation theory:

(i) If Adnan did kill Hae, why on earth would he have asked her for a ride in a public location, where other students could witness him doing so? If he is planning to kill her after school, it will be immediately obvious to all of their friends who was with her last. The fact that he publicly asked for a ride from Hae is by far stronger evidence that he did not have any plans to kill her.

(ii) If Adnan did kill Hae, why on earth would he admit this to a police officer that evening? He had to know that would be a red flag; it is inexplicable why he would voluntarily disclose that fact to a cop who was simply calling around to ask if anyone had seen Hae. And if Adnan did, for some bizarre reason, admit this fact to an officer, why would he change his story later and claim he did not? The lie that he asked for a ride is far, far more damaging to his case than the fact of him asking ever could be. So why would a guilty Adnan have intentionally changed his story on this point?

(iii) If Adnan did ask Hae for a ride, the prosecution still lacks evidence to show how Adnan could have actually pulled off the murder, because all of the available evidence (Inez’s statements, Becky’s statements, Adnan’s statements) consistently establishes that Adnan did not actually get a ride with Hae that day. So how can Adnan asking for a ride be evidence of his guilt, when that same evidence that shows he asked for a ride also establishes that he did not actually get a ride with her at the end of the day?

So that leaves the prosecution with two options. One option is that Adnan did publicly ask Hae for a ride that day, because he genuinely needed a ride, and later he and Hae got into an argument resulting in Hae’s death — but in that case, the prosecution is left with the problem that all available evidence suggests Adnan was not actually able to get a ride with Hae, and also the even bigger problem that this would be tantamount to admitting that the prosecution’s star witness was lying when he testified about how Adnan planned the crime. The prosecution’s other option is to try to argue that Adnan was so horribly inept at planning a murder that he publicly announced his intention to be alone with the victim at the time of her planned death, and later voluntarily offered this fact to a police officer at the first available opportunity — but in that case, the prosecution is still left with the problem that all available evidence suggests Adnan was not actually able to get a ride with Hae, and also the problem of trying to convincingly argue that someone so stupid and careless could have possibly gotten away with Hae’s murder without leaving any direct evidence of that fact.

(4) Adnan was Acting Paranoid When the Cops Called Him to Ask About Hae.

At trial, Cathy testified that when Adnan and Jay came to her apartment on January 13th, Adnan’s behavior was distinctly odd:

Adnan was lying on some pillows on her floor when he asked, “how do you get rid of a high?” (2/16/00-210) Adnan got a call on his cell phone and said, “they’re going to come and talk to me, what should I say, what should I do?” (2/16/00-213) Then Adnan and Jay left. (2/16/00-214) Jay returned hours later with Jenn, but Adnan was not with them. (Brief of Appellant at 14.)

But any argument from the prosecution that this is evidence of Adnan’s guilty knowledge falls apart under scrutiny.

First, Cathy is the only witness that, to our knowledge so far, has even remotely suggested in their testimony that Adnan’s behavior on the day of Hae’s murder was even remotely suggestive of guilt. No one who saw Adnan at track has suggested that he was acting bizarrely or out of character that day, and even Jenn says that Adnan was completely, utterly normal when she encountered him later that night.

Second, there is an obvious and well-corroborated explanation for Adnan’s weird behavior at Cathy’s — he was super high, and when he found out the police were about to call him, he predictably became paranoid that the police were going to be able to instantly figure out that fact. As the podcast discusses in Episode 8,

There are three calls on the call log around this time that all ping towers near Cathy’s apartment. 6:07, 6:09 and 6:24. The first two calls are for a little less than a minute, the third call is the longest four minutes, fifteen seconds. That was likely Officer Adcock. So maybe Aisha called Adnan at 6:09, says “I just talked to the police and they’re going to get in touch with you too.” Aisha says that Adnan was annoyed. Maybe that’s what Cathy interpreted as panicked. I think we can all stipulate that Adnan was super stoned. He told me he had weed in the car and was worried the cops were going to find it if they came to talk to him. So, imagine for a second that Adnan is talking to Aisha and says something like [quoting Cathy] “What am I gonna do? What am I gonna say? They’re gonna come talk to me. What am I supposed to say?”⁴

Besides, it is very hard to take Cathy’s story as evidence that Adnan was displaying “guilty behavior,” when even Jay agrees that the reason Adnan was acting weird at her apartment had nothing to do with anxiety over the murder, and everything to do with a cigarette that Jay had given him:

Detective: What happens [at Cathy’s]?

Jay: We smoke again. Um, he’s feeling a little nausea from a cigarette that I’d given him prior to going in the house. So he sits away from the group. Um, we stay there for awhile until ah, we’re interrupted by a phone call. He wakes up and he answers his phone, he ah, it’s a Hae, Hae’s family, they’re looking for Hae. He tells them he has no knowledge were she is. (Int.2 at 25.)

So if Jay thinks the reason that Adnan was passed out and quiet while at Cathy’s house was due to the cigarette that made him sick, the prosecution’s argument that it was evidence that Adnan had committed a murder seems to be a pretty strained and contorted view of the facts. Why isn’t the simpler explanation that, regardless of whether he committed the murder, he was passed out on Cathy’s cushions because of how high he was?

And third, if the prosecution is going to argue that someone’s odd and uncharacteristic behavior on the night of Hae’s disappearance is evidence of their guilt, then they have chosen the wrong target. Because this argument fits perfectly when applied to Jay.

Here is how Cathy describe Jay and Adnan that night:

Cathy thought Jay was acting odd as well. She knew him as this super laid back stoner guy, like Shaggy from Scooby-Doo. But now he was being conspicuously chatty. [Jay] [k]inda– dominated the conversation really. . . . [Cathy] does remember talking to Jenn and saying, “Jay’s here with some kid who’s practically passed out on the cushions.” And Jenn thought that was curious, like, “what’s Jay doing there?” She told Cathy that Jay had been acting weird earlier in the day too. The story Cathy is telling is pretty close to what she told the cops during the investigation. Detective MacGillivary interviewed Cathy in March of ‘99, after Adnan had been arrested. She told him back then, she remembered Adnan saying only one thing to the group: “how do I get rid of a high? [ ] I have to meet someone or do something and it’s really important.” And [Cathy] was like, “you just have to let it– just have to let it go.” (Episode 6.)

And in Jenn’s police statement, she also described how Jay was acting weirdly when he was at her house that day. So weirdly, in fact, that she became convinced something was very wrong:

Detective: [Y]ou were talking about Jay was at your house and he wasn’t acting the way he would normally act, I think hyper you used the word?
Jenn: Uh huh.
Detective: And he leaves in what you believe is Adnan’s car, and you knew something was wrong?
Jenn: Uh huh. (Jenn Int. at 32.)

So let’s recap: (1) Cathy and Jay both describe Adnan as being quiet and “practically passed out” at Cathy’s, and Jay believes that Adnan’s behavior is directly attributable to a cigarette, not anxiety about the murder; (2) Cathy’s memories of Adnan freaking out over how to get rid of a high are wholly consistent with his fear of the cops calling him, just as Aisha told him they were about to do; (3) Cathy describes Jay as acting really weird and out of character while he was at her apartment; and (4) Jenn describes Jay as acting really weird and out of character when he was at her house.

(5) Adnan’s Cell Phone Called Nisha When Adnan Claims He Did Not Have His Cell Phone, Showing That He and Jay Were Together Shortly After Hae’s Disappearance.

The “smoking gun” of the prosecution’s case against Adnan was “the Nisha Call”:

Think of it as a title, capitalized, The Nisha Call. Between noon and five pm that day, there are seven outgoing calls on the log, six of them are to people Jay knows, the seventh is to Nisha, someone only Adnan knew. Adnan’s story is that he and his cell phone were separated that day, from lunchtime all the way until after track at around five something. But The Nisha Call happens at 3:32pm. Smack in the middle of the afternoon. The prosecution makes much of this call at closing, and I can see why. (Episode 6.)

From Adnan’s cell records, we know that the Nisha Call lasted 2 minutes and 22 seconds, and was routed through L651C, which is the west-facing antenna of the tower closest to Woodlawn. It is also the same tower and antenna that the two previous calls had been routed through.

Here is what Nisha testified to at Adnan’s first trial, when asked about this call:

Nisha: Ummm, it’s a little hard to recall, but I remember him telling me that Jay invite- invited him over to a video store that he worked at. And, he basically well Adnan walked in with his cell phone and then like- he told me to speak with Jay and I was like ‘okay’ cause Jay wanted to say hi so I said hi to Jay. And that’s all I can really recall.
Prosecutor: What time of day did that occur?
Nisha: I would think towards the evening, but I can’t be exactly sure.

And here is her testimony from Adnan’s second trial:

Prosecutor: [N]ow did there ever come a time when the defendant called you and put a person he identified as Jay on the line?

Nisha: Yes . . . basically Jay had asked him to come to an adult video store that he worked at.

Prosecutor: No don’t– tell us the content of the call.

Nisha: Okay. He just asked me how I was doing, et cetera. (Nisha’s Testimony at Adnan’s Second Trial.)

If the call Nisha is describing is the 3:32 p.m. call from January 13th, then she has a lot of things about it completely wrong:

• She thinks that Adnan was walking around on foot, rather than driving around in a car.
• She thinks that Jay was working at an adult video store, when really he did not get that job until about two weeks after Hae’s disappearance.
• She thinks that the call happened “towards the evening” rather than at 3:32 p.m.
• She thinks that Jay invited Adnan over somewhere, rather than that Adnan and Jay were already together when the call began.

That is an awful lot of things to get wrong about a phone call. In fact, she is quite literally wrong about everything we know about the call from the cell records, except for perhaps the call’s duration, which she does not testify about.

In Jay’s first interview with the police, he does not mention the Nisha Call, and gives no indication that such a call ever occurred. By the time of the second interview, however, Jay suddenly remembered the call — because just like Detective MacGillivary testified at trial, “[o]nce confronted with the cell phone records, [Jay] ‘remembered things a lot better'” (Brief of Appellant at 12). Here’s what Jay had to say at the second interview:

Detective: How long do you think you were on the telephone?
Jay: Um, [Patrick’s] machine it’ll ring 4 or 5 times before the machine’ll pick up. There’ s a long song on there. Um, then his sister comes on , maybe like 4 minutes.
Detective: Where do you ah, what do you do then after.
Jay: Um.
Detective: The phone message.
Jay: We head to Forrest Park to see if we couldn’t find that corner salesman there um. We go down t here, we buy 2 dime sacks. Um, we turn around, I believe we s topped to get blunts on um, Rogers and Gwynn Oak, Gwynn Oak and Rogers on the corner of Gwynn Oak and Rogers. During the trip from ah, Route 70, over to.
Detective: Forrest Park where you ah, buy marijuana?
Jay: Yes.
Detective: You made the phone call to your friend?
Jay: Yes.
Detective: First .
Jay: Oh.
Detective: And he wasn’t there. Did anybody else use the phone?
Jay: Yeah um, Adnan, I can’t remember whether he received a call or placed a call, but I do remember he was talking to a girl um, I can’t remember her name. He put me on the phone with her for like 3 minutes, I said hello to her.
Detective: Where did she ah, live?
Jay: Silver Spring.
Detective: Do you recall her name?
Jay: No I don’t.
Detective: Is there anything significant about this conversation that you remember?
Jay: No and.
Detective: You have any idea why Adnan would call this individual in Silver Spring after he had just.
Jay: No and.
Detective: [Redacted]
Jay: I don’t and ah, I have no idea why he would call. And and their conversation didn’t pertain to anything that he had just done. So.
Detective: No.
Jay: No I don’t .
Detective: Okay, um how long did that conversation last?
Jay: It was a pretty long conversation, maybe like 7 – 8 minutes, 10 minutes, something like that.
Detective: And he gave you the phone?
Jay: Yeah some point in the conversation, he gave me the phone, told me to speak to the chick.
Detective: And what did you say to her?
Jay: I said a couple of words, hey, who are you, how old are you, um, where do you live at. (Int.2 at 16-17.)

Which means that if the call that Jay is describing is the call that was made to Nisha at 3:32 p.m., his memory of the call is even more inaccurate than Nisha’s was:

• He says it occurred some time after the call to Patrick was made, but the Patrick call was at 3:59 p.m., while the Nisha call was at 3:32 p.m.
• He says that the call occurred after he and Adnan were returning from buying weed out at the corner of “Gwynn Oak and Rogers,” and as they were driving past Forest Park golf course, but the cell records show that the call was routed through the Woodlawn tower,  just like the two calls immediately before it and the two calls immediately after (making it impossible for Jay and Adnan to be returning from Forest Park at the time of the call).
• He says that the call lasted between 7 and 10 minutes, and that for three of those minutes he was the one on the phone with Nisha, when really the call was only 2 minutes 22 seconds.

But even aside from the complete inaccuracy of Jay’s memory concerning the Nisha call, there is something much more troubling about this portion of the interview transcripts, which gives us strong reason to question the legitimacy of his statement. And that’s the fact that, when the detectives interviewed Jay the second time around, they knew precisely one fact about the Nisha Call: that it was made to a girl who lived in Silver Spring. So isn’t it just a little bit concerning that the single detail Jay remembers about the Nisha Call also happened to be the fact that it was made to a girl who lived in Silver Spring?

In any event, while the prosecution is not wrong about the Nisha Call being its “smoking gun,” because it really is the single strongest piece of evidence that they have against Adnan, the problem for the prosecution is that the Nisha Call doesn’t actually prove anything. Even assuming that Adnan really was responsible for killing Hae, then the best interpretation of the available evidence would still be that Adnan made a butt-dial shortly after committing the murder.

Because if there really had been a phone conversation with between Adnan, Jay, and Nisha in the minutes after Hae’s murder, wouldn’t we expect at least one of the participants have recalled at least a single verifiable detail about how that conversation occurred? And even if Adnan really had murdered Hae, is it more likely that, within a few minutes after the murder, Adnan would respond by (a) casually calling up a girl he had met a couple weeks ago so that he could casually flirt with her, or (b) intently focusing on the problem of how he is going to transfer Hae’s body to the trunk of her car without anyone seeing him, and in the course of doing so, bump the phone in his pocket, causing it to dial a number on speed dial?

With regards to the first point, the prosecution’s failure to find a single witness who remembers the Nisha Call occurring at the time and place where the cell records show that it occurred is, in itself, evidence that there never actually was a Nisha Call. Because what is the most logical explanation for when a phone call is made from a cell phone to a number on speed dial, but no one on either end of the line has any recollection of such a phone call being made? That it was a butt dial. So why would that logic not apply here?

And there was no evidence presented at Adnan’s trial to show that the Nisha Call could not have been caused by a butt dial. While Nisha testified that there was no voicemail on the number that was called, whether it did or did not is beside the point, because as /u/serialisgreat has pointed out, cell carriers in those days were billing by the ring, “send to end”:

Most of the nation’s big wireless calling companies begin billing their customers from the moment they press the “send” button on a mobile phone to the moment they hit “end.”

That means the cents are piling up even before the call connects.

Companies including AirTouch, AT&T Wireless, Bell Atlantic Mobile, Sprint PCS, BellSouth Mobility and Nextel Communications all begin their bills from “send,” not “hello.”

Unfortunately, it does not appear that the detectives investigating Adnan’s case ever looked into whether an unanswered butt dial would have shown up in Adnan’s cell records — or if they did, they did not publicize their results. But that fact is kind of interesting all by itself. Because if the prosecutors really thought the Nisha Call really was their “smoking gun,” don’t you think they would have taken some easy steps to bolster their evidence — and to preemptively rebut Adnan’s obvious defense — by confirming that the call could not have been recorded on the cell records unless it had been answered? So why didn’t they?

And on the second point, the prosecution’s theory that Adnan decided to call and flirt with Nisha immediately after he had killed Hae is starting to get a little too far out into Silence of the Lambs territory. Sure, that kind of detail makes Adnan sound callous and horrific, and that nicely supports the prosecution’s whole “Adnan is a cold-blooded killer who took out Hae in order to extract revenge for the slight upon his honor” theory. But while that might make for a good story on a late-night crime drama, it really pushes the boundaries of plausibility to think that, in real life, a 17-year-old that just strangled his ex-girlfriend and has her body in the trunk is going to respond by calling the girl he has been making out with, just so that he can have a casual chat. The prosecution’s theory is that Adnan is killing Hae because he is so distraught and enraged by their breakup, but their theory of the Nisha Call is far more consistent with him being a Ted Bundy-style serial killer.

(6) Adnan’s Cell Phone Made and Received Two Calls That Were Routed Through Leakin Park at the Time That Hae Was Buried.

After the Nisha Call, the second most important piece of evidence in the prosecution’s case consists of the cell records showing that the 7:09 p.m. call to Jenn’s pager, and the 7:16 p.m. incoming call, were both routed through a tower and antenna that is consistent with those two calls having been made and received while the phone was in Leakin Park. This is reliable evidence that the cell phone actually was in Leakin Park at the time of those two calls — because although tower records are not 100% reliable for identifying a cell phone’s location, the failure of any other calls on January 12th and January 13th to have routed through L653A make it exceedingly unlikely that it was nothing more than a freak coincidence for those two calls to have gone through that tower even though the phone was physically located somewhere else.

Which means that the cell phones are really excellent evidence for demonstrating that Adnan’s cell phone was in Leakin Park when Hae was buried there. This creates an extremely strong inference that the reason the phone was in Leakin Park at that time is because whoever was burying Hae brought the phone with them.

But the problem for the prosecution is that we already know the identity of someone who brought Adnan’s cell phone into Leakin Park in order to bury Hae’s body: Jay. We know exactly why the phone was pinging off the Leakin Park towers that night, because Jay’s statements show that the phone came with him when he went there to bury Hae.

So there isn’t some great mystery to be solved here. We are not left with trying to figure out how Adnan’s cell phone could have magically transported itself across town and into Leakin Park at the precise time that Hae was being buried. We already know how that happened. The only question is whether or not Adnan was also with Jay at the time.

But the prosecution does not have any evidence to support this second inferential leap. What the prosecution does not have, and what the cell phone records cannot provide, is evidence that someone other than Jay was with the cell phone in Leakin Park that night. All the calls made from Leakin Park (as well as the calls immediately before and after those calls) were made to Jenn’s pager, a number which all parties agree that Adnan would never have called.

And how could Jay have possibly had Adnan’s phone if Adnan was not also at Leakin Park with him? I mean, without some kind of evidence to suggest that Adnan would be likely let Jay borrow his cell phone when he was busy attending some kind of event, there would be no obvious reason that Jay could have Adnan’s cell phone without being with Adnan.

Except the prosecution’s undisputed evidence shows that, for at least five hours on January 13th, Jay did borrow Adnan’s car and cell phone, while he went off somewhere without Adnan. Jay’s own testimony acknowledges that he had borrowed Adnan’s cell phone from 12 to 3:45 pm, and again from about 4:30 to 6:00 p.m. And if Jay was borrowing Adnan’s cell phone from 12:00 to 3:45 p.m. — while Adnan was in class —  and from 4:30 to 6:00 p.m. — while Adnan was at track practice — isn’t it reasonable to assume that Jay was also borrowing it from 7:00 to 9:00 p.m., while Adnan was at the mosque?

At trial, the prosecution had no evidence, other than Jay’s own self-serving testimony, that Jay had not borrowed Adnan’s phone once again that evening. Which meant that the prosecution’s entire case relied on convincing the jury that it was completely ridiculous and unreasonable to think that Adnan might have let Jay borrow his phone for a couple hours on January 13th — despite the fact that exact scenario had indisputably occurred at least once that day, and at least twice according to Jay. How can you show beyond a reasonable doubt that Jay had not borrowed Adnan’s cell phone from 7:00 to 9:00 p.m., when Adnan had let Jay borrow his cell phone every other time that Adnan was busy attending some event?

To be fair to the prosecution, its ability to disprove that Jay had borrowed Adnan’s cell phone that day was limited by pesky rules such as the Fifth Amendment.6  But Serial listeners are not so limited in the available evidence — and since Adnan has spoken on the podcast about what he remembers about what happened on January 13, 1999, we can consider those statements now in evaluating the evidence.

And Adnan’s story is pretty straight-forward. According to Adnan,

he’s pretty sure he was with his phone at that time after track. Again, his memory is vague, it’s full of I probably would haves. But he says that from what he can remember of the evening, after he got the call from Office Adcock, he remembers dropping Jay off at some point and then he says he would have gone to the mosque for prayers. It was Ramadan. He doesn’t say he lent his phone out or his car to Jay or anyone else that evening. (Episode 5.)

Which means that we do not have any testimonial evidence from Adnan demonstrating that Jay was borrowing Adnan’s cell phone. But Adnan’s statement is not itself persuasive evidence that Jay was not borrowing the cell phone, because it is wholly consistent with everything else Adnan has said about that day, which is that by the time he was asked about it six weeks later, he just did not remember what all went on. (Actually, if Adnan had a specific memory of loaning his phone out to Jay, but no specific memories of anything else that occurred that evening, that in itself would be highly suspicious, or at least not particularly credible. Adnan remembering nothing about that evening is plausible — Adnan selectively remembering a single exculpatory detail and nothing else is much less so.)

And Adnan’s statement is also consistent with his innocence in another major respect. If Adnan is a murderer who is willing to lie about everything he did that day, we would expect him to further lie about having the cell phone in his possession at the time that the pings show it was in Leakin Park. Him telling the truth about having the cell phone that evening is not consistent with the statements we would expect if in fact he were guilty. Remember, this is not a case in which Adnan gave a statement, only to later be contradicted by his cell phone records — because Adnan’s statement concerning his belief that he had his phone that night was made years after his trial, and with full knowledge of what the cell records show about Leakin Park.

As it turns out, though, we do have statements from another witness that provide circumstantial evidence that Jay borrowed Adnan’s cell phone at 7:00 p.m. on January 13th, while Adnan was at mosque. Because Jenn’s statements to the police strongly suggest just that. She told the police, during her interview, that on the night of Hae’s disappearance,

I believe that I got a voice message from Jay like um telling me to get him from the park and around, between seven and seven-thirty I think it was (Jenn Int. at 12).

The park Jenn identifies is located “off of Crosby and Chesworth,” but is not “the one that the pool’s on” (id.). The only park that fits this description is Western Hills Community Park, which is directly across the street from Adnan’s mosque, and only a three minute walk away from Adnan’s mosque if you cut through the back yard. 

To put this information into context, here are two facts to remember: (1) Jay and Adnan had left Cathy’s at around 6:30 p.m.; (2) Jay and Jenn had plans to hang out at Cathy’s house at 7:00 p.m. So if Jay was supposed to meet Jenn at Cathy’s at 7:00 p.m., why does he leave Cathy’s at 6:30 p.m. and call Jenn with instructions to pick him up from next to Adnan’s mosque at 7:00 p.m.? Jay obviously knew, somehow, that he was going to be dropped off near Adnan’s mosque at around that time, and be left without a car he could use to transport himself, but why would Adnan think such a thing?

Jenn also tells the police that after receiving an initial message from Jay about picking him up from Western Hills Community Park, she received a second message from Jay, sometime between 6:30 p.m. and 7:30 p.m., this time telling her to disregard his earlier instructions to pick him up at Western Hills Community Park. (Based on the cell records, it is a really good guess that the page Jenn is talking about is the same as the 7:00 p.m. call from Adnan’s phone to Jenn’s pager that shows up on the cell records.) Jenn states that

[Jay’s] message sa[id], “I’m going to be late don’t pick” you know “don’t pick me up at the park” or “I’ll call you when I need you” or something (Jenn Int. at 12).

So why would Jay initially tell Jenn that he needed her to give him a ride from Adnan’s mosque at 7:00 p.m., but then call her back at 7:00 p.m. to tell her to ignore the initial plan and that he would contact her later to let her know where to pick him up? One obvious explanation is that Jay had believed Adnan was going to drop him off at 7:00 when he went to mosque, which would have left Jay stranded and without a car. But then something changed, and he no longer needed Jenn to pick him up — indicating that he had figured out some other way of getting a ride.  And why might that be? If anyone else has any alternative explanations for this series of events, please share them, but here is one obvious explanation that fits well with the known facts: the reason Jay let Jenn know he was no longer going to need a ride from Adnan’s mosque is because Jay was able to borrow Adnan’s car (with the cell phone in the glove compartment, like Jay has previously described).⁵ I am unable to think up any other reason that could explain both Jay’s requested locale for a pick-up and the sudden change in plans, and it seems unquestionably significant that the original rendezvous point for Jenn and Jay was immediately next to the place Adnan says he was that night.

(7) Adnan Does Not Clearly Remember What Happened on January 13, 1999.

Adnan’s story about where he was and what he did on January 13, 1999 is straight-forward. Although he did not testify at his trial, one of his police statements was introduced into evidence, and is summarized as follows:

[Adnan] told the police that he and Hae used to date. He said that on January 13, 1999, a Wednesday, he had class with Hae from 12:50 to 2:15 p.m. Appellant said he went to track practice that afternoon. He did not see Hae the next two days at school, Thursday and Friday, because the school was closed for inclement weather. (Brief of Appellant at 5.)

Adnan also gave another police statement on February 26th, which the police notes summarized as follows:

On 13 January 1999, he had the occasion to be at school (Woodlawn Senior High), however doesn’t remember the events that occurred in school that day.
When asked if Syed had a relationship with Hae Min Lee, Syed replied in a soft voice “yes”, however he didn’t want his father to know.
Syed indicated that he had occasions to be a passenger in the victim’s auto, however not on the date in question.
Syed stated that he had no idea who would want to have hurt Hae Min Lee and that he could provide no information on suspects.

There is something extremely odd about this summary of Adnan’s interview, however. It should probably not be relied upon it to establish what Adnan actually said to the police on the date in question, because, as mentioned in Episode 9, the written summary of Adnan’s statement is dated September 14, 1999. There is no apparent explanation for why the detectives waited seven months before preparing their notes from the interview.

As discussed frequently on the podcast (and in discussions about the podcast), one of the common arguments for why Adnan is guilty is due to that fact that he does not have a clear and concise memory of the events that occurred on January 13, 1999 is evidence of his guilt. Koenig herself expresses frustration at Adnan’s vague memories, which are not so much memories as they are descriptions of what Adnan assumes he would have been doing on that night, based on what he can remember from that time period.

But to call that evidence of Adnan’s guilt is to misunderstand how memories work. Adnan’s memories of January 13, 1999, are utterly typical of how someone would try and describe a mostly average day that had occurred six weeks previously — and for evidence of this, take a look at Jenn’s testimony:

Jenn: I don’t know what time I came in that evening, probably pretty late, I usually come in pretty late, between twelve whatever, and than um the next day inaudible, I’m not sure what inaudible I’m assuming the next day I would have, the 14th I would have went to work, do my normal routine again um unless it was a Saturday or Sunday and than um I ah I I went and saw Jay later, sometime the next day on the 14th I saw Jay and he asked me to take him to take him to F & M parking lot or F & M, he had to go to F & M. (Jenn Int. at 4.)

So when asked to remember what happened six weeks ago on the day that she learned that Adnan had murdered Hae, and had helped Jay to dispose of evidence of the crime – an event that should have been a pretty significant one in anyone’s life – Jenn is nevertheless unable to recall even what time she would have gotten home that night, other than that it was “probably pretty late,” because she “usually come[s] in pretty late.” And when Jenn is asked about the phone calls made from Adnan’s cell phone to her house on the day of Hae’s murder, the only reason Jenn is able to remember that the calls were made on January 13th is because the detectives had specifically informed her of that fact:

Jenn: Well the only reason I know that is because last night um when I was being questioned or whatever you want to call it, um ah the question asked was  had Adnan called my house on the 13th, um I remember the incident that Adnan had killed Hae and I remember that I had talked to Jay that day and Jay had been at my house. Adnan has never called my house before to the best of my recollection, um, not that I would remember, he never called my house and ah so the only time that he would called the house would have been on the 13th like I believe I said that I had those phone calls come to my house.
Detective: So you’re saying that you’re sure it’s the 13th, because we told you you had these telephone calls on the 13th?
Jenn: Right.
Detective: Not because it’s the day after, his birthday or
Jenn: Right. I don’t, I wouldn’t remember inaudible. (Jenn Int. at 25.)

A lot of Jenn’s memories about January 13th are described in this fashion, based on bits and pieces she actually recalls, supplemented with her knowledge of what she assumes she would have been doing:

Jenn: I got a page and usually when  get pages or things like that I go back to my room and use the phone just ’cause that’s where I feel comfortable and um that’s when I got the page that was a voice (Jenn Int. at 13.)

Jenn: He says um I said and we talked probably talked a little bit more about Hae and everything that happened and I might have asked him you know again what his involvement was, if he knew where the bodv was . (Jenn Int. at 19.)

Jenn: Um and then when I woke up the next morning I guess I went through my normal six-thirty to till nine routine, taking everybody to work, myself getting to work and I think I probably went to work the next day as long as it wasn’t a Saturday or Sunday (Jenn Int. at 23.)

Need more proof? Here is Stephanie’s police statement:

January 13, 1999 was a normal school day for Steph although it was her birthday. . . She could not remember anything out of the ordinary from first period. Second period was English class which she had with Hae and Adnan. She remembered Adnan bringing her a stuffed reindeer. [Stephanie] could not remember anything about Hae during second period. Lunch was at approximately 10:40 a.m. She believes Adnan was at lunch but she could not be certain. . . .

[Stephanie] advised that Friday, January 15th, they had a big snowball fight at her house. The following persons were present: Adnan [and redacted names]. [Stephanie] was then advised by her mother that the snowball fight was possibly the following week. This was remembered because on Thursday the 14th and into early the 15th, the power was out due to a power failure. (Stephanie’s Police Statement.)

Again, we have memories of what “probably” happened, or descriptions of when she “believe[d]” to have seen Adnan, but only a few details are actually remembered for certainty. The rest is based on what she normally did on Wednesdays. And, when trying to remember something like a snowball fight that occurred two days after Hae’s disappearance, she completely screws up the dates of when it happened — because while she remembered the specific event, when there is no additional context (such as the power outage) to logically orient the memory in time, trying to link the memory with the specific day it occurred is difficult or impossible to do.

Which means that Adnan’s memories of the day Hae went missing are consistent in every way with the memories we would expect someone to have of a normal day that occurred six weeks before. Yes, it is frustrating for us that Adnan lacks the memories that could potentially help us figure out what happened on the day Hae disappeared — but it’s not even the tiniest fraction of how frustrating it must be for Adnan.

(8) Adnan’s Lack of Alibi.

Another common argument for why Adnan must be guilty is his lack of a conclusively established alibi for the afternoon and evening of January 13th.

Before discussing the merits of this argument, it should first be clarified, however, that the very premise of it is based on a distortion of the factual record. Adnan does have alibi witnesses — it is just that these witnesses’ memories are fuzzy and unclear on the specifics of what happened on what particular days (for the exact same reasons that Adnan’s own memories of that day are fuzzy and unclear). Asia remembers seeing Adnan in the library at 2:30 p.m.; Adnan’s track coach does not remember Adnan being absent from track practice; Jay remembers Adnan’s teammate Will seeing Adnan at track practice; and Adnan’s father remembers seeing Adnan at mosque that evening. So the issue is not that Adnan lacks an alibi. The issue is that Adnan lacks an alibi that the alibi witnesses can conclusively prove, when they were asked to do so 6+ weeks later.

But let’s assume for the moment that there were not any alibi witnesses. No one specifically remembers seeing Adnan at any particular time that day, and no one specifically remembers him being absent, either. (Which is pretty much exactly what we would expect from alibi witnesses who have been asked to recall whether a specific person was present at a function or event on a particular day, when that person’s presence at said function or event was a regular and ongoing occurrence.) Would that do anything to prove that Adnan is responsible for Hae’s murder? No, it would not — because without additional context, the fact that a suspect lacks an alibi cannot tell us anything about whether that is evidence of the suspect’s guilt.

Here’s an example. Let’s pretend we could run an experiment where we attempted to verify a solid alibi for Adnan for every weekday afternoon, six weeks after that date. If we found out, after running this experiment, that we were unable to find conclusive alibi witnesses for 99% of those afternoons, then the fact that Adnan had no alibi on January 13th tells us nothing whatsoever. It simply is not evidence of Adnan’s guilt, because we would expect to find that exact same result regardless of whether he is guilty or innocent. Conversely, if we discovered, after running the experiment that, that Adnan could establish a solid alibi under those same circumstances 99% of the time, then the fact Adnan was unable to establish an alibi for January 13 would become a very significant data point.

Obviously, in real life, the odds that Adnan could establish an alibi for any given day, when asked to do so six weeks later, are going to be something less than 99% and something greater than 1%. But where exactly in that range would it fall? Although we are obviously working with an incomplete evidentiary record, the evidence we do have strongly suggests that it was actually pretty likely Adnan would be unable to come up with an alibi for that time period. We know that he had approximately an hour and fifteen minutes to an hour and forty-five minutes to kill before track; we also know that if he lacks an alibi for any 42 minute period during that time, he could theoretically have time to have killed Hae and made it back to Woodlawn (assuming 21 minutes each way to Best Buy — a generous assumption). Since Adnan’s alibi would have been other students he randomly encountered at the library or around school, and since track practice did not actually take attendance, the odds that Adnan would lack an alibi witness who could conclusively prove that he or she saw him on any particular day seem to be pretty likely — and the odds are even higher that, even if he did have an alibi witness, it would still be insufficient to cover the entire 1 to 2 hour window in which we know Hae was killed.

Which means that, as far as the evidence can show us, Adnan’s lack of an alibi does not give us any reason to believe that he was more likely to have been responsible for Hae’s murder.

In any event, Adnan’s lack of an alibi is also of less evidentiary significance in this case because of the arbitrary and adaptable nature of the prosecution’s timeline. There is no “fixed” time for when Hae was killed — the timeline the prosecution went with at trial was chosen specifically because it was the one that best fit the evidence. And since the prosecution was able to pick and choose its timelines based on what is most consistent with its case, the prosecution had the power to render any alibi Adnan did have completely insignificant, simply by adjusting its timeline to put Hae’s death at a different time. If Adnan had been able to present a perfect alibi for where he was at 2:36 p.m., the prosecution would have just shrugged its shoulders and decided that Hae was really killed at 3:45 p.m., like Jay said.

(9) Adnan’s Fingerprints Were Found in Hae’s car.

This evidence is particularly insignificant, but I have included it simply because the show made a point of doing so:

Police recovered a page torn from a map in the rear seat of the victim’s, Hae Lee, vehicle. The page included the map area of Leakin Park, the location where Lee’s body was found. [Adnan’s] fingerprint was found on an identification card in the glove compartment of the car. [Adnan’s] palm print was found on the back cover of the map recovered from the car. [Adnan’s] fingerprints were also found on floral paper recovered from the back seat of the car. (Appellee’s Brief at 2.)

Why is it insignificant? Let’s assume for a moment that Adnan did kill Hae. Are the fingerprints found in Hae’s car evidence to prove that?

No, because it is undisputed that he was in her car on numerous occasions while they were dating, and that he was also in her car at least one time in January before Hae’s murder, when her car broke down and he went to help her figure out whether they could get is started again. So even if everything about the prosecution’s theory is 100% correct, which is more likely: (1) that the finger prints found in Hae’s car came from one of the many days that he was in her car while she was alive, or (2) that the finger prints found in Hae’s car came from the single day he was in her car after she was dead?

Obviously it’s the former. And this conclusion is further supported by the fact that none of the prints found were consistent with Adnan having been in the driver’s seat when he left them.

(10) The “I’m Going to Kill” Note.

The “I’m going to kill” note was found in Adnan’s house, following a search by the police.  The note was written on the back of a letter that Hae had written to Adnan (see below for more on the Hae letter). Adnan had shown the letter to Hae’s best friend, Aisha, while the two of them were in health class together, watching a presentation on pregnancy, and Adnan and Aisha had then used the back side of Hae’s letter to exchange notes. At the very top of the note, written in Adnan’s pen, is the phrase “I’m going to kill.” Aisha testified at trial that the note had been written sometime in early November of 1998,  and that the phrase “I’m going to kill” was written in Adnan’s handwriting (Appellant’s Brief at App 24-25). Aisha also stated, however, that “I’m going to kill” message had not been written on the page when she and Adnan were exchanging the letter back and forth in health class (Episode 6).

The prosecution introduced the note as evidence of Adnan’s homicidal intent. That is an awful lot of weight for one short note to carry, though, when the only thing we know about the note is that it was scribbled out by a high school student goofing off during class. Especially when the subject of the message is not even identified. In order for this to be evidence of Adnan’s guilt, the prosecution had to ask the jury to make two big assumptions, neither of which were supported by any additional evidence. First, the jury had to assume that Adnan had intended the message to be about Hae. Second, the jury had to assume that this note — unlike the overwhelming majority of all notes written by high school students which convey similar sentiments — was an expression of genuine murderous intent, rather than an expression of high teenage angst.

The first assumption is not an unreasonable one, but it is also only one of many possibilities. Because in the context of a note passed in class between two high school students, the phrase “I’m going to kill” can have any number of meanings: “I’m going to kill the teacher for assigning so much homework,” “I’m going to kill that student for reminding the teacher to assign homework,” “I’m going to kill myself,” “I’m going to kill him if he doesn’t shut up.” For example, the following comes from Hae’s diary, discussing her relationship with Adnan:

“I’ll probably kill myself if I lose him but I’ll go crazy with things complicating. I wish he’ll [sic] call back soon” (Appellant’s Brief at 56).

So even if we’re going to assume that Adnan’s note was about his relationship with Hae, the note could just as easily be read as an overdramatic declaration that he could not live without her. Just like Hae had written.

As a result, I find the “I’m going to kill” note to be one of the more dubious pieces of the prosecution’s case, because it could be used to prove so much. It could work as evidence of Adnan’s guilt for any murder that he had some sort of connection to the victim. What if, for example, Aisha had been the one to be murdered? Or Don? Or Nisha?  If the police had then received an anonymous call saying that Adnan was involved in their deaths, and if they had found this note in Adnan’s house following a search, the prosecution could have introduced it as evidence of Adnan’s guilt for any of their deaths. It’s creepy ambiguousness lets it fit whatever narrative the prosecution wants to present.

But let’s assume that we have a crystal ball which could show us, as established fact, that Adnan had been writing “I am going to kill Hae,” but that he was interrupted by the bell and the note was put away unfinished. If that were the case, how useful would the note be as evidence that Adnan had an intent to commit murder?

The prosecution can definitely get some mileage out of it by arguing it shows that it shows Adnan had a creepy and possessive side. That is a pretty effective tactic, because rebutting a charge of being “creepy and possessive” is pretty hard to do. But without some sort of context that establishes a connection between the note and Hae’s actual murder, it is unreasonable to conclude that the note is actually evidence of Adnan plotting out a homicide. Because how often do people who have no homicidal intent write or say things like, “I’m gonna kill him for this,” or “I will kill her if she doesn’t stop doing that right now”? Well, if a search through my own personal gchat and e-mail history can provide an example, the answer would seem to be “fairly often.” And I don’t think it is an unreasonable guess that high school students say such or write such things at a higher frequency than the general population.

Adnan is just lucky he did not keep a diary like Hae had. Otherwise, just imagine the amount of teenage angst they could have pulled out of it to show that Adnan was a murderer in the making.

I do wish we had more evidence to go on, though, about the nature of the “I’m going to kill” message. The note could potentially be significant if we could show, for example, the context in which it had been written, or how it had been kept, or whether anything remotely similar was found in the rest of his notes. But right now, we do not have any of that. All we know is that the cops found it in Adnan’s house. There is no indication that it was found any place significant — for instance, the cops do not seem to have found it in a pile of letters about Hae, or in a notebook which made other references to any plan to commit murder, or anywhere else that might help show whether the note has any deeper meaning. Moreover, even though the cops went through however many hundreds of pages of notes and letters found in Adnan’s room, the only thing they could find to provide any support for their case was a single four sentence message scrawled out inexplicably on a note that he had been passing in health class. What were in the rest of Adnan’s notes? Was the “I’m going to kill” note unique or unusual compared to the rest of his documents, or did his notes tend to have lots of odd scribbles like this?

If anything, the surprising fact is that the investigators were unable to find anything else of significance in Adnan’s possession — after all, following the breakup of a high school romance, the odds are really high that at least one of the partners will have, somewhere in their possession, some kind of note/letter/e-mail/card expressing some sort of anger or hostility towards their former partner.

(11) Adnan’s Failure to Contact Hae.

In Episode 6, Koenig discusses another argument that has been raised as evidence of Adnan’s guilt:

If you look at [Adnan’s] cell records from that day forward, neither Hae’s home number nor her pager shows up again, which suggests he never tried to contact her after she went missing. They were supposedly such good friends. Hae’s friend Aisha said that she was paging her like crazy.

Koenig: Did you ever try to page her and just be like, you know, see if you could find her, raise her, see if you could get a response from her?

Adnan: Well, I know that we would always, I-I can’t remember if I did page her or not but, we would always talk about it at school. I would always like get my information first hand from like Aisha who would usually be in contact with obvi-, if I can remember she was like in contact with Hae’s family. So it was kind of like I would always, if not Aisha or Krista or or or it I mean  it wasn’t like I was just sittin’ around, like not even thinking about her. You know, not paging her or whatever, but I used to always get my information from them first hand, you know, it-it’s not it- I don’t remember if I ever paged her or not.

And this seems to be a pretty popular explanation for why Adnan must be guilty. The idea is that Adnan’s would have paged Hae if he thought she was missing, so therefore his inaction is proof of his guilt.

But the claim that “Adnan never tried to contact Hae” is based on an empty factual record. We don’t know if Adnan ever tried to page Hae, because we don’t know who paged Hae at all. For all we know, Adnan very well could have paged her, only from any phone other than his cell phone.

It isn’t as if this evidence would have been particularly difficult to obtain. If subpoenaing Hae’s pager records would have been able to show that Adnan never paged her from another line, why didn’t the investigators do that? Hae’s pager records would have been invaluable evidence for so many aspects of this case, not just for the question of whether Adnan tried to contact her after her death — so why don’t we have any records suggesting that the prosecution ever did try to pull them? Have they simply not been made public yet?

All we know right now is that Adnan never once called Hae’s pager from his cell phone after her death.  (Actually, it does not appear that he ever called her pager from his cell phone before her death, either. It looks like all of his calls from his cell phone were to her home’s landline.) But why is that surprising? He had only gotten the cell phone the day before — although Hae had written Adnan’s cell number down, it is extremely unlikely she would have had it memorized. So seeing a page come up from Adnan’s cell phone would have been meaningless to her — it would make sense if Adnan had tried to page her from his home number instead, since she would actually be able to identify that one as coming from Adnan. But if Hae really had run away, it seems improbable she would have responded to a page from an unfamiliar number, from someone she does not apparently know.

But let’s assume again that the prosecution has the evidence they think they do, and that we could conclusively prove that Adnan never once paged Hae. What does that prove? Well, about as much as evidence that Adnan had page Hae would prove. Because proof that Adnan had paged Hae would not be evidence of his innocence. A guilty person would have a specific reason to be concerned about appearances, and think,  “Oh, I must be able to show I have no idea Hae is dead, what can I do to maintain that appearance?” An innocent person, of course, would never think of that.

And the assumption that Adnan would certainly have paged Hae if he had not killed her is based on another mistaken factual assumption: that anyone had realized she was missing or not responding to pages. From Stephanie’s statement, we know the following:

[Stephanie] advised that Aisha [ ] first mentioned that Hae was missing on Wednesday or Thursday of the following week. [Stephanie] did not realize Hae was missing until Wednesday of the following week. She was advised that Hae had run away. . . . [Stephanie] was quick to point out that none of Hae’s best friends were initially worried about Hae’ disappearance. She advised that Hae’s best friends were Debbie [ ] and Aisha [ ]. [Stephanie] advised that a lot of time elapsed before anyone did anything about her disappearance. (Stephanie’s Police Statement.)

So if even Hae’s best friends were not concerned until a full week after she went missing, why is it odd that Adnan was similarly unconcerned? And once it did come out that something was wrong, how many people actually attempted to page her at that point? They all know that she is not at home, and they all know that she stopped responding to pages, so what evidentiary significance is to be had from the fact that any particular person failed to send her even more pages?

But even aside from the factual context, the very premise of the state’s argument on this point is flawed. Why is it reasonable to assume that a person who fails to page a missing friend after they go missing is evidence that the person is the murderer? It seems like such an approach would identify more suspects than it would exclude. Trying to determine someone’s guilt or innocence based on their post-crime reactions is based on unreasonable assumptions about human psychology, and how predictable such reactions are.

This is the kind of “evidence” that has no real predictive value, but has the benefit of being impossible for a defendant to effectively rebut. Each of their post-crime actions are dissected, and any perceived aberration from a “normal” reaction is seized upon as proof of guilt. Remember, the prosecution did not just argue that Adnan was guilty based on evidence that supposedly showed he was callous and unconcerned. The prosecution also argued he was guilty based on evidence that he was too concerned and too distraught, such as through the testimony of the school nurse who though Adnan was ‘faking a catatonic state.’

But innocent people don’t make an effort to react or to grieve in carefully calculated amounts, so that they avoid running too hot or too cold in their reactions. Innocent people react to dramatic and traumatic events in wildly disparate ways. Trying to read Adnan’s post-disappearance reactions to determine whether he had any involvement in her death is as effective as trying to read tea leaves.

(12) Hae’s Diary (Should Not Have Been Admissible at Adnan’s Trial).

Hae’s personal diary was admitted into evidence at Adnan’s trial, with selected excerpts read into the record. It is about as boring as you would expect. Like Koenig said, it is “such a teenage girl’s diary.” And while it shows that there was some drama in Hae and Adnan’s relationship, there is nothing in it to suggest that Hae feared Adnan in any way. The opposite, in fact — when talking about Adnan, she says that, “I feel secure and comfy with him.”

But boring or not, the diary never should have come into evidence at Adnan’s trial. As discussed in greater detail at the EvidenceProf Blog,

in a case in which a defendant is on trial for murdering the victim, entries in the victim’s diary regarding her state of mind have no relevance to any issue at trial and are thus inadmissible.

But since it was admitted, over defense counsel’s improperly preserved objections, does it show any evidentiary support for the prosecution’s case? Well, it at least provides evidence that Adnan and Hae had been in a romantic relationship, and had broken up several weeks before the murder, which is significant for purposes of bolstering the prosecution’s motive theory.

But beyond that, there is nothing in it to suggest that Adnan and Hae’s relationship was anything other than the usual mundane high school fare. There is no evidence that Adnan was abusive, or violent, or potentially homicidal. Certainly no one who read Hae’s diary without knowledge of her fate would have concluded that she was at risk of being killed by Adnan. Other than allowing the prosecution to invite the jury to speculate about whether Hae’s diary was somehow suggestive that Adnan had a dark and dangerous character, it does not suggest that Adnan was more likely to be homicidal than any other teenage boy in a hot and cold relationship.

(13) Hae’s Note (Should Not Have Been Admissible at Adnan’s Trial).

Hae’s note is the note written on the other side of the page that Aisha and Adnan passed back in forth in health class, and which had the “I’m going to kill” written on it. It says, in part,

I’m really getting annoyed that this situation is going the way it is . . . Your life is NOT going to end. You’ll move on and I’ll move on. But, apparently, you don’t respect my decision . . . I NEVER wanted to end this like this, so hostile and cold . . . Hate me if you will. But you should remember that I could never hate you.

And while it was admitted into evidence at Adnan’s trial, once again, as discussed in greater detail at the EvidenceProf Blog, this was evidence that “should have been deemed inadmissible.”

In any event, its evidentiary significance is limited. The amount of relevance that it has for Adnan’s case probably depends, more than anything, on the reader’s beliefs as to what notes written by high school students typically look like. But as far as high school relationship drama goes, this is pretty tame stuff. It does show that Adnan and Hae were still having drama in November 1999, so to that extent it is more relevant than the diary, but again, there is nothing in it that would have suggested Adnan was more prone to homicidal rage than any other high school student after a breakup.

(14) Jenn’s Testimony (Should Not Have Been Admissible at Adnan’s Trial).

At trial, Jenn was, for some undisclosed reason, permitted to testify about Jay’s hearsay statements concerning Adnan’s involvement in Hae’s murder. She testified that after Jay messaged her at around 8 p.m. on the night of Hae’s disappearance, she went to Westview to pick him up. Jenn arrived there first. She said that, when Jay and Adnan arrived, approximately 15 minutes later, “[Adnan] was . . . driving, and said hello to [Jenn]. [Jay] got in her car and said . . . ‘[Adnan] strangled Hae in the Best Buy parking lot. [I] saw her body in the trunk.’ . . . [Adnan] used [Jay’s] shovels to bury her and [Jay] wanted to make sure there were no fingerprints on them.” (Brief of Appellant at 13.)

The significance of this evidence depends on the credibility of Jay’s testimony, since he was the only source of Jenn’s information, so there is not much to re-hash here. But it is also worth noting that it was hearsay evidence that lacked any apparent basis for its admission under any exception to the hearsay rule.

Review of the Prosecution’s Case

So that’s the entirety of the prosecution’s case again Adnan, plus a bit more evidence that was either inadmissible or unknown at the time of his trial. Based on everything we know now, is there any way to reconcile the state’s evidence with Adnan’s innocence? How convoluted or improbable would such a factual scenario need to be, in order to account for both?

As it turns out, not convoluted or improbable at all. In order to explain the state’s evidence, only the following four events needed to have occurred: (1) Adnan’s ex-girlfriend was the victim of a homicide; (2) her murder was later covered up by Jay, an individual whom both Hae and Adnan knew; (3) Jay had often borrowed Adnan’s car and phone, and had had done so on the day of Hae’s death; and (4) on the afternoon that Hae was killed, while Jay was in possession of Adnan’s phone, Jay butt dialed a number that was saved on speed dial, but the call went unanswered on the other end.

That’s it. There doesn’t need to have been some series of statistically unlikely coincidences, or some overly complicated conspiracy theory. All that needed to happen was that Adnan let Jay borrow his phone, and that Jay later assisted in the cover-up of the murder of Adnan’s ex-girlfriend. And the fact that the same person Adnan let borrow his phone also turned out to be the same person who helped cover up his ex-girlfriend’s murder was not itself some bizarre or unlikely coincidence, it was just a result of the existing relationships between all the people involved.

Because the central nexus that links all of the relevant players in this case isn’t Adnan — it’s Woodlawn High School. Jay and Hae were connected to one another independent of their respective connections to Adnan. They had attended the same high school, sat next to each other in biology class, and knew the same people. Jay’s girlfriend, Stephanie, was one of Hae’s good friends — and in fact, Stephanie, Aisha, and Adnan were all together at Aisha’s house on the day that they learned of Hae’s death. There was even something of a mild love triangle (love quadrilateral?) going on between Stephanie, Adnan, Hae, and Jay. As one of Hae and Stephanie’s mutual friends, Debbie, testified at Adnan’s trial, “Stephanie [had] confided to Debbie that she was interested in [Adnan]. At the [Woodlawn High School] prom in 1998, when [Adnan] was voted prom king and Stephanie was prom queen, they danced. [Adnan], however, left Stephanie during the dance and went to get Hae to finish the dance with him.” (Brief of Appellant at 14.)

So the prosecution’s assumption that Jay could only have been involved in Hae’s murder if Adnan were also involved isn’t supported by the evidence. Because the prosecution’s whole theory of the case is that Adnan chose Jay to be his accomplice for Hae’s murder due to Jay’s status as “the criminal element of Woodlawn” — but wouldn’t that exact same rationale apply to everyone else at Woodlawn, too? If Jay is the kind of person that Woodlawn students are likely call when they need help burying a body, then why are we assuming it must have been Adnan who made the call that day, rather than any other Woodlawn student?

Actually, in addition to the four events listed above, there is a fifth event that must also have occurred in order for Adnan to be innocent. The investigators who prepared the case against Adnan must have provided Jay (whether intentionally or unintentionally) with assistance in crafting a story that both implicated Adnan in Hae’s murder, and also fit the rest of the known evidence. Because if Jay had been required to stick to the story he gave in his initial interview, Adnan could never have been convicted. It was only after Jay’s story had a chance to be crafted over the course of three more interviews and a mistrial that Jay was able to tell a story that was even passingly consistent with Adnan’s cell records. Because Jay’s story completely changed once the detectives informed him his story could not be true — or rather, as Detective MacGillivary tried to claim, “[o]nce [the detectives] confronted [Jay] with the cell phone records, [he]’remembered things a lot better.'”

But regardless of whether this sort of coaching by the detectives was likely or unlikely to occur, the transcripts from Jay’s interviews show that something like that did indeed occur here.

And other than those five events outlined above — Hae’s murder, Jay’s involvement in the cover-up, Jay borrowing Adnan’s phone, and the detectives coaching Jay’s story — there is nothing in the prosecution’s case that requires explanation. Because everything else that the prosecution had against Adnan wasn’t evidence that he was involved in Hae’s murder, it was just an assorted collection of facts that the prosecution used to spin together a compelling story at trial.

The diary, the notes, the statements from Hae’s and Adnan’s friends; the details of these individual bits of evidence don’t matter. The pieces themselves are interchangeable, so long as the prosecution has enough to prop up its narrative of a cold and vengeful ex-boyfriend determined to eliminate the stain upon his honor. Adnan and Hae were a high school couple that had just broken up after an off-and-on relationship — it was all but certain that the prosecution was going to be able to find something it could use to support the claim that Adnan had been upset about the breakup. If you took any high school couple that had just broken up from a serious relationship (that is, “serious” by high school standards), and then searched their residences and interviewed their friends, the odds are overwhelmingly in your favor that you would find the following:

• Some kind of note, diary, or journal indicating that one of two students felt upset, gloomy, unhappy, depressed, or furious about the break-up;
• Phone calls and other communications that were sent and received between the couple, both before and after the break-up;
• Friends who will express a negative opinion about how one or both students behaved while they were in the relationship; and,
• Friends who will describe how one or both students were distraught or expressed negative emotions about the break-up.

Which is what the prosecution did here. Out of the thousands of chance conversations, events, writings, or occurrences that went on in Hae’s and Adnan’s lives, all the prosecution needed to find was a handful of instances that it could pick out and use to build a narrative that Adnan had been so “distraught” and “vengeful” about the breakup that he killed Hae.

By using anecdotes about how Adnan reacted the “wrong way” to the news of Hae’s death and disappearance, or about how Adnan was upset about Hae ending their relationship, the prosecution was able to convince the jury that Adnan was the kind of person who “just wanted control,” and who “felt betrayed [when] his honor had been besmirched” (Episode 10). And by using racial stereotypes, the prosecution was likewise able to convince the jury that Adnan came from a “culture[] [where] women are second class citizens” and where “men rule, not women” (id.). And once you conclude that Adnan is the kind of person who would commit a murder in order to repair a stain upon his honor, it is not difficult to conclude that, despite the complete lack of any physical evidence tying him to the crime, he must have been the one to murder Hae.

-Susan

FN*. [Edit: Yes, I am in fact aware that this is not how statistics actually work. That’s what the “/s” signifies.]

FN1. Jenn also tells the police that Jay told her the reason he had Adnan’s car was to buy Stephanie a birthday present. She is, however, a little contradictory concerning when Jay told her this. She initially states that:

Jenn: [Jay] he said “I need to tell somebody”, he’s like “I’m the only person that knows and I need to tell somebody. ” And then the information that he told me was that Adnan had killed Hae and I was like in complete shock at this point, not knowing you know what to do or what to say or anything…  I questioned Jay about his involvement and Jay told me that he had no involvement. All he had done all day with Adnan’s car was, he needed the car ’cause it was his girlfriend’s birthday, to go get her a birthday present. That’s why he had Adnan’s car, well, that’s what he told me, Adnan’s car was to get his girlfriend a birthday present. (Jenn Int. at 2.)

Jenn later clarifies, however, that Jay only told her this information the night before, after her first police interview and before her second:

Jenn: Jay told me like last night that it was Adnan’s car that he was in… that he brought to my house ’cause he wanted to know if I told you all about last night and um he said well then he didn’t even want… he was like, “well the only reason I had his car was because I wanted,” that’s when I found out that he had the car to go get his girlfriend a birthday present. (Jenn Int. at 7.)

It is interesting that Jay apparently told Jenn that the reason he borrowed Adnan’s car was because he wanted to do so.

FN2. Notably, at the time of Jay’s first interview, Adnan’s phone call with Officer Adcock was the only phone call that Jay remembered Adnan making or receiving from his cell phone. In fact, at that first interview, Jay only recalled three phone calls ever occurring: the call from Officer Adcock, Adnan’s “come-and-get-me” call, and Adnan’s call to be picked up from track.

FN3. There is also an additional point of interest to consider — why did Becky not testify at trial about Adnan asking Hae for a ride? The prosecution did not even call Becky as part of its case, she was called as a defense witness. But the prosecution does not appear to have raised the issue of Adnan asking for a ride in its cross (assuming there was one). Why not? Why did the state not want her testimony on this point? This could have simply been because her testimony seems to indicate that Adnan did not succeed in getting a ride that day, so it very well could mean nothing at all. But on the other hand, the lack of documents related to Becky’s statement makes me wonder if there is some additional wrinkle at play here. Is there something about Becky’s police statement, or some other conflicting evidence, which made the prosecution shy away from it?

FN4. We also have Jay’s second interview, in which he states that the call from the cops occurred as he and Adnan were walking out of Cathy’s apartment. To whatever extent this can be relied upon, it would suggest that Cathy never even overheard Adnan’s call with the cops — what she heard was his call with Aisha.

FN5. Incidentally, there is also anecdotal evidence from the internet that Adnan frequently let classmates borrow his car and cellphone. While anonymous, at least one person who was able to provide proof that they were in the same high school class as Adnan and Hae has noted the following:

I remember leaving school with Adnan he drove to my house so that we could smoke weed. We were hungry so he offered me his car to get food. I also took his phone just in case he needed to call me.

And as far as I know, the prosecution has no evidence whatsoever that Adnan did not regularly let friends and classmates borrow both his cell phone and his car. In fact, there is one witness — Will — who has said that Jay borrowing Adnan’s car was a common event.

In my previous posts on Serial, I’ve avoided writing about whether Adnan was responsible for Hae’s murder, and have focused instead on whether the state’s evidence showed that Adnan was responsible for Hae’s murder. (Spoiler: It doesn’t.) From a legal perspective, that’s the more interesting question. Moreover, for the most part, I don’t believe we can figure out what “really happened” — the state’s evidence was just too incomplete. The number of unknowns is so high that the existing record can easily support a dozen possible theories of how Hae was murdered, with no reliable way to distinguish which among them is most accurate.

At least for this post, however, I’m going to stray a bit from the legal theme, and make a proposal for what I believe “really happened.” I think that the best interpretation of the currently available evidence is that Hae was murdered at approximately 3:30 p.m., and that the Nisha Call was a pocket dial that occurred during the killer’s assault.

While there is (obviously) insufficient evidence to show this conclusively, I am reasonably comfortable in assuming that this is what happened, unless and until further evidence is made available to contradict it. Note, however, that this is only an explanation for how Hae was killed. I am not making any sort of claim as to who was responsible for Hae’s death, and there is no way to prove that with the evidence available. All I am arguing is that Hae was murdered at approximately 3:30 p.m., and whoever killed her was in possession of Adnan’s cell phone.

1. Isn’t it stupidly unlikely that a pocket dial would occur during a murder?

The “butt dial theory” has been the subject of scorn because many people (including, initially, myself) think that such an event is just too hugely unlikely, too bizarrely coincidental, to be a legitimate explanation for the Nisha Call. However, misdials during violent assaults can and do occur with surprising frequency. They aren’t likely to occur, but they aren’t unicorns, either.  While I was unable to find any peer-reviewed data on butt dials during violent crimes, I did find one report, at least, that suggests unintentional cell phone calls are more likely to occur during a violent crime:

Though it only accounts for about five percent of what could be perceived as misdialed emergency calls, Hoell said there are instances when police respond to potential accidental call that turns out to be of legitimate concern. Of the 15 pocket dial calls received on August 22, there was one that alerted police to a domestic violence incident, which Hoell said is the most common silver lining in the technological advancement of cellphone emergency calls to the department.

If this statistic has any validity, then 5% of pocket dials to 911 occur during events that actually warrant police intervention. That’s not a negligible amount, and supports the possibility that pocket dials are more likely to occur during an assault than at other times. Obviously, a pocket dial during any specific assault is unlikely — but this shows, at least, that it is far from being a ludicrous possibility. The following is a (very incomplete) list of actual murders and assaults that have involved a pocket dial being made as the crime was occurring:

• “Jurors listened in horror Tuesday to the last words of a Queens woman whose screams were captured in a voice message left as she accidentally pocket-dialed her cellphone while being choked to death.”
• “While Ronald Earl Williams was stabbing his wife to death, he unknowingly created a key piece of evidence that could only exist in a wireless age. . . . Williams somehow activated his cell phone, which then called his wife’s cell phone while he was killing her, Assistant State Attorney Walter Manning told a jury on Tuesday.”
• “When police initially questioned John C. Gaumer about a woman who had disappeared, the UMBC student told investigators that he had dropped her off at her Hampden home after their first date and had driven back to his campus apartment. . . . [I]t was cell phone records that initially led investigators to the senior biochemistry major . . .  ‘Cell phones are an amazing thing,’ prosecutor Susan H. Hazlett told jurors yesterday during her opening statement. She later added, ‘We get to the defendant by Josie’s cell phone records.’ Prosecutors also played for jurors a chilling phone message accidentally recorded during the attack when Gaumer’s cell phone inadvertently dialed Brown’s.”
• “Holding her head in her hands, Angelie Ortiz sobbed Monday as she listened to her screams recorded on her brother’s voice mail after her ex-boyfriend kidnapped her and their 2-year-old son, then threatened to kill her when she refused to reconcile with him.”
• “D’Lisa Kelley’s grandmother called saying she’d made an accidental phone call to her sister. ‘She could hear her screaming for her life, telling someone in the background, ‘Get off of me! Get off of me! Stop! Stop!'” said her sister, LaShaun Steward, in March. ‘It was a male voice in the background saying, ‘Shut up! Be quiet! Stop screaming!'”
• “The recording was made by Merced Police Department dispatchers after Tellez apparently ‘pocket dialed’ 911 the night of the shooting and didn’t know his phone was connected to police dispatch, according to reports from deputies.The recording, which has never been transcribed due to the difficultly deciphering exactly what was said, was described Tuesday as the main piece of evidence against Tellez.”
• “The complaint says while the attack was happening, Rashid’s cell phone pocket-dialed his girlfriend’s father, who heard his daughter screaming and heard Rashid ask her if she wanted to die. “
• “A month after a 33-year-old California Marine allegedly fractured his girlfriend’s skull, a chilling recording emerged, the result of the soldier supposedly pocket-dialing the woman during the incident.”
• “Take the case of Scott Simon, a 25-year-old Oakland Park, Fla. man whom police say unwittingly spilled the beans about his plan to murder another man just before the victim was shot and killed.”
• “The jury listened to a recording of a voice-mail message left on the phone of another sister, Crystal Harris, in an accidental call from Dulin’s phone moments before the shooting and crash.”
• “The scuffle was so intense that both Shelia and Rachel had accidentally pocket-dialed someone” while stabbing their friend to death.
• “The state said it was a pocket dial from Godfrey’s phone that put him at the crime scene at the time of the killing.”
• “She had a phone, and a pocket dial went off, and [police] believe that was during the murder when she fell to the ground . . . The friend answered the phone didn’t hear anything so hung up and didn’t think anything about it just thought it was a pocket dial.”
• “Once inside, two men entered the garage and attacked the man, punching him repeatedly and tying him up with twine, said Kennewick police. . . . But the suspects didn’t realize one of they had accidentally called 911 on his cellphone until Kennewick police officers showed up.”
• “Pierre Aragon, a member of the Loners motorcycle gang, is on trial in a Peterborough courtroom for aggravated assault, assault with a weapon, uttering threats and possession of a dangerous weapon in the beating of former member Fernando Fernandes. Two men could be heard on the accidental call that came from Aragon’s phone.”

2. Could the “one-touch dialing” system on Adnan’s cell phone have caused a pocket dial to Nisha? 

Adnan’s cell phone was reportedly a Nokia 6160. According to Adnan,

Nisha’s number was entered into his phone on speed dial. You can see he calls her a lot on his cell. In fact, hers is the very first number he dials when the phone is activated on the 12th. (Episode 6.)

The Nokia 6160’s version of speed dialing was called “one-touch dialing,” and it allowed you to place a call to a saved number simply by holding down the assigned numerical key for “a few seconds.” The phone’s user manual provides that,

This feature allows you to make phone calls quickly and easily with the touch of a button.

You must store names and numbers in your phone book (see page 50) before you can use this feature. Then you can assign a name from the phone book to a one-touch dial location using your phone’s keys 2 through 8. . . .

Press and hold the key (2 through 8) for a few seconds to call the number in the corresponding one-touch dial location.

Over on Reddit, /u/BaltimoreFootStomper bought an old Nokia 6160 and tested out its propensity for pocket dialing. He found the following:

When I press a key that has a 1-touch number assigned, the phone starts calling that number in approximately 1.7 seconds.

When I press multiple keys at once, the phone just starts dialing the 1-touch number programmed for whichever key it thought I pressed first.

It appears, then, that if someone had mashed all the keys on Adnan’s cell phone and held them in for 1.7 seconds, the phone would have made a call to whichever number was associated with the key that had been pressed first. Pocket dialing Nisha would therefore have been rather trivial, and could have been caused by anything that pressed the phone’s keys in for 1.7 seconds.

At trial, Nisha testified that she did not have voicemail for the number that Adnan’s phone had dialed. A pocket dial made to Nisha’s phone, if unanswered, would therefore have simply kept ringing until the call was terminated from Adnan’s phone. Because cell phone companies in 1999 billed from “send to end,” the call would have shown up on Adnan’s call records for the entire duration of the call, even though no one ever picked up on Nisha’s end.

3. What evidence is there that the Nisha Call was a pocket dial?

The fact that pocket dials are sometimes made during assaults, and the fact that Adnan’s phone was capable of making a pocket dial, shows us only that it was *possible* for the Nisha Call to have been a pocket dial, and not that it was likely to have been one. However, a pocket dial does become a much more probable explanation where, as here, there is no reliable evidence to support the conclusion that a call had been made intentionally. (For more on this, see my post here, at #7, on why Jay’s and Nisha’s trial testimonies do not support the conclusion that Nisha Call involved a conversation between two or more people.) Moreover, all of the available evidence in this case has been consistent with (and better explained by) the Nisha Call being a pocket dial, as there is not a single witness who has testified that Adnan could have had the possession of the phone at 3:32 p.m. that day.

Of course, even if we were to assume that the Nisha Call was a pocket dial, there is no direct evidence that it occurred during Hae’s murder, and at this point, there is no way that could ever be conclusively proven. The hypothesis is worth considering, however, because it offers an explanation for all of the evidence that we have concerning the 2:30 p.m. to 3:59 p.m. time period, including an explanation for the known inaccuracies in Jay’s statements about that time period.

To show why, it is worth taking a quick look again at the map of the Woodlawn and Best Buy area, as well as the call records for the time period covering Hae’s probable death:

Map showing probable sector covered by the tower and antenna that the 3:15 p.m. call was routed through.

The following calls occurred during the relevant time period:

The Woodlawn Best Buy is located almost on top of the theoretical boundary of the territory covered by the Woodlawn tower’s northeast and northwest antennas, and well within the range of each. This means that we would expect the majority of all calls made or received from Adnan’s cell phone while the phone is at the Best Buy to be routed through either the A or C antennas of the Woodlawn tower (although a minority of the calls will likely be routed through other towers, based on tower traffic or technical considerations).  On the other hand, the Southeast antenna, B, points directly opposite of Best Buy, making it less likely for any call made or received from Best Buy to be routed through that antenna.

The cell records are therefore consistent with what we would expect to see if the cell phone had been southwest of Woodlawn at 2:36 p.m., and then went to the Best Buy sometime before 3:15 p.m., where it remained until at least 3:59 p.m. This is far from the only scenario that could have occurred — and we cannot assume, based on cell data alone, that it is what in fact did occur — but such a scenario is wholly supported by the cell records.

We can say with confidence, however, that it is exceedingly unlikely that the cell phone made a trip to Forrest Park and returned at any point between 2:36 p.m. and 3:59 p.m. As the Nisha Call was made in the middle of a 45 minute period in which the cell phone remained stationary within a region that could include the Best Buy or Security Square Mall,¹ it does not appear to be possible that Jay was telling the truth when he claimed the Nisha Call was made as he and Adnan drove through Forrest Park.

What does Jay say was going on during this 2:36 p.m. to 3:59 p.m. time period? Well, Jay has consistently maintained, throughout every statement that has been made publicly available, that he was at Jenn’s house until 3:40 p.m., and that Adnan’s “come-and-get-me” call was made between 3:40 p.m. and 3:50 p.m. This is the single most consistent claim Jay has made about any of the events that occurred on the afternoon of January 13, 1999; in fact, the “come-and-get-me” call is the only event which occurs at the same time under every single one of Jay’s stories.²

That does not mean that the claim is true, but it does mean that there is some reason Jay is so insistent about repeating it. Either (A) the 3:40 p.m. claim is a memory that Jay strongly remembers and feels certain about, or (B) it is a lie told for a specific purpose. Given that there were no incoming calls made to Adnan’s phone at 3:40 (meaning that the statement is either based on a false memory or else is an intentional lie); that the cell records show the phone was near Woodlawn and not Jenn’s house from 3:15 to 3:59 p.m. (meaning that Jay’s claim of being at Jenn’s during this time is very likely a lie); and that Jay changed every other statement in his stories when confronted with evidence that the statement was not true (meaning that Jay has shown a complete willingness to “correct” his memory to fit the evidentiary record in other instances, where doing so is to his advantage), the answer would appear to be B. Jay believed that his interests were best served by standing by his 3:40 p.m. story, despite the conflicting evidence, and despite the accompanying damage to his credibility that would be caused by a story that appears to be demonstrably false.³

The only apparent benefit that Jay has to gain from the 3:40 p.m. story is that it provides him with an alibi for Hae’s murder. This suggests that Jay knows for a fact that Hae was murdered shortly before 3:40 p.m., and hence needed an alibi that lasted until that time. If Hae was murdered before 3:40 p.m., the that leaves us with two time periods during which she must have been killed: between 3:15 and 3:21 p.m., and between 3:21 and 3:40 p.m. Why?

First, while our evidence about Hae’s movements that afternoon is limited, we do know that at least two witnesses (Debbie and Summer) have reported seeing Hae at Woodlawn at around 3:00 p.m. that afternoon (Episode 9) (Brief of Appellant at 14) (“The last time
Debbie saw Hae on January 13 was in gym class, and Hae was happy and rushing to go
somewhere at 3:00 p.m. Debbie could not remember where Hae was going, but she told
police on January 28, 1999 that Hae said she was going to the mall with Don.”). Their testimony seems reasonably reliable, at least by the standards of this case, and there is no testimony or evidence contradicting their statements about the time Hae was last seen at Woodlawn.

Second, three calls occur between 3:00 p.m. and 3:40 p.m. — the 3:15 incoming call, the 3:21 call to Jenn’s home, and the 3:32 call to Nisha.

Third, someone who is committing murder by manual strangulation someone does not answer or make any phone calls while carrying out the murder.

And fourth, manual strangulation takes around three to eight minutes to accomplish.⁴

Assuming then that it takes fives minutes for Hae to drive from Woodlawn to Best Buy (or to a similar location near Woodlawn), then she must have either been killed between 3:05 and 3:15 p.m., 3:15 and 3:21 p.m., or 3:21 and 3:32 p.m. — or, if the Nisha Call was a pocket dial, then between 3:22 p.m. and 3:48 p.m.

We can rule out the 3:05 to 3:15 p.m. time period, because if Hae had been murdered before 3:15 p.m., Jay would not have needed his 3:40 p.m. story for an alibi. Adnan’s cell phone has an incoming call at 3:15 p.m. — and since during the second interview he was shown the cell records, and was asked to identify the time Adnan called, Jay could have chosen to say that Adnan called him at 3:15 p.m. That answer would have both fit the evidence and provided him with an alibi for the time of Hae’s death, if that is when she had actually been murdered.

We can probably rule out the 3:15 p.m. to 3:21 p.m. time period, because the window is just too small. Although it at least theoretically possible that Hae was strangled between those two calls, it would have required precision timing. Moreover, since we believe Hae was strangled while she was in the driver seat of her car, in the minutes after her murder, the killer’s primary concern was more likely to have been getting her body hidden from view, rather than calling Jenn’s home. Since that would probably take at least a minute or two, the good money is against this being the time period of Hae’s death.

That leaves us with 3:21 to 3:40 p.m. If the Nisha Call was an actual conversation, that would mean the call was either made either minutes before Hae was killed (between 3:21 and 3:32 p.m.) or was made minutes after Hae was killed (between 3:32 and 3:40 p.m.). For the reasons discussed supra, however, this isn’t likely to have occurred; not only does no one have a memory of the call occurring that is consistent with what we know from the cell records, but it is pretty implausible to assume that Hae’s killer would have been concerned with calling Nisha for 2 minutes and 22 seconds, when the killer was either already with Hae in her car and getting ready to kill her, or else after the murder, when he was in a car with her body in the middle of the afternoon, and needed to quickly get her out of sight.

The alternative explanation — and the one that I believe is a much stronger fit for the evidence — is that Hae’s murder took place between 3:21 p.m. and 3:40 p.m., and that the Nisha Call was an accidental pocket dial made during the assault. This gives the murderer a full 19 minutes in which to carry out the crime, during which no calls were received or intentionally made, which is more than sufficient time to finish the crime and take the initial necessary steps to avoid being observed  (i.e., moving the body to the trunk of Hae’s car).⁵

This hypothesis would also provide us with explanations for the following problems raised by the existing evidence:

(1) Why neither Nisha nor Jay can remember a phone call to Nisha made from Adnan’s phone that is consistent with the cell records;
(2)  Why the cell phone remained in the sectors covered by the Woodlawn tower for at least 15 minutes before and after the Nisha Call occurred;
(3) Why the Nisha Call was routed through the tower and antenna covering the Best Buy parking lot;
(4) Why the Nisha Call, if it was a butt dial, would have lasted for 2 minutes and 22 seconds without whoever had the phone noticing; and
(5) Why Jay is so adamant that he was at Jenn’s house until 3:40 p.m., when all the evidence conflicts with his claim.

On the other hand, assuming the Nisha Call was an actual conversation leaves us without coherent explanations for why no one remembers it, and why it occurred at a time and place that — according to Jay’s statement — it could not have possibly occurred.

So while we can’t know for sure that the Nisha Call was a pocket dial that occurred during Hae’s murder, it does have the benefit of being consistent with all of the known evidence (save for Jay’s testimony), and it appears to provide a better explanation of the data than do any of the alternatives.

-Susan

FN1. By “stationary,” I mean that the phone remained within the L651A and L561C sectors. The phone could still have been moving within those sectors, but based on the consistency and frequency of the calls made during that 45 minute period, there is little possibility that the phone was travelling outside of those sectors.

FN2. For reference, the following are Jay’s statements about the “come-and-get-me” call from his police interviews:

Detective: Does [Adnan] call you at some point in time?
Jay: Yeah.
Detective: What time does he call you?
Jay: Um, time I remember talking to him, actually having a conversation with him, was about three-forty something. (Int.1 at 6.)

 

Detective: Okay, um, at some point you left?
Jay: Um-hum.
Detective: Jenn’s house?
Jay: Yes.
Detective: Do you have any idea what time that was?
Jay: About 3:40.
Detective: 3:40?
Jay: Yeah.
Detective: Was Jenn still there?
Jay: Yes.
Detective: And where were you going?
Jay: I was going to pick up Adnan. (Int.2 at 10.)

At trial, Jay testified that he left Jenn’s house at 3:45 p.m., and that Adnan’s call from Best Buy was made at around 3:50 p.m.

Jay is not simply making a mistake here, and lose track of the time that he left. Jay said that Adnan had specifically instructed him to expect a call at 3:30 p.m. that afternoon. In fact, Jay was watching the clock, and noticed when Jay did not call at 3:30 p.m. as promised:

Um, he had told me he was, he inaudible, he was gonna need me to pick him up at a certain time, that was 3:30. I waited until 3:30, he didn’t call, I left he house, ah with his car and cell phone. (Int.2 at 11.)

Based on his own statements that he was paying close attention to the time, we can rule out any suggestion that Jay was just mistaken when he claimed to have left the house at 3:40 p.m.

Additionally, Jay’s story is corroborated by Jenn, who told the police that Jay received a call and left her house at 3:40 p.m. — which makes sense if Jay’s 3:40 p.m. story is an alibi, since Jay and Jenn conferred about when he was at her house that day before Jenn gave her police statement. But Jenn giving the exact same 3:40 p.m. story as Jay does not make sense if they were both mistaken about the time — because why would they make the exact same mistake? Here’s what Jenn said in her interview:

He just said he was waiting for a call and it was going to come around three-thirty, three forty-five, um Jay got a call and then I don’t know what was said to him in conversation um than Jay got another call, got off the phone and then another call came in and I don’t know if it was the same person or who it was and I don’t know whether it was on my phone or whether it was on the cell phone that Jay had. Um then Jay left my house, probably around three-thirty, four, four-fifteen, well after three forty-five, between three forty-five and four-fifteen. (Jenn Int. at 1-2.)

“Well after” 3:45 p.m. So specific, so close a match to Jay’s statements. She also would have gone to pick up her parents from work within a half hour of Jay leaving, so she would have had a way to orient her memory of when Jay left (i.e., “shortly before I left to get my parents”). Jenn also corroborated Jay’s claim that he was expecting to receive a phone call at 3:30 p.m. that day:

[Jay] sat the phone on the coffee table and he said “I’m waiting for a phone call” I was like, you know, “who’ s going to call you, what’s,” you know his cell phone … cell phone’s out whatever, like it’s just a cell phone … was like “I’m suppose to get a call around three-thirty” and I said “okay” and he said “that’s when I ‘m leaving, around three thirty when I get the phone call. (Jenn Int. at 9.)

Jenn also said, during that same interview, that:

I guess between three-thirty and four um the phone … a phone call came in and I don’t know if it was on my phone or the cell phone that Jay had but a phone call came in, they talked on the phone and than I want to say got off the phone and another phone call came in either um my phone or Jay’s phone and it was for Jay. Jay talked on the phone to who ever and than um and than Jay left. (Jenn Int. at 6-7).

Again, Jenn places the time of the “come-and-get-me” call at around 3:30 to 4:00 p.m., with Jay leaving shortly thereafter. But Jenn is either wrong or lying, because the cell records show that the phone was not at her house at that time (indeed, at 3:21 p.m. the phone was calling Jenn’s house).

Despite the clear testimony and police statements that unambiguously state, over and over again, that the “come-and-get-me” call did not occur before 3:40 p.m., at trial the prosecution went with the theory that Hae had died at around 2:35 p.m. because it conveniently fit their theory of the case, despite the fact that it did not actually fit the evidence. In addition to the lack of any testimonial evidence supporting the prosecution’s theory, we know, from Episode 4, that accomplishing the murder by 2:36 p.m. would have been all but impossible for the killer to actually do. Moreover, the fact the 2:36 p.m. call is 5 seconds long is also inconsistent with it being the “come-and-get-me” call, unless Adnan waited until the second Jay answered the phone, quickly said “that bitch is dead, come and get me, I’m at Best Buy,” and then immediately hung up. (Since Jay says he did not know where Adnan was going to be, Adnan would not have been likely to hang up before he could even confirm Jay had heard him correctly.) Which means the only thing suggesting that Hae died before 3 p.m. is the prosecution’s need for that to be true, in order for their case against Adnan to make any sense.

FN3. We know that Jay’s story about leaving Jenn’s house at 3:40 p.m. cannot be true. Why? The Nisha Call occurs at 3:32 p.m., and everyone agrees that Jay did not call Nisha while he was on his own. This means that, unless the Nisha Call was a butt dial made by Jay while he was at Jenn’s house, Jay’s claim about leaving Jenn’s house at 3:40 p.m. is false.

FN4. See, e.g., Commonwealth v. Serino, 436 Mass. 408 (Mass. 2002) (“The medical examiner testified that it usually takes five to eight minutes for manual strangulation to result in death.”); State v. Bingham, 719 P. 2d 109 (Wash. 1986) (“To show premeditation, the State relied on the pathologist’s testimony that manual strangulation takes 3 to 5 minutes.”). It remains possible that Hae was manually strangled between the 3:15 p.m. and 3:21 p.m. phone calls, but it seems unlikely enough that I am willing to discard it as a possibility.

FN5. If Hae was murdered shortly before 3:40 p.m., it would also align almost perfectly with Jay’s story from his second police statement, regarding the events that occurred following Hae’s death. Jay claims that after Hae is murdered, there are two phone calls that are made to or from Adnan’s phone, prior to their trip out to buy weed. The first call occurred around 3:40 p.m., and it was Adnan calling after killing Hae. The second call occurred about twenty minutes later, and was a call made to Jay’s friend Patrick.

If Hae was killed between 3:21 and 3:40 p.m., the that portion of Jay’s story could very well be true. Because we would indeed have two calls made after Hae’s murder: a call made a little after 3:40 p.m. to Phil, and a call made at 3:59 p.m. to Patrick.