One of the legal aspects of Adnan’s case that Serial gave little attention to (no attention to?) was the outcome of Adnan’s initial appeal, which was rejected by an unpublished opinion in 2003. The parties’ briefs in that appeal have been available online (see here for copies of appellant’s brief and appellee’s brief), but the actual decision handed down by the court was not. As a result, although we knew that the Maryland Court of Special Appeals (CoSA) had rejected Adnan’s arguments (several of which appeared to have a strong legal basis, although might not have necessarily warranted reversing his connection), we had no way of knowing the court’s reasoning for its decision.

After jumping through a few bureaucratic hurdles, I requested a copy of the opinion from the Maryland archives, and it finally arrived last week. Unfortunately, I was also out of town for all of last week, so the opinion got a little waterlogged while it was hanging out in my mailbox. It’s still legible, albeit slightly worse for the wear:

The Opinion’s Discussion of the Facts

In addition to the court’s legal analysis, the CoSA opinion also provides some further information on the evidence presented at Adnan’s trial. Although it would be far more useful to have the actual trial transcripts for review, there are a few facts discussed in the opinion that are worth highlighting:

• Jay testified at trial that he had never been part of any premeditated plan to kill Hae. Adnan and Jay spoke on the phone on the night of January 12th, but their conversation consisted entirely of, “Whatcha doing?” “Nothing.” The following day, Adnan called Jay to talk, and Jay told Adnan that he needed to buy a gift for Stephanie. Adnan offered to take Jay shopping, and they spent an hour and a half shopping together (this time at Security Square Mall), before Adnan let Jay borrow his car, so long as Jay promised to pick Adnan up after school.

• It does not appear that Jay’s testimony provided reliable evidence that Adnan’s plan to kidnap and murder Hae had been premeditated. According to Jay, during their shopping trip on January 12th, Adnan did make a comment about how Hae made him so mad that he was “going to kill that bitch,” but (1) that statement was not connected to Adnan allowing Jay to borrow the car, and (2) it does not appear that Jay testified that Adnan’s statement was said in seriousness, or that Adnan ever suggested he actually had a plan for accomplishing it.

• Jay testified that he got into Hae’s car, the Sentra, when he had Adnan were at the Park’n’Ride to drop off Hae’s car. This is fascinating — because in all of his police interviews that we have seen, Jay adamantly insisted that he never once got into Hae’s car at any point. What changed? Were there forensics found linking Jay to Hae’s car, which he had to alter his testimony to explain? 

• Jay testified that he went to Cathy’s apartment to smoke weed with Cathy and her boyfriend after dropping Adnan off at track. This is partially consistent with his statement in the second police interview (in which he said he that after dropping Adnan off at track he went to a park to smoke a blunt, went to his house, and then went to Cathy’s). However, Jay’s testimony was false with respect to this claim, because (1) Cathy testified that she did not arrive home from work until 5pm that day, and that after she had arrived home, Adnan and Jay unexpectedly showed up at her apartment without advance notice; and (2) the cell tower records for that time period are completely inconsistent with the phone having been at Cathy’s.

• Jay claimed that after he and Adnan went to Cathy’s after Adnan’s track practice, both he and Adnan passed out on the floor of Cathy’s apartment. This claim is not particularly significant, but interesting in that this contradicts both Cathy’s testimony (she claimed that Jay had been weirdly chatty and amped up that night) and Jay’s previous statements (which claimed that only Adnan had passed out).

• Jay does not appear to have explained why Adnan decided that, after track practice, he and Jay should unexpectedly show up at Cathy’s apartment — someone who was a complete stranger to Adnan — rather than deal with the body hidden in the trunk of Hae’s car. This is never explained in any of Jay’s police statements, either, and I was hoping at trial someone would at least have asked Jay to explain why they decided to do this.

• Jay testified that he had no knowledge that Adnan had intended to ask Jay for help in burying Hae’s body. Adnan only told Jay “you have got to help me get rid of Hae” after the police had called him while they were at Cathy’s house, and this is the first Jay had heard that he was going to be involved in burying the body. Jay testified that he had agreed to Adnan’s request “because he feared that appellant would use appellant’s knowledge of his drug dealing against him.” (While there is no direct evidence that could exist to disprove this claim, I would not that I have yet to encounter a single person who believes that Jay was telling the truth about why he agreed to help bury a body.)

• Jay testified that he paged Jenn “from Leakin Park.” This is contradicted by the cell tower records, and, to my view, significantly undermines the prosecution’s case. Either Jay is lying about paging Jenn from Leakin Park (in which case his testimony should not be relied upon), or else the cell records do not provide even remotely accurate data on the cell phone’s location at the time of a call (in which case the cell records do not provide evidence of Adnan’s guilt, because they are demonstrably inaccurate).

• Jenn knew that Hae’s death had been caused by strangulation when the police first spoke to her on February 26th, even though that information had not been made publicly available.

• It is bizarrely unclear when Jay took the police to the location of Hae’s car. The court’s opinion notes (at 9) that “[Jay] eventually took the police to where the victim’s body was buried and to where the victim’s car was located,” but from context, it appears that this may have occurred after the April 13th interview. Jay testified at trial that on February 28th, during his first interview, “he lied to the police about the location of the victim’s car,” which would seem to be consistent with the opinion’s ambiguity as to when Jay lead the police to the car. We know, however, that evidence from Hae’s car was documented and itemized as of February 28th, which is consistent with Jay having shown the cops the location of her car immediately after his first interview. I am very curious to see if the trial transcripts clarify what is going on here.

It is also extremely interesting to note that, based on the discussion of facts from the CoSA opinion, all of Jay’s initial statements to the police were far, far more self-incriminating than was his testimony at trial. It is hard to reconcile the claim that “Jay only lied to disguise the full extent of his participation” when all the evidence shows that his lies went in the complete opposite direction — because in order to believe that his testimony at trial was even a tiny bit accurate, you also have to believe that when Jay first spoke to the police, he lied and falsely claimed to be far more involved in Hae’s murder than he actually was.

The Court’s Analysis of “the Plea that Doesn’t Exist”

The Court’s discussion of Jay’s pseudo-plea agreement, and the prosecution’s provision of Jay’s counsel for his plea agreement, raises more questions than it answers.

On September 6, 1999, Jay contacted the Public Defender’s Office to ask about obtaining an attorney, out of his concern that the state planned to charge him in connection with Hae’s death, but PDS “would not provide him with representation until he had been charged.” The next day, on September 7, 1999, the police picked up Jay.  The police did not tell him where they were taking him, and Jay had no idea he was going to be entering a plea deal that day. He had not been charged with a crime or appeared before a judge prior to that point.

Jay was taken by the police to the prosecutor’s office, where he was shown charging documents that appeared to have charged him with one count of accessory after the fact to Hae’s murder. He was taken up to meet the prosecutor, Kevin Urick, who told Jay he was going to need an attorney. Urick said that there was “somebody that he want[ed] [Jay] to meet” (Opinion at 18). Urick then “introduced [Jay] to his attorney” (id. at 15), and

[a]fter meeting with his attorney for approximately one hour and thirty minutes, the prosecutor, [Jay’s] attorney and [Jay] discussed a plea agreement. This was the first time he was presented with a plea agreement and by the end of this meeting, the plea agreement had been totally negotiated. After the plea agreement was signed, the parties went to the courthouse. (Opinion at 19.)

From charging to pleading in 90 minutes. This is crazy fast. Unbelievably fast.

Of course, this “plea agreement” was not actually a plea agreement, because the deal that was worked out provided that “the ultimate disposition of [Jay’s] case would occur after the State determined whether he had kept his end of the bargain, i.e., to provide truthful testimony” (Opinion at 12). As it also included a mutual termination-for-convenience clause, it was not a plea agreement in the legal sense — it was more like an agreement to later reach a plea agreement, assuming both parties still wanted to actually have a plea agreement later. A sort of gentleman’s agreement, providing that if Jay made the prosecutor happy in testifying against Adnan, Urick would later return the favor at Jay’s sentencing.

Even the trial judge struggled with what to call this odd and nebulous non-plea arrangement:

[Jay’s] understanding of the plea, the plea that doesn’t exist, the plea that’s not really a guilty plea, the plea where the statement of the facts has not been entered, the one that really isn’t a guilty plea even if we want to call it a guilty plea, that thing, that hearing he believes it to be a guilty plea. (Opinion at 42.)

While Jay was not a lawyer and did not know how these things are supposed to work, even he knew something seemed very wrong about the arrangement. He testified that he believed that having a lawyer was something the prosecutor had provided him with (Opinion at 21). Jay thought that entire arrangement “smelled fishy,” because it seemed like “th[e] lawyer that [he] met in the prosecutor’s office . . . was just brought in to make [him] make the plea” (id. at 23-24).

Equally concerning is that after the speed plea arrangement, and after an ex parte chambers hearing the following day to discuss Jay’s reservations about the attorney arrangement before Judge McCurdy, Jay’s new attorney seems to have completely vanished from the picture, and Jay’s attempts to contact her failed. In attempts to contact his attorney, Jay even called the judge’s chambers and the prosecutor’s office:

[Jay] left a voice mail message on Judge McCurdy’s voicemail. He also testified that he contacted the State because he believed they would have [his attorney’s] telephone number. He testified that he spoke with the assistant prosecutor [ ] who informed him that she would try to get [his] attorney’s number for him.” (Opinion at 14, n.7.)

It is not clear if Jay ever spoke to his attorney again, following the ex parte hearing before judge McCurdy. (Although Jay testified that the ex parte hearing occurred to address his concerns about the counsel arrangement, and that his hearing had been on the record, no record of the hearing could be located.)

Despite these bizarre irregularities with Jay’s non-plea agreement, the trial court denied all of Adnan’s requests to introduce evidence about it, including Adnan’s requests to call Jay’s attorney to testify about the plea deal; his request to recall Jay to testify about whether he had known the “plea agreement” was non-binding; his request to call in a public defender to testify as to how unusual this arrangement was; and his request to call Urick to testify about the nature of the plea agreement. The trial court’s reasoning for these denials is somewhat unclear, but it appears that the court found that the issue about the non-plea was irrelevant because (1) Jay had believed that the plea was a “real” plea, and therefore the fact it was not a real plea agreement would needlessly confuse the jury, and (2) the prosecutor had not provided Jay with any sort of benefit by allowing him to enter into an optional “plea agreement” that he could withdraw from at will, because such a deal was not a real plea agreement, and therefore was not a benefit that the prosecutor actually had the ability to give.

With regards to the first point, the trial court concluded that Adnan should not be permitted to recall Jay to testify as to whether or not he knew he could withdraw the plea deal because “he’s not a lawyer, he doesn’t know what the Rules of Maryland provide, that even with a guilty plea and even if he signed something, that a judge could allow him to withdraw his plea” (Opinion at 44). But what Jay knew concerning the precise legal label for his agreement is irrelevant; what defense counsel wanted to ask Jay was whether he had known he had the ability to walk away from his “plea agreement” at any time, not whether Jay had actually known that his plea agreement was not a real plea agreement. As a result, the defense was denied any opportunity to question Jay about whether he had been aware of the non-binding nature of that plea deal.

As for the second point, the trial court concluded that the defense would not be permitted to question Jay’s attorney about the “side deal” — which permitted Jay to withdraw from the “plea agreement” at any time — because the deal itself was not a valid agreement in the first place:

that is not a side deal because as a matter of law, as a matter of law, it doesn’t matter what [the prosecutor ] and [Jay’s] attorney and [Jay] agreed to. The [c]ourt is not bound by his piece of paper. The [c]ourt is bound by law. And the law says that if it was a guilty plea, if it was a guilty – and I say “if,” – if it was a guilty plea, the law says he can withdraw it. And [the prosecutor ] can’t give a benefit that he doesn’t have to give. It’s not his benefit. (Opinion at 43.)

The trial court further found that the defense could not question Jay’s attorney about the “plea agreement,” because “even if it’s relevant that it does anything more than to confuse the jury” (id.).

The trial court’s reasoning created a Catch 22 situation for Adnan. The reason the plea agreement was important to Adnan’s defense was because of its striking irregularity and the confusing circumstances under which is was negotiated, but the those confusing irregularities were the very part of the plea agreement that the defense counsel was prohibited from questioning witnesses about, because the trial court concluded that the plea agreement was simultaneously (1) not relevant, because it was so confusing and irregular that it was actually not even a valid plea agreement, and therefore “doesn’t matter” for Adnan’s case; and (2) relevant, but not admissible, because it was so irregular and confusing that telling the jury about it would simply end up confusing the jury more.

While trial court was not wrong about the confusing nature of Jay’s bizarre “side deal” arrangement, it was indisputably relevant — and admissible — for many reasons, not the least of which is that the prosecutor may have made false representations to the trial court concerning its existence. During a bench conference early on in Adnan’s trial, Urick informed Judge Heard that “[i]t was made clear to [Jay] that he was entering a guilty plea, that it would be a binding plea… It was made clear to him that those procedures were binding, that they could be done without his presence, in his absence…” (Brief of Appellant at 20). The defense did not learn of the existence of the side deal arrangement — which flatly contradicted Urick’s representations to the court — until the very end of Adnan’s trial, nearly two and a half weeks later, and was unable to challenge these types of incorrect claims that were made throughout trial.

The appellate court further denied Adnan’s appeal of the trial court’s denial of his request to call the prosecutor at trial, to testify about  Jay’s plea arrangement. The trial court concluded — and the appellate court affirmed — that the prosecutor’s testimony would have been “merely cumulative to [Jay’s] testimony,” and therefore within the trial court’s discretion to deny (Opinion at 36). But the court’s conclusion on this point was not supported by anything in the factual record concerning what the prosecutor would have testified to — the court merely assumed that Urick’s testimony would have been cumulative, and affirmed the denial of his testimony on the strength of its assumption! As the court already acknowledged that Jay, as a non-lawyer, lacked knowledge and understanding of the legal nature of his so-called plea agreement, how can it have been assumed that the testimony of the prosecutor who had arranged the confusing plea deal would merely be “cumulative” of Jay’s muddled and (understandably) incomplete testimony concerning the same?

Finally, the appellate court’s concluded that Adnan had not been prejudiced by any prosecutorial misconduct as a result of the prosecution’s failure to timely disclose information about the plea arrangement to Adnan. This finding was based on the court’s conclusion that Adnan had been “able to elicit all relevant information concerning [Jay’s] plea agreement and the manner in which he was introduced to [Jay’s] attorney” (Opinion at 48). It is difficult to understand how the appellate court could have reached this conclusion, however, when even now there is still so much confusion and unknown facts concerning the plea arrangement that it is impossible to piece together what actually occurred.

The Court’s Analysis of the Admission of Hearsay Statements in Hae’s Diary Entries and Letter

The appellate court also denied the portions of Adnan’s appeals concerning the admission at trial of the hearsay statements contained in Hae’s diary entries and in a letter Hae had written to Adnan. The appellate court concluded that the diary entries and letter were properly admitted  “under Maryland Rule 5-803(b)(3) to show that the victim intended to terminate her romantic relationship with appellant” (Opinion at 57). Under that hearsay exception, a hearsay statement is nevertheless admissible to prove the truth of the matter asserted if it is a

[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or the declarant’s future action, but not including a statement of memory or belief to prove the fact remembered or believed.

The court’s rationale for why the diary entries and letter were admissible under this exception is indefensible. (Particularly with respect to the properly preserved objection to the hearsay in the note — defense counsel failed to object to the hearsay statements in the diary entries, although the appellate court went ahead and addressed the unpreserved error in its opinion.) To see why, it helps to first consider the actual contents of the diary entries that were admitted at trial:

From an entry dated May 14, 1998,

A I think I’ll try the one week recess Deb suggested. I hope forth and went out with Iesha [sic], Deb and Sean in Sean’s new car. It is so fly with those tinted windows …. I couldn’t be with my baby because he had to go to D.C. for his religious stuff. That’s what I need to figure out. Do I dare to pull him away from his religion? Ms. Savic [sic] was all up in my face about it. She said stuff like well Adnan used to be so religious and strict last year but this year he is so loose, like I changed him. Actually, I did and I don’t want to pull him away from who he is. I think I need time to organize these things but I do not know that — but I do know one thing. I love him and he loves me. Nothing will change that. I’ll try the recess week and see what happens. 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.

From an entry dated May 15, 1998,

I did it. Me and Adnan are officially on recess week or time out. I don’t know what’s going to happen to us. Although I’m in love with him, I don’t know about him. He actually suggests that what we have is like, not love. I heard the doubt in his voice. Although he couldn’t pick up mine, I felt the same way. I like him. No, I love him. It’s just all the things that stand in the middle, his religion and Muslim customs all are in the way. It irks me to know that I am against his religion. He called me a devil a few times. I knew he was only joking, but it’s somewhat true. I hate that. It’s like making him choose between me and his religion.

In concluding that Md. Rule 5-803(b)(3) permitted the admission of these diary entries to show that Hae intended to break up with Adnan, the court relied on Gray v . State, 137 Md. App. 460 (2001), rev’d on other grounds, 368 Md. 529 (2002). But the diary entries were written in May of 1998 — a little over a month after Hae and Adnan had first begun dating one another, and nearly eight months before Hae’s death. Hae’s statements concerning ambivalence she felt in May (about what was then a month-old relationship) are simply not evidence of Hae’s future actions in December, and therefore do not qualify as admissible hearsay under 8-503(b)(3). As Gray itself noted, statements that are chronologically unconnected any ultimate plan they purport to demonstrate are not admissible under that exception:

it is now clear that out-of-court statements which tend to prove a plan, design, or intention of the declarant are admissible, subject to the usual limitations as to remoteness in time and perhaps apparent sincerity common to all statements of mental state, to prove that the plan, design, or intention of the declarant was carried out by the declarant. Gray, 137 Md. App. at 500 (emphasis added).

Moreover, even disregarding the extreme remoteness in time, the statements should were nonetheless inadmissible to show that Adnan and Hae had broken up before Hae’s death,  because that fact had been fully established by Don’s testimony, which was not disputed by the defense. Therefore Gray does not provide a basis for introducing the diary or letters in Hae’s case, because the underlying doctrine upon which Gray was based “provides that when the performance of a particular act by an individual is an issue in the case, his intention (state of mind) to perform that act may be shown.” As whether or not Hae and Adnan had broken up in December of 1998 was simply not “in issue” in this case, the diary entries should not have been admitted for that purpose. See Gray, 137 Md. App. 460  (“The trial court ruled that [the victims] statements . . . were not admissible to show that [the victim] had told [the defendant] she wanted a divorce because, although the statements evidenced [the victim’s] present intention to seek a divorce, they did not evidence [the victim’s] present intention to tell [the defendant] that she wanted a divorce.  The court indicated . . . that, if [the defendant] presented evidence that he and [the victim] had a happy marriage and that [the victim] would not have wanted a divorce, he would ‘open the door’ and the statements would come into evidence.”) (emphasis added).

In any event, the court’s entire premise for why the diary entries were admissible — that they showed evidence of Hae’s intention to break up with Adnan — is not supported by the actual content of those statements. The diary entries do not suggest that Hae intended to break up with Adnan; they suggest only that Hae was going to take a “recess,” and then resume their relationship. Although it seems as if a “recess” did in fact occur, it was short-lived, and clearly could not have been evidence that Adnan had a motive to kill her eight months later. Besides, only one or two lines from the diary entries are actually about Hae’s intention to go on a “recess” — the overwhelming majority of the statements (which were admitted in full!) were about Hae’s beliefs and concerns about what Adnan feels and believes, and no comprehensible argument can be made for their admission under Md. Rule 5-803(b)(3).

Hae’s November 1998 letter to Adnan should have similarly been deemed inadmissible. The note stated the following:

Okay. Here it goes. I’m really getting annoyed that this situation is going the way it is. At first I kind of wanted to make this easy for me and you. You know people break up all the time. Your life is not going to end. You’ll move on and I’ll move on. But apparently you don’t respect me enough to accept my decision. I really couldn’t give damn [sic] about whatever you want to say. With the way things have been since 7:45 am this morning, now I’m more certain that I’m making the right choice. The more fuss you make, the more I’m determined to do what I gotta do. I really don’t think I can be in a relationship like we had, not between us, but mostly about the stuff around us. I seriously did expect you to accept, although not understand. I’ll be busy today, tomorrow , and probably till Thursday. I got other things to do, better than give you any hope that we’ll get back together. I really don’t see that happening, especially now. I never wanted to end like this, so hostile and cold, but I really don’t know what to do. Hate me if you will, but you should remember that I could never hate you.

Hae.

The appellate court concluded that this letter was properly admitted because “certain forward-looking statements of intent are admissible to prove that the declarant subsequently took a later action in accordance with [her] stated intent” (Opinion at 53) (citing Farah v. Stout, 112 Md. App. 106, 119 (1996), cert . denied, 344 Md. 567 (1997)). Hae’s letter was therefore properly admitted, according to the court, because the statements it contained

established circumstantially that the victim followed through with her statement and did end the relationship with appellant. Moreover, this information is relevant because it established circumstantially that appellant and the victim were in a romantic relationship that ended in a negative manner, and arguably was the motive for appellant to murder the victim. (Opinion at 53.)

Except even if we were to pretend for a moment that the court’s legal conclusions were valid, the court’s factual premise is simply incorrect. If the letter was admitted to prove that Hae and Adnan had broken up (which, according to the court, it was), then it was admitted to prove a false statements — because Adnan and Hae resumed their relationship after this letter was written. Hae demonstrably did not “follow through” with her expressed intention that she and Adnan would not get back together. The November letter from Hae therefore did not provide any relevant evidence that was admissible as a statement of then-existing state of mind, because it did not provide accurate evidence that Adnan and Hae were broken up before Hae’s death, and therefore could not have provided relevant evidence that Adnan had any motive to kill Hae.

-Susan

The rumors of Serial’s end have been greatly exaggerated — and between Jay’s recent interview with the Intercept, the release of the trial transcripts from the first trial, the upcoming appeal hearing in Adnan’s collateral appeal, and the work being done by the Innocence Project, new information is coming out faster than I can keep up with. I’ll have a more comprehensive post up in a day or two discussing some of those things, but for now, I wanted to address a specific subject: not what lies Jay has told, or why he told them, but how he was able to come up with those lies in the first place.

Because one of the primary arguments raised by those who support the prosecution’s case is that Jay’s testimony, although troubling due to its inconsistencies, is nevertheless indicative of Adnan’s guilt, because it would have been impossible for Jay to have invented a story out of thin air that was sufficient to convict Adnan of first-degree murder. And that is absolutely correct — there is not a chance in the world that Jay could have come up with the testimony he gave at Adnan’s trial, given only a single shot to do so. Jay needed many, many tries in order to cobble together a somewhat believable story. More than that, he needed someone to supply him with additional information about Adnan’s alibi and the prosecution’s physical evidence, and who could identify and correct all the parts of Jay’s stories that were either demonstrably false or else ineffective at incriminating Adnan.

Luckily for Jay, the state of Maryland was happy to help him out with that. Based on the transcripts from Adnan’s first trial, we now have something closer to a complete picture of how the story of the prosecution’s star witness evolved.

1. Jay’s Statements Prior to Police Questioning, January 13 – February 28, 1999: After Hae’s murder and burial in Leakin Park, Jay told at least four friends about his role in covering up the crime. He told different stories to at least three of them — Jenn was given the version about Hae being killed in Best Buy, Chris was given the version about the car salesman and Hae being strangled at the Woodlawn library before the trunk pop later occurring at the pool hall, Tayyib was given the version about Adnan asking Jay for help with the murder and Jay telling him that he would only help with the cover up. At least one of those friends, Jenn, provided Jay with feedback  on the believability of that story, and “told him there were security cameras in the parking lot and at the entrance” of the Best Buy (Episode 8). Consequently, out of fear of what those security cameras might show, Jay attempted to change his story, trying out several more renditions of the trunk pop claim before eventually settling on the story he gave in his first interview, which was that the trunk pop occurred at a strip. (After all — a strip is the last place anyone is going to have a security camera!)

Of course, this attempt at crafting his story ended up backfiring a bit on Jay — because the police got to Jenn first, and she told them the story Jay had first tried out on her, which was that the murder and trunk pop occurred at the Best Buy.

2. Jay’s First Pre-Interview, February 28, 1999: We do not know the contents of the first story Jay gave to the police, because it was not recorded. When the police brought Jay in to the station during the early hours of February 28th, he and the detectives talked for about an hour before the tape recorder was turned on. As a result, here is everything we know about the contents of that first statement:

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.
Jay: Yes. (Int.1 at 24-25.)

In other words, Jay’s first attempt to explain how Adnan was responsible for Hae’s murder was a complete failure. It had “a lot” of inconsistencies — and for a story to have a “a lot” of inconsistencies in comparison to his first recorded statement, it must have been damned near incoherent.

3. Jay’s First Recorded Interview, February 28, 1999: After the pre-interview, the detectives and Jay talked through his story until Jay came up with a better version, at which point the tape recorder was turned on. Jay admits he was lying in his first story, but swears that he is telling the truth now.

4. Jay’s Telephone Conversations with Detectives, February 28 – March 15, 1999: Jay acknowledges that the detectives contacted him by phone to ask him “questions challenging what [he] had said” in the first interview (12/15/99 Tr. 158). In doing so, the police alerted Jay to the problems they had found with his story, and gave him the opportunity both to correct those statements, and to talk with potential witnesses (i.e., Cathy, Jeff, Jenn, Mark) and find out whether they had been contacted by police, and if so, what they had said.

5. Jay’s Second Pre-Interview, March 15, 1999: After determining that essentially the entirety of Jay’s first police statement was nothing but a pack of lies, the cops make a surprise visit to Jay and take him down to the police station for another round of interviews. During a three hour “pre-interview,” which was unrecorded, the detectives showed Jay the cell phone records for Adnan’s cell phone, and explained to him why they knew his earlier stories had been false.

CG: And you knew that on the 15th of March, you still felt considered like a suspect; right?
Jay: Yes.
CG: They had at that time, because they shared with you your acquaintance Adnan’s cell phone records; did they not?
Jay: Yes.
CG: Okay. And in fact, they asked you about numbers on the cell phone records; did they not?
Jay: Yes, ma’am.
CG: And they asked you to describe numbers on a cell phone printout; did they not?
Jay: Yes, ma’am. (12/15/99 Tr. 142.)

Jay later seemed to be about to acknowledge that the police “presented” him with the cell phone records prior to the interview:

CG: Well, you’ve already told us, [Jay], that you recall that they had the cell phone records; correct?
Jay: That wasn’t until the 15th, wasn’t it?
CG: No, sir.
Jay: That was the 28th?
CG: That’s what you answered, sir. Do you now not recall?
Jay: The police presented me –
Urick: Objection.
The Court: Sustained. (12/15/99 Tr. 162.)

Urick, however, jumps right in before Jay can elaborate — it seems like he is not particularly keen on having Jay explain exactly what the police did to assist him in correcting his statements.

6. Jay’s Second Recorded Interview, March 15, 1999: Three hours after Jay arrived at the police station, the tape recorded was finally turned on, and Jay gave his second recorded statement.  When confronted with his lies, Jay freely admitted to the cops that he had been lying in his earlier stories, but swears to them that he was telling the truth now.

According to Detective MacGillivary, Jay managed to do a lot better at the second interview. He testified, at the second trial, that he and Detective Ritz had “noticed that [Jay] statement did not match up to the records,” but that “[o]nce confronted with the cell phone records, [Jay] ‘remembered things a lot better’” (Brief of Appellant at 11). Great work, boys.

Of course, the only things Jay “remembered [ ] a lot better” during that interview were the things that the detectives had identified as being false, and told him he needed to change. All of those lies that the detectives hadn’t caught? Jay stuck by them, now with the knowledge that the cops had not been able to disprove what he had said. On the other hand, all the parts of his story that did conflict with the evidence he was happy to abandon, and he adopted a new version of events in their place, telling new lies to replace the lies that had already been uncovered:

CG: Now, the second time that you spoke to them, the time when they confronted you with your earlier lies, you told us you then told them the truth; correct?
Jay: The second time?
CG: The second time –
Jay: Not the complete truth.
CG: on the 15th of March; correct?
Jay: No, ma’ am, I did not.
CG: You didn’t tell them the whole truth?
Jay: No, ma’am, I did not.
CG: You again lied to them; correct?
Jay: Yes, ma’am.
CG: At a time when they had it on tape; correct?
Jay: Yes, ma’am.
CG: You lied the first time and you attempted to correct some of those lies, right?
Jay: Yes, ma’am.
CG: But you again lied about other things, isn’t that correct?
Jay: Yes, ma’am. (12/15/99 Tr. 192.)

So the version of events Jay gives in the second interview is still not the truth, but it is a much improved lie compared to his first version of events. (He even almost succeeds in telling a story that does not involve either Hae’s car or Adnan’s car randomly disappearing!)

7. Jay’s Written Itinerary, March 18, 1999: Although no copy of this document has yet been released, and it is not entirely clear if Adnan’s defense counsel was aware of its existence at the time of the first trial, on March 18th, three days after Jay’s second interview, Jay provided the cops with a written itinerary of every place he and Adnan went on January 13, 1999:

When Jay took the cops on this ride on March 18, to map out the timeline, he told them that after they left the Park and Ride, they went in search of weed. He says that’s when he called his friend Patrick. (Episode 5.)

This is the route that Dana and Sarah try to recreate, and which they ultimately dismiss as a fool’s errand.  But it was certainly a productive trip for Jay, because it allowed him to see, in real time, exactly what parts of his timeline did not match up with reality:

The next stop after Best Buy [according to the March 18th itinerary] is the I-70 Park and Ride, where Jay says they leave Hae’s car for a few hours. It’s just a large commuter parking lot. Jay says he follows Adnan there, Adnan is driving Hae’s car.  . . . When Jay took the cops on this ride on March 18, to map out the timeline, he told them that after they left the Park and Ride, they went in search of weed. He says that’s when he called his friend Patrick. And this is where things start to get off course. There is indeed a call to Patrick on the call log. But it’s at 3:59 p.m. So right away, we have a time problem.

By trial, though, Jay has sorted that out, so that his story better matched the call log. He testified that he called Jenn Pusateri first, at 3:21 to find out if Patrick was home. Jenn testified that, no, Jay would not have called her to find out where Patrick was.  That’s just not a thing that would have happened. But in any case, there is a call to Jenn at 3:21. Jay says that when they didn’t find Patrick at home, they switched course and headed up to Forest Park to buy weed. Dana and I drive that same route. (Id.)

The March 18th itinerary is, incidentally, the very last time Jay tells a version of events that involve a trip to Patapsco State Park. One can only assume that when forced to actually live out the story he was trying to tell, he realized just how ridiculous the Patapsco State Park trip was, and wisely chose to abandon it.

8. Jay’s Phone Calls and Meetings with the Police, Ongoing, February 28, 1999 – April 13, 1999: Jay had numerous other (apparently unrecorded) meetings and phone calls with the police during the course of the investigation. Jay testified that throughout the entire time police were hauling him in for “official” interviews, they were calling him up to chat about smaller problems with his story, and asking him to correct problems with it:

Sometimes they would come and say, “We need to speak with you at this time,” but never an extensive conversation (12/15/99 Tr. 90).

We do not know the specifics of these little chats, as Gutierrez declined to ask about them, but it is safe to assume the conversations either involved questioning Jay about discrepancies in his story (thus alerting him to the parts he needed to change) and seeking clarification about other parts of the case (thus alerting him to other details it would be helpful for him to provide).

9. Jay’s Third Interview, Unrecorded, April 13, 1999: On the day that the grand jury indicted Adnan for Hae’s  murder, the detectives brought Jay in for a third official sit-down interview. The timing of the third interview is no coincidence — as of April 13, 1999, the prosecution had the advantage of having heard all of the testimony presented before the grand jury, and were no longer only relying on Jay’s crazy stories. They now had a much clearer idea of where all Jay’s previous statements had gone wrong, and exactly where Jay’s statements conflicted with that of the prosecution’s other witnesses:

CG: Were you again confronted [on April 13th] about other inconsistencies about what you had said on either the 28th that was taped or on the 15th of March that was taped?
Jay: Yes, ma’am.
CG: Okay. And you again attempted to explain to the detectives what all of these inconsistencies were, correct?
Jay: Yes, ma’am. (12/15/99 Tr. 187.)

Once again, the police presented Jay with a to-do list of all the problems in his story that he needed to fix. But it was not just conflicts with the statements from other witnesses that the detectives needed to have Jay correct — they also needed to make Jay change his story so that it fit the location data from Adnan’s cell records. By that point, the poor beleaguered detectives must have realized that their location data — with its extremely valuable Leakin Park pings — was going to be rendered completely worthless by their star witness’s testimony — with its failure to match the location data in most relevant respects. Either the location data was right or Jay’s statement was right, but it was painfully obvious they could not both be right. And since they needed both for their case against Adnan, that had to be remedied:

CG: And, sir, when you spoke to them on the 13th what things did they ask you about?
Jay: Just specifics of where the cell phone was. (12/15/99 Tr. 194.)

In his testimony at the first trial, however, Jay had something even more interesting to say about the statement he gave to the detectives, during this unrecorded interview:

CG: And that’s why they again attempted to confront you with those lies a month later on the 13th, which was a Tuesday, of April, isn’t that correct?
Jay: Yes, ma’am.
CG: So you lied to them on the 28th; correct?
Jay: Yes, ma’am.
CG: And you lied to them on the 15th of March, correct?
Jay: Yes, ma’am.
CG: And, of course, on the 13th of April you lied to them about other things, did you not?
Jay: No, ma’am, I did not. (12/15/99 Tr. 193.)

Wait, what?! Jay committed to the April 13th story as the truest story of them all? The story in which “[Jay] told police that [Adnan] had killed the victim in Patapsco State Park, and that [Adnan] paid him to help”? (CoSA Opinion, at 9.) That is what Jay is going to claim he did not lie about?

I have no idea what was going on at trial, because, somehow, Gutierrez did not follow up in questioning Jay about why his April 13th story is the Most Truest story of them all. Did the prosecution fail to disclose the contents of this unrecorded interview to the defense, and Gutierrez had no idea what Jay was saying? Or was Gutierrez so incompetent she knew about it, and did not think to question Jay about it? Because this sure looks like it must have been either a Brady violation or ineffective assistance of counsel — either Gutierrez did not have the April 13th story, or else she screwed up, one or the other.

It is clear, however, why the April 13th statement remained unrecorded. Because once Jay started spouting off his story about Adnan paying him to assist him with cleaning up the murder he committed in Patapsco State Park, the police sure as heck were not going to be turning on that tape recorder and allowing all that bad evidence to be permanently recorded. Best to forget that the whole April 13th interview ever happened.

Jay himself appears to have been aware of why the detectives chose not to record the April 13th statement — and consequently, aware of the fact that the detectives were assisting him in preparing his story for trial, by looking the other direction when he screwed it up too badly:

CG: [On April 13th,] [t]hey hadn’t caught up to all of the lies, particularly the new ones that you told them on the 15th,  had they?
Jay: I have no knowledge of that, ma’am.
CG: Right, because they didn’t — they confronted you but they didn’t tell you all of the things that you knew you had lied about
Urick: Objection.
CG: Correct?
The Court: Overruled.
Jay: No, ma’am, they did not.
CG: No, they didn’t because they hadn’t caught them all; correct?
Jay: Hmm, I’m not aware of that.
CG: You don’t know whether they caught all of your lies or not?
Jay: Pardon me?
CG: You don’t know whether they caught all of your lies or not?
Jay: I’m not aware. That’s their job. I’m not –
CG: So it’s their job to catch you up in your lies; correct?
Jay: That’s their job to recite what I say, yes.
CG: It’s easier for them to catch you in lies that they record, is it not?
Jay: Yes, ma’am. (12/15/99 Tr. 192-94.)

And if Jay lies in a police statement, but the tape recorder was not turned on at the time, does the lie really count for impeachment purposes?

10. Jay’s Meetings with Urick, September – December 1999: At the first trial, Jay testified that he met with Urick on two occasions (12/15/99 Tr. 58). The first meeting would have been on September 7th, when he arranged for Jay to have an attorney and negotiated a plea deal. The second time would apparently be a meeting to discuss Jay’s testimony at trial.

Although it is unclear exactly when it occurred, it was likely during Jay’s second interview with Urick that he was provided transcripts of his recorded police statements:

CG: And you know that there’ s a transcript made of what you told them [during the February 28th and March 15th interviews], isn’t that correct?
Jay: Yes, ma’am.
CG: Because you’ve had an opportunity to review the transcripts of both occasions that were recorded in which you lied to the police, isn’t that correct?
Jay: Yes, ma’am.
CG: Yes. And you have in, fact, reviewed the transcripts of both occasions, isn’t that correct?
Jay: No, ma’am. (12/15/99 Tr. 211.)

The only reason you give a witness transcripts of their prior statements, at least under these circumstances, is so that they can be prepared to give better trial testimony. Jay denies that he actually made use of this opportunity, but since he has lied about everything else, there is no reason to believe he is not lying about this too. Besides, whether or not he actually reviewed the transcripts, he fact that he was provided with the chance to do so is significant, and shows how the prosecution was working with Jay to “correct” the testimony he would give at trial.

11. Jay’s First Trial Testimony: By the time of trial, Jay had told his story dozens upon dozens of times. Between the first story he tells and the last, all but perhaps three or four details have been changed, and a great deal of new evidence and data that Jay did not have at the time of his first statement — the phone log, the location data, the statements from other witnesses — have been provided to him, and incorporated into the statement he tells at trial, under oath.

Everything he said in that last version was a complete lie, of course. He said so last week. The whole timeline, the whole trunk pop thing, when Adnan made phone calls and where he was when he did — Jay just made it all up, because he liked his imaginary version better than the truth. It was a pretty good lie, though, all things considered.

And perjury on the scale that Jay has admitted to is not something that just happens overnight — it’s something that takes a great deal of practice and teamwork to achieve.

-Susan

This week, the Intercept released Part 1 of its interview with Kevin Urick, the prosecutor at Adnan’s 1999 and 2000 trials. Part 2 of that interview had been scheduled to be released on Thursday, but due to what appear to be some editorial issues over at the Intercept, it has yet to be published. Since I am tired of waiting for it to come out, however, I am going to go ahead and address Urick’s claims in the first part of the interview now.

Urick describes Adnan’s case “as pretty much a run-of-the-mill domestic violence murder.” When asked about whether he harbored any doubts as to the outcome of the case, he told the Intercept,

Urick: No. The reason is: once you understood the cellphone records–that killed any alibi defense that Syed had. I think when you take that in conjunction with Jay’s testimony, it became a very strong case.

Right away, we have a problem. “Once you understand the cellphone records,” Urick says, Adnan’s guilt becomes clear — but Urick himself never understood the cellphone records he used to convict Adnan of first-degree murder. His belief in Adnan’s guilt is based upon a false understanding (or, perhaps, a false professed understanding) of what the cellphone records shows in this case. Although he made numerous factual errors throughout Adnan’s first trial, perhaps the three of the most significant were: (1) his claim that Jay’s statements matched the cellphone records before the call logs and location data were shown to him; (2) his claim that Adnan “checked his voicemail” at 5:14 pm; and (3) his claim that the 7:09 and 7:16 pm calls are proof that the phone was in Leakin Park.

Let’s start with the corroboration issue. Here is what Urick said in the Intercept interview:

Urick: The problem was that the cellphone records corroborated so much of Jay’s testimony. He said, ‘We were in this place,’ and it checked out with the cellphone records. And he said that in the police interviews prior to obtaining the cellphone evidence.

That is simply a false representation of fact. As I discussed extensively in my previous post on the evolution of Jay’s perjured testimony, Jay’s statements to the police did not match the cellphone records before he was shown them. Flat out did not match, full stop. What Urick said in the Intercept interview is not true, as anyone can see for themselves, if they go through Jay’s first and second police statements. Particularly in the first interview, before Jay was ever shown either the call log or the tower data, when not a single call “check[s] out” with his statement.

Okay, fine, that is a slight overstatement. Jay did manage to get one call right  — he (correctly) said Adnan had called him in the morning “about 10:45.” That’s the only one he gets, though, and that one has nothing whatsoever to do with the murder. No other calls he describe correlate with the cellphone records.

(In fact, even at trial, it did not get much better, as Jay’s testimony failed to match the vast majority of the phone calls made that day. But that is for another post.)

Urick: Now the thing about the cellphone records [is that they] corroborate Jay, his statements that he got a call around 2:45 p.m. or around that time from Adnan to come pick him up. And the cellphone records show that there was an incoming call around that time. So there’s corroboration of Jay’s statements to the police and the cell records.

It is not surprising Urick got this one wrong, because he got it wrong over and over again at Adnan’s trial too. Because do you know who never ever once made a statement that he got a call from Adnan to pick him up at 2:45 pm? Jay. Jay said over and over again that Adnan’s call for a pick up came at 3:40 pm, and he has never claimed, in a single recorded statement, that the “come-and-get-me” call from Adnan came at 2:45 (or 2:36 pm) that day. Yes, there was an incoming call to Adnan’s cellphone at 2:36 pm, but there was never any evidence introduced at Adnan’s first trial to support the claim that it was actually the “come-and-get-me” call — and there quite a lot of evidence to contradict it. The 2:36 pm call was and always has been a figment of Urick’s imagination.

Urick: So, many of the material facts were corroborated through the cellphone records including being in Leakin Park.

The Intercept: Syed never testified. What would you have asked him if he had?

Urick: I would’ve gone through the cellphone records. You called this person at this time. Jay talked to this person at this time. And my very last question would be: What is your explanation for why you either received or made a call from Leakin Park the evening that Hae Min Lee disappeared, the very park that her body was found in five weeks later? . . . A lot of what [Jay] said was corroborated by the cellphone evidence, including that the two of them were at Leakin Park.

First of all, it needs to be said: objection as to the form, assumes facts not in evidence. What a wasted “last question” that would have been, because you cannot ask a witness a question phrased that way. Urick is trying to make a rhetorical point, but that approach would never fly in the courtroom.

In any event, however, Urick is simply wrong. His claim about the cellphone records establishing that the phone was in Leakin Park at 7:09 and 7:16 pm is not based on any sort of established fact. It is simply conjecture — that could be what the cellphone data is showing, but there is no reason to believe that is more likely than alternative explanations.

I will admit that I too previously bought in to the story about the 7:09 and 7:16 pings definitively proving that the phone was in Leakin Park at around the time of those calls. It made sense, based on the data we had, and it seemed like Serial bought it too.

But once this claim is compared to the actual phone records, it falls apart. The “Leakin Park calls” that Urick’s case was so dependent upon do not even show by a preponderance of the evidence that the cellphone was in Leakin Park at 7:15 pm that night, let alone show it beyond a reasonable doubt.

Rabia was kind enough to indulge my curiosity about the cellphone data, and sent me a copy of the subpoenaed cellphone records from the police file. The records show that on February 18, 1999, the Baltimore Police Department subpoenaed Adnan’s cellphone records. On February 22, 1999, the cellphone records were faxed over to Detective Ritz by AT&T, along with a copy of the cell tower locations showing the addresses of each tower that Adnan’s cellphone had pinged that day.

And on the very first page of the fax from AT&T, the following message was displayed:

In case it is not legible, here’s what the second to last paragraph says:

“Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.”

Well. That’s something I sure wish they had thought to mention in the podcast. Or, you know, at Adnan’s trial.

Because you know those two “Leakin Park calls” that Urick keeps mentioning over and over again? Both of them are incoming calls. There are no outgoing calls that ping the Leakin Park tower/antenna.  Which means that the phone calls that Urick’s entire case relied upon to show that the phone has been in Leakin Park were “NOT [ ] considered reliable information for location.”

As it turns out, though, it is not just the incoming calls we have to be skeptical of. The subpoenaed cell phone records demonstrate that the fact that a call pings L689B is not proof the cellphone was in Leakin Park at the time of the call, even for outgoing calls. Because here are a series of calls that took place two weeks after Hae’s murder:

The important calls here are shown at lines 29, 28, and 27. At 4:44 pm, an outgoing call is made that pings L689B — the Leakin Park tower. This is the same tower and antenna as the 7:09 and 7:16 pm calls on January 13th, which Urick claims as proof the phone was in Leakin Park. Then, a mere 74 seconds later, at 4:45 pm, another outgoing call is made — and it pings L653C.

As a refresher, to help show the relevance of this data, below is an “idealized” map of the territory closest to L689B:

And here is the same with respect to L653C:

So these two towers are close to one another, yes. But the implication of a call pinging L689B vs. L653C would appear to be very different. L653C covers the Edmondson Avenue area, facing towards several areas where Jay and Adnan were throughout the day on January 13. It is the same tower/antenna that was pinged for by the 5:38 and 8:05 pm calls that day — two times when neither Urick nor Jay have ever claimed that the phone was in Leakin Park.

But as the calls from the cell records above demonstrate, it was entirely possible for two phone calls made one minute apart from one another — at 4:44 pm and 4:45 pm — to hit both the “Leakin Park tower” (L689B) and the Edmondson Avenue tower (L653C). Which means that any assumption that a call pinging L689B must have been in Leakin Park is based on a false premise.

So let’s recap:

1. Incoming calls are not reliable indicators of location, according to AT&T.
2. Calls that ping L689B (Leakin Park) are also capable of pinging L653C (Edmondson Avenue, Jenn’s house, etc.).

Which means Urick’s glib confidence that the 7:09 and 7:16  calls are proof that Adnan murdered Hae is entirely misplaced.

Now, moving on to the next problem with Urick’s prosecution of Adnan, take a look again at the cover page from AT&T — specifically at the third paragraph from the bottom:

When “SP” is noted in the “Type” column and then the “Dialed #” column shows “#” and the target phone number, for instance “#7182225555″, this is an incoming call that was not answered and then forwarded to voice mail. The preceeding row (which is an incoming call) will also indicate “CFO” in the “feature” column.

What this shows is that Urick discredited Adnan’s alibi based on a false representation to the jury. Because the 5:14 pm call was not Adnan checking voicemail, as Urick repeatedly asserted at trial — it was someone leaving a voicemail message. Urick’s claim that Adnan must have had his cellphone at 5:14 pm was therefore untrue and deeply prejudicial to Adnan.

That the 5:14 call was someone leaving a voicemail message is something Urick should have known. He had the cover page from AT&T; he knew that when the cell records showed two calls in a row, with the same time and duration, and the second call showed Adnan’s cell phone number with a pound sign in front (“#4433539023″), what was being shown was a voicemail being left on Adnan’s cell phone. And yet he told the jury that it was Adnan checking his messages.

Here are some examples to demonstrate that what the cell records show is indeed a voicemail being left by someone who called Adnan’s phone. On the subpoenaed cellphone records, unanswered incoming calls to voicemail are displayed just as the cover sheet describes, as two calls with the same time and duration, with the first call labeled as “incoming” and the second call labeled as “#4433539023,” which is Adnan’s cell phone number. It looks like this:

Calls from the subpoenaed cell phone records, showing an incoming call that went unanswered and left a voicemail message.

In contrast, calls made to check voicemail show up as just a single call to Adnan’s cellphone, without a pound sign in front, like this:

Call from subpoenaed cell phone records, showing a call being made on Adnan’s cellphone to check voicemail.

So why does all this matter? Because on January 13, 1999, someone called Adnan’s cellphone and left a voicemail message at 5:14 pm. It looks like this on the cell phone records:

The 5:14 pm call, as shown in the subpoenaed cellphone records

Two calls, at same time, lasting the same duration, first call to “incoming,” second call to “#4433539023.” This is plainly someone leaving a voicemail message on Adnan’s cellphone, as the cover page from AT&T clearly explains.

At Adnan’s first trial, however, Urick informed a witness — Krista — precisely the opposite. He informed her that this showed Adnan checking his cellphone’s voicemail, and asked her to testify that Adnan was checking a voicemail left by her:

KU: Now look at the line immediately beneath that — line 18. And as you look at 18 and 19, you’ll see line 18 says #443-xxx-xxxx. Now if you look up at the top, you’ll see that that is the cellular phone number for Adnan Syed [indiscernible] and right beneath it, it says incoming call. If you go over to the time area they both occurred at 15:14:07 a[s] they both list 1:07. Now that is the means that AT&T uses to record someone checking their voicemail. . . .
Is that possible that when the Defendant is checking his voicemail at 5:14, that he’s checking the message that you left?
Krista: It could be possible. I don’t believe it is because usually I don’t arrive home from work till about 5:20 so it’s not likely that I would’ve been home on the phone at 5:14 — that early.
KU: If you check the entire evening you’ll see he never — there’s no other listing like that where the Defendant checks his voice mail. (12/13/99 Tr. 286-87.)

Urick is either a ridiculously sloppy attorney, or else a liar. It could go either way, but it is inexcusable regardless. He falsely represented to a witness what the phone records showed, in an effort to coax her testimony into fitting his narrative.

This was not an error Urick fixed in the second trial, either. Here is what he said in opening arguments, the second time around:

And you’ll see that there is a voice mail where the voice mail is checked at 5:14. Christy Myers will tell you that she called, left a message for the defendant to call her.

Well, the cell phone records indicate the voice mail was checked. And the very next call, which occurs at 5:38 is to Christy Myers. She’s not home at that time. Her voice — her answering machine comes on. You’ll see it’s a two second call, as soon as the answering machine comes on the person — defendant hangs up. (1/27/00 Tr. 108.)

Urick doubled down on his factual misrepresentation, wrongfully informing the jury that Adnan had been in possession of his phone at 5:14 pm, when in reality the cellphone records suggest just the opposite conclusion.

But when properly understood, in accordance with the clear directions from AT&T, the cellphone records support Adnan’s story, not Urick’s. Adnan says he was at track practice that day, and track practice ended at 5:30 pm. There is a 5:14 call to Adnan’s cellphone that goes unanswered (maybe from Krista, maybe from someone else), and at 5:38, there is a call (2 seconds, apparently unanswered) to Krista.

And what is this consistent with? It is consistent with a scenario in which Adnan did not have the cellphone at 5:14 pm — when the voicemail was left — but was picked up from track at 5:30 by Jay, and had the phone at 5:38 to make a call to one of his friends.

This is significant for another reason, as well. At trial, Jay testified that he received a call from Adnan asking to be picked up in “half an hour”:

Jay: Me and Mark went back downstairs. We played video games for like almost another hour. His sister came in and I got another phone call from [Adnan].
KU: What did he say at that time?
Jay: He said he was leaving school and wanted me — he wanted me to pick him up in about a half an hour. (12/14/99 Tr. 192.)

Jay claimed that this call came before the Best Buy trunk pop, but that does not fit the cell phone records at all. What it does fit, however, is a scenario in which the call Jay was waiting for was to pick up Adnan from track.

If track ended at 5:30 pm, as it usually did, then this would mean Adnan called Jay at 5:00 pm  to tell him to pick him up “in about a half an hour,” when track ended. While there is no 5:00 pm call in the call records, there is a call at 4:58 incoming call that is otherwise unaccounted for. So this call would appear to be Adnan — at track, like he has said all along — calling Jay to tell him to get him in “half an hour.” At 5:30 pm, Jay picked Adnan up from track, and at 5:38, Adnan had his phone again, and made a call to Krista.

However, since Urick falsely claimed at trial that Adnan was ‘checking his voicemail’ at 5:14 pm, the jury would have reasonably believed that Adnan’s alibi was a lie, and that he was not at track until 5:30 pm that day. While it is possible that Urick made an honest mistake when he misinformed the jury about the significance of the 5:14 pm call, that does not make the error any less significant. The prosecution discredited a defendant’s alibi based on information that it knew or should have known to be false, and an error of that magnitude cannot simply be shrugged away.

-Susan

p.s. If you like Serial and/or non-proliferation law, check out Arms Control Wonk’s latest podcast episode, in which they invited me on for a guest appearance to discuss Serial and the relevance of geospatial data.

The prosecution’s case against Adnan can be summed up in three words: Leakin Park Pings. Again and again, the prosecution argued (and is still arguing) that Adnan’s guilt can be shown simply from the fact that his cellphone pinged a cell tower in Leakin Park at the same time that Jay, eventually, told police that Hae had been buried. Based on this claim, the prosecution invited the jury to stack speculative inference upon speculative inference: that the phone pinging L689B meant the phone is in L689B, that the phone being in L689B meant that the phone was at Hae’s burial site, that the phone being at Hae’s burial site meant Adnan has the phone. Because, the prosecution asks, what are the odds that the cellphone would ping the Leakin Park tower at the same time that its witness would say that the phone had been in Leakin Park, with someone who was burying Hae’s body?

Well, I have no idea what the odds of that are, and neither did the jury. Because the prosecution never presented any evidence whatsoever concerning the possible locations from which a phone call could ping the Leakin Park tower. The jury was only informed that the burial site was a location from which the cellphone might ping that tower — but there was no mention made whatsoever to the thousands of other locations from which a call could ping that tower, too.

But the tenuousness of the prosecution’s argument is not due merely to its claim about the precise location of the phone within L689B. It is also due to its claim that the cellphone was even in L689B’s territory at all. Because if the tower pings were capable of demonstrating the tower range in which the cellphone was located at the time of a call, as the prosecution claimed, how come the tower pings gave the wrong location for 16 of the 22 calls for which the prosecution’s evidence showed the location of the phone at the time of the call? And if the tower pings are only accurate 27% of the time, according to the prosecution’s own theory of the case, then how can we possibly assume that the tower pings just happened to be accurate for the Leakin Park tower pings, even when they are inaccurate in the overwhelming majority of all other calls?

Below is a table showing the tower pings for each call in comparison to the prosecution’s claims about the location of the phone at the time of each call. As you go through the table below, it may help to refer to this map of tower ranges:

Tower ranges show the territories for which the labeled tower is the closest tower/antenna.

The result? Out of the 30 calls that were made or received on the day of Hae’s murder, there were 22 calls for which the prosecution’s evidence identified the location of the cellphone at the time of the call. Of those 22 calls, only six pinged the tower that covers the range where, according to the prosecution, the cellphone was located. Of those six calls, one occurred while the cellphone was indisputably, according to the testimony of several witnesses, at Woodlawn High School (10:45 am), one occurred while the cellphone was indisputably, according to the testimony of several witnesses, at Cathy’s apartment (6:07 pm), and four occurred while the phone was allegedly in Leakin Park and when Hae’s car was being ditched (7:09, 7:16, 8:04, 8:05).

But isn’t that rather odd? Why is it that the location data for the cellphone is only accurate when we either have multiple non-Jay eyewitnesses who could testify as to the phone’s location at the time of the call, or when the phone was at a location where it absolutely must have been in order for the prosecution’s case against Adnan to hold up?

Could it possibly be that, for the 7:09, 7:16, 8:04, and 8:05 calls, the investigators refused to accept Jay’s story until he gave them an answer that fit their theory of the case? And that for every other call that was not directly incriminating, the investigation did not bother with making sure that Jay’s story actually fit the narrative they were pushing? Because based on the prosecution’s theory of the case, the only apparent explanation for the cellphone records is that the towers pings magically became more accurate from 7:09 to 8:05 p.m., even though they were overwhelmingly unreliable for the rest of that day. Well, either that, or else the prosecution selected a narrative that happened to fit the cellphone records in a way that made Adnan look guilty.

The prosecution’s entire case has gone into a fatal loop. Why are the cellphone records accurate? Because Jay says so. Why is Jay’s testimony accurate? Because the cellphone records say so. Why are the cellphone records accurate? Because… and so on, and so on. Except for one teeny little flaw in that premise: the cellphone records do not actually match Jay’s testimony, and Jay’s testimony does not actually match the cellphone records. So how can two things that do not match one another verify the accuracy of each other?

In other words: instead of asking, “What are the odds that the cellphone would ping Leakin Park if the phone was not there?”, the question we should really be asking is, “What are the odds that the incriminating portions of the prosecution’s theory of the case conveniently match the cellphone records, when everything else does not?”

-Susan

Edit: I should note that the maps I am using present the prosecution’s case in the strongest light possible — I am giving them every possible benefit of the doubt with the idealized territory of L689B.

But that is not how real life works. I am no graphic designer, so you’ll have to forgive the MS Paint rendition, but below is a representation of the signal range for L689 (in red), based on a signal range of two miles. Also included is a representation of the signal range for L653 (in blue). There was no evidence presented at Adnan’s trial concerning the possible range of any of the towers, so I adopted the two-mile figure based on the conservative estimate often used by law enforcement. The radial lines in the southern half of L689 show the direction of the B antenna (“L689B”). Note that the majority of L689B’s signal range, based on the two-mile assumption (which would appear to be consistent with the closest-territory range of L689A and L689C), is not in Leakin Park at all, but in the neighboring territory.

And here is a map showing an actual coverage map (h/t /u/gentrfam). Note that this map does not even show the extent of the overlap of these ranges, although it is a good illustration of the random nature (and noncontiguous blobs of coverage) that real life cell towers provide:

There is one part of Jay’s story that has been bugging me for a while now. Jay claimed in his first police interview that, after dropping Adnan off at track, he went home to wait for Adnan to call to pick him up once practice was over. In Jay’s second police interview, however, and in his testimony at the first trial, his story changes. Jay claims that after dropping Adnan off at track practice, he went to Cathy’s house, where he hung out with Cathy and Jeff for half an hour or so, until Adnan called him to ask to be picked up.

But this story is obviously a lie. Moreover, it is an incredibly dumb lie, because it is easily (and thoroughly) contradicted by Cathy, who is a reliable and credible-seeming witness. According to Cathy, she got home around 5pm that day, and a little while later, Jay and Adnan showed up together. There is no mention whatsoever of Jay making a previous trip to visit her, while Adnan was at track, and in fact, according to Cathy’s timeline, it would have been impossible for Jay’s “first” trip to her apartment to ever have occurred. Even worse, it does not match the cellphone records. There is no way that Jay could have made a trip to Cathy’s after dropping Adnan off at track, not if the cellphone records (or the laws of space-time continuum) have even a shred of meaning.

So this bugged me. A lot. It was a lie that had no apparent explanation, and that made Jay’s story even more impossible and absurd than it already was. Most of Jay’s weird timeline-based lies have obvious explanations for how they evolved, but this one didn’t.

For background purposes, here is what Jay said during his first interview:

Ritz: What happens after you drop him off at school, is there come a point in time when you go back to school and pick him up?
Jay: Yeah, uh huh.
Ritz: How do you know what time to go back to school?
Jay: He called me on the cell phone.
Ritz: Do you recall what time he called you?
Jay: Um maybe like six forty-five, something like that.
Ritz: When he calls you at six forty-five, where exactly are you?
Jay: Ah I think I was at my house.
Ritz: You’re at home?
Jay: Yes.
Ritz: You leave home, you go back over to school to pick him up?
Jay: Uh-huh. (Int.1 at 11-12.)

And here is what Jay said in the second:

Ritz: Were did you drop him off at school?
Jay: In the front.
Ritz: Were do you go?
Jay: I go, I was on my way home, but then I stopped off at G[i]lston Park and ah, ah, I smoked another blunt before I went home. And then, I, I think I may have, may have gone yeah, I went to Cathy and Jeff’s. And [Adnan] called me from the cell phone there and then I left Cathy’s and Jeff’s to hang out. (Int.2 at 20-21.)

And here is why the lie about Cathy’s apartment makes no sense: Jay’s statement in the first interview matches the location data from the cellphone records, while Jay’s statement in the second interview does not. It is generally accepted that Adnan’s call for a pickup from track practice occurred at 4:58 p.m., and this call pings L654C — which would be completely consistent with Jay being at his house (well, one of his houses, anyway) at the time of that call:

As you can see, Jay’s house is easily in range of L654C. Cathy’s apartment, on the other hand, is absolutely not.

Yet in between the first interview and the second, Jay changed his story — despite the fact that Jay’s claim from his first interview, in which he said that he was at his house when Adnan called him to be picked up from track, is one of the only times that he actually managed to tell a story that matched the location data (even if his timing was about two hours off). So why, then, did Jay change his story in the second interview, to tell a version of events that was even more demonstrably false than his first story, and even more in conflict with the location data from the cellphone records?

Because the police told him to, that’s why. The police falsely believed that L654 was located three farther miles south than it really was, and so they made Jay change his story to match their incorrect location data.

To understand what happened, we need to back up a bit and examine what the investigators were doing before and after Jay’s first and second interviews. At the time of the first interview, the detectives definitely had two things: (1) a list of the calls made on January 13, 1999 and the towers they pinged; and (2) a list of the cell towers and the addresses where they were located. Both documents had been faxed over to the detectives by AT&T on February 22, 1999 (as shown by the header data). From comparing the two lists, one thing would have stood out to them: there is one tower located in the middle of Leakin Park, and that tower is pinged at 7:09 and 7:16 pm. Ergo, they conclude, the burial occurred at 7:09 or 7:16 pm.

So they went in and interviewed Jenn and Jay, and get statements that match the evidence they already have. In order to further investigate Jenn’s and Jay’s stories (as well as Adnan’s), they requested a map of the cell tower locations, in order to assist them in visualizing where the various calls are pinging at the various times. Detective Ritz sent a note stating that he was going to “have an engineer prepare a map on a diagram of the calls outgoing and incoming from the cell locations. This would aid[ ] corroborate information provided to us by witnesses and discredit the suspect’s alibi.”

Pursuant to Ritz’s directives, someone then prepared a map charting out all of the towers that Adnan’s cellphone had pinged on the day of Hae’s death. Once it came back, however, the detectives realize they have a big problem with Jay’s story — because it makes a mockery of what the map was showing them.

But whoever made the detectives’ map made an error. They put tower L654 in the wrong place.

It was an understandable error, really. You see, L654 is located at 824 Dorchester Rd., Catonsville, at the southeast corner of 40 and 695, directly south of Westview Mall. You can see how the address was provided on the tower location records faxed over by AT&T:

Only, as it turns out, there are two locations in western Baltimore with the address of 824 Dorchester Road. There is an 824 Dorchester Rd, Catonsville, Maryland 21228 (where L654 is actually located) and an 824 Dorchester Rd, Baltimore, Maryland 21229 (three miles to the south of the tower’s actual location).

The result of these confusing street names is that the cell tower map that was provided to Detective Ritz mistakenly placed L654 at the 824 Dorchester Rd located in Baltimore, not the one located in Catonsville, as shown below:

Most of the towers shown are placed correctly; towers L655 (circled in green), L653 (in blue), L607 (in brown), and L608 (in pink) are all roughly in the right spots. But L654 (in the yellow rectangle) is not. It should be where the yellow ellipse has been placed, north of L655, not in between L655 and L608.

Why does all this matter? Because the false L654 on the detectives’ map is located directly next to Cathy’s apartment:

So going into Jay’s second interview, on March 15, 1999, Detectives Ritz and MacGillivary were armed with an incorrect cell tower map which falsely told them that L654 was located almost directly on top of Cathy’s apartment. L654 was pinged by Adnan’s cellphone exactly twice on the day of Hae’s death, by two incoming calls at 4:27 and 4:58 pm. This must have meant — according to the detectives’ inaccurate map — that Jay was somewhere close to UMBC at those times, which is the presumed range of (false) L654. And what else is near UMBC?

Cathy’s apartment. Which is why the detectives told Jay that he needed to tell a story explaining why the 4:27 and 4:58 calls pinged a tower that was (allegedly) next to Cathy’s apartment. Jay happily obliged the detectives:

And then, I, I think I may have, may have gone yeah, I went to Cathy and Jeff’s. And [Adnan] called me from the cell phone there and then I left Cathy’s and Jeff’s to hang out. (Int.2 at 20-21.)

And there it is. Proof that the detectives coached Jay’s story to make it fit the location data from Adnan’s cellphone.

Because there was no reason whatsoever for Jay to tell this lie, other than that the detectives told him to. Jay’s story needed to change in order to conform to their false maps, and also to their false beliefs about what happened on January 13, 1999. And when the cops informed Jay that the tower data said he was at Cathy’s at 4:27 and 4:58 pm, Jay conformed to the detectives’ request, spouting out a story that he had to have known was impossible nonsense, simply because that was what the cops wanted to hear.

It gets even more curious, though. Because it appears that, in between Adnan’s first and second trial, the prosecution realized there had been an error in their cell tower map. At the first trial, Jay stuck by the claim he was at Cathy’s when Adnan called him to be picked up from track:

Jay: Okay. [Adnan] decided that it was time for him to go to track practice so then I drove him to the front of the school. He left the telephone in the car, exited the car, and walked into Woodlawn High School.
KU: What did you do at that point?
Jay: I left and went to my friend [Cathy’s] house.
KU: What, if anything, did you do there?
Jay: I sat there. I smoked, they didn’t. They watched television. l was debating with do. He called, asked me to come get him from school. (12/14/99 Tr. 199.)

But by the time of the second trial, however, the prosecution had changed its tune, and seems to have realized that the 4:27 and 4:58 calls were not showing that Jay was at Cathy’s apartment at all. They were (allegedly) showing that Jay was near his house instead. Just like Jay said in his first interview.

Oops.

That’s okay, though. Because when Jay’s story does not match the cellphone records, the solution, as always, is simply to change Jay’s story. Which is what the prosecution apparently did at the second trial, through the testimony of the prosecution’s expert witness, Abe Waranowitz. During direct examination, Waranowitz was questioned about whether the test calls he had made were consistent with Jay’s (new) story:

KU: Now, if there was testimony that someone had dropped someone off at school to go to track practice and the person who had the car went to G[i]lston Park, parked for a while and then went back to pick the person up, if you found — and they called at G[i]lston Park, one or more incoming calls were received by the AT&T wireless subscriber telephone and then you found cell phone records that had calls from the L654C cell site, would that functioning of the AT&T network be consistent with the testimony?
Waranowitz: Yes. (2/08/00 Tr. 102.)

Jay’s story is truly a wondrous thing. It can be consistent with the cellphone records when they are wrong, and then still be consistent even after the cellphone records have been corrected. And how could a story that is so amazingly consistent with the cellphone records have possibly been anything other than true?

-Susan

Note: In order to provide context for this post on the prosecution’s use of cellphone evidence, Rabia has given me permission to post transcripts from the testimony of Abraham Waranowitz, the prosecution’s expert witness:

• February 8, 2000
• February 9, 2000

The significance of the cellphone evidence that was presented at Adnan’s trial was extremely limited in scope. By the prosecution’s own admissions, the location data from Adnan’s cellphone billing records did not show the cellphone’s location at any particular point on the day of Hae’s murder. Instead, the nominal purpose of the location data was simply to demonstrate that the prosecution’s theory of the case was not disproven by the cellphone records. The prosecution’s expert witness did not prove that the phone actually was or probably was at any location – his testimony was introduced as evidence that it was at least feasible for the prosecution’s case to be accurate.

The prosecution failed in accomplishing even that limited goal, however, for the reasons discussed below. The use of the cellphone data at Adnan’s trial was a jumbled, contradictory mess. The evidence was both used in a misleading fashion, and also factually inaccurate. Whether attributable to confusion or design, the prosecution misreported the expert’s findings in a way that caused the results of his testing to appear consistent with Jay’s story.

It should be noted from the outset that the inaccuracies, flaws, and distortions contained in the prosecution’s cellphone evidence should be attributed to the way that evidence was presented at trial, rather than to the underlying testing performed by the expert, Abraham Waranowitz. Waranowitz’s testing was not the problem. He conducted testing of the performance of AT&T’s wireless network in accordance with the prosecution’s representations (and misrepresentations) about the locations of sites that were relevant to the case, and at trial he testified as to his limited conclusions based on that testing. As Koenig discussed on Serial, “the way the science [was] explained [ ] is right” (Episode 5) (emphasis added). The expert witness presented the science fairly — but the prosecution abused it. Take, for example, this claim made by Prosecutor Kathleen Murphy in closing arguments:

[Waranowitz] also told you that the phone picks the cell tower based on signal strength in the area. He told you, too, that this map shows you — these bright colors each represent areas in which a given tower’s signal strength is strongest. And in these areas, the cell phone is going to talk to the given tower. (2/25/99 Tr. 61-62) (emphasis added).

The prosecutor’s claim was simply false. Waranowitz never said any such thing. Instead, Waranowitz fairly presented the fact that coverage maps are estimates, based on factors that fluctuate and cannot be predicted with any degree of certainty – but in closing arguments, the prosecutor nevertheless presented the cellphone data as conclusive evidence of the phone’s location at the time of a call.

In fact, the cellphone location data was so uncertain and variable that the court almost excluded it from evidence as trial. After listening to Waranowitz’s testimony about all of the variable involved, she asked the prosecution why the cellphone testing should even have been permitted to go to the jury, because given the steep limitations on what it was capable of showing it did not appear to meet the relevancy threshold. In response, the prosecution acknowledged that the cellphone data was severely limited in what it could show, but represented to the court that the only purpose of the test was to prove whether or not it was conceivably possible for Jay’s statements concerning the location of the cellphone to be true:

KU: I will proffer to the Court that when we went to Mr. Waranowitz — when we were talking to him we said, we’ve got cell phone records and we have statements that this AT&T wireless phone were in these locations and these calls were received were made. Is it possible to test the system to see if it is possible for the system to respond in those places in these manners and that was the test to check out the cell phone records and the statements to see if it can be shown that this — that the system can respond in this way. He explained to use you can never say from a cell phone record the spot where something was, you can never prove that. You can only show through the fact that it initiated a call through a cell site, that it was in that coverage area for that cell site. But you can go to specific locations and see if it’s possible for the system to respond as the cell phone records do. That was his test. that was the purpose of it.
THE COURT: Do you believe that the test that you presented to this jury was indicative of what you were trying to prove?
KU: Yes, I do. We asked — we told him what we wanted to show and we left it up to him as to how to do it based on his knowledge of the system. He went out and he did that and this shows that this is — that the system in fact can respond in this manner. (2/09/00 Tr. 17-18.)

Note that, as the prosecution acknowledged, the expert’s findings did not address whether it was plausible that a phone was in a given location at any time, or even whether it was likely to have been in a given location, but rather only whether it was possible for the phone to have been there. The court was not immediately appeased by this reasoning, and asked Urick to explain further why this evidence should even be admitted, given how weak and uncertain it was:

THE COURT: Mr. Urick, why isn’t it irrelevant what a particular phone, an Erickson did on a particular day when the witness has shown through your questions that there are variables that would affect the performance of the phone which effectively makes your test totally irrelevant. If the weather was different, if there were leaves on the trees, if the model of the phone was different. I mean doesn’t in fact everything you’ve presented make the test null and void and irrelevant to this proceeding? You didn’t indicate that you did it with the same — ran the test on a day when the weather conditions were identical to the date that you allege that the body was buried. That the weather conditions were such that there was no ice on the trees, there were no leaves on the trees, that there was no snow on the ground, that the temperature was about the same, that the equipment that was used to test was the same. Your testimony that you’ve presented has not indicated any of the factors that your own witness say affects the performance and thereby doesn’t the test itself become misleading to a jury, to give the impression that the phone that was the subject of this case performed in the same way. I mean granted, the weight of the testimony must be made, a weighing must be made by the jury, but my question is aren’t we bordering on irrelevant versus relevant because the weight is so tenuous here that it might not even weigh anything at all?
KU: The State respectfully disagrees, Your Honor. What we were showing is that yes, it is possible for this system to respond in the way that the cell phone records indicate it in fact did. We are showing the possibility that it did. This is corroborative of other testimony, hence it has great relevance, it goes into corroboration.
THE COURT: So you’re saying no matter how weak or tenuous this might be that it is yet — it is only one item to be weighed in the context with other items that it occurred in the fashion that you’ve presented?
KU: Yes, it is corroborative, therefore it is [ ]relevant.
THE COURT: That is with [Jay’s] testimony that the phone did ring while they were at certain places to corroborate the fact that he was in fact in the areas that you’ve indicated.
KU: Yes.
THE COURT: I see. (2/09/00 Tr. 18-20.)

Ultimately, despite how “weak [and] tenuous” the cellphone evidence was, and despite her remarks that the limitations and unreliability of the data almost made it “null and void and irrelevant to this proceeding,” the trial judge ruled that the evidence was admissible, if of very dubious weight. The judge repeatedly expressed her concerns, however, about the potential of such weak evidence to mislead the jury.

The problems with the prosecution’s use of the cellphone evidence was not limited to erroneous claims made in closing arguments, however. The evidence that the prosecution introduced was itself flawed and inaccurate, as discussed below. However, in order to understand the errors that the prosecution made, we’re going to have to get into the weeds with what exactly the expert witness’s evidence consisted of.

The Expert Witness’s Testing Methodology

Waranowitz was a radio frequency engineer employed by AT&T Wireless Services. As an RF engineer, he was responsible for designing, building, and troubleshooting wireless networks — essentially, his job was to make sure that AT&T’s wireless network was optimally designed, both for purposes of efficiency (not having more towers than necessary for a given location) and call quality (not having a service that pisses off customers). His training and experience in using wireless network test equipment came from training he received from classes provided by AT&T Erickson:

AW: Erickson creates the equipment and the phones that we use, plus training on how to use test equipment that we use to test and optimize the network with and training for design tools. engineering cad, that kind of thing. (2/08/00 Tr. 18.)

The only type of testing experience that Waranowitz had training and experience in performing, as disclosed from his trial testimony, was a form of testing known as drive testing. His testing duties involved determining the best locations for new towers and equipment:

AW: We decided where to put cell sites on what buildings, water tanks and towers. We tested them. we drove them. In other words, what I mean by drive, I mean testing them and we optimized them for performance.
. . .
KU: [D]oes part of your continuing [employment] duties include working out any problems that may arise to the operation of that system?
AW: Yes.
KU: And what do you do in regards to that?
AW: Typically we look at problems that involve interference and dropped calls. This involved us taking out drive test equipment in a vehicle and simulating what the customer sees and identifying the problems and correcting them. (2/08/00 Tr. 20-21.)

Drive testing can be used to test a number of different variables, but a brief summary of what it typically entails can be found here:

For the drive testing performed by Waranowitz at the prosecution’s behest, only a single phone — an Ericcson test phone — was used. His testing of the wireless network consisted of driving around west Baltimore with the prosecutors, making test calls from various locations selected by the prosecution, and verbally stating to the prosecutor what cell towers his equipment had registered a signal from. Here is how Waranowitz’s testing was described at trial:

KU: Now, last fall we asked you to take a test of the system. Can you explain what the test was that we asked you to do?
AW: I was asked to visit a number of places in the area located on this map and take readings and make phone calls to find out what cell site I would originate at certain locations. (2/08/00 Tr. 63.)

During drive testing, cell site information is normally recorded by a computer program that takes readings from the test phone used by the expert, and then correlates the signal data with the phone’s location at the time the signal was registered based on a GPS system. The results of this testing can then be displayed on a map, such as the maps introduced at trial as State’s Exhibits 44 and 45, both of which were created by Waranowitz on the day he performed testing for the prosecution:

(State’s Exhibit No. 44 was marked for identification.)
KU: Have you seen that before?
AW: Yes.
KU: What is that?
AW: This is a — this a drawing, rather a map of the locations I drove and the cell sites that I measured.
KU: And how is that map generated? From what data?
AW: This was generated from an Erickson test phone while driving around in this neighborhood.
KU: Was this generated the day we had you doing the test?
AW: Yes, it was. (2/08/99 Tr. 84-85.)

The map in State’s Exhibit 44 depicts the area around Gilston Park. The road to the far right is I-695, the dashed road running north/south in the middle of the map is N. Rolling Road, and the road running east/west is Route 40.

Waranowitz explained that the numbers displayed on these maps correspond with the tower sector that had the strongest signal at the time the test call was made:

KU: The printed out three digit numbers [on Exhibit 44], do you know what those are?
AW: Those are the frequencies we use.
KU: Explain what you mean by that.
AW:  We have a range of frequencies much like radio and television channels that we use. We record those channels and how strong their signal strength is and relate it to the GPS location. That frequency, it can be identified specifically to a cell site.
KU: And those numbers are printouts of what frequency is being used at any given — at that particular location?
AW: Yes. (2/08/00 Tr. 88-89.)

Based on the maps in Exhibits 44 and 45, which display cell site data that was recorded at short intervals as the testing vehicle was driven to various sites, the type of drive testing performed by Waranowitz involved a test phone that initiated short test calls at frequent intervals, and the tower sector that the call originated on was both displayed to Waranowitz and recorded by the computer.
So to summarize: Waranowitz drove around west Baltimore using an Ericcson test phone that continually initiated outgoing calls and set intervals, and then recorded the strongest signal that the phone received when it made the call, which was identified as a three-digit frequency that corresponded with a specific tower/antenna. The result is a map which shows a series of numbers (each number marking each of the test calls that the phone initiated). For example, in the map above, “973” was the frequency used by L651A, “868” was L698B, and “882” was for L654C. Driving along Rolling Road, south of Route 40, the test phone initiated calls and regular and set intervals, and for each call on that stretch of the road, the test phone recorded 868 (L698B); similarly, north of Route 40 along Rolling Road, test calls recorded five signals from five different towers.

In order to make Exhibits 44 more comprehensible, I have once again used my sweet MS Paint skills to highlight the relevant data:

As you can see, Waranowitz’s testing showed that someone making phone calls in that area could have had calls originating on up to 8 different towers, in a mishmash of overlapping coverage areas.

In all, the prosecution had Waranowitz conduct a drive test of thirteen separate locations. One of the most remarkable aspects of the prosecution’s use of the cellphone evidence at Adnan’s trial, however, was that out of the thirteen locations that were tested, the prosecution had Waranowitz present maps displaying the results of his testing for only two locations. One map was made showing signal strengths around Gilston Park (Exhibit 44, above), and the other showed signal strengths around Cathy’s apartment (Exhibit 45, infra).

For the eleven other locations tested (or rather – for the eleven other locations for which the prosecution disclosed the results of Waranowitz’s testing), the prosecution simply had Waranowitz verbally read out the cell sites that were recorded by his testing equipment as they drove around to various locations, and the prosecutor would then write down what Waranowitz had said:

GC: You didn’t report your findings to them?
AW: I verbally gave Ms. Murphy my readings as we conducted the test. (2/09/00 Tr. 69.)
CG: After you completed all of the tests at the locations that don’t appear on the chart, after you completed them you had reported all of your findings to Ms. Murphy because she was there in the car with you, right?
AW: I reported them as I saw them, yes. (2/09/99 Tr. 159-60.)

By having Waranowitz give verbal reports of his test results – despite the fact the data could be easily recorded and reproduced by his testing equipment – the prosecution thereby limited its discovery obligations to a fraction or what they otherwise would have been.

So why did the prosecution not have Waranowitz also provide maps for the eleven other locations that were tested? Well, one has to assume it is because that data would not have helped the prosecution’s case. Why else would they have chosen to only introduce maps showing cellphone data for regions that have almost no importance to the case whatsoever? Why not a map of Woodlawn? Of Best Buy? Of Leakin Park? Why not show maps of any locations that had anything whatsoever to do with the actual murder and burial? What exactly was the prosecution scared of?

The Results of the Expert Witness’s Testing

Ultimately, the prosecution chose to disclose the following information to the defense in a pre-trial disclosure, which provided that “[i]n an oral statement [dated October 9, 1999], Abe Waranowitz of AT&T Wireless reported the following”:

• Rolling Road at I-70 triggers cell site L651C or L698A;
• [Jenn’s House] triggers L654A or 651B;
• Security Square Mall triggers L651C, although the edges may be L698A (south on Rolling Road);
• [Cathy’s Apartment] triggers L608C or L655A;
• Leakin Park burial site triggers L689B;
• Briarclift Road triggers L648C or 689B;
• Best Buy triggers L651C;
• Crosby at I-695 triggers L654C or L651B;
• I-70 Park and Ride triggers L651B at the west end and L689C at the east end;
• Route 40 at Cook’s Lane up to Forest park triggers L653C on Cook’s Lane; L689C on West Hill, Forrest Park/Park’n’Ride;
• Forrest Park, four blocks east of Security Boulevard, triggers L653C on Cook’s Lane;
• Gilston Park, west of Rolling Road, triggers L698A or B — right underneath; but one gets an L654C reading due to the mound of dirt; and
• Woodlawn High School triggers L651A.

As you can see, for some locations the testing equipment (which was initiating periodic calls) would give more than one result while in a single area. For instance, while driving along the road Jenn lived on, calls were initiated that originated on both L654A and L651B. And, while driving along Crosby road near to I-695, calls were initiated on both L654C or L651B. (In fact, the testing performed at Crosby Road was actually recorded on the edges of the map at Exhibit 44, in the top right corner, which shows where Crosby and I-695 cross.)

Despite the fact that the prosecution only provided the defense with cell data that had been so sanitized and rendered abstract as to be almost meaningless (and then incorrectly informed the defense that no written records of this testing existed), the information contained in the state’s disclosure of Waranowitz’s oral statements was inaccurate and misleading on several points.

Waranowitz’s testing results, as disclosed by the prosecution:

“Gilston Park, west of Rolling Road, triggers L698A or B — right underneath; but one gets an L654C reading due to the mound of dirt.”

Why this was inaccurate:

• The location tested by the prosecution was not Gilston Park. Gilston Park is located to the east of Rolling Road. The prosecution instead tested a vacant lot.
• Even if the prosecution had actually tested Gilston Park, their testing would still have been irrelevant, because Jay never testified that he was at Gilston Park on the day of Hae’s murder. That claim was solely advanced by the prosecution.

Gilston Park is, according to serialpodcast.org, actually what is known as Westview Recreation Area, at the corners of Gilston Park Road and Chesworth Road. But as serialpodcast.org also puts it, “This park stuff is a little strange.” There was no mention of either a Gelston or Gilston Park in Jay’s first interview, in which he claimed that after he dropped Adnan off at track, he went to his house. However, due to the detectives’ “correction” of Jay’s story (as a result of the incorrectly placed L654), Jay gave a different statement, and claimed that after dropping Adnan at track, he first went and smoked a blunt at “Gelston Park” before going to smoke more with Cathy and Jeff at Cathy’s apartment.

Jay never mentioned Gelston Park again in any statement, and every statement he gave after the second interview sticks to the (fabricated) claim that he went to Cathy’s while Adnan is at track. However, once the prosecution realized its L654 error — apparently before the second trial — it changed its theory of the case, and developed a timeline in which Jay, after dropping Adnan at track, went to Gilston Park — not Gelston Park — to smoke a blunt. But this timeline was not based on the testimony of any witness. Despite the fact that Jay testified that he never went to Gilston (or Gelston) Park, the prosecution had Waranowitz perform testing at a location is claimed was Gilston Park, and then had Waranowitz “confirm” that the cell records were consistent with Jay’s testimony.

But the prosecution did not take Waranowitz to Gilston Park for his testing. They screwed it up, and took him to the wrong park all together. As stated in the prosecution’s Amended Disclosure, the testing site was “Gilston Park, west of Rolling Road” — but Gilston Park is east of Rolling Road! Waranowitz’s testimony — and Exhibit 44 — confirm the prosecution’s error:

KU: Did we ask you to go to G[i]lston Park?
AW: Yes.
KU: And can you find that site on this large overlay map?
AW: Yes.
KU: . . . Now, according to that overlay map that site is in — thank you, that location is within the cell site covering from 698, is that correct?
AW: Yes.
KU: What if anything did you discover when you reached that particular location?
AW: I discovered that the phones, 654C were stronger.
KU: And is there a particular geographical location — feature there that caused that?
AW: Yes, there is a small hill there that shadows L698.
KU: And if I may approach the witness I’m going to show you what’s been marked for identification as State’s Exhibit 44. . . . . There’s some circles drawn on there, who drew those?
AW: The circle that I have drawn around G[i]lston Park and parts of Rolling Road indicates that the cellphone that we were using to test saw L654C as its strongest cell site at those locations. . . .  The frequencies that I have circled on this map around Gelston Park and Rolling Road indicate where the phone has picked up L654C as its strongest cell site. (2/08/99 Tr. 84-89.)

Below is another depiction of Exhibit 44, showing Rolling Rock Road (in purple), L698 (marked with a star), and the real Gilston Park (in green):

As you can see, the area circled, in pen, is not even Gilston Park at all. It is an unused field, with no apparent name, and no apparent public use.

But let’s pretend for a moment that the prosecution had actually managed to test the right park. The prosecution’s evidence would still have been misleading. The way the testing of Gilston Park was portrayed to the jury was done in a manner that was aimed at trying to trick the jury into believing that Jay’s testimony matched the cellphone data, by suggesting that Jay’s testimony had been something completely different from what it actually was. Here is how Urick questioned Waranowitz about Gilston Park:

KU: Now, if there was testimony that someone had dropped someone off at school to go to track practice and the person who had the car went to G[i]lston Park, parked for a while and then went back to pick the person up, if you found — and they called at G[i]lston Park, one or more incoming calls were received by the AT&T wireless subscriber telephone and then you found cell phone records that had calls from the L654C cell site, would that functioning of the AT&T network be consistent with the testimony?
AW:  Yes. (2/08/00 Tr. 102.)

Urick knew, however, that there was no testimony whatsoever describing a trip to Gilston Park, and that Jay’s testimony was entirely impossible to reconcile with the cellphone data. Here is what Jay had testified to three days previously:

Jay: We turned and I believe at this time he wanted to get back to track practice because he said he needed to be seen. . . . We were traveling towards Woodlawn High School from Forest Park.
KU: And what if anything happened next?
Jay: I believe we stopped somewhere to buy a blunt .
KU: What is a blunt?
Jay:  I’m sorry. It’s a cigar that you empty and use for smoking marijuana.
KU: And what did you do at that point?
Jay: He didn’t want to smoke with me, so he got out of the car and I left and went to [Cathy’s] house. (2/05/00 Tr. 142-43.)

Cathy’s house. Not Gilston Park. So how could Urick have asked Waranowitz, in good faith, to confirm that Waranowitz’s data was consistent with that did not exist?

I think the most hilarious thing about the prosecution’s cellphone data has to be the fact that, out of 13 separate testing locations, the results from 11 of the tests were apparently so unfavorable and so damaging to the prosecution’s case that it decided it was better off presenting a map of testing that had been performed at the wrong location, at a place where no witness claimed that Adnan’s cellphone had ever been.

But if the prosecution really thought the results from the testing of “Gilston Park” was either the best or second best that had been acquired from Waranowitz’s testing, the results of testing from the other eleven locations must have been really bad indeed.

Waranowitz’s testing results, as disclosed by the prosecution:

“[Cathy’s Apartment] triggers L608C or L655A”

Why this data was inaccurate:

• The prosecution wrongly reported the expert’s testing results in its disclosure of the expert’s oral statements.
• The prosecution’s disclosure provided that the expert witness had made statements indicating that a call from Cathy’s could originate on either L608C or L655A. However, for testing done at Cathy’s apartment, the findings that Waranowitz has reported were also recorded, and incorporated by the computer program that generated Exhibit 45.
• Exhibit 45 confirms that testing performed by Waranowitz showed that test calls made from close to Cathy’s house had originated on both L655B and L608C — but not on L655A.

According to the prosecution’s Amended Disclosure of October 9, 1999, which provided that “[i]n an oral statement this date, Abe Waranowitz of AT&T Wireless reported the following,” Waranowitz’s testing showed that a call made at Cathy’s exact address  could have originated on either L655A or L608C on the day of testing. Which is mighty convenient — because this matches the prosecution’s timeline 6:00 – 6:30 p.m. timeline precisely. During that time period, there were three phone calls that the prosecution claims were received while the cellphone was at Cathy’s house: 6:07, 6:09, and 6:24. One of these calls (6:07) originated on L655A, and the other two (6:09, 6:24) on L608C. (Note: There are two additional calls that Jay claims were received while at Cathy’s house — 4:27 and 4:58. However, neither originates on a tower anywhere near to Cathy’s. The prosecution simply pretended at trial that Jay had claimed these call were received at “Gilston Park.”)

As a result of Waranowitz’s oral statements about his test results (or, at least, as a result of those statements as they were recorded by the prosecutor), the three calls received on Adnan’s cellphone after 6pm on January 13^th appear to support the prosecution’s theory of the case:

KU: Can you identify [State’s Exhibit 45]?
AW: Yes.
KU: And what is that?
AW: This is another drawing or computer generated graphic of the drove that I did on the day of the test.
KU: And the geographical location that that map represents is what?
AW: That would be the address that you gave me.
KU: Now, when you got to the 470 block of Gateway Terrace what if anything did you discover about the functioning of the AT&T Wireless network at that location where you initiated calls?
AW: I found that there were two cell sites very strong in that area.
KU: And affect did that have on your phone?
AW: Depending on where you were located on that road you could originate a call on one of two cell sites.
KU: Now, if you look on 6, lines 14, 15 and 16. There you’ll see three calls. One through cell site 655A, the other two L608C. Were those the cell sites that you picked up in your test when you went to the 2700 block of Gateway Terrace?
AW: Yes. (2/08/99 Tr. 96-97.)

Unfortunately for the prosecution, its disclosure of Waranowitz’s test results was simply inaccurate. We can determine what the actual results of Waraowitz’s testing were because the same data that Waranowitz read out to the prosecutor during the test drive was also recorded by the computer attached to the testing equipment, and that data was used to generate the map introduced at trial as Exhibit 45. That map confirms that, according to the testing that Waranowitz performed, then depending on where you were located on the road where Cathy lived, you could originate a call from either L655B or L608C — but not from L655A, as shown by the frequencies on Waranowitz’s map:

The street Cathy lived on is marked in yellow.

The prosecution’s representations to the court also confirmed, the data that was used to generate Exhibit 45 was, in fact, the exact same data that Waranowitz had orally reported to the prosecutor, and which the prosecutor provided to the defense in its amended disclosure:

THE COURT: The numbers that appear on your State’s Exhibit 44 and 45, numbers like 860, 854, 911, 926, those numbers correspond to what?
KU: We believe it’s a global position, satellite information system that allowed him to place his location when he took a reading and that’s what we believe he will say those are, but these are generated from the global position.
THE COURT: Okay. And the materials —
KM: I’m sorry, Your Honor.
THE COURT: The materials that were used by this witness to make this calculation are they materials or information or notes that were disclosed to the Defense?
KU: If I recall correctly he actually printed this out at the time that he was — we were recording this. So, this was I believe simultaneously I printed up with the oral report that he gave us as to the location. These were the global position satellite was only briefly that day, these were the only two corresponding maps that he was able to print out, but they correspond and I believe were printed out at the same time that he gave us orally what his reading was at each location.
THE COURT: So, the 44 and 45 represents the data that was used to make up your amended State’s disclosure?
KU: Part of it, yes.
THE COURT: When you say part of it, yes, what is the other part?
KU: He had equipment to read the system to tell which cell site the signal was coming from.
THE COURT: No, I understand that, okay. That’s — that’s his internal system?
KU: Yeah. That’s how he got the numbers that he printed out, L6 —
THE COURT: I understand — I understand, but the readings themselves are what appears in 44 and 45?
KU: Yes.
THE COURT: Very well. Your objection is overruled. It’s noted for the record. You may proceed. (2/08/00 Tr. 80-82) (emphasis added).

The conflict between Exhibit 45 and the prosecution’s Amended Disclosure of Waranowitz’s statements can only be explained by (1) the computer inaccurately recording the data reported by the test phone; (2) Waranowitz misspeaking when he was reading out the data in the car; or (3) the prosecutor incorrectly transcribing Waranowitz’s statements. I assume we can reasonably discount the first possibility — but whether Waranowitz read out the wrong number or the prosecution wrote it down wrong, this inaccuracy calls into question all of the test results reported in the prosecution’s amended disclosure.

After all, the testing results were only recorded for two of the sites — and the report of those results was wrong for one of them. It simply cannot be assumed that the prosecution’s disclosure of the results for the other 11 sites was accurately reported, since out of the two test sites for which we can verify the prosecution’s disclosure with the data recorded by the computer, the tower data for one site was inaccurately reported, and the testing at the other site had been performed at the wrong location.

In any event, we can conclude that, if the prosecution’s cellphone evidence has any accuracy at all, then a call received at Cathy’s house could not have originated on L655A, which means that the phone was not at Cathy’s when the 6:07 pm call was received – and Jay was, once again, lying about where the phone was at the time of a call.

Then again, AT&T’s own records plainly provide that “[a]ny incoming calls will NOT be considered reliable information for location.” So who can say where the phone might have been when it received a call at that time?

Waranowitz’s testing results, as disclosed by the prosecution:

“Briarcliff Road triggers L648C or 689B”

Why this data was misleadingly presented:

• The expert found that on the day of testing, a call made on Briarclift Road could have originated on L648C or L689B. This demonstrated that:
  • The cellphone could have been outside of Leakin Park when a call originated on L689B; and,
  • A call can originate on a tower that is several miles from the phone’s location, even when there are five other towers that are closer to the phone.
• The prosecution’s disclosure of the expert’s test results omitted the location(s) along Briarclift Road where testing was performed.
  • This is significant because a call made from that location could have originated on L689B — and the prosecution’s case is almost entirely dependent upon its claim that calls originating on L689B indicated that Adnan’s cellphone was in Leakin Park.
  • By failing to provide the address along Briarclift Road where testing was performed, the prosecution failed to disclose evidence which could have shown how far south beyond the borders of Leakin Park that testing showed a call could have originated on L689B.

Of the 13 locations where the prosecution had asked Waranowitz to perform testing, one of the locations was identified only as “Briarcliff Road” [sic]. Presumably, the road the prosecution was referring to is Briarclift Road — a one-mile long road that stretches from Edmondson Avenue (Route 40) to the southern border of Leakin Park, east of Winans Way. However, the prosecution failed to disclose where along this road that the test was conducted. As a result of his testing, Waranowitz found that, on the day and time the testing was conducted, calls that the test phone initiated while the and prosecutor were driving along Briarclift originated on both L689B and L648C.

Notably, L648 is a tower that is between 2.5 and 3.3 miles from Briarclift — demonstrating that the two-mile estimate of tower range that I have been using on this blog is, in fact, a conservative assumption, and the actual range of these towers can extend beyond the areas shaded in:

In fact, there are five towers in all that are all closer to Briarclift– L651, L653, L654, L652, and L689. Yet Waranowitz’s testing showed that a call from Briarclift could have originated on either L689B or L649C, proving that a call can originate on a tower several miles away from the phone’s location, even when there are five towers that are geographically closer!

In addition to demonstrating that Adnan’s cellphone need not have been close to a tower that a call originated on, Waranowitz’s testing on Briarclift road also conclusively established that a call made from outside of Leakin Park could originate on L689B, the Leakin Park tower. How far outside of Leakin Park does L689B’s range extend? Well, we can’t determine that, because the prosecution’s Amended Disclosure of the expert’s oral statements specified only that testing was done along “Briarcliff Road.” Waranowitz’s testing could have been performed at the border of Leakin Park, or it could have been performed .8 miles away on Edmondson Avenue. The prosecution chose not to inform the defense anything more precise about the test phone’s location.

This omission, in itself, would seem to be significant. One can only imagine what the data would show if the prosecution had chosen to provide maps for the testing done south of Leakin Park, such as the maps that were provided for Cathy’s apartment and (fake) Gilston Park.

But I doubt it is a coincidence that the only two maps the prosecution chose to create for trial were maps of testing done at the two testing locations farthest from L689B. Is this because testing at other sites showed that a call could originate on L689B, even when the phone was far beyond the borders of Leakin Park?

Based on the prosecution’s selective, inaccurate, and misleading disclosures of the testing data, I think that is a fair inference to make.

Waranowitz’s testing results, as disclosed by the prosecution:

“Leakin Park burial site triggers L689B”

Why this data is inaccurate and misleadingly presented:

• The “Leakin Park burial site” was not tested, contrary to the representation made in the state’s disclosure. The expert made a test call while driving down N. Franklintown Road; he did not make a test call from the specific place where Hae was buried.
• The state’s evidence falsely suggests that a call could have been made from the burial site, when in fact the available evidence demonstrates that no reception would have been available at that location.
• Although the expert made test calls from various locations along N. Franklintown Road, no GPS data was provided concerning the locations where these test calls were made.
• The expert’s testimony proved only the following: if a phone was in Leakin Park, then assuming it could get a signal, it would probably originate on L689B. His testimony did not provide evidence to draw any stronger conclusions than that.
• Even if the cellphone could have made a call from the burial site — which, by all available evidence, it could not have — the expert’s testimony concerning the “Leakin Park” calls would still prove conclusively that one of the following must be true: either (1) the prosecution’s cellphone evidence was meaningless junk, or (2) the prosecutions start witness willfully and repeatedly lied under oath in implicating Adnan in Hae’s murder. One of these two things must be true.

Although the prosecution’s case against Adnan would not have existed if it were not for the two calls that originated on L689B — a.k.a., the Leakin Park tower — the prosecution failed to introduce evidence at trial which could have showed that it was actually possible for a cellphone on the AT&T network to have made or received a call from the site where Hae was buried in Leakin Park. Moreover, the evidence that is available demonstrates that AT&T’s wireless network would not have provided coverage at that location, because steep terrain between tower L689 and the burial site would have obstructed the radio signals necessary for a call to have been made or received from there. Because the prosecution failed to acquire evidence necessary to demonstrate that Hae’s burial site would have had reception (i.e., such as by actually making a call from the burial site), there is no evidence that some unexplained topographical feature could, somehow, have provided reception in that area despite the lack of any line-of-site to a tower in the AT&T network.

The cellphone expert’s testimony did not demonstrate that such a phone call would have been feasible, because the expert was not asked to conduct a test from Hae’s burial site itself. The testing was done while in a vehicle along N. Franklintown Road, and there is no evidence that any of the test phone’s periodic test calls had been made when the phone was actually adjacent to the burial site — because the prosecution declined to provide GPS data for testing done in that location, despite the fact it could have easily been made available, as shown by Exhibits 44 and 45. Moreover, as cellphone reception would likely have existed only a few hundred yards to both the east and the west along N. Franklintown Road from where Hae’s body was found, the expert’s data concerning Leakin Park is most likely reporting the signal that was registered by a test call that was initiated either just before or just after the burial site.

For every single testing location for which information was provided about how the testing was done, Waranowitz’s results came from data obtained from a moving vehicle, based on multiple test calls that were initiated at periodic intervals as he drove around with the prosecutor through various streets relevant to the case. Although the prosecution avoided having Waranowitz specify this fact with regard to the Leakin Park test calls, his testimony does confirm he was on the road when the test calls were initiated:

CG: Now, sir, when you went to that place and again, to make sure, you were on the road side of the Jersey wall barriers, correct?
AW: Yes. (2/09/00 Tr. 112.)

In order to be on the “road side of the Jersey wall barrier,” Waranowitz’s testing must have been conducted on the road itself — and based on Waranowitz’s testimony concerning how testing was done at every other location, the car he was conducting the test from was driving down N. Franklintown Road.
Moreover, the prosecution chose not to provide GPS data concerning the location of where the testing was performed in Leakin Park. The prosecution could have done so, easily. In fact, the expert witness did just that for the area around Gilston Park and the area around Cathy’s apartment:

KU: And what system did it use to generate this data from? What’s the global tracking satellite?
. . .
AW: GPS . . . Global positioning system.
. . .
KU: How do you use it?
AW: We use it to specify — we used it to find out where we are when we’re driving around. (2/08/99 Tr. 89.)

Strikingly, however, the prosecution declined to acquire (or, if they did acquire it, to provide) GPS data concerning any testing of the network that took place in Leakin Park. Now, again, why would the prosecution have gone to the trouble of providing the jury with the results of cellphone testing with GPS coordinates for two locations with little relevance, if any, to Hae’s murder, but then declined to provide GPS coordinates for the testing done at the burial site, where the two most important calls to the prosecution’s case were allegedly received? Jay never even testified that Adnan’s cellphone had ever traveled to Gilston Park — let alone made or received any phone calls there. So why did the prosecution have Waranowitz generate a report showing which tower had the strongest signal strength for dozens upon dozens of precise GPS-identified locations in the Gilston Park area?

Well, it is either because the prosecution was oblivious to the significance of the cellphone location data, and erroneously believed that a GPS-backed report of the towers a call in Gilston Park was likely to originate on was more crucial to its case against Adnan than was a similar report for the Leakin Park Area; or else it is because the prosecution believed that a GPS-backed report of the signal strength in Leakin Park would not have supported its case.

Either way, it does not make much difference. The prosecution’s case does not include any data that can be verified through replication, because it failed to give the locations of where testing was performed. Moreover, the prosecution’s disclosure of its testing results contained a serious misrepresentation of fact, and erroneously stated that, contrary to the expert’s testimony, that his testing had been done at the “Leakin Park burial site.” If the defense had assumed that the prosecution had been truthful in its disclosures — and why shouldn’t they have? — they would have been left unaware of the fact that no one had actually tested whether it was possible for a phone at the burial site to make or receive any calls.

Which is a big deal. Because it probably could not have.

I spoke with an RF engineer about the AT&T’s wireless network coverage in Leakin Park, and he confirmed that coverage in that area was “very poor,” and that, moreover, it would not have been possible to determine that a cellphone would have reception in a specific location without actually visiting that specific site and measuring the signal. Short of conducting a test call from the actual location, however, the cellphone coverage for a given location can be examined using Google Earth. By plotting out the coordinates of the tower and the call location, and by examining the elevation profile between those two points, one can then make a determination as to whether it is probable that a phone in that location would have reception, because “[i]f it is possible to communicate with the tower, one should be able to draw an uninterrupted line between the two spots.”

Tower L689 is located on top of the Bernard Mason apartment complex at 2121 Windsor Garden, almost directly north of the burial site. As shown by the tower’s FCC registration, L689 is 94.8 feet (28.9 meters) above ground level. For purposes of the following illustrations, I have rounded the height of L689 to 100 feet above ground level. (Additionally, a web-based topographic profile application is available here, providing a similar review of this data, and providing similar conclusions.)

An examination of the resulting elevation profiles shows that although segments of N. Franklintown Road to the east and west of Hae’s burial site would likely have had reception from L689, the very steep terrain between L689 and burial site itself should have precluded any reception in that area. Note, however, that reception would have been available to the east and west of the burial site:

Elevation profile for burial site. Terrain blocks line of site to tower.

Elevation profile for N. Franklintown Road, east of burial site.

Elevation profile for N. Franklintown Road, west of burial site.

None of this would have been a surprise to the prosecution. They were well aware of the problems with cellphone reception in the Leakin Park area — particularly the areas near Dead Run. Like, say, the burial site.

KU: Mr. Waranowitz, what if any difficulties are there in [Leakin] Park in terms of reception for the cell phone network?
CG: Objection.
THE COURT: Sustained. As any cell phone network or as it relates to AT&T cell phone network?
KU: What if any reception problems as the AT&T wireless network experience in the [Leakin] Park region?
THE COURT: You may answer the question.
AW: The signal strength in [Leakin] Park particularly down where the river and the roads runs through is very weak. (2/08/99 Tr. 125-26.)
CG: That road, however familiar you are with it, runs the breadth of L[eakin] Park throughout Baltimore City, does it not?
AW: I think so, yes.
CG: And, sir, are you aware of the difficulty any cell phone user has regardless of phone, regardless of network of actually speaking on the phone while one is in Lincoln Park?
AW: Yes.
. . .
CG: You are aware, are you not, of the difficulty any cell phone user no matter what cell phone is used in actually . . . receiving a call while one is in L[eakin] Park?
. . .
AW: Yes.
CG: And that’s not a surprise to you, is it?
AW: No, it is not.
CG: Because the terrain in L[eakin Park] Park is difficult, is it not?
AW: Yes, it is.
. . .
CG: The terrain in [L]eakin Park goes to terrain that is much, much higher than the terrain of [N. Franklintown Road], is it not?’
AW: Yes.
CG: And there’s a major stream or waterway that runs through L[eakin] Park, is there not?
AW: Yes.
CG: And you’re aware that the banks of the waterway because the terrain is uneven is often times below what we call street level, referring to the level of [N. Franklintown Road].
AW: Yes. . . .
CG: And notwithstanding that, your network has been launched now for maybe up to three years, L[eakin] Park as a coverage area, it’s always been difficult, has it not?
AW: That is true. (2/09/00 Tr. 114 -116.)

In short, the prosecution was or should have been on alert that it would likely have been impossible for a call to have been placed from the burial site, and yet — or rather, and as a result — they chose not to perform any tests at the burial site itself.

Because if the absence of cell reception at the burial site had been brought to the jury’s attention, it would have been seriously damaging to the state’s case. Jay testified that both Leakin Park calls were received while he and Adnan were digging a hole down by Dead Run. Here is Jay’s testimony concerning the 7:09 call:

KU: When you pulled off and parked the vehicle, what if anything did you take back into the woods with you ?
Jay: Shovels.
KU: About what time of night was this?
Jay: About 7:00 because, like I said, I had paged Jenn and while we were digging, she had called back [at 7:09], and he just told her he was busy now and hung up the phone. We dug for a little bit and he said that’s good enough. We took the shovels
KU: What was the light like?
Jay: It was pretty dark but the moon was out, and I remember there was little bits of snow on the ground. So you could see a little bit. It wasn’t too bad. (2/05/99 Tr. 150-51.)

Oh, Jay. Let’s hold up a second — before we get back to cellphone data, I need to recount just a few of the glaring problems with this testimony: (1) Adnan told Jenn that “he was busy now”? All of Jay’s previous statements had Adnan saying that “Jay is busy now.”; (2) The moon was out? No, no it was not — moonrise was at 4:37 a.m. that night, and was a bare sliver, with around 10% illumination; (3) according to Jay’s story, he has not even paged Jenn at the time he and Adnan were digging the hole — that happens after digging the holes, while Adnan is getting Hae’s body out of the car; and (4) why would Jay and Adnan bring the shovels back to Adnan’s car after digging the hole? They still had to cover up the body! It’s a completely inefficient body burial process.

I digress, though. Back to the cellphone evidence. Here is Jay’s testimony concerning the 7:16 incoming call:

KU: Now, if you will look on the exhibit, lines ten and eleven, there are two incoming calls. While you were back there either digging the hole or burying the body, do you remember him receiving another phone call?
Jay: Yes, but I don’t know who it was .
. . .
KU: Did he speak in English?
Jay: Parts.
. . .
KU: And the other parts, did you know?
Jay: I assume it was Arabic. I mean, I’m not a linguist. (2/05/99 Tr. 152-53.)

Which means according to Jay’s testimony, he and Adnan were at the actual burial site, digging a hole, when the 7:09 and 7:16 incoming calls were received.

No wonder the prosecution was too scared to try and make a test call from the actual burial site. The Leakin Park calls were the prosecution’s entire case – better not let the jury know that Jay was lying about those too.

-Susan

Adnan was deprived of a fair trial by two failures of the criminal justice system: (1) a prosecutor who failed to disclose exculpatory evidence in time for meaningful use by the defense, and (2) a defense attorney who did not fight hard enough to obtain this exculpatory evidence, or to review and prepare for this evidence when she was unexpectedly given a reprieve in the form of a mistrial.

In this post, I have provided an outline of the discovery that occurred before Adnan’s first and second trails. It shows exactly what and when Adnan was informed of the nature of the evidence against him — and, in particular, how the prosecution attempted to go to trial against Adnan without having disclosed either the identity of it star witness or his inconsistent statements to the police, or the fact that it intended to use cellphone location data to show that Adnan was responsible for Hae’s murder.

February 28, 1999:

• Adnan is arrested.

April 13, 1999:

• Grand jury indicts Adnan for Hae’s murder.

May 17, 1999:

• The defense files an omnibus request for discovery from the prosecution. The state’s responses are due within 10 days of the request, plus an additional three days to allow time for mailing.

At this point, the only information the defense has been given about Hae’s murder is the (extremely limited) information contained in the indictment and in the warrants. Here is the full extent of the information that the defense was given:

On 09 February 1999, at approximately 2pm., the Baltimore City Police Department responded to the 4400 block N. Franklintown Road, for a body that had been discovered by a passerby. Members of the Armed Services Medical Examiners Office responded and disinterred the remains. A post mortem examination [ruled the] manner of death a homicide. Subsequently, the victim was identified as Hae Min Lee. . .  On 27 February 1999, your Affiant along with Detective William F. Ritz had the occasion to interview a witness to this offense at the offices of homicide. This witness indicated that on 13 January 1999, the witness, met Adnan Syed at Edmondson and Franklintown Road in Syed’s auto. Syed, who was driving the victim’s auto, opened the victim’s trunk and showed the witness the victim’s body, which had been strangled. This witness, then follows Syed in Syed’s auto, Syed driving the victim’s auto, to Leakin Park, where Syed buries the victim in a shallow grave. Subsequently, this witness then follows Syed, who is still driving the victim’s auto, to a location where Syed parks the victim’s automobile. Syed then gets into his car and drives the witness to a location in Baltimore county where the digging tools are discarded in a dumpster.

The defense has not been informed of (1) how Hae was killed; (2) where Hae was killed; (3) when Hae was killed; (4) the identity of the state’s witness; (5) the correct day that the witness was interviewed; (6) where Hae’s car was left; (7) when Hae was buried; (8) where exactly Hae was buried; (9) how the body was found and who Mr. S is; (10) where the trunk pop took place according to the state’s other witness; (11) the existence of a second witness; or (12) where the “digging tools” and other evidence was disposed of.

[Note: Notice how they say “digging tools” there? That’s because in Jay’s first statement, he claims he and Adnan used “a pick” and “a shovel” to dig the hole. Only later does Jay change his story and claim they used two shovels and no pick.]

May 30, 1999:

• Deadline for the prosecution’s responses to the defense”s discovery requests. The prosecution fails to produce a single document to the defense.

June 3, 1999:

• Trial is set for October 13, 1999.

June 16, 1999:

• The prosecution files a motion for an extension of time in which to provide discovery, asking the court for an additional 30 days in which to provide its responses. As the basis for this request, the prosecution cites to “vacation and travel plans.”

• Due to the prosecution’s failure to provide any discovery whatsoever, the defense attempts to contact the Medical Examiner’s office directly in order to obtain a copy of the autopsy report.

June 23, 1999:

• The medical examiner informs the defense that he has been instructed by the prosecutor’s office not to release a copy of the autopsy report to the defense, and that he will only be able to do so with the prosecution’s permission.

July 1, 1999:

• 11:53 a.m.: The defense files a motion to compel production from the prosecution, noting that, “The Defendant does not even have the autopsy report establishing the time, place and cause of death. Indeed, the State has directed the Office of the Medical Examiner not to furnish the autopsy to the defense.”

• 12:21 p.m.: The prosecution makes limited disclosures to the defense, consisting of incomplete (and illegible) police reports, partial evidence lists, and poorly scanned black and white photos of the crime scene that do not reasonably allow a viewer to understand what is being seen. The state also files a motion for a “joint trial of defendants.”

• The prosecution’s limited disclosure includes its own requests to the defense, including requests for:

all written reports made in connection with the action by each expert whom the defendant expects to call as a witness at the hearing or trial, including the results of any physical or mental examination, scientific test, experiment, or comparison,”

and a request that

the defendant furnish the name and address of each person other than the defendant whom the defendant intends to call as a witness to show that the defendant was not present at the time, place, and date as set forth in the criminal [ ] indictment.

The state’s discovery request is ironic in that there was, in fact, no time set forth in the indictment against Adnan, and the indictment incorrectly identified the place of death as “in the City of Baltimore, State of Maryland” – even though the state’s witness had placed Hae’s death in the county.

July 7, 1999:

• The defense sends a discovery letter to the prosecution outlining its failure to provide substantive discovery to the defense. In particular, the defense requests that the prosecution produce “[a] copy of any statements made by Jay Wilds as an unindicted co-conspirator or codefendant.”

• The prosecution files a Motion to Bar Disclosure of the identity of the prosecution’s star witness, as well as to bar disclosure of his/her statements, seeking the court’s permission “to withhold discovery consisting of all statements made by [the] accessory after the fact . . . and any affidavits or warrants making reference to such statements.” The prosecution claims that

“divulgence of these statements would place the witness and evidence in jeopardy. Defense counsel’s actions at best create the impression that witnesses could have been compromised, and to allow access to the testimony of another key witness could create the impression that the public interest in a fair adjudicatory process has been compromised.”

The prosecution does not explain why the public interest in a fair adjudicatory process is better served by keeping its evidence and witnesses secret from the defense.

July 8, 1999:

• The prosecution’s response to the defense’s July 7th letter contains some limited additional disclosures, but in response to 11 of the 20 defense requests, the state responds either by stating that its discovery obligations have been met, or by simply noting that “[a]s the state reviews the file, if any further discoverable information on this topic is found, it will be forwarded to the defense.”

• Additionally, in response to the defense’s request for production of “[a] copy of any statements made by Jay Wilds as an unindicted co-conspirator or codefendant,” the prosecution states that “[t]here is no unindicted co-conspirator or co-defendant.”

August 2, 1999:

• The prosecution discloses some additional evidence, such as Mr. S’s role in discovering Hae’s body. However, the prosecution provides only the results of the second polygraph examination of Mr. S, and does not provide the results of the first – which Mr. S failed.

• The prosecution also discloses, inter alia, where Hae’s car was found.

September 3, 1999:

• The prosecution discloses, inter alia, that “[t]he State has received the defendant’s cellular telephone records and intends to introduce them as business records at trial. The records are available for inspection upon reasonable request.” The defense is given information about the call log for the first time, only a month and a week before trial.

September 7, 1999:

• The defense renews its motion to compel, and opposes the prosecution’s motion to bar disclosure of Jay’s identity and statements.

• The prosecution had argued, in its Motion to Bar Disclosure, that it was not required to disclose Jay’s identity or statements because Jay was “an accessory after the fact and not a co-defendant”; because “[Jay] has not been charged and therefore there will be no jury trial”; and because “the State does not have to provide the statements of witnesses.”

• In opposition, the defense now argues in its motion to compel that, pursuant to Maryland Rule 4-263(a), the prosecution was required to disclose, without request, ‘[a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged,’” as well as to disclose upon defense request, pursuant to 4-263(b)(3), the “statements of codefendants.”

• The defense also argues that the prosecution’s disclosures were too vague to allow Adnan to raise an alibi defense:

Moreover, the State has identified, only upon inquest by this Court, that Ms. Lee was murdered sometime in the afternoon of January 13, 1999, but the State has contended it cannot establish the time of death with any further precision. Jay Wilds, according to the State, met Adnan Syed directly after the murder at a prearranged time and location and was present and assisted in the burial of Ms. Lee’s body in Leakin Park. While the State has ‘paraphrased’ Mr. Wilds’ statements for various purposes, the State has not ‘paraphrased’ or revealed any information regarding the actual time(s) Mr. Wilds alleges this activity occurred.

Note that at this stage, the defense is completely unaware that the prosecution intends to argue that Hae’s burial occurred four hours after her death, as the indictment is written as if the burial occurred immediately after her murder.

September 10, 1999:

• Judge Quarles enters an order on the defenses motion to compel, and the prosecution’s motion to bar disclosure.

• In doing so, Judge Quarles avoids making any ruling whatsoever on whether the prosecution was required to disclose Jay’s statements pursuant to 4-263(b)(3), which requires the disclosure of the “statements of codefendants.” Judge Quarles apparently assumes that an unindicted accessory-after-the-fact is merely a “witness,” rather than a “co-defendant,” but provides no explanation in support of this position.

• Judge Quarles seems to be unaware that, at the time his order is entered, Jay is in fact an indicted defendant, having been charged – and a plea deal entered – on September 7th. However, the state has not yet disclosed the fact that Jay was charged with accessory-after-the-fact three days previously.

• Judge Quarles further orders that, regardless of Jay’s status as a “co-defendant,” Maryland Rule 4-263(a) “requires the State’s Attorney to disclose, without request, ‘[a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged.’”

• The court also orders the prosecution to hand over any statements made by Adnan.

September 13, 1999:

• The prosecution discloses that Jay has entered a plea agreement.

September 19, 1999:

• The defense asks Urick if he has any disclosures to make, pursuant to the court’s order of September 10, 1999.

• Urick replies, “No.”

September 24, 1999:

• The prosecution discloses to the defense that “The State expects to have a witness from AT&T wireless but as of this date the-company has not named its documents representative.”

• The prosecution also discloses that “the original request for DNA typing could not be processed because at the time of submission there was nothing to type; a new request has been submitted but the results are not expected for 6 to 8 weeks.”

Both of these disclosures are disturbing. First, the state’s disclosure as to the AT&T witness is intentionally worded to appear as if its only purpose for calling the representative is in his or capacity as a document custodian, in order to have the cellphone data admitted into evidence as business records. The prosecution has provided the defense with no indication whatsoever that it intends to call an expert witness to speak to the significance of those records, or that it intends to use the cellphone location data as part of its case.

Second, Urick’s decision to wait until late September to submit the t-shirt for DNA testing appears to have been deliberately calculated so that any results from the DNA test will be returned after Adnan’s October 13th trial. His claim that “the original request could not be processed” is so disingenuous as to border on lying. The shirt was sent out to the lab in early March, but no trace analysis was requested – even though by March 25th, the state did have “[some]thing to type,” because on that date it had transported Adnan to a hospital to take a sample of his blood. Additionally, the lab records clearly show that as of August 31, 1999, the shirt had not been submitted for DNA testing, and was being held in the lab, with “[a] sample of these [blood] stains [ ] retained for future possible analysis.”

October 1, 1999:

• The prosecution files another disclosure. This time, the state miraculously manages to find the results of Mr. S’s first polygraph report, which was “omitted in the original disclosure.” How convenient that single page happened to get “omitted” the first time it was disclosed. The prosecution also discloses, inter alia, the fact that the ME determined that “the state of the victim’s body at the time of autopsy was consistent with the date of her disappearance.”

• The prosecution files a motion seeking admission of Hae’s diary at trial, and discloses selected excerpts (but not a full copy) of the diary to the defense for the first time.

October 8, 1999:

• The prosecution discloses, for the first time, that it intends to call a representative from AT&T as an “expert witness,” although the state not does not disclose that his testimony will have anything to do with location data.

• The prosecution also discloses that, despite its earlier prediction that DNA testing would take 6-8 weeks, a “preliminary” DNA test had been performed, excluding both Adnan and Jay from the blood samples found on the t-shirt in Hae’s car.

October 9, 1999:

• The prosecution discloses a one page “summary” of Waranowitz’s oral report. By tossing out almost all of Waranowitz’s recorded results (except for the two irrelevant map pages introduced at Exhibits 44 and 45), the prosecution is able to withhold all but useless tidbits of Waranowitz’s findings from the defense. What the defense is given is meaningless without any accompanying explanation. Moreover, as discussed in my previous post, the oral summary is both inaccurate and misleading.

October 11, 1999:

• The defense sends a frantic letter to AT&T, attempting to obtain any information concerning the meaning of his oral statement to the prosecution:

We are representing Adnan Syed in the above referenced matter. Mr. Abraham Waranowitz, an AT&T Wireless employee, will be testifying at these proceeding. In his initial statement to Mr. Urick, Assistant State’s Attorney for Baltimore City, Mr. Waranowitz mentions a number of cell sites. We are requesting any maps covering the cell sites discussed in his statement, any coverage maps which you have describing the different areas, and any information used by Mr. Waranowitz to distinguish the particular cell sites mentioned.

Note that at this point, the prosecution has not disclosed any information to the defense concerning the locations of the various towers. For that matter, the prosecution has not even disclosed its theory of the case, which involves Hae’s burial taking place at 7:09 and 7:16 pm.

October 12, 1999:

• On the day before Adnan’s scheduled trial date of October 13th, the defense moves for a continuance on the basis of the prosecution’s late disclosure of Hae’s diary, which the defense did not have an opportunity to review in full until October 6th. The defense also notes as support for its motion that,

Additionally, the continuing non-disclosure of Jay Wilds’ statements, even now that the State has participated in a “plea” by Mr. Wilds, notwithstanding its continued assertions that Mr. Wilds was not and would not be charged mandates a continuance. On September 13, 1999, Assistant State’s Attorney Kevin Urick unexpectedly disclosed that a State’s witness, Jay Wilds, had entered into a plea agreement, which called for Mr. Wilds to enter a plea of guilty as an accessory after the fact to this murder, a circumstance which had previously had been denied in pleadings and in the record by the prosecution. The plea agreement was numbered with Case #9981305801. No criminal information or indictment with that case number exists in the Circuit Court for Baltimore City (or in the District Court). The State disclosed nothing further as to Jay Wilds. Through its own investigation, notwithstanding the intentional misdirection of the State, the defense discovered the existence of Case #29925001 in the Circuit Court for Baltimore City and the fact that there was a plea entered with Mr. Urick present as the Assistant State’s Attorney, by the same Jay Wilds, to accessory after the fact to this murder of Hae Lee, which plea occurred on September 7th- before Judge McCurdy. In that proceeding, a peculiar procedure was utilized, in which there were no facts asserted to support the plea. Indeed, the prosecution asserted on the record that these facts, whatever they may be, will be supplied at some unspecified later date by Mr. Urick. Those facts may arguably also contain exculpatory material.

 

• The defense further argues that it is entitled to a continuance due to the prosecution’s late disclosure of the DNA evidence:

The defense was not aware until the State’s September 24th disclosure that DNA evidence would be at issue in this trial. The State has now disclosed “preliminary” results, a term with which neither counsel nor the serology and DNA forensic experts consulted by the defense, are familiar. Defense counsel has been advised by her experts that there are no “preliminary” DNA testing procedures. They have further advised that the only “exclusionary” testing would be serology testing and that such testing or analysis needs to be reviewed thoroughly by experts to be substantiate any claimed legitimacy of “exclusion.”

 

• Additionally, in a separate filing, the defense makes a last ditch attempt to subpoena an AT&T representative, for appearance at trial the following day, in order to obtain information about the nature of Waranowitz’s testing, and to understand what exactly he had done.

October 13, 1999:

• The prosecution files a brief in opposition to the defense’s motion for a continuance, urging the court to proceed with Adnan’s trial as soon as is feasibly possible, arguing that

there is no evidence that has not been available to the defense since at least August 2, 1999. The defense had a completely adequate time to request to view that evidence and conduct any tests it chose. And the defense has been fully apprised as to the State’s actions concerning that evidence. The defense cannot credibly claim at this time that it is being taken by surprise or that it is not adequately prepared for trial.

Judge Quarles is currently in trial. That matter is expected to conclude sometime Thursday, October 14, 1999. The State respectfully requests this Honorable Court to deny Defendant’s Motion for a Continuance, and to order the above caption matter held in Judge Quarles, part 27, to begin trial immediately upon  conclusion of the matter before him.

The mendacity of Urick’s contention that “there is no evidence that has not been available to the defense since at least August 2, 1999” is startling in its scope. The following is an extremely incomplete list of crucial pieces of evidence that the prosecution had not disclosed at all as of October 13, 1999: (1) the list of tower locations; (2) any maps depicting any type of cell coverage or range; (3) the nature or method of the expert’s testing;  (4) the witness statements claiming that the murder took place at Best Buy; (5) the witness statements claiming that the trunk pop occurred at Best Buy; (6) the witness statements claiming that that the burial took place at 7:09 and 7:17 p.m.; (7) the existence and nature of Jenn’s statements to the police; (8) copies of any statements from either Jenn or Jay; and (9) results of non-“preliminary” DNA testing on the bloody shirt.

And yet Urick declares to the court, with a straight face, that “[t]he defense cannot credibly claim at this time that it is being taken by surprise or that it is not adequately prepared for trial.”

October 14, 1999:

• The court grants a continuance of Adnan’s trial until December 7, 1999.

October 20, 1999:

• The defense sends a letter to the prosecution requesting further information on Waranowitz’s cellphone testing, including a request for production of tower locations and maps:

After expending much time and energy, the defense was able to contact an individual at AT&T Wireless, in Washington, D.C. who identified himself as Mr. Waranowitz’s supervisor. This individual, when asked, would not provide the defense with a valid subpoena address but merely advised that Mr. Waranowitz was not available. However, this individual did indicate that maps, reports, and an outline of Mr. Waranowitz’s testimony were forwarded to your office. Not surprisingly, we have not received them.

The defense requests included, inter alia,

Complete information regarding all phone calls or phones to which Mr. Waranowitz will testify, including but not limited to:

a. the phone numbers called

b. identification of all cell phones involved in either outgoing or incoming calls

c. owner(s) of the phone numbers called

d. the names of individuals believed to have answered or made calls if different from the registered owner of the number

e. the numbers and names of individuals believed to have made incoming calls

f. the exact locations which were “triggered” by relevant cell phone calls, the specific cell phone numbers “triggering” these locations, the times of these calls.

g. the location of the relevant cell phones at issue, including the location of where phone calls were made or received.

h. the details of Mr. Waranowitz’s oral statement, including to whom it was made and under what circumstances

i. complete definitions of terms in Mr. Waranowitz’s statement as reported in your disclosure, including the terms “triggers”, “edges”, “cell sites”, “signal strengths”, “fluctuations” and “mound”.

j. Any and all information which your office or any other law enforcement agency transmitted, directed, suggested or imparted by any means to Mr. Waranowitz in order to obtain his “expert” opinion, or which he reviewed or was made aware of in the course of arriving at his “expert” opinion.

October 28, 1999:

• The prosecution responds to the defense’s October 20th letter with the following disclosure:

2) Mr. Waranowitz performed a test  of the ATT Wireless System in Baltimore at our request. He orally reported the results of that test to us and we have provided a summary o; them to the defense in our previous disclosure. He [h]as written no reports.

3) The other information the Defense requests is either unknown to the state, not within the control of the State, or not discoverable.

I do not believe there is a way that this statement can be parsed in order to be rendered truthful. Exhibits 44 and 45 were, indisputably, in the prosecution’s possession at this time, and yet none had been disclosed to the defense. These documents were requested, were discoverable, and were the written reports of the expert.

December 2, 1999:

• “[T]en months after the body of Hae Min Lee bad been discovered, Salvatore Bianca, of the Baltimore City Police Department Trace Analysis Unit release[s] a report concerning hairs recovered from the body. This report concluded that, of the hairs with characteristics sufficient for identification, none of them match the defendant.”

Upon receipt of this report, the defense immediately contacts the prosecution and requests clarification about whether these two hairs matched anyone other than the defendant. The prosecution does not respond.

December 7, 1999:

• The day before Adnan’s rescheduled trial date, the prosecution’s expert – not the prosecution – sends a fax to the defense. This fax contains (1) a list of the relevant cellphone towers and their locations (never before disclose to the defense); (2) copies of the two maps prepared by the expert; and (3) a list of tower frequencies, that appear in what would be, to the defense, a meaningless spreadsheet of numbers. 

Note that even the maps sent over to the defense were rendered essentially useless before being disclosed. Compare below a copy of Exhibit 45, as sent to the defense in the expert’s fax, and a copy of Exhibit 45, as introduced by the prosecution at trial:

Exhibit 45, as sent in the expert’s fax on the day before trial

Exhibit 45, as entered at trial

Additionally, it should also be noted that the tower addresses sent by the expert is inaccurate, as it lists a location for tower L653 that is different from that of what was given at trial.

December 8 – 15, 1999:

• Defendant’s first trial takes place.

• On the day that Jay testifies, the prosecution provides the defense with copies of Jay’s first and second interviews. No notes concerning Jay’s statements in his interview on April 13, 1999 are disclosed.

December 30, 1999:

• Two weeks after the defendant’s first trial, the prosecution discloses the fact that “in addition to the hairs not matching the defendant, two of the hairs recovered from the body of Hae Min Lee did not match Hae Min Lee’s hairs. 12. The State failed to disclose this crucial piece of forensic evidence that strongly suggests the presence of an individual other than the defendant in physical proximity to the victim prior to her death.”

January 7, 2000:

• The defense files a motion for a Brady hearing, alleging that the prosecution had withheld copious amounts of exculpatory evidence. In particular, the defense argues that the prosecution’s refusal to hand over Jay’s inconsistent and bizarre witness statements was a violation of Brady’s requirements.

The defense was absolutely right. There is no possible argument that the prosecution could have advanced in good faith to claim that Jay’s statements, with all their problems and impossible claims, were not exculpatory evidence.

January 14, 2000:

• The court denies the defense’s Brady claim, concluding simply that since Jay’s statements had been disclosed during the first trial, the defense had the statements available for use at the second trial, and therefore Brady was satisfied. The court expresses no concern over the fact that the prosecution attempted to commit a Brady violation by wrongfully withholding Jay’s statements. The court’s opinion states that:

Defendant argued that after Wilds’ first statement, there must have been some evidence or statement produced that led the police to re-question Jay Wilds, ultimately leading Wilds to provide inconsistent statements in his second statement. The defense requested that the State produce such evidence, if any.

At the January 14, 2000, hearing, this Court questioned the State regarding any notes in their possession that led the police to seek Wilds’ second statement. The State proffered that it had provided all items that could arguably be used to impeach under Stricker or that were exculpatory under Brady. Since this case is a re-trial much of the material requested had already been provided by way of discovery, Jencks or as part of evidence the State had a duty to disclose under Brady. Further, the State even agreed to turn over a statement of Juwon [ ], a nonwitness that the State does not intend to call at trial. Therefore, this Court is satisfied that the defendant is in possession of any and all materials required under Brady and Stricker. No additional hearing is required and the Court is satisfied that all considerations have been met to afford the defendant the inquiry he requested on this issue.

January 18, 2000:

• The prosecution files yet another amended disclosure, providing both Jenn’s police statement and Adnan’s police statements from February 26, 1999. 

The prosecution’s failure to previously disclose Adnan’s February 26th statement is inexplicable and egregious. On September 10th, the trial court issued an opinion in which it ordered that “within five days of the date of this Order, the State shall provide to the Defendant all disclosures required by Maryland Rule 4-263(a) and (b)(1) and (2).” Rule 4-263(b)(2) requires disclosure of all “statements of the defendant.” Moreover, on November 9, 1999, in response to further questioning from the defense, the prosecution filed an amended disclosure in which it declared, “All required discovery concerning statements made by or interviews conducted with the defendant ha[ve] been made.”

And yet, somehow, on January 18, 2000, on the eve of Adnan’s second trial date, the prosecution discloses a statement made by the defendant. I see no conclusion that can be drawn from this pattern of behavior other than that the prosecution’s handling of its discovery obligation was a complete farce, and that its deliberate strategy of withholding evidence was a violation of due process.

-Susan

The Docket –  February 13, at 1:00 p.m. est, : Just a quick note — Rabia Chaudry and I will be appearing on MSNBC Shift’s the Docket tomorrow, for a one-hour Serial special. You can watch online, it should be a good show! Unfortunately, former prosecutor Kevin Urick had to cancel and will not be joining us – but hey, that just means there will be more time for us to actually discuss the evidence in this case.

On February 16, 1999, less than a week after Hae’s body had been found in Leakin Park, a grand jury had already been convened to investigate whether Adnan should be indicted for her murder. At that point, the only evidence to suggest Adnan had been involved in her murder (or, at least, the only evidence that the prosecution has ever chosen to disclose) consisted of an anonymous phone call that was placed on February 12th, by an “Asian male 18-21 years old,” who “advised investigators [they] should concentrate on the victim’s boyfriend[,] Adna Ansyed.” With this flimsy evidence as a starting point, a grand jury began investigating Adnan, and issued a subpoena for his cellphone records.

When investigators received the location data associated with those phone records, they thought they saw something very important: the 7:09 and 7:16 p.m. calls had originated on tower L689, in Leakin Park. On the strength of these two little numbers, from the print out of a cellphone billing record, the state’s entire case was born. Adnan was in Leakin Park at 7 p.m., burying Hae’s body — or so the story goes — because the cellphone records showed he was in Leakin Park then, and Jay said he was in Leakin Park then. Case closed. From that point onward, the detectives believed that it was settled fact that Hae had been buried in the 7:00 p.m. hour, and all further evidence that they obtained was filtered, shifted, or disregarded, in whatever way was necessary to fit that theory.

And that meant filtering, shifting, and disregarding a lot of evidence. As a result of their fixation upon the 7:09 and 7:16 p.m. phone calls, the investigators and the prosecution overlooked the fact that all the rest of the evidence in the case showed that Hae had not been buried in Leakin Park shortly after 7:00 p.m., but rather had been buried at a much later time — long after the “Leakin Park phone calls,” and long after Adnan and Jay had gone their separate ways that day.

a. The Medical Examiner’s Findings

In claiming that Hae had been buried at 7 p.m., the prosecution either overlooked or ignored the fact that this timeline was contrary to the medical examiner’s findings with respect to livor mortis. As Hae’s body was found to be positioned on its right ride at the burial site in Leakin Park, and as the pattern of lividity found by the medical examiner showed that Hae had been left on her front for an extended period of time after her death, her body was not buried until at least eight hours after her death, and most likely even longer than that.

Hae’s body was positioned on its right side:

When Mr. S led investigators to the burial site in Leakin Park, they found Hae’s body was laid out on its right side, in a shallow depression behind a log, and covered over with dirt and large rocks. The positioning of the body was confirmed by the report of the medical examiner:

The body was found in the woods, buried in a shallow grave with the hair, right foot, left knee, and left hip partially exposed. The body was on her right side. (Autopsy Report.)

In accordance with the prosecution’s MO in this case (and, presumably, many other cases during this time period) there are no written records aside from the autopsy report which documents the position of Hae’s body at the burial site. Although a forensic anthropologist, Dr. William Rodriguez Ill, Ph.D., was present at the crime scene to oversee the disinterment of Hae’s body, he never produced any written reports of his findings or observations. This was part of the state’s litigation strategy, pursuant to which those involved in the investigation refrained from committing their findings to paper whenever possible — because if an investigator’s findings were not preserved in writing, then the prosecution could not be required to produce that writing to the defense.

As a result, everything we know about Dr. Rodriguez’s analysis of the crime scene comes from oral statements that he made in the months after Hae’s body was found. His first statement was made to Prosecutor Kathleen Murphy, on July 31, 1999, and following his statement, Murphy took notes concerning the portions of it that she deemed to be worth writing down. The result was a brief, five-line memorandum, which had the following to say about how Hae had been buried:

Rocks piled on her. Area had been dug out. Dirt over it. Large rocks on body, one on hand. Keep animals from dragging body off. Way body is exposed – animal activity.

Soil samples: typical of wooded area, highly organic. Collected plants, green plant material underneath. Couldn’t tell if tool used.

Notably, the fact the body was positioned on its right side was absent from the prosecutor’s brief memo. However, although Dr. Rodriguez also avoided ever testifying at trial as to how the body had been positioned at the burial site, his testimony did indirectly confirm that Hae had been buried on her side:

Dr. Rodriguez: Well, here we see in this photograph a number of the leaf debris has been brushed away. We can see we’re beginning some excavation to trowel out around the body producing its outline. You can see the leg here bent at the knee (1/28/00 Tr. 164).

If the body had been laid out frontally, in a way that could have been consistent with the livor mortis findings, then photographs would not have been able to depict the leg “bent at the knee” unless the leg had been sticking straight up in the air — a fact which I assume would have been noted, had that been the case.

Additionally, evidence that Hae’s body had been buried on its right side also comes from Jay’s initial statements to the police, and his descriptions of how Hae had been buried. Although Jay’s statements are useless when its comes to figuring out the truth of what happened on January 13, 1999, they are very useful when it comes to figuring out what the investigators knew about the crime, and when they knew it. Based on Jay’s first interview, the investigators knew that Hae had been buried on her right side, because they made sure that Jay specified those facts in his statement:

Detective: She’s face down, what side is she laying on?
Jay: Her right I think.
Detective: Right side?
Jay: Yeah. (Int.1 at 17-18.)

The detective’s obvious coaching of Jay’s statement shows that the detective, at least, knew that the body had been positioned on its right side.

Livor mortis was present only on the anterior surface of the body:

As noted in the autopsy report, livor mortis was fixed on the body’s anterior surface:

Rigor was broken to an equal degree in all extremities. Lividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure. [L]livor mortis was prominently seen on the anterior-upper chest and face . A poorly defined paranasal areas of dark discoloration of the skin was seen extending into the right face which approximately measured 1-1/2″ x 2″. (Autopsy Report.)

I have looked at the autopsy photos, and the Autopsy Report is accurate in how it describes the pattern of livor mortis. The only visible lividity is on the body’s chest and neck, and it is equal in both prominence and coverage area on the right and left sides. There is no observable lividity in the limbs, and there are no observable differences between the right and left limbs. In other words: everything about the autopsy findings is consistent with livor mortis.

Moreover, at trial, Dr. Korell testified that the body was on its front at the time livor mortis became fixed:

CG: [T]he livor you [observed] was frontal?
Dr. Korell: Yes.
. . .
CG: So that, that would tell you that the body was face down when the livor was fixed.
Dr. Korell: Right.
. . .
CG: And that wouldn’t happen if the body post-death were on its side.
Dr. Korell: Correct.
CG: From your observations. . . [Y]ou can only tell us that livor fixed on the front of the body.
Dr. Korell: Correct.
CG: Which would indicate that at the time livor fixed, sometime post-death, that she was laid frontally.
Dr. Korell: Yes.
CG: And that’s all you can tell us.
Dr. Korell: Correct. (2/02/00 Tr. 69-70.)

Why Hae could not have been buried at 7 p.m.:

According to the prosecution, Hae was dead by 2:30 p.m., and buried at around 7:16 p.m. — a little under five hours after her death. However, as is generally accepted by every single person other than Urick who is familiar with this case, Hae was not dead by 2:30. Multiple witnesses saw her at school at 2:30 p.m., and at least two witnesses have stated that they saw her alive at school as late as 2:45 (Summer) or 3 p.m. (Debbie) that day. The earlier plausible time of death is about 3:15 p.m., which means that, if the state’s theory about the Leakin Park cellphone pings is correct, she was buried approximately 4 to 4.5 hours after death.

Why is this significant? Because it means that the only way she could have been buried in the 7:00 p.m. hour is if someone later came back, disinterred the body, rolled it onto its side, and buried it again.

The lividity on Hae’s body was found solely (and prominently) on her anterior, which means that for at least eight hours after her death, and possibly much longer, her body was laid out on its front. Only after the livor mortis had become fixed — at least 8 and possibly as much as  24 hours later — could she have been buried on her side as the investigators found her.

For a more in-depth analysis of the significance of the lividity findings, you need to read Evidence Prof’s comprehensive analysis of this issue. To summarize they key points, however,

After a period of time, usually not less than eight hours, sometimes a much longer period of time, the pooling of the blood, the lividity will fix in the tissues where it is settled up until about eight hours or so.

If one moves a body, if a body is found face down, and four or five hours after death this individual is found and the body is turned over, placed on the back, then the pooling of blood will change direction and start pooling toward the back. But after a period of eight to twelve hours, the blood is fixed in that location. So that moving the body will not alter the distribution of the lividity.

As this applies specifically to the current case, a forensic medical investigator had the following to say:

According to the forensic medical investigator, if Lee was in the trunk on her side for five hours or more, she would have a good deal of lividity indicating that she was on her side. Because the autopsy report showed that the primary lividity was frontal, she would have needed to be face down. If she was on her side for about five hours after death, she would have less lividity in the front, and they would have been able to say that she was moved from side to frontal exposure. Again, if the change in position was closer to four hours after death, the lividity could be more mixed. Finally, even if it took twelve hours for Lee’s lividity to become fixed, her lividity was all frontal, and this could not have happened in the trunk of a car unless she was somehow in a position that was consistent with solely frontal lividity.

Consequently, the only possible way Hae could have been buried at 7 p.m. is if the following series of events occurred:

1. By no later than about 4:30 or 5pm (depending on the timeline), Hae’s body was removed from the Sentra and laid out frontally;
2. Two hours later, the body was put back in the Sentra;
3. Sometime shortly after 7:16 p.m., Hae was buried in Leakin Park on her front; and
4. Someone returned at a later time after lividity had been fixed (which would have occurred anywhere between 11 p.m. on January 13th and 3 p.m. on January 14th, but owing to the cold conditions was more likely later rather than sooner), dug the body up, repositioned it, and then re-buried it again.

As there is no way to reconcile these events with either Jay’s timeline or the prosecution’s timeline (in which Hae’s body was left in the Sentra for 4 to 5 hours after death), the only plausible conclusion is that (a) Hae was not left in the Sentra for an extended period of time after her death; and (b) Hae was not buried at 7:00 p.m. on January 13th.

We do, in fact, have additional evidence that support the burial in Leakin Park taking place only after livor mortis had become fixed. In Jay’s interview with the Intercept, he had the following to say:

NVC: Ok. So then [after the pick-up at Best Buy] you and Adnan parted ways?

Jay: Yes. He left in his car and I was trying to collect myself at my [grandmother’s] house. I was pretty distraught, fucked up, feeling guilty for not saying nothing. I don’t know whether he calls me when he’s on his way back to my house, or if he calls me right outside the house. He calls me and says ‘I’m outside,’ so I come outside to talk to him and followed him to a different car, not his. He said, ‘You’ve gotta help me, or I’m gonna tell the cops about you and the weed and all that shit.’ And then he popped the trunk and I saw Hae’s body. She looked kinda purple, blue, her legs were tucked behind her, she had stockings on, none of her clothes were removed, nothing like that. She didn’t look beat up.

If the body looked “kinda purple,” then what Jay is describing took place several hours after Hae’s death, after lividity had already developed to a significant degree. This is consistent with a burial taking place in the early hours of January 14th, and not at 7 p.m. on January 13th.

b. Evidence from the Burial Site

The medical examiner’s findings are not the only evidence from the burial site that demonstrate the absurdity of the prosecution’s 7:00 p.m. burial theory. As discussed above, Prosecutor Murphy’s notes of Dr. Rodriguez’s description of the burial site provided the following:

Rocks piled on her. Area had been dug out. Dirt over it. Large rocks on body, one on hand.

The “large rocks” used in burying Hae’s body cannot be reconciled with Jay’s descriptions of Hae’s 7 p.m. burial, however, because there are no rocks larger than pebbles in the area immediately around where Hae was buried. The only rocks of substantial size are found in the Dead Run creek bed, which is about 50 feet past the grave site (1/31/00 Tr. 109). Someone who wanted to gather rocks would not just be able to walk back and grab them, however. Dead Run’s banks are steep and uneven, and the creek bed itself is about four feet lower than the bank edge. Getting down to the bank to collect rocks would require an awkward scramble, and then climbing back out again while holding onto large rocks would be even trickier. In the dark, with no moon and no flashlights, it would be a treacherous and messy process; it could not be done either quickly or without getting scratched up and muddy.

Moreover, Jay also says there was snow on the ground when he and Adnan were burying the body. However, the temperatures had reached a high of 57 degrees on the day of the murder — any snow on the ground would have been melting, and melting snow would have resulted in even more mud, and even more treacherous footing, than there otherwise would have been.

After spending half an hour digging a hole in hard ground, and then spending however much longer scrambling up and down the Dead Run banks to gather rocks in the creek and carry them back to the burial site, the mud and dirt on their clothes would have been noticeable. In order to avoid attracting considerable attention after the burial, they would have needed very much to change their clothes before being seen in public again.

c. Traffic Conditions Make a 7 p.m. Burial Time Highly Implausible

The road that runs through Leakin Park, and off of which Hae was buried, is not a highway, but it is no desolate back road, either. North Franklintown Road is a by-pass street with significant traffic, and during the evening rush hour there would have been a steady flow of commuters driving by. A car pulled over on the side of the road for longer than a few brief moments would have been noticed, and brought unwanted attention. More importantly, however, there is no possible way someone pulled over on the side of N. Franklintown Road could have removed a body from a trunk without running a huge risk of being seen by a car passing by. (Moreover, as the burial site is positioned just after a bend in the road, anyone at the pull-over spot would be unable to tell if a car was just about to approach from that direction! Even if there was a break in the traffic, there would be no way to know how long it might last.)

Despite this, the prosecution wanted the jury to believe that Adnan would have pulled his car over to the side of N. Franklintown Road, during  the tail-end of the evening rush hour, and then pulled Hae’s body out of the trunk by himself before somehow dragging or carrying it back into the woods — all without being seen by the many cars that would have been driving past at 7pm. This did not happen; it is crazy to think that someone trying to bury a body would have been that reckless, or, if they were that reckless, could have carried out the murder and buried the body without being seen by anyone.

d. The Witness Statements from Jay and Jenn

When the police interviewed Jenn and Jay, on February 27th and 28th respectively, their stories were remarkably consistent with respect to Jay’s alibi during the probable time of Hae’s death, but were irreconcilable with regard to the series of events that took place later that evening, and, in particular, where Jay went after burying Hae’s body and ditching Hae’s car. Jenn told the police that she picked up Jay from Westview Mall at 8 p.m.; Jay, in contrast, told the cops that he went home immediately after the burial and Jenn picked him up from his house.

These are completely different stories, and both cannot be true. Or rather, both cannot be true if you accept the prosecution’s theory of the 7 p.m. burial. Once you strip away the artificial timeline imposed by the investigators, though, both of their versions of events can easily be reconciled: Adnan dropped Jay off at Westview at 8 p.m., and Jay went immediately home after burying Hae. This is because Jenn and Jay’s statements were descriptions of two completely separate events, which had occurred at two very different points in time. Jenn’s story takes place at 8 p.m., when she picks Jay up from Westview Mall, after Jay and Adnan had spent the evening hanging out together. Jay’s story takes place many hours later, after he finishes up with burying the body in Leakin Park in the early morning hours of the 14th, and immediately heading home to change his clothes, due to the dirt he was covered in.

Let’s start with Jenn’s statements. On February 27th, Jenn told police about the day when Adnan’s cellphone had made several calls to her home phone. According to Jenn, she had hung out with Jay in the middle of the afternoon, and that after leaving her place “well after 3:45 p.m.,” he later paged her around 8 p.m., asking her to pick him up from Westview Mall. When she got to the mall, Adnan and Jay pulled up, and Jay hopped out of Adnan’s car and got into hers, at which point Jay launched into the story about how “Adnar killed Hae” [sic].

What Jenn doesn’t say is that Hae had been buried at 7:00 p.m., or that her body had been buried in Leakin Park, or that she had even been buried at all. The detectives — misled by their erroneous fixation on the 7:09 and 7:16 p.m. calls — interpreted Jenn’s statements as a description of how the burial had, indeed, taken place shortly after 7:00 p.m., in accordance with their interpretation of the phone records, but that’s an inference that they drew, not a statement that came from Jenn.

Because according to her, Jay’s story about what he and Adnan had done in the 7:00 p.m. hour had involved travelling to the city to be dropped off at “some broad’s house”:

Detective: When he made reference to going down into the city he said he dropped him off at some house and he had to pick him back up, did he say whose house that he took him to?

Jenn: No, ah he did say to a different broad’s house, he said a different chick’s house, chick’s house.

So according to Jenn, Jay told her that he and Adnan had been visiting “a different chick’s house” in the 7:00 p.m. hour. Jenn’s statement therefore does not corroborate the 7:00 p.m. burial theory, because she is very clear that she has no idea what Adnan and Jay were up to prior to her picking him up at Westview. At trial, Jenn stood by her February 27th statement to the police, and told exactly the same story about what had happened regarding the pick-up in Westview Mall:

Detective: About what time, if you know, did you receive that message from Jay?
Jenn: About eight o’clock . . . he paged me to tell me to come pick him up at Westview Mall parking lot.
. . .
Detective: So at some point then you picked up Mr. Wilds?
Jenn: Yes.
Detective: And where was that?
Jenn: In front of Value City at Westview Mall.
Detective: Was anybody with Jay?
Jenn: Yes.
Detective: Who was that?
Jenn: Adnan.
Detective: . . . Did you have any conversation with Adnan at that point?
Jenn: He spoke and said hello.
Detective: Where did you first see Adnan and Jay?
Jenn: In front of Westview Mall in the Value City parking lot.
Detective: In the parking lot. Were they walking?
Jenn: No, they were in the car. They pulled up after I was parked there.
Detective: Who was driving?
Jenn: Adnan.
. . .
Detective: What happened next?
Jenn: Jay got in the car and we left the parking lot.
Detective: How was Jay behaving at that point in time?
. . .
Jenn: He didn’t act normal, no, not like normal, not yet. (2/15/00 Tr. 190-93.)

Notably, Jenn’s description of Adnan does not fit someone who has just killed his girlfriend in a jealous rage, buried her body, and then flipped through her wallet searching for cash before tossing it in a dumpster. In contrast with Jay’s odd behavior that evening, Jenn said that Adnan had “acted just normal,” during their short encounter at the mall, and that nothing about him or his appearance had stood out to her (2/16/00 Tr. 137). What Jenn is describing is someone casually dropping a friend off before going on his own way for the evening — because that’s exactly what the pick-up at Westview Mall was.

The detectives ignored numerous other indications from Jenn’s statement that should have alerted them to the fact that the burial in Leakin Park had not occurred minutes before Jenn picked Jay up at Westview Mall. For instance, Jenn told the police that she noticed nothing unusual about either Jay or Adnan at the time of this encounter:

Detective: Did you notice anything about his clothing, that ah, there were disheveled, soiled, or anything like that?

Jenn: No, they didn’t look dirty. They didn’t look any different than they normally looked, than they looked before, like when he got to my house at one or one-thirty, they didn’t look any different than then. (Jenn Int. at 15.)

That Adnan and Jay did not look disheveled or soiled is a serious mark against the prosecution’s 7 p.m. burial theory. If Adnan and Jay had — contrary to logic, reason, and medical science — actually buried Hae at 7 p.m. and covered her body with rocks, they would have been noticeably filthy.

Jay’s own statements confirm this. During all three of his recorded police interviews, Jay’s story was remarkably consistent as to one important detail: after burying the body and ditching the car, the first thing he did was to go to his mother’s house.

In Jay’s first statement, his description of how Hae was buried ends with him driving himself home, in Adnan’s car:

Detective: Okay, so he parks the car there, he gets all these articles belonging to Hae Lee, out of the vehicle?
Jay: Yes.
Detective: Then what happened?
Jay: Um I said “fuck this” and drive myself home and on the way home he’s like “stop here, stop behind.”
Detective: He gets in the car with you?
Jay: Yes.
Detective: Okay
Jay: And 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.
Detective: Where did you discard the clothing?
Jay: Um I put mine in the trash at my house, put it out in the trash?
Detective: Why did you do that?
Jay: I didn’t want to be roped up in anything, anyway, anyhow.
Detective: Since this happened back on January the 13th.
Jay: Yes. (Int.1 at 22.)

(Note that this is, in some respects, very similar to his trial testimony. At the second trial, Jay stated that he threw his clothes away because of concerns about the dirt, and when asked “what significance would dirt have had,” Jay stated that, “It would have tied me in. It could have placed me wherever. I didn’t want to have anything to do with it.” This seems to be exactly the same sentiment he was expressing in his first interview.)

In his second statement, Jay began to incorporate details from Jenn’s interview — which would have either been supplied by the investigators or by Jenn herself — but he continued to maintain that Adnan dropped him off at home, and Jenn then picked him up from his house:

Jay: We drive for a couple of dumpster down, he pulls them out of the back seat places them in the dumpster.
Detective: Then what do you do?
Jay: From there um, we leave, we go up Route 40. On the way up Route 40, I think I may have paged my friend Jen, back to, paged her from his phone to my house. Um, I get out of his 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.
. . .
Detective: Jenn had come over to your house to pick you up?
Jay: Yes, ah- huh.
. . .
Detective: And you got in the car with her.
Jay: Yes.
Detective: And you were gonna dump your clothes?
Jay: Yes.
Detective: And what dumpster did you go too?
Jay: F & M, the one behind the ah, F & M inaudible on Route 40.
Detective: And what did you throw in there?
Jay: All my clothes , it was ah, they were in a giant plastic bag. (Int.2 at 39, 41.)

In Jay’s third interview, he repeated the same story, as shown by the police notes taken during his statement:

Dumpster, blue.
Adnan thru [the shovels] in,
Adnan drives out to [Route] 40, then home. (Int.3 at 24.)

At trial, Jay changed his story and claimed he — and not Adnan — threw the shovels in the dumpster, but other than that, he gives the same story as he did in his statements:

Urick: What if anything did you do next?
Jay: I told him to pull over out back of Value City [at Westview Mall]. I took both of my shovels. They were mine but I just chucked them, threw them. What if anything did you do next? I believe I told him to take me around to the front of the mall. I think I might have paged Jenn from there again but I can’t quite remember. I believe he took me home. I may have paged Jenn from the front of the mall but I believe he took me home. I got to my house and I was in my house for maybe five minutes. I instantaneously changed all my clothes and put them all in a bag. (2/4/00 Tr. 157.)

Jay also confirmed that the reason he “instantaneously” changed all of his clothes after the burial was because of the dirt on him:

CG: Well Mr. Wilds, you’ve told before that you threw away your clothes because you were concerned what they might show, right?
Jay: Yes. ma’am.
CG: The dirt, right?
Jay: Yes, ma’am. (2/11/00 Tr. 89.)

Consistency is a scarce commodity when it comes to Jay’s statements; the few times he is consistent are therefore worth paying attention too. Again and again, Jay has said exactly the same thing — that after the burial, he immediately went home, changed out of his clothes, and put them all in a bag. I don’t say this often, but when it comes to his statements about what happened after finishing up with the burial and ditching Hae’s car, well, I believe Jay. He tells a logical and consistent story that is not contradicted by any physical evidence or reliable witnesses, and the list of Jay Statements for which that can be said is very short indeed. In fact, that may be the only statement on it.

Moreover, Jay’s claim about immediately going home after the burial is wholly consistent with Jenn’s statements — if it is understood that the burial happened late on the night of the 13th or early in the morning on the 14th. Because Jenn also says that she picked Jay up at his house, and then drove him to a dumpster. It is just that she claims this happened on January 14th, not January 13th:

Jenn: Um and at sometime during the 14th, on that day I went to see Jay again, at his house. I picked him up and ah 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, which is actually I think maybe behind the baby store rather than F & M. I don’t, inaudible the parking lot and we parked pretty far to the end of the shopping center and Jay threw his clothes boots in the dumpster. Got back in the car. (Jenn Int. at 23.)

Jenn repeats this story at trial:

CG: What happened when you saw Jay the next day?
Jenn: He asked me about taking him to F & M.
CG: Did he say why?
Jenn: He wanted to go to F & M and he wanted to go I guess back to get rid of the clothes and boots that he had on. (2/15/00 Tr. 98.)

Also significant is what is omitted from Jenn’s stories — which is anything involving Jay changing his clothes after she picked him up from Westview. According to Jenn, after she gets Jay from the mall, Jay goes to visit Stephanie’s, goes to a sorority party at UMBC, and goes to Cathy’s house. If the burial took place at 7:00 p.m., then Jay did all of this while wearing the muddy clothes he wore while burying Hae in Leakin Park!

But if the burial took place in the early morning hours of January 14th, then Jenn’s and Jay’s statements fall into place one another: (1) Jay immediately went home after the burial; (2) Jay immediately took off his clothes, because of the dirt; (3) Jenn picked Jay up at Jay’s house after the burial; and (4) Jay asked Jenn to take him to the F&M dumpster so he could throw away his clothes.

And if all of this evidence disposal was taking place on the 14th, this means that the 8 p.m. pick-up at Westview Mall was nothing more than a mundane end to a mundane evening of hanging out and smoking weed. It was not the culmination of a frantic body burial and car disposal, which is why Jay did not change his clothes after. Similarly, the reason Jenn said that Adnan “seemed just like he normally seems” during this encounter was because Adnan was, in fact, just like he normally was.

e. Wiping Down the “Shovel or Shovels”

As discussed above, there are numerous reasons why Jenn’s February 27th police statement does not support the 7 p.m. burial theory. In contrast, the only portion of Jenn’s statement that provides even the barest support the detective’s claims about a 7 p.m. burial comes form her garbled and confused references to shovel(s) at Westview Mall:

Jenn: Jay said “I don’t know where he took the body um but he used my shovel” or shovels. I don’t know whether it was one or two . He’s like, “Well, I know where the shovel or shovels are,” and I said, “Okay, so what do you want me to do?” He says, “Will you take me to the shovels or shovel,” and I said “Sure. Where are the shovels or shovel,” and he said “they are at the mall parking lot.”

This could be read to imply that the burial had already occurred by the time of the 8 p.m. pick-up — and that’s exactly how the investigators choose to interpret it. The nonsensical nature of this portion of Jenn’s tale shows that something is amiss with what she was saying, however. Why would Jay have needed to pretend to leave Westview Mall, before he could go back and wipe down the shovels? When did Jay and Adnan have an opportunity to throw the shovels away in the Westview dumpsters, if Jenn arrived at the mall before they did? Why does Jenn keep forgetting when the shovel wipe-down happened, and changing the order of events in which it occurred?

The answer is that the pick-up at 8 p.m. and the wiping down of the shovels occurred at two separate times. Jay’s own testimony shows that Jenn took him to the dumpster where the shovels were at the same time that she took him to throw away his clothes at the F&M dumpster:

Jay: My mother kept trying to talk to me. I was real agitated. I just left real quick. I got into Jenn’s car and I told Jenn to drive back around to the shovels. I was getting real panicky like, paranoid. She drives back around to the shovels. I wipe both the shovels down with the sleeve of my coat. I take the coat that I wipe them down with and I put it in the bag. (2/4/00 Tr. 158.)

Jay is clear that Jenn picked him up at his house before taking him to the mall dumpsters to wipe down the shovels. So why, then, does Jenn’s police statement include the confused references to leaving the mall, before immediately turning around to wipe down the shovels? For the same reason that many of Jay’s statements are confused and garbled: the pre-interview. Much has been made of Jay’s pre-interviews — the portions of his police interviews that took place before the tape recorder was turned on — but what has been overlooked is that Jenn also had an unrecorded pre-interview session with the detectives, lasting approximately two hours and 45 minutes:

On 27 February 1999, at approximately 1300 hours, Detectives William F. Ritz and Gregory S. MacGillivary had the occasion to respond to the home of James Fowley, attorney, of the Law Offices of Fowley and Selkey.

Mr. Fowley indicated that he was representing one Jennifer Pusateri who had information concerning the death of Hae Min Lee.

An interview was conducted as to Ms. Pusateri’s knowledge of the homicide currently being investigated.

Subsequently, Ms. Pusateri along with her attorney responded to the Offices of Homicide where a taped interview was conducted.

Note that, at the beginning of Jenn’s recorded interview, the time given by Detective MacGillivary shows that nearly three hours has elapsed since the start of the pre-interview:

Detective: Today’s date is the 27th of February. It’s approximately quarter of four in the afternoon. We’re currently at 601 E. Fayette Street, ah the offices of Homicide, specifically ah the Colonel’s conference room. (Jenn Int. at 1.)

Whatever took place in the 2 hours and 45 minutes between the start of the pre-interview and the start of the recorded interview is, by design, largely unknown. We do know, however, that Jenn was shown at least some, and maybe all, of the call records from Adnan’s phone — and based on her confused statements about the shovels, it seems she was also exposed to the detectives’ erroneous 7 p.m. burial theory.

f. Jay’s Clothing

Jay’s story about changing his clothes immediately after the burial is one of the few stories he ever manages to tell twice (and one of the even fewer stories he manages to tell in at least the majority of his statements). It is also a detail the detectives would have had no motive to encourage Jay to include in his statement, and is not a statement that benefits Jay in any particular way. It should be taken seriously — or at least, if Jay’s story is to have even the tiniest shred of credibility, it should be taken seriously.

Because if Jay cannot be believed when he repeats the same chronology of events in every single statement he has ever given, when he has no reason whatsoever to lie about those events, then nothing of Jay’s story should be believed at all. Jay consistently stated that the clothes he was wearing during the burial — and that, afterwards, he threw into the dumpsters behind F&M — consisted of “tan jeans,” boots, and a “wool plaid coat”:

Detective: Which articles of clothing that you had on that you put in the bag?
Jay: Um, plaid coat, ah, tan jeans, and a pair of boots. (Int.2 at 41.)

And:

Detective: Do you recall what type of clothing you had on?
Jay: Ah um I think I had on a pair of tan jeans, some work boots and a plaid coat, like a wool plaid coat. (Int.1 at 21.)

However, while Jay is uncharacteristically consistent about what he was wearing when he buried Hae in Leakin Park, it does not match the statements from other witnesses. Jenn, for example, stated that Jay had been wearing all black when she picked him up from Westview Mall:

Detective: Do you recall what Jay was wearing?
Jenn: I guess it’s like a black pair of pants . . . they’re khaki-type pants, [ ] but they’re black, and a black button-down shirt, short sleeves, all black I guess. (Jenn Int. at 11.)

Similarly, Cathy told the police that when Jay returned to her apartment later that night with Jenn, at around 10:00 or 10:30 p.m., he was wearing the same clothes that he had been wearing earlier that day, when he came to her place with Adnan:

Detective: When Jay came back [with Jenn] was he wearing . . . the same outfit he had worn when he first appeared in your apartment?

Cathy: I would have noticed if he had changed his clothes, so I am that no,  it was the same outfit. (Cathy Int. at 16.)

All of these apparent inconsistencies evaporate, though, if it is understood that the burial took place after — not before — Jay’s visits with Jenn and Cathy on the night of January 13th.

g. Cellphone Records

As a result of the prosecution’s decision to use a limited form of the cellphone data, rather than to use the more comprehensive records that were available to them, whatever evidentiary value the location data might have had was significantly diminished. As I have previously discussed, the call records used by the prosecution were not the Call Detail Records (CDRs) typically used in criminal cases or produced pursuant to subpoenas, but a more limited form of billing record, of uncertain origin. This may be why AT&T prefaced those records with a fax sheet specifying that “[a]ny incoming calls will NOT be considered reliable information for location” — it could be the result of known problem with that particular dataset, or the way in which that type of billing record was recorded and reproduced. We just don’t know, because no one ever looked into it.

The records that AT&T could have produced — and what the prosecution should have had AT&T produce — were the more detailed CDRs providing data such as the numbers for incoming calls, and the cell tower that phone calls started and ended on. These records might also not have been subject to whatever data limitations were present in the records used by the prosecution, and which caused AT&T to include a disclaimer as to incoming call reliability.

But even aside from the question of incoming call reliability, the prosecution should have acquired the detailed CDRs data showing location data for both points: what tower the phone was using when the call started, and what tower the phone was using when the call ended. AT&T no longer has that information, and it is unavailable now, but it is clear that the data existed in 1999 — and was presented in some form to the investigators.

The problem is, the tower data on the detailed CDR records has been redacted in the copy that was handed over to the defense before trial:

Had it been produced in its entirety (rather than produced with half the page cut off), this document would have resembled the Subscriber Activity Report seen here, which was produced by AT&T in a different case. On these records, the ICell column identifies starting tower, and LCell column identifies ending tower; information for only the start or the end of each call (it is unclear which) is all that was provided on the records used by the prosecution.

I have no idea who redacted the tower data, but if AT&T did so, I’m not sure how to explain it — because this document was produced in response to a subpoena requesting AT&T to produce the addresses for “(13) cell site locations.” In other words, at the time this document was requested, the investigators already knew that there were 13 tower sectors that Adnan’s phone had pinged on January 13, 1999, which is something they could not have known without already having the tower names (if not the addresses) in their possession.

AT&T might still have redacted the tower names for unknown reasons, but even so, the investigators should have gone back to request that this detailed form of the location data be produced. Without knowing the starting or ending locations of calls, there is no way to determine whether the phone was stationary or in a moving car at the time of the call. This means that, whether it was through design or ignorance, the cellphone records used by the prosecution were of even more limited relevance than they should have been. Because for all we know, had the data in the ICell and LCell columns not been redacted, it would have shown that Adnan’s phone was connecting through a tower miles away from Leakin Park by the end of the 7:16 p.m. call. Or maybe not. The point is, that data would have been useful, and could even have been exonerating, and we will never know. But the detectives’ entire theory of the 7:00 p.m. burial was based upon the 7:09 and 7:16 p.m. calls, and that theory might have been conclusively refuted by the cell records, had an unredacted copy of the records been available.

h. Jay’s Testimony Concerning the 7:09 and 7:16 p.m. Calls

Jay told the police that after getting Hae’s car from the Park’n’Ride, Adnan told him to go wait for him at McDonald’s, while Adnan took care of some unspecified task. Jay, always obedient to Adnan, obliged his request, and headed back to the McDonald’s near the Best Buy, where he waited for 20 minutes before Adnan finally showed up again in Hae’s car. Jay then followed Adnan as they drove around for 45 minutes, aimlessly exploring west Baltimore. Jay even told the police that he and Adnan made a second Patapsco trip during this time period.

Everything Jay described was a complete lie, however, if Hae was buried at 7 p.m. Why? Because of the 6:59 and 7:00 p.m. calls to Yaser and Jenn respectively. Since the phone calls were only a minute apart, and since only Adnan would call Yaser and only Jay would call Jenn, Jay and Adnan must have been together at the time. This means that, according to Jay’s story, those two calls must have been made either while Adnan and Jay were driving up to the Park’n’Ride (or possibly while stopped at the McDonald’s) — after which Jay and Adnan spent 45 minutes driving around town, in separate cars. As Jay also claims that he had Adnan were busy digging Hae’s grave when the 7:09 and 7:16 calls were received, however; there is no way they could have driven around for 45 minutes after leaving the McDonald’s, and then nine minutes later been  busy digging a hole in Leakin Park.

But if the burial took place late that night, Jay could easily be describing something that actually happened, when those involved in the murder drove all over west Baltimore at 2 or 3 a.m., trying to find somewhere to bury Hae’s body.

The phone records prove Jay’s story about the 7:00, 7:09, and 7:16 calls to be false in another respect, as well. At trial, Jay testified that the 7:00 p.m. call had been made after he and Adnan dug a hole, and while he was about a half-mile away from Adnan, parked up on Briarclift road:

KU, referring to the call log: Do you recognize th[is] number?
Jay: Yes . . . That’s [Jenn’s] old pager number.
KU: And please look across and tell us the time of the call?
Jay: Seven o’clock, seven and twenty-one seconds.
KU: And the length of the call?
Jay: Twenty-three seconds.
KU: With the court’s permission, I’m going to write “Pusateri pager” on line twelve. . . . Do you remember that page?
Jay: Yes.
KU: What were you doing?
Jay: I was sitting, waiting for Adnan to come back up the hill when I placed that page. (2/04/99 Tr. 149-150.)

In testifying that he was on Briarclift at the time of the 7:00 p.m. call, Jay either committed perjury, or provided proof that the prosecution’s cellphone evidence was meaningless data that cannot be used to prove anything about the cellphone’s location — because the 7:00 p.m. call originated on L651A, the Woodlawn tower, and according to the expert witness’s test results, it would have been impossible for a call from Briarclift to originate on L651A.

Then again, we don’t even need the cellphone data to show that Jay is lying about this call. If Jay had the phone with him on Briarclift while Adnan was a half mile away at the gravesite, moving Hae’s body into the grave, how did Adnan make the 6:59 p.m. phone call to Yaser?

i. Other Evidence

Jay’s, Jenn’s, and Cathy’s statements and testimonies are littered with details that suggest or are consistent with a burial that occurred much later than 8 p.m. on January 13th. None of these details, on their own, disprove the detectives’ 7 p.m. burial theory. For instance, Jay described, in multiple statements, how he paused to take smoke breaks while burying Hae:

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. (Int.1 at 18.)

The problem is, according to Cathy, Jay left his smokes at her place:

Detective: When did [Jenn and Jay] come back [to your apartment]?
Cathy: It was no later than 11:00, um I’m thinking like around 10 or 10:30, but I can’t be really sure. It was a while after um, Jay and Adnan had left, but Jay had left his cigarettes and his hat there, so I was assuming that Jay was going to come back for them at some point. (Cathy Int. at 14.)

Sure, maybe Jay happened to have two packages of cigarettes on him that day — or maybe the cigarettes he was smoking were the ones he recovered from Cathy’s house, after returning there with Jenn.

I could go on with these kinds of examples all day, but here are a few more:

• Jay is consistent that the digging tools came from his house (although whether the digging tools are two shovels, or one shovel and one pick, changes depending on the story), but Jay alternates between saying that he picked up the shovels and puts them in the car, and saying that Adnan picked up the shovels and put them in the car. This could suggest different people involved in the shovel pick-up scenario, as Jay as difficulty keeping who did what straight.

• Jay repeatedly mixes up the order in which he and Adnan pick up the shovels and pick up Hae’s car from the Park’n’Ride, suggesting that his memory of the order of these events may have been fabricated.

• In Jay’s first interview he never specifies what time the burial in Leakin Park occurs. Although he gives a rough chronology of events, he avoids stating when events in the park took place.

• Jenn remembers that it was raining when Jay asked her to drive him to the dumpsters to throw away his clothes, which is consistent with the clothes being thrown away on the 14th.

j. The Intercept Interview

Lastly, Jay’s most recent statement, in his December 2014 interview with the Intercept, provides even further support that the burial took place sometime much later than 7 p.m. on January 13th. Prior to Serial, Jay had given six statements about his involvement in Hae’s murder and the subsequent cover up. Four of these statements were in police interviews (February 28th, March 15th, March 18th, and April 13th), and two were in his testimonies at Adnan’s trials. During all of these statements, Jay was faced with significant pressure and direction from the detectives and the prosecution, and his story adapted like a mimic octopus to fit whatever narrative was desired by the authority figure he was dealing with.

Consequently, despite the multitude of Jay statements that already existed, Jay’s interview with the Intercept was the very first time that Jay had ever told his story while free of any external pressures or influences. As a result, Jay’s statements to the Intercept deviated significantly from his earlier testimony — and in many respects appear to have been the most truthful account that he has given yet.

Jay told Natasha Vargas-Cooper that, after leaving Cathy’s place that evening, he “d[idn’t] remember if he dropped me off at my house or if I got a ride from somebody else,” but that he and Adnan then went their separate ways. This part is wholly consistent with Jenn’s story about Westview Mall; after leaving Cathy’s, Adnan dropped Jay off at Westview, where he got a ride with Jenn. Jay also said, in the Intercept interview, that after that he and Adnan went their separate ways, Adnan did not show up again until hours later, when he showed up to ask Jay for help with burying the body:

NVC: Did you go to Leakin Park immediately after agreeing to help?

Jay: No. Adnan left and then returned to my house several hours later, closer to midnight in his own car. He came back with no tools or anything. He asked me if I had shovels, so I went inside my house and got some gardening tools. . . . So, as I’m riding with him to [Leakin] park and it starts raining and I’m thinking to myself as he pulls over—and I’m thinking this is the spot he’s chosen [to bury the body].”

Jay’s new statements fits the available physical evidence in a way none of his previous statements ever did, and is far more coherent besides. First, we know that it was not raining on the afternoon of the 13th, but that it did begin to rain a little after 4am on the morning of the 14th — consistent with the story Jay told the Intercept. Second, a burial at around 4 a.m. is also perfectly consistent with the medical examiner’s findings concerning lividity. And, third, if you’re going to bury a body off of a busy road, 4 a.m. is a pretty good time to do it, especially when an ice storm is on the way in.

-Susan

For those watching the Docket’s one-hour Serial special today — available to watch online on Shift by MSNBC (part 1) (part 2) — here is a complete set of the maps that we discuss during the show, to help you follow along with Jay’s non-chronological testimony concerning Adnan’s cell records:

-Susan

p.s. A big thanks goes to EW for her stellar work in creating these maps!

Trial Transcripts: Since Rabia is out of the country at the moment, and since there are transcripts that are overdue for release, Rabia asked if I could post the next batch of transcripts:

• February 4, 2000: Inez Butler (direct and cross) and Jay Wilds (direct)
• February 14, 2000: Jay Wilds (cross, continued)
• February 15, 2000: Jay Wilds (cross, continued) and Jenn Pusateri (direct and partial cross)
• February 16, 2000: Jenn Pusateri (cross, continued)

According to Serial folklore, the reason Adnan became a suspect in Hae’s murder was all due to an anonymous call made the day after Hae’s murder was announced in the media. On February 12, 1999, at 3:19 p.m., Detective Massey received a phone call from an “Asian Male 18-21 years old[ ] who advised investigators should concentrate on the victim’s boyfriend.” It was only after this phone call that the police began to zero in on Adnan as a suspect.

Or so the story goes. The police files, however, tell a different story. They indicate that Adnan was already a suspect before the anonymous call ever came in. In fact, the police files indicate that Adnan was the only suspect that was ever considered. As of February 11th, the police already seem to have decided that Adnan was responsible for Hae’s murder.

The Curious Case of Mr. A and the February 11th Printout

The earliest indication that the police were investigating Adnan comes from a one-page printout of a motor vehicle database search. The search had pulled up registration details for Adnan’s Honda Accord, and the time stamp and terminal ID on the printout show that it was generated on a a computer in the Woodlawn police station on February 11, 1999, a little after 8:00 pm.

On the same evening that the printout was made, a man had walked into the Woodlawn police station to report that he had witnessed something he believed to be connected to Hae’s murder. The man — “Mr. A” — told the police that had seen suspicious activity while in Leakin Park, and that he “had heard of the recovery of a woman’s body in Leakin Park on the TV news and wanted to help.” The officers at the Woodlawn station called the Homicide Unit down in Baltimore, since the city now had jurisdiction over the offense. Detective Ritz and Sergeant Lehmann drove out to Woodlawn to talk to Mr. A, arriving at the station at 9:45 pm. According to Lehmann’s report of the interview, Mr. A told them that he had observed

a [young black  male] driving a light colored automobile while in Leakin Park . . . acting suspicious near the concrete barriers blocking southbound traffic onto Weatheredsville Road from Windsor Mill Road, which is approximately a mile from the site of the victim’s recovery.

Lehmann’s report then summarily concluded that “investigators believe that this observance is not connected to the murder of Hae Lee.” However, Lehmann provided no indication whatsoever as to why the investigators believed that Mr. A’s report was not connected to Hae’s murder. Lehmann’s summary report also omits a number of crucial details about the interview with Mr. A, including (1) the date and time that Mr. A had seen this “suspicious” activity, (2) what the suspicious activity consisted of, and why exactly it had struck him as suspicious, or (3) why he thought that this event might have been connected to Hae’s murder.

As a result, the report itself provides no basis from which Mr. A’s story can be discredited, or from which it can be concluded that it is irrelevant to Hae’s murder. Based on the timing of his report, Mr. A probably went to the police station immediately after learning that Hae’s body had been found in Leakin Park. Although Hae’s body had been found on Tuesday, February 9th, it was not reported until the evening of Thursday, February 11th, when the story was covered in the evening news (such as in the media segment shown here). The timing of Mr. A’s report would therefore suggest that he had high level of confidence in the importance of what he had seen. After seeing a TV segment on a body being found in Leakin Park, he remembered the incident that he had observed, and — without delay — he immediately drove down to the police station to report what he had seen.

So what exactly caused the officers to reject his report as unrelated to the murder? The location of the suspicious activity that Mr. A reported cannot explain the officers’ dismissal of his story. Although it took place a mile away from where Hae’s body was found, it was a location that would have been an ideal spot to check out, for anyone who might be scouting out Leakin Park for a place to bury a body:

Google Street View of “southbound [ ] onto Weatheredsville Road from Windsor Mill Road.” Note that the concrete barriers referenced in Mr. A’s report were subsequently replaced with the yellow gate shown in this image.

If the location of the activity can’t explain why the police rejected Mr. A’s witness report, then perhaps instead it was the date on which Mr. A observed the activity that caused the police to dismiss his story. But if so, why would Sergeant Lehmann not have included that detail in his report? Besides, at this point, the police had no idea if Hae’s body had been the park for one week or four — if Mr. A had observed this any time between January 13th and February 8th, then it could have been related to the murder, and should have at least been investigated further before being dismissed out of hand.

So what was it then? Well, Lehmann’s sparse report does include two details from Mr. A’s statement which could explain why investigators rejected his story as irrelevant: Mr. A saw a “black male” who was driving a “light colored” car. If the police had already established that a Pakistani male driving a dark colored car was responsible for the crime, then Mr. A’s report would be irrelevant to the investigation, and could safely be dismissed as an unrelated occurrence.

The printout from the MVA database indicates that Mr. A’s description of the car was, at least, one of the reasons that his report was rejected:

Printout from MVA database, showing that on February 11, 1999 at 8:06 p.m., someone using in the Woodlawn precinct pulled up the vehicle registration records for Adnan’s 87 Honda Accord.

The scan of this document makes it a little hard to read, but the second line provides the VIN for the car — which, with a VIN decoder, the officers could use to look up the color of Adnan’s car.

While it isn’t odd that the police would have had a copy of Adnan’s vehicle registration records in their case file, what is odd is the date and time on which this registration record was obtained: February 11, 1999, at 8:06 pm. The scanner quality of the printout is not great, but a comparison between this printout and another printout — which uses an identical font and was also created on February 11, 1999 — shows that the printout of the Honda Accord’s registration details had in fact been done on February 11th as well. (The blue pixels represent the tag printout, and are overlaid on the date taken fro the sample printout.)

(And yes — for the record, I did compare the numbers on the tag printout with every other possible combination. The result was that the only number combination that matches is “021199.”)

From reviewing the rest of the police files, the time stamp on this printout is further evidence that the search of Adnan’s vehicle records was not something that had been pulled up as a routine matter. Every other printout in Adnan’s case file was made during normal business hours, from 9am to 5pm — so why, then, was a police officer printing out Adnan’s vehicle registration at 8pm on a Thursday evening? This indicates that the printout was generated in response to a particular event, and that an officer had been prompted at that time to look up the information, rather than for the purpose of making routine updates to a case file.

An event such as, for example, Mr. A’s walk-in report at the police station. We do not know what time he arrived at the Woodlawn stationhouse, but if his police report was prompted by an early evening news segment about Hae’s body being discovered in Leakin Park, then sometime around 8 p.m. would make sense. Although Lehmann’s report indicates that he and Ritz did not arrive at the Woodlawn station until 9:45 p.m., Mr. A could easily have arrived into the station a couple hours earlier in the evening — particularly if the Baltimore County officers had interviewed Mr. A themselves first before notifying the Homicide Unit. It would have also taken Lehmann and Ritz some time before they could have arrived at the Woodlawn station to interview Mr. A themselves, particularly as Ritz and MacGillivary appear to have been working a day shift at that time, and probably had to be contacted during their off hours to be notified of the witness.

Unfortunately for the Detective Ritz, the witness report turned out to be a dud. Mr. A saw a young black guy in a light car, but their suspect was a young Pakistani guy in a brown or black car. Ergo, what Mr. A saw could not have been related to Hae’s murder. Yes, Hae’s car could be described as “light colored” — but at this stage of the investigation, the detectives had never heard of the “trunk pop” story. As later documents indicate, the police seemed to have believed that it was Adnan’s car, not Hae’s car, that had been used to transport the body. (See, i.e., the vehicle processing report for Adnan’s car, noting that “Suspect along with witness used the vehicle to aid in the transport . . . of the victim’s body in the trunk section of auto.”). This would explain, then, the easy dismissal of Mr. A’s account: the investigators didn’t need to hear anything more from him, because what he had seen in Leakin Park had been the wrong car driven by someone of the wrong race.

Without knowing what time Mr. A arrived at the station, the connection between the tag printout’s timestamp and Mr. A’s police report cannot be conclusively shown. (Although a records request directed to the Baltimore County policy might go a long way to resolving the question.) Still, regardless of the exact timing, the fact remains that a police officer was investigating the details of Adnan’s car at 8 p.m. on a Thursday, only two days after Hae’s body was found — and why would the officer have done so, if Adnan was not a suspect? But why would Adnan have been a suspect on February 11th, when no anonymous phone call had yet been made implicating him in Hae’s murder?

One theory: although unpreserved in the documentary record, a request for Adnan’s cellphone records had already been made, which had alerted investigators to the existence of the two Leakin Park phone calls.

Following the Subpoena Trail, or, How the Investigators Came to Be in Possession of Adnan’s Cellphone Records Without Ever Issuing a Subpoena 

According to Serial, the detectives did not subpoena Adnan’s cellphone records until February 18, 1999, over a week after Hae’s body had been found in Leakin Park. This version of events, as told in the podcast, matches the “official” story of the investigation — that is, it matches the story of the investigation that was disclosed to the defense counsel.

But the police files produced in response to the 2014 MPIA request show that the first subpoena for cellphone records was not issued on February 18th, as the documents given to defense counsel claimed, but had instead been issued two days previously, on February 16th. Moreover, the files also show that, at the time this first subpoena was issued on February 16th, the police were — inexplicably — already in possession of at least some of Adnan’s cellphone records, despite the absence of any documentation concerning the source of this information.

In the state’s production of documents to Adnan’s defense counsel, the state included two police reports concerning subpoenas issued to Adnan’s cellphone provider. Those reports indicate that the first subpoena for cellphone records had been issued on February 18, 1999. In a Progress Report dated 2/18/99, MacGillivary wrote that:

On 18 February 1999, your investigator along with Detective William Ritz obtained a subpoena for the cell phone records of one Adnan Syed telephone # 410-253-9023 from Sgt. Michael Cannon H.l.D.T.F. The subpoena will be delivered on 19 February 1999 to Bell Atlantic Mobile Security, Cockeysville, Maryland.

In a second Progress Report, dated 2/20/99, MacGillivary wrote that a (second?) subpoena had also been served two days later, on February 20th:

In furtherance of the above captioned investigation, on 20 February 1999 at 1115 hours, this writer faxed a subpoena and court order to AT&T Wireless Communications, located 801 North Point Parkway, West Palm Beach, Florida 33407, (fax# 1-888-938-4715). The court orders request that AT&T Wireless provide this investigator with the cell site locations of calls that were made from telephone number (443) 253-9023 [Adnan’s cellphone number] during the time span of January 1, 1999 to present. This writer also asked that a directory of cell site locations associated with the requested information be provided for proper interpretation.

These Progress Reports were inaccurate and misleading, however. They do not indicate (and in fact, seem to be obfuscating) the existence of the prior 2/16/99 subpoena, in response to which AT&T had produced on February 17th Adnan’s subscriber information and call records:

Moreover, although the undisclosed 2/16/99 subpoena is the first documented request for cellphone records that is contained in the police file, the wording of the subpoena indicates that it was not the first ever request for cellphone records that investigators had made. Note the section of the subpoena in bold below:

You are therefore directed this 16th day of February, 1999, to furnish the name(s) address(s) for the following telephone number and (13) cell site locations, from January 1999 to present.

The investigators wanted addresses for “13 cell site locations.” This would indicate that, at the time the 2/16/99 subpoena was issued, the investigators already had information concerning Adnan’s cellphone records, including tower data, because on the day of Hae’s murder, Adnan’s cellphone made calls on 13 separate antennas. But how did the investigators know that on February 16th, when no documentation exists indicating a request had already been made to AT&T at that time, or that AT&T had produced documents in response to such a request?

To me, it looks a lot like someone in the Homicide Unit had already made some unofficial requests for cellphone data, and the phone company had obliged, even in lieu of a formal subpoena requesting production of that data. Perhaps it was something done over the phone, or through a contact in another government agency, but — somehow — the investigators seem to have known only about the significance of Adnan’s cellphone location data only few days after Hae’s body had been found.

The records in the MPIA files also suggest that investigators made an effort to camouflage the fact that previous requests for cellphone location data had been made. Let’s take a look back at the Progress Reports that were disclosed to defense counsel. In the first one, the 2/18/99 Progress Report, MacGillivary wrote, “On 18 February 1999, your investigator along with Detective William Ritz obtained a subpoena for the cell phone records of one Adnan Syed.” This is not an accurate statement. It also creates the (false) impression that the 2/18/99 subpoena was the first records request submitted by investigators. In fact, not only was the 2/18/99 subpoena not the first request for cellphone records that had been submitted by the investigation, it was not even a request for Adnan’s cellphone records at all! Instead, it was a request for the subscriber information for the people that Adnan’s cellphone had called.

The 2/18/99 subpoena. Numbers listed correspond to outgoing calls made by Adnan’s cellphone on January 12 – 14, 1999.

Note: MacGillivary seems to have been calling in a favor from someone with the Drug Enforcement Administration, because the subpoena was issued by the DEA, and not through the channels used by Maryland state agencies. The information requested in that subpoena, however, is clearly not Adnan’s cellphone records, as the 2/18/99 Progress Report describes — instead, it is a subpoena for the subscriber data of almost everyone that was called by Adnan’s phone on January 12th, 13th, and 14th. (Not all numbers called by Adnan’s phone are included in this subpoena, however. Intriguingly, Jenn’s home phone number is not included in this subpoena. Police notes also show that the investigators already knew who Jenn’s home phone number belonged to prior to the 2/18/99 subpoena.)

So why did MacGillivary incorrectly describe the 2/18/99 subpoena as “a subpoena for the cell phone records of one Adnan Syed”? It could be sloppy paperwork; nothing more than the result of an oversight, due to confusion with the February 16th subpoena, which did request Adnan’s cellphone records. But MacGillivary should have known that, as of February 17, 1999, AT&T had already faxed the Homicide Unit the subscriber information and call logs from Adnan’s cellphone — the 2/18/99 subpoena could not have been for Adnan’s cellphone records, when those had been sent over the day before. Here is the front page of the cellphone records sent to the Homicide Unit by AT&T on February 17th:

In addition to the subscriber information above, the fax records sent by AT&T on February 17th also included a record of all outgoing and incoming calls made from Adnan’s cellphone from January 11th through February 16th — but as I’ve discussed in a previous post, the location data for those records had been redacted. Now, it is possible that AT&T was responsible for those redactions, because on February 20th, a third subpoena is issued — this time with a court order compelling AT&T’s compliance. (Note: The fax record for the 2/20/99 subpoena show that it was sent at 11:15 a.m. on February 20th, which means this was the same subpoena that MacGillivary references in the 2/20/99 Progress Report.) This suggests that a court order was in fact needed to obtain the location data, and AT&T may have redacted the February 17th records.

But here is the problem with that scenario: if AT&T was responsible for the redaction of the starting and ending tower location data in the 2/17/99 records, then why does MacGillivary’s fax cover to the 2/20/99 subpoena indicate that he already possessed the cell site location data?

“Please include a cell site directory that corresponds with the sites listed.” In other words: MacGillivary already possessed a list of cell sites that Adnan’s phone made calls on. The Homicide Unit had already been given cell site information as of February 20th (although they seem to have lacked the directory which provided the addresses for those cell sites). But the only cell site records in the police file that pre-date February 20th look like this:

Although the redaction in blue (on the left, redacting phone numbers) was done by me, the redaction in black (on the right, redacting cell sites) was done by hand on a paper copy of the document; no unredacted version exists in the files. Yes, this particular copy of the cell records may have already been redacted when AT&T faxed it over on 2/17/99 — but if so, then where is the unredacted cell site location data that the investigators did have possession of on February 20th, as shown by both MacGillivary’s 2/20/99 fax cover and the 2/16/99 subpoena? Whether or not AT&T redacted this particular document, there should be, somewhere, a document that contains unredacted cell site data for at least some of Adnan’s cellphone records, which pre-dates February 20th. So where is it?

This is potentially a Big Deal. If the unredacted version of the 2/17/99 fax from AT&T showed, for instance, that one of the “Leakin Park calls” had originated on a tower miles away from Leakin Park, that would be exculpatory. It would show, at a minimum, that there would be no reason to believe the cellphone was in Leakin Park, as opposed to somewhere closer to another tower the call had connected through.

The Story of Adrian Syedd’s Traffic Violation, and Why It May Indicate That Investigators Had Adnan’s Cellphone Records Before Any Formal Request Was Made

In addition to the subpoenas themselves, there is another piece of evidence that suggests investigators had obtained Adnan’s cellphone records before any documented request for that data had been submitted. That evidence comes from the Maryland court records, which show that Adnan was issued a citation for a traffic violation on February 15, 1999. However, circumstantial evidence from the police files indicates that this traffic stop may in fact have been connected to the murder investigation, and, more specifically, to the investigators’ efforts to obtain his cellphone records.

First, on February 14, 1999, the police checked Adnan’s records on the MVA database once again. This time, rather than pulling up information based on Adnan’s vehicle registration, the police pulled up Adnan’s records based on his driver’s license:

On its own, this search is easily explainable based on the fact that, a couple days before, an anonymous call and been made implicating Adnan in Hae’s murder. It is not odd that Adnan’s driving history would have been pulled at some point, and added to the case file. The timing of this search, however, suggests that the police had a specific motivation for searching Adnan’s MVA records on that date, as the following day — February 15th — Adnan was pulled over for a seatbelt violation:

I wouldn’t have questioned whether this routine traffic stop was, in fact, simply a routine traffic stop, if it were not for one glaring error in the record: the police officer who made the traffic stop issued the citation not to “Adnan Syed,” but to “Adrian Syed” instead. Although the license plate indicates that this was in fact Adnan’s car that had been pulled over, both the street address an Adnan’s name are incorrect.

In regards to the misnomer, this was not the first time that this particular error has been made. It was the second. The first time was in Adnan’s cellphone records, in which AT&T had mistakenly recorded his name as Adrian Syedd:

The source of the error, in the context of the AT&T billing records, could be a result of AT&T’s billing software mistakenly misreading the first “n” in Adnan as “ri.” (This appears to be a potential problem that could still occur today — if I search my notes for the term ‘Adrian,’ I pull up about a hundred instances in which ‘Adnan’ is typed in a screenclipped image.) The error makes less sense in the context of a traffic citation, but maybe it could happen. What are the odds, though, that when Adnan was pulled over for a traffic violation just two days after becoming a suspect in a murder investigation, the police officer who issued the citation would make the exact same odd spelling error that was made on Adnan’s cellphone records — which the police would (officially) obtain from AT&T two days later, on February 17?

Instead of a coincidence, though, it could be an indication of a connection between the cellphone records and the traffic stop. The error in the cellphone records could potentially have been both motivation for the traffic stop, and the cause of the naming error — if, say, the traffic stop was used as a way to confirm Adnan’s possession of the cellphone associated with the records that had been  provided by AT&T.

If the investigators had somehow obtained Adnan’s cellphone data through the use of “unofficial channels,” then the fact that the subscriber information for those records was not listed under Adnan’s real name would have been the cause of some concern among the investigators. Because the records from AT&T were for someone named “Adrian Syedd,” and not for someone named “Adnan Syed,” the investigators may have needed confirmation that the subscriber data they had obtained did, in fact, belong to the suspect in their murder investigation. But, since this hypothetical cellphone data would not have come from official sources (no subpoenas had been issued yet), how could the investigators have proven that the cellphone records were for Adnan’s phone, without using “official” channels? In other words, how could they unofficially verify the accuracy of their unofficial records?

Pulling Adnan over for a traffic stop, and having someone make a call to his cellphone while that officer watched, would be one way of doing that. That would allow investigators to confirm that the cellphone records they had pulled did belong to the cellphone owned by their suspect (instead of by some unknown relative named Adrian). In support of this theory, there was in fact a brief incoming call made to Adnan’s phone at 12:11 p.m. — the same time listed as the time of the traffic citation.

If the scenario outlined here is what actually occurred, then the investigators’ testing would appear to have been a successful one, as the following day, on February 16, an official subpoena for Adnan’s cellphone records was issued by the grand jury. The investigators appear to have obtained whatever information they needed to proceed with an official request for Adnan’s cellphone records. The officer who made the traffic stop may have slipped up, however — and rather than writing down the traffic offender’s name as it was shown on his driver’s license, he wrote down the false name displayed on the cellphone records he was attempting to verify.

What All of This May Mean

From a review of the subpoenas and cell record data, it looks like: (1) the investigators had cell record data of an undisclosed nature and from an undisclosed source; (2) the investigators had identified Adnan as their suspect before any (disclosed) evidence  implicating him in the murder had been uncovered; and (3) MacGillivary had contacts with the Drug Enforcement Administration — an agency that was an early trailblazer in the use of cellphone location data as an investigative tool for law enforcement.

There are a few different things this could mean, but the question all of that raises for me is this: could Adnan have been identified as a suspect as a result of a warantless cell tower dump on L689?

-Susan

The following post is a collection of a few points of interest that I’ve mentioned elsewhere, in other forums, but have not yet addressed on my blog. In order to make everything available in a central location, I’ve expanded on those topics below, with links to source material.

The 5:13 p.m. Phone Call

In addition to the 33 calls that were disclosed in the phone records introduced at trial, additional records, provided by Abe Waranowitz but not introduced into evidence, disclosed the existence of an additional, previously undisclosed phone call made from Adnan’s cellphone on January 13, 1999.  AT&T’s dropped call records from January 13th show that a call made to or from Adnan’s cellphone was dropped, apparently due to reception issues:

The 5:13 p.m. call does not show up on Adnan’s phone bill, or on the cellphone records obtained by the prosecution, so there is no way to know if it was an incoming or outgoing call, or who might have been on the other line. The 5:13 p.m. call does, however, provide a more detailed context for the 5:14 p.m. call, which was an incoming call to voicemail. Adnan’s cellphone received or made a call at 5:13 p.m. that was subsequently dropped due to poor reception, and then (presumably) the person who had been on the other end of the line tried to call back at 5:14 p.m., but was sent to voicemail instead, as the phone did not have reception at that time.

The tower from which this call was dropped was L651A, which covers Woodlawn and the area around Woodlawn High School. The previous call, at 4:58 p.m., had originated on L654C, which roughly covers the area of Jay’s mother’s house — however, as an incoming call, that could also be an artifact of the unreliability of location data for incoming calls, making it uncertain where the phone had been before. These records indicate that the 4:58 p.m. call was likely from Adnan asking Jay to pick him up at 5:30 p.m., which was the typical time that track practice ended. After receiving the call, Jay (along with the cellphone) then migrated up towards Woodlawn to pick Adnan up, so that, at 5:13 p.m., the phone was in the area covered by L651A.

The Real Nisha Call

The real Nisha Call was not the 3:32 p.m. call on January 13th, but a call that occurred at 7:17 p.m. on February 14th. That call — unlike the call made to Nisha on January 13th — is consistent with the cellphone records, with Nisha’s testimony concerning the nature of the phone call, and with Jay’s work records.

The Real Nisha Call

The cell records show that, at the time of the February 14th call, Adnan’s cellphone was in the vicinity of the video store where Jay worked — consistent with Nisha’s recollections of what was happening at the time of the phone call.

Jay’s work schedule, provided by his manager at the video store where he worked, confirmed that Jay was working at the video store at the time of the February 14th call:

This phone call matches Nisha’s testimony far better than does the phone call made on January 13th. Consider her testimony from the first trial:

KU: Now, just to focus you in. Did there come a time where he called you and put a person named Jay on the phone?
Nisha: Yes.
KU: Would you please tell the ladies and gentlemen of the jury what that conversation consisted of?
Nisha: It’s a little hard to recall, but I remember him telling me that Jay invited him over to a video store that he worked at and he basically, well Adnan walked in with the cell phone and then he said, like he told me to speak with Jay and I was like okay, because Jay wanted to say hi, so I said hi to Jay and that’s all I can really recall.
KU: And did you recognize the voice of the Defendant on that phone call?
Nisha: Yes.
KU: And about how long was the conversation?
Nisha: I wouldn’t say it was that long. Maybe a couple minutes or so. It could be —
KU: About what time of day did that occur?
Nisha: I would think towards the evening, but I can’t be exactly sure.
KU: Can you remember the day that that phone call occurred today?
Nisha: No, I can’t exactly remember the day, but I know it was some time in January. (12/10/99 Tr. 27-28.)

So Nisha thinks it was “some time in January,” but her memory of the phone call with Jay is linked not to a specific date, but to an event, Adnan walking into the video store where Jay worked. There is a conflict here, though, as Jay’s first day working at the porn store was on January 31st — when he worked the midnight shift. As it is unlikely that Adnan would be walking into Jay’s store in the middle of the night, let alone calling Nisha at that time, this cannot be when the phone call that Nisha remembers occurred.

In the second trial, Nisha gave consistent testimony on these same key facts: that the call had occurred when Jay invited Adnan to come to the video store where he worked, and that the call took place ‘towards the evening.’

KU: Now, did there ever come a time when the defendant called you and put a person he identified as Jay on the line?
Nisha: Yes.
KU: Please tell the ladies and gentlemen of the jury what that call consisted of?
Nisha: Basically, Jay had asked him to come to an adult video store that he worked at.
KU: No, don’t — tell us what the defendant told you? Tell us the content of the call?
Nisha: Okay. He just asked me how I was doing?
KU: When you say “he,” who do you mean?
Nisha: Adnan.
KU: Okay.
Nisha: And then he put his phone – – put his friend Jay on the line, and he basically asked the same question.
KU: And he described him as his friend Jay?
Nisha: Yes.
KU: Do you have any independent recollection of when that call occurred?
Nisha: I can’t remember the exact date.
KU: And about how long did that call take?
Nisha: I would say, like, a minute or so.
KU: Okay. Now, —
Nisha: It was not that long.
KU: — drawing your attention back to the exhibit, line 25, which was a call — do you recall about what time of day that that call occurred?
Nisha: The one on – – yeah, I think it was in the evening time. (1/28/00 Tr. 189-191.)

Moreover, at the second trial, Nisha backed away from her previous claim that the call had been made “some time in January,” stating instead that the call could have happened any time up until Adnan’s arrest on February 28th:

CG: And you don’t recall when that conversation took place?
Nisha: No.
CG: So it could have been the 13th or it could have been any other day from the NewYear’s party all the way up until Mr. Syed’s arrest on February 28th?
Nisha: Yes. (Id. 202-203.)

Although the February 14th call is longer than the call Nisha remembered (10 minutes, 14 seconds vs. 2 minutes, 22 seconds), the length of that call is a much better match to Jay’s memory of the Nisha call — which he says “was a pretty long conversation, maybe like 7 – 8 minutes, 10 minutes, something like that” (Int.2 at 18).  Accordingly, whatever the 3:32 p.m. call on January 13th really was — be it a butt dial or an intentional phone call — the evidence does not support the prosecution’s contention that it was the same phone call that Nisha remembered, and  testified about at both trials.

Moreover, the January 13th phone call, which occurred at 3:32 p.m., is not consistent with all of the other phone calls made to Nisha from Adnan’s phone. Aside from that single phone call, Adnan never once called her before 7 p.m. on school day, as shown from the following table of all phone calls made to Nisha from Adnan’s phone from January 12th through February 17th:

Other than January 13th, the only weekday on which Adnan’s phone ever called Nisha before 7 p.m. was on Thursday, January 14th. However, that day was not a school day. Due to the storms that hit Maryland early on the morning of January 14th, neither Adnan nor Nisha would have been in school that day. Although I do not know what school Nisha attended, she lived in Silver Spring, which was also affected badly by the storm. According to one court filing I found, schools in PG County (adjacent to Silver Spring) was shut down for both the 14th and the 15th:

On Thursday, January 14, 1999, Mr. Brooks made arrangements with the Court to hear at 8:45 a.m. on Friday, January 15, 1999, his motion to restrain and enjoin [Council’s] proposed 9:30 a.m. sale of even date. On the afternoon of January 14, 1999, Mr. Brooks advised Mr. Emig that said hearing had been set. However, as a result of the ice storm which occurred on January 14th and 15th (resulting in power outages and school closings both days), Mr. Brooks suffered electrical power `brown outs’ that caused the loss of both the proposed orders and extensive corrections to said motion which had been entered into Mr. Brooks’ word processor.

This leaves the January 13th call as the only call Adnan’s phone ever made to Nisha before 7:30 p.m. on a school day — and this break from the normal calling pattern further supports that the 3:32 p.m. call on January 13th was not an actual conversation between Adnan and Nisha, as Nisha likely would not even have been home at that time.

Why Adnan Got a Cellphone

In addition to obtaining the call records for Adnan’s cellphone, investigators also obtained phone records for Adnan’s home phone line. Those records give a good indication as to why Adnan suddenly decided to buy a cellphone on January 11th, 1999: Nisha.

Adnan and Nisha met one another at a New Years Eve party. The records from Adnan’s home phone show that,  during the first two weeks of January, the two of them spoke frequently:

Call records for the Syed residence.

So frequently, in fact, that Adnan managed to rack up  $45.50 in long-distance charges in just ten days, all from calls he had made to Nisha. Which his parents would see when they paid the phone bill. At $37 a month, a cellphone plan was a whole lot cheaper, and a whole lot more private.

It is also worth noting that the call records from Adnan’s home phone confirm that, on school days, Adnan’s calls to Nisha occurred exclusively in the evenings.

The Crown Gas Station Receipt

One of the items recovered from the trunk of Hae’s car was a receipt from a Crown gas station in eastern Baltimore:

Although the date on the receipt was illegible, Hae’s bank records show that the transaction at the Crown gas station — for a $1.71 purchase — had a post date of January 13, 1999, the same day that Hae was murdered. As Hae would not have had an opportunity to make a purchase from that gas station on January 13th,  there has been a great deal of theorizing about whether the Crown gas station receipt was connected to Hae’s murder, and perhaps represented a purchase made by her killer.

It wasn’t. A review of Hae’s bank statements shows that the “date posted” for purchases made on Hae’s check card is not the same as the data of the underlying transaction. In addition to the “date posted,” the actual date of each purchase is listed separately, under the “transaction” column. Just like the receipt for the $10.00 withdrawal on 1/10/99 shows a posted date of 1/11/99, but a transaction date of 1/11/99, that the transaction at the Crown gas station shows a posted date of 1/13/99, but a transaction date of 1/11/99.

And a quick side note, in regards to the quoted section from the evidence review transcript, above: this is the only confirmation that Hae’s purse had been left in her car. During the evidence review session, investigators noted that two of the items in evidence — hand lotion and a bottle of perfume — were found in Hae’s purse (which the transcript here described as being found in her trunk, although other sources place the purse in the back seat of her car instead). This is inconsistent with Jay’s statement from his first police interview, in which he told the detectives that Adnan had taken Hae’s purse with him after abandoning her car off Edgewood:

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.)

Was Adnan only pretending when he “acted like he was carrying [Hae’s] purse,” since he didn’t actually carry it out of her car? What was he doing, pretending to wear high heels and prancing about as if he was holding an imaginary purse in his hands?

Yaser and Adnan Never Spoke on January 13, 1999

At trial, Adnan’s friend Yaser testified that he did not recall speaking to Adnan on January 13th, even though Adnan’s phone records show two calls to Yaser that day: one at 6:59 p.m. (27 seconds) and 10:02 p.m. (7 seconds).

It turns out the reason Yaser does not remember speaking to Adnan is because he didn’t. Yaser is one of only three witnesses for whom the investigators subpoenaed call records (all other phones were either not investigated at all, or only subscriber data was requested). Yaser’s cellphone records show that he received no incoming calls at either of the times that As Adnan’s phone plan billed from “send to end,” the call times for the two calls to Yaser on the 13th represent the time the phone spent ringing, and not the time of any connection between the two lines.

During the Missing Person Investigation, Baltimore County Police Did Suspect a Link Between Hae’s Disappearance and the Murder of Jada Lambert

Less than a year prior to Hae’s death, in April of 1998, another 18-year-old woman from Woodlawn disappeared while driving to work. Jada Lambert (who was apparently — although unconfirmed — was class of 1998 at Woodlawn) was last seen in her car driving to the mall. Her body was found in a park five days later:

The woman found strangled in a Northeast Baltimore stream Friday was identified yesterday as an 18-year-old from Woodlawn, city police said.

Homicide Detective Oscar Requer said the victim, Jada Denita Lambert, was last reported seen about 8 a.m. Thursday when she left her home in the 6400 block of Woodgreen Circle for Mondawmin Mall, where she was to get a state identification card before starting a job at Chemlawn.

Although the body was fully clothed, Requer said much of the woman’s personal property was missing when she was found by police acting on an anonymous tip to 911.

In 2003, Roy Sharonnie Davis was convicted of her murder, after a DNA match was made in the Maryland DNA database:

A 911 call led police to Herring Run Park in Northeast Baltimore, where they found Lambert’s body in a stream, according to the prosecutor’s office. The teenager had been raped and strangled.

“They didn’t have a clue as to who did this,” May said.

In 2000, Davis was sentenced for an armed robbery, and two years later a Maryland state police computerized DNA index matched a sample from a swab taken from Lambert’s body with DNA obtained from Davis when he was incarcerated, May said. A blood sample confirmed the match.

At one point, Lambert and Davis lived a block from each other on Woodgreen Circle.

The eerie parallels to Hae’s murder are obvious, and there was speculation of a connection by the media when Hae’s body was found in Leakin Park:

Authorities would not say whether they are investigating a link between Lee’s death and last year’s strangulation of Jada Denita Lambert, an 18-year-old Woodlawn woman whose body was found in May in a stream in Northeast Baltimore.

Lambert disappeared while driving to work at Mondawmin Mall. No arrest has been made in the case.

Although there is no indication that the murder investigation led by the Baltimore Police Department ever considered a possible link between the murder of Hae Lee and the murder of Jada Lambert, the existence of a possible connection was considered by the Baltimore County Police, during the missing persons investigation. The following map, which was included in the files from Baltimore County concerning the investigation into Hae’s disappearance, has three areas circled: Woodlawn High School, Woodgreen Circle, and Campfield Early Learning Center:

(As a side note, this map appears to identical to the one torn out of the map book in Hae’s car. You can see that it covers far more than Leakin Park.)

Woodlawn High School was where Hae was last seen, and Campfield Early Learning Center was believed to be her destination — and directly in between those two locations is Woodgreen Circle, where Jada Lambert had lived, and where she had last been seen driving off to work before her disappearance. Evidently, prior to Hae’s body being discovered, Baltimore County officers were looking into whether there could have been a connection with the Lambert case, because Hae was believed to have been driving in the exact same area that Lambert had disappeared from ten months earlier.

Although Roy Sharonnie Davis was not a suspect in Lambert’s murder at the time of Hae’s death, it is worth noting that, as of January 1999, he lived off of Liberty Road, not far off from where the “26” is circled on this map.

Adnan’s Track Coach Saw Adnan at Track Practice at 3:30 p.m on January 13, 1999

According to Adnan, after last bell at 2:15 p.m. on January 13th, he went to the library and then headed to track practice. The prosecution’s theory of the case was that Adnan had instead, somehow, gotten into Hae’s car (without any witnesses seeing him, despite the hundreds of kids streaming out of the school building), killed her by 2:36 p.m., and then spent a couple hours driving around west Baltimore with Jay before heading to track practice. The exact time that the prosecution alleged Adnan was at track is unclear — according to Jay, Adnan went to track practice from about 5pm to 6:45 p.m. (first interview), from about 4:45 to 5:45 p.m. (second interview), or from about 4:30 to 4:58 p.m. But all of Jay’s many stories do agree that Adnan was very late for track practice that day. In Jay’s second interview, he even told the detectives that Adnan “had to run a lot” and that he “was late” getting to practice:

MacGillivary: Did he talk about any anything that he had
to do with practice?
Jay: He just said he had to run a lot.
MacGillivary: He had to run?
Jay: Yeah and that he was late.
MacGillivary: He was late?
Jay: Um-hum.
MacGillivary: Getting there?
Jay: Yes. (Int.2 at 25.)

Adnan’s track coach, Michael Sye, remembered something different. He told the police that track practice began at 3:30 p.m. and was “usually over at 5:30 p.m.,” and that, on January 13th, Adnan had been “there on time, left on time.” At both trials, Inez Butler gave similar testimony, noting that “[t]rack practice would start after study hall, and study hall started from 2:15 to 3:00, and they had to be at practice at least by 3:30″ (2/04/00 Tr. 14-15). Becky similarly told the police that Adnan had to be at practice on time, or else Coach Russell “would be really upset”:

Becky did not give a precise start time for track practice, but said that “track usually started before [ ] approximately 3:30.”

Another track coach, Coach Graham, told the police that she could not remember if Adnan had been at practice on “that exact day,” but that she thought Coach Russell or Coach Sye might have been working with him on January 13th. She also provided study hall hours as from 2:30 to 3:15 p.m., although noted that because of his GPA, Adnan would not have needed to sign in or out:

Coach Sye specifically recalled Adnan being at track that day because they had a conversation about Ramadan during warm-up. His police statement — which corroborates Adnan’s alibi — seems to have been overlooked because in his statement to the police, he did not specifically recall that his conversation with Adnan had taken place on the 13th. However, the practice that Sye remembers could only have been on January 13th. There is no other day that Coach Sye could possibly have been referring to.

When the detectives came to talk to Coach Sye on March 23, 1999, Coach Sye told the police that, during Ramadan, Adnan would not participate in a full practice with the other athletes, since Adnan was fasting during the day, but he did attend practices, and would go on a jog around the track. He also told them about the following about the conversation with Adnan at practice one day — which Coach Sye had initiated — while Adnan was stretching at the track:

So according to Coach Sye, this conversation took place: (1) in January, towards the end of Ramadan; and (2) when the weather was “in the 50’s.” Coach Sye was very clear that what he remembers was a “warm day” conversation. That year, Ramadan had begun on December 23, 1998, and the last school day before the end of Ramadan was January 15, 1999. During the last two weeks of Ramadan, there were only two days on which the temperature went above 40 degrees, and which Coach Sye’s memory could have been referring to:

Based on the weather records, both January 12 and January 13 could fit Coach Sye’s memory of the day in question. It turns out, however, that the day Coach Sye had his conversation with Adnan could not have occurred on January 12th — because the Woodlawn track team had a meet that day, and Adnan and Coach Sye would not have been at practice.

(And in case there is any doubt that Woodlawn’s track team did attend the Baltimore County Relays, taking first place.)

Adnan himself remembered this conversation as well, and told his attorney that “he believes he attended track practice on [January 13th] because he remembers informing his coach that he had to lead prayers on Thursday.” Which means that Adnan’s track practice alibi is confirmed by a reliable, unbiased witness. Unless you believe that Jay Wilds was a more reliable witness than Coach Sye, there is no reason to think that Adnan was anywhere but a track practice on January 13th.

Although Adnan’s defense recognized Coach Sye was a potentially important witness for Adnan, they never recognized the significant of his memory of the Ramadan conversation. As far as I have been able to ascertain, the prosecution failed to provide the defense with any of the witness notes from March 23rd, including the notes of Coach Sye’s statement — which means the defense never knew about his recollection of having a “warm day conversation” with Adnan. His testimony also changed from his prior police statements, and he stated that “[p]ractice was every day after school, after their
study hall, from [ a]pproximately 4:00 to 5:30, 6″ (2/23/00 Tr. 101). The defense failed to ever question Coach Sye about the prior statements from Coach Graham, Becky, Inez Butler — and his own prior statements — all of which stated that players were to be at track after study hall, which ended at 3:15 pm.

Mr. B Saw Adnan at the Mosque on the Evening of January 13, 1999

In addition to Asia McClain and Coach Sye — who verified, respectively, Adnan’s presence at the library and at track practice that afternoon — there was a third alibi witness who verified Adnan’s presence at the mosque that evening. That witness was the infamous Mr. B — the same witness whom Jay claimed had “pled the fifth” when testifying before the grand jury:

I know that during the grand jury there was a spiritual leader of the mosque – I don’t know how to pronounce his name. Something with a B [ed. note: We’ll refer to this person as Mr. B.]. He spoke with the police during the investigation. But when he was called to the grand jury, he pled the fifth [amendment, against self incrimination through testimony]. So that whatever he knew about Adnan, he knew that if he said it in court he could also be in trouble.

Jay was wrong about Mr. B pleading the fifth in his grand jury testimony; that didn’t happen. But Jay was absolutely right when he said that “whatever [Mr. B] knew about Adnan, he knew that if he said it in court he could also be in trouble.”

Mr. B testified before the grand jury that on the evening of January 13th, Adnan was at the mosque, not in Leakin Park burying Hae’s body. Mr. B stated that he had been with Adnan that evening, helping Adnan prepare for prayers that he was going to be leading at the mosque the following day:

Mr. B would have been a valuable witness for Adnan — he could have verified that Adnan was at the mosque that evening, acting normally, and not covered in mud from a sojourn into Leakin Park. So why didn’t he testify at trial? Well, just like Jay predicted, there was trouble.

Mr. B’s last day of testimony before the Grand Jury was on March 30, 1999. Immediately afterwards, Mr. B became a subject of intense scrutiny for investigators, who subpoenaed his call records on April 13th. In fact, Ritz and MacGillivary even got the Drug Enforcement Agency involved in their investigation into Mr. B:

Even Urick took a special interest in Mr. B, singling him out as an “important witness,” and requesting meetings to further discuss his expected testimony:

It is unclear what was discussed during the meeting between Mr. B and Urick, but it does seem, based on what happened next, that Urick didn’t like what Mr. B had to tell him. On the morning of Adnan’s scheduled trial date of October 14, 1999, Mr. B was arrested and charged with a sex offense:

What convenient timing, for Urick. What are the odds that Adnan’s alibi witness would just happen to have been arrested on the morning of his trial date? (Although the defense had filed a motion for a continuance by that point, the prosecution had opposed it, and it was not known until the afternoon of October 14th that the trial would be rescheduled to a later date.) And what are the odds that Urick — a Baltimore City prosecutor with the Narcotics Division — would just happen to have received an update from Baltimore County Police about Mr. B’s arrest?

As close to zero as makes no difference, by my book. It is also telling that this disclosure was the only occasion on which Urick produced evidence to the defense on the same day he became aware of its existence. Moreover, it is also the only disclosure I have seen in which the word “Brady” is ever mentioned. Urick believed that Mr. B’s arrest constituted Brady material, but Jay’s multitude of conflicting statements did not? That Jenn’s statements were not material to Adnan’s guilt or innocence? That the cell expert’s testing methodology was not something the prosecution was required to disclose? Urick’s definition of “Brady” was a constitutional joke.

Whatever the factual circumstances leading to Mr. B’s arrest, however, there was apparently insufficient grounds to justify actually charging him with any offense:

Mr. B did not attend with of Adnan’s trials, nor was he called as a witness by either side. This was a notable departure from his previous activity. On the day of Adnan’s arrest, Mr. B had led the charge in coordinating Adnan’s defense, working the phones throughout the day in order to secure defense counsel for Adnan and to attempt to allow that attorney, Doug Colbert, to get access to Adnan during his six-hour interrogation. Mr. B was also involved in fundraising activities on Adnan’s behalf. There is no indication whatsoever that Mr. B had any testimony to give that was favorable to the prosecution — from the day of Adnan’s arrest until the day of Mr. B’s arrest, Mr. B was an important part of the defense’s case.

After the October 14th arrest, however, Mr. B dropped out of the picture completely. He distanced himself from everything having to do with Adnan’s case. Whether due to the risk of Mr. B’s impeachment, Mr. B’s change of heart about his testimony, or some other factor, Mr. B was ultimately not called as a witness at trial. But Mr. B could have testified — and did testify before the grand jury — that he had seen Adnan at the mosque that night, just as Adnan had said. As with the library and track practice, however, Adnan’s “bad luck” was not that he lacked an alibi witness who could corroborate that he was at the mosque. Adnan’s bad luck was that he had those alibi witnesses, but the jury was deprived of any opportunity to hear what they had to say.

-Susan

As a manager for the Woodlawn wrestling team, Hae handled the scoring for their matches, and she traveled with the team when they had matches at other high schools. At Adnan’s trials, as well as in the podcast, it was assumed to be an established fact that Woodlawn’s wrestling team had a match against Randallstown on the afternoon of January 13, 1999, and that Hae was supposed to have been there.

As with so much else in this case, however, the “established fact” that Hae was going to a wrestling match is unsupported by the evidence. Hae was planning on going to work at LensCrafters that day instead.

Hae was Scheduled to Work at LensCrafters at Owings Mills Mall

On the afternoon of January 13th, Hae was scheduled to work at the Owings Mills Mall LensCrafters, from 6 to 10 p.m. On the LensCrafters’ employee schedule for that day, Hae was marked as “no call no show” — the first such time that had happened in the three months that she had working there. Hae did not have a practice of failing to show up for her scheduled shifts, and we know that, at least as of January 12th, Hae was intending on going to work that day, because “Don said he and Hae had made plans to meet up later that night of the 13th after her work shift ended at 10 p.m.” (Episode 12).

The wrestling match story does not seem to have come from Hae’s family. On January 13, Hae’s brother told Officer Adcock that he was “not aware if his sister had any engagements after school.” This doesn’t mean all that much, since it seems safe to assume that Hae’s little brother did not have detailed information about the schedules for her extracurricular activities, but it does mean he wasn’t the one to tell the police about any wrestling match she may have been at. Officer Adcock’s report also notes that he “[a]ttempted to contact the victim Lee’s high school with negative results,” which means he did not receive any information from the school  about where Hae might have been that afternoon. Officer Adock did speak to Hae’s manager at LensCrafters, however, and she reported that Hae had failed to show up for work as scheduled.

Inez Butler-Hendrix’s Statements and Testimony

According to police files, the first thing investigators heard anything about any wrestling match on January 13th came from Inez Butler, a teacher and athletic trainer at Woodlawn High School. In fact, prior to the podcast, Butler was the only witness who had ever mentioned any wrestling match that afternoon. No one else testified that Hae had been supposed to go to a wrestling match that day, nor mentioned any wrestling match to investigators.

So everything we knew about the wrestling match came from Butler. This is a problem, as Butler has given four very different accounts of what happened on the afternoon of January 13th, her testimony gives very little clarity to the wrestling match situation.

Detective O’Shea spoke to Butler on February 1, although he waited until February 14 — after Adnan had already been identified as a suspect in Hae’s murder — to write a report summarizing her statement. According to O’Shea, when he talked to her on the 1st, Butler did not mention that Hae had been planning on going to a wrestling match on the day that she disappeared:

[Butler] spoke with Hae Lee on 01/13/99. Hae was upset and told Ms. Butler that she was having problems at home. Hae also said she wanted to contact her father in California.

Ms. Butler said Hae was a manager for the wrestling team. Hae told Ms. Butler that she would not be at the match on 01/13/99.

There is no mention of what match Hae would “not be at,” although this does seem to suggest some sort of match had been scheduled. Butler’s second statement was given on March 23, 1999, this time to detectives with the Baltimore City Police Department, investigating Hae’s murder. Notes taken during the interview state:

Remember what she had on because her skirt was short
She put $ in cash box herself
Didn’t see Hae until lunch. She was taping for Channel 36. Aired one week later.
Memory refreshed because she (Hae) was missing the Tuesday.
. . .
Up here between 2:20-2:25, soon as the bus loop clears[,] she’s up in front of the school. Hae keeps car running. Keys in car[,] runs behind counter [and gets] Very Fine apple juice [and] Hot Fries.
We fuss — told her to go home and change clothes.
She said she had to pick cousin up before she could go to work, . . .
I left at 2:45. Could have been closer to 2:50. Couldn’t be closer to 2:15 because[ ] 2:25 buses leave. 2:30 she jumps from car
She didn’t want to wait with others, so she just ran behind counter.
Alice said Hae is late coming back today. (Butler’s 3/23/99 Statement) (emphasis in original).

Butler’s statements concerning Hae’s plans that afternoon are somewhat ambiguous, but she seems to have been indicating that Hae was going to work that day, not to a wrestling match. In fact, wrestling is not mentioned at all, although there is a note about “Alice” mentioning that Hae was late getting back to (presumably) the school. It is unclear who Alice is, but if she was a manager for the wrestling team who was at Woodlawn that afternoon, then Inez would not have needed to travel to any wrestling match in Hae’s place.

At Adnan’s trials, Butler’s testimony diverged radically from her prior statements to the police. Some of the differences are minor — for instance, although Butler initially told police that Hae had paid for her juice and hot fries, she testified that Hae had been in so much of a hurry that she said she would pay later instead. More significantly, however, Butler changed her story to say that Hae had intended to go to a wrestling match on the afternoon of January 13, and in fact was planning on catching the bus from Woodlawn with the team:

Butler: [Hae] pulled up in fro[nt] of the concession stand as she normally does and went behind the concession stand because it was a little (indiscernible) and . . . she went back there and got her own drink cause she knew what she wanted and a bag of hot fries and she said that she’d pay me later, and I knew she would because she was going to travel that afternoon with the wrestling team because she’s the manager. . .
KM: Did she indicate why she couldn’t wait in line with the other students?
Butler: She said she had to pick up her cousin who was in middle school that she had to pick up and take home and that she would be back in time before the team leave[s]. We were traveling to Chesapeake.
KM: And that was for a wrestling match?
Butler: Wrestling match. . . .
KM: Okay. Did you see her pull up in the car?
Butler: Yes.
KM: Can you described what you saw?
Butler: She speeded right in front of the gym lobby, jumped out, left the car running and came in, got the drink, the chips, and she got back — told me what she was going to do, and what time she’d be back, and told me to make sure the team didn’t leave her. (12/13/99 Tr. 180.)

CG: [Hae] indicated to you that she would be back before the team had to leave?
Butler: Yes.
CG: And the time the team had to leave was?
Butler: 3:45. . . [S]ince she didn’t come back, I had to travel with the team. [ ] That’s why I was aware [that Hae did not come back].
CG: Because there has to be a manager, correct?
Butler: Right. Somebody has to keep score.
CG: And if one of the student managers doesn’t show up then it falls to you?
Butler: No. There was two student managers but Hae was the only one who knew how to keep score because she had kept score for previous years
CG: Okay. And so her failing lo show was something unusual?
Butler: Yes.
CG: Is that correct?
Butler: Uh-huh.
CG: But her having to go pick up a cousin — a young cousin, was also something unusual, as far as you knew?
Butler: On that particular day, yes. (12/13/99 Tr. 192-93.)

So according to Butler, Hae was going to be back at school at 3:45 p.m. to catch the bus to Chesapeake to score the match. Since Chesapeake is about 45 minutes away, the match would not have been scheduled for anytime before 5 p.m. at the earliest, which means that unless Hae was going to go to the wrestling match and immediately turn around to drive back to the Owings Mills Mall, she would not have been going to work that day.

At the second trial, Butler’s story changed again, however. Here is what Butler testified to concerning her encounter with Hae at the concession stand:

KM: Did you see her later in that day?
Butler: Yes.
KM: Tell us what happened then?
Butler: She was also a manager for the wrestling team, and she had done that several years , and she was real good at the scoring and she traveled with the wrestling team. That particular day she came up real quickly to the concession stand and got a few items and told me she would pay for them later and said she had to get to her cousin to pick up her cousin from, I think it was middle school or elementary school, one of the two. But she said it wasn’t that far and that she would be back. And I kept reminding her what time the bus was leaving because the bus had to go to Chesapeake because it was a tri-meet and they had to get there on time.
KM: About what time of day was this?
Butler: It was about 2:15, 2:20.
KM: And where physically in the school did this happen?
Butler: In the gym lobby, and that’s right in front of the gym. It’s inside the gym but it’s right in front.
KM: And this was a concession area?
Butler: Concession stand.
KM: Did Ms. Lee wait in line at the concession stand before she spoke to you?
Butler: No.
KM: How do you know that?
Butler: Because she went right back there and got it like she usually does, and then she usually comes back and pays you when she gets back. She was always in a hurry.
KM: What time would she have to be back to go to the wrestling meet?
Butler: The team was leaving that day at 5:00. They [ ] had a 6:30 meet. And she said, I’ll be back before 5:00.
KM: And how is it that you are certain she didn’t come back?
Butler: I know she didn’t come back because I had to end up going with the [wrestling] team to Chesapeake to score the game. (2/04/00 Tr. 20-21.)

CG: Okay. Now, the wrestling meet you said was elsewhere and, therefore, the team would have . . . gotten together and congregated before leaving together at about 5:00?
Butler: That is correct.
CG: Because the meet was scheduled to be at 6:30?
Butler: Because the match would have been scheduled for 7:30.
CG: The match. Okay. And that’s because of where the Chesapeake location was —
Butler: That is correct .
CG: — and the distance from Woodlawn to there?
Butler: Forty-five minutes. (2/04/00 Tr. 60-61.)

CG: There were times when Hae Min Lee didn’t accompany the wrestling team; were there not?
Butler: Not that I am aware of because I never had to travel before.
CG: Okay. So it was unusual that she didn’t come back?
Butler: That is correct. (2/04/00 Tr. 62)

At the second trial, Butler claimed that the match against Chesapeake was now a “tri-meet,” and that it begun at both 6:30 p.m. and 7:30 p.m., which meant the wrestling team needed to leave Woodlawn at 5 p.m. This is in contrast to her testimony at the first trial, when she stated that the buses would be leaving at 3:45 p.m. instead.

Just because things weren’t confusing enough, Butler claimed at the second trial that her statements to the police had in fact been consistent with her trial testimony. She testified that, in her statement to Detective O’Shea on February 1st, she had told him about the wrestling match, and about Hae failing to show up for it:

CG: Now, on February 1st, 1999, do you recall  telling Detective O’Shea about your last conversation with Hae Min Lee ?
Butler: I probably told him about her coming and getting my keys and going to get her uniform.
CG: So the answer to my question is yes?
Butler: I think so, yes. . . .
CG: And you, of course, told him about the wrestling match that was scheduled for later that evening that she didn’t show up to?
Butler: I don’t know if I told him or not.
CG: Well, her failure to appear for a scheduled wrestling match you have told us was an unusual event?
Butler: What I’m saying is, I don’t remember exactly the conversation I had with him totally detail-wise. I know that at some points I told him about her not showing up. I do remember that. (2/04/00 Tr. 66-67, 72.)

So either Butler is lying, or Detective O’Shea’s report of what Butler told him was inaccurate. Either way, the result is that we have four different stories from Butler about what was supposed to happen that afternoon.

Summer’s Memory of the Randallstown Match

Summer was a junior at Woodlawn at the time of Hae’s murder, and a fellow manager for the wrestling team. She was never interviewed by the police, and did not testify at trial, but she did speak to Koenig after hearing Serial. She told Koenig that she remembered when Hae went missing, because she had been upset about Hae’s failure to show up at the Randallstown match:

Summer was friends with Hae. . . Hae told her there was an opening for another manager of the boys wrestling team, Hae was already doing that, so Summer joined her. The day Hae disappeared, the wrestling team had a match at Randallstown High School. Summer remembers talking to Hae after school in the gym area there, the wrestlers were milling around, Summer was preparing the equipment they had to load onto the bus and Hae came in to say “I’m not getting on the bus to the match, but I’ll see you there.” That wasn’t welcome news to Summer, she needed Hae by her side at the match because Hae was more experienced at scoring which can be tricky in wrestling if you’re new at it.

Summer: I was giving her hell because I’m telling her “I don’t know what I’m doing.” I needed her because we had to take points and things like that and she’s like “No no no, I just have to go and you know, pick my little cousin up.” . . .

SK: You’re sure that this is the day because it’s the day she didn’t show up?

Summer: I’m positive. I am positive. I’m very positive. I looked for her the whole time at the away game. I was really pissed because I thought that she stood me up.

Sarah Koenig: Hae told Summer she would make her own way to Randallstown High for the match. No one but me probably remembers this now but Inez Butler-Hendrix who worked at the school said Hae had told her she was planning to catch the Randallstown bus. However, Ines initially told the cops the opposite, so I trust Summer’s memory more and Summer is clear. Hae told her she was going to drive herself there. (Episode 9.)

Based on Summer’s memory of the “the wrestlers milling around” at the time of her conversation with Hae, the match against Randallstown must have been relatively early in the afternoon, since the team was already getting ready to load up onto the buses. This means that the bus was likely leaving Woodlawn somewhere between 3 and 3:30 p.m.

Summer is also very clear that she remembers the match being at Randallstown — not Chesapeake.

The Don Note and Hae’s Interview

At trial, the prosecution introduced a handwritten note that had been found in Hae’s car. The note was written on a folded up sheet of lined paper, with “Don” written on the outside. It was “recovered from the trunk area of [Hae’s] vehicle,” although it is unclear exactly where investigators found it (1/31/00 Tr. 85). Based on trial testimony from Officer Romano concerning other items found in Hae’s car, it appears that this note — the Don Note — may have underneath a red jacket in the trunk of the car.  (“The upper right photograph indicates papers that were found once the red jacket was moved to the side. These are the items that were found beneath the red jacket.” (1/31/00 Tr. 60-61.))

Hey cutie.

Sorry I couldn’t stay. I have to go to a wrestling match at Randallstown High. But I promise to page you as soon

as I get home. O.K.? Till then take care and drive safely.

Alwayz,

Hae.

P.S. The interview went well. I promise to tape it so you can see me as many and as often as you want. :)

Although the note was undated, it has been assumed that it was written on the day of Hae’s murder, because the “interview” referenced in Hae’s note is presumed to be the Channel 36 interview. In Serial, Koenig noted that, “The local station had done a student athlete segment on [Hae]. So the note was written on the 13th, the day she went missing.”

In a statement given on February 22, 1999, Woodlawn’s Athletic Director, Mr. Graham, told police that this interview had, in fact, taken place on January 13th:

On 13 January 1999, at approximately 0900 hrs., Mr. Graham had several student athletes in the athletic wing for a meeting with cable channel # 36. Mr. Graham indicated that several of his students were going to be interviewed for Ath[]lete of the Week. Mr. Graham indicated that the victim, Hae Min Lee was one of the students present. Mr. Graham further indicated that this interview started at approximately 0900 hours and was concluded at approximately 1300 hrs. Mr. Graham indicated that he last observed the victim at approximately 1330 hours, after the interview.

Graham was apparently referring to “Cable Channel 36, Baltimore County’s Public Schools’ Education Channel.” This appears to be the interview Graham is referring to, as the initial on the microphone — “TEC” — refer to The Education Channel:

Butler also testified that Hae was being interviewed that day for a TV program on the 13th:

Butler: Baltimore County Athletic Program was taping a program — scholar athlete  program. They were going to interview several athletes from Woodlawn High School at the time. [Hae] had to come to my room because Mr. Graham — who is the athletic director — was in class and she came to my classroom to get the keys to get her uniform so she could tape the show.
KM: Did you see her at any other point that day’?
Butler: At the end of the day.
KM: And what time would that be?
Butler: Between 2:15 and 2:25. (12/13/99 Tr. 179.)

Her testimony was largely consistent on this point between the first and second trials:

KM: At the time of her disappearance, had she received any special recognition as a star athlete?
Butler: Yes, she had. The Baltimore County School Board had come out, the Athletic Department, had come out to tape her for this particular award. Whenever the student has excelled and met all the qualifications for Baltimore County, then they do a taping session which is aired on the Baltimore County Educational Network. And they came out that particular day to tape her in her uniform, and at a later point they get like a gold medal and other certificates and awards from Baltimore County. (2/04/00 Tr. 11.)

KM: Did you see her that day?
Butler: Yes, I saw her that day because she came to my classroom, and I was in the middle of teaching, and she needed to get her uniform in order to be taped for the show, which she was supposed to get the day before, and she came to my classroom and I had to give her my school keys to go unlock the room to get her uniform out. (2/04/00 Tr. 18.)

It is worth noting that, previously, Butler said that Hae had come to her because Athletic  Director Graham had been in a class — not that Butler had been in the middle of class. Butler taught from 9:15 to 10:40 a.m., which seems to conflict with her earlier statements that she had not seen Hae “until lunch.”

The TL;DR

To recap, here is what we know about Hae’s plans for the afternoon of January 13, 1999:

• LensCrafters’ employment records show Hae was working from 6pm to 10pm. On the day of Hae’s disappearance, Officer Adcock spoke to Hae’s manager at LensCrafters, who confirmed that Hae had been scheduled to work but did not show up. Don also states that Hae had been planning on going to work that day.

• Prior to the podcast, Inez Butler was the only source of evidence indicating that Hae intended to attend a wrestling match on the afternoon of January 13th. According to a police report summarizing Butler’s February 1st statement to Detective O’Shea, Butler stated that Hae was not planning on going to a wrestling match on the 13th. At the first trial, however, Butler testified that Hae was supposed to go to a wrestling match that afternoon, and that the bus had been leaving at 3:45 p.m. to go to Chesapeake. At the second trial, Inez testified instead that the bus was leaving at 5:00 p.m., “to go to Chesapeake [for] a tri-meet.” On direct, Butler stated the match started at 6:30 p.m., but on cross, Butler corrected Gutierrez and said it would be starting at 7:30 p.m. instead  which started at either 6:30 p.m. or 7:30 p.m.

• Summer said that she remembered Hae missing the Randallstown match. On the day of the match, she had a conversation with Hae, at around 2:45 p.m., while “the wrestlers were milling around, [and] Summer was preparing the equipment they had to load onto the bus.” Hae came in to tell her that she’d not be catching the bus, but that she would drive herself to the match.

• According to Butler and Graham, Hae was interviewed for a student athlete segment during the school day on January 13th.

• The Don Note stated that Hae “couldn’t stay” somewhere, because she had to go to a wrestling match at Randallstown High she had to go to. The note also referenced an interview that had occurred earlier that day.

These conflicting stories are hard to make sense of. Thanks to Beverly Funkhouser’s research at the Baltimore library, however, there is at least one fact that can be stated with certainty: Woodlawn did not play Randallstown on January 13, 1999 — and may not have had a wrestling match at all that day.

The Woodlawn vs. Randallstown Wrestling Match was on January 5, 1999

Woodlawn High School could not have had a wrestling match against Randallstown High School on the day that Hae was murdered, because Woodlawn had already had their match against Randallstown the week before, on Tuesday, January 5, 1999:

Woodlawn and Randallstown could not have had a re-match on January 13th, because Randallstown’s wrestling team had played a match against Carver A&T that day instead:

Despite the fact that it would have been trivial for investigators in 1999 to obtain a copy of the Woodlawn wrestling team’s schedule and confirm the dates of any scheduled matches, neither the investigators nor the prosecution bothered to do this. Instead, the State simply assumed that Woodlawn had played Randallstown on January 13, and treated it as a fact, despite the lack of any corroborating evidence, and despite the fact that the State’s only witness to address the wrestling match had claimed that it had been against Chesapeake, not Randallstown.

Something as inconsequential as a lack of evidence would not be enough, however, to stop the prosecution from claiming it was an established fact that Woodlawn had played Randallstown on the afternoon of the 13th. In closing arguments, Prosecutor Murphy told the jury that the Don Note had therefore been written on the day that she died, and that this was proven by the fact that Woodlawn was playing Randallstown that day:

Take a good look at State’s Exhibit 19. This is  a note addressed to Don in Hae’s car. We know she wrote this the day she died. . . She refers to things we know she had to do that day: the taping, the taped interview, the wrestling match at Randallstown. Maybe she intended to put it on his car, we don’t know. She never had a chance to do it. (2/25/00 Tr. 55.)

There is no factual basis in the trial record for Murphy’s claim about the Randallstown game, and, as it turns out, there was nothing outside of the trial record to support it either. The story about the Randallstown match appears to be just another example of the prosecution refusing to let the evidence get in the way of its case.

Woodlawn May Not Have Had a Wrestling Match At All on January 13, 1999

So we know Woodlawn didn’t play Randallstown, but could they have had a match against Chesapeake instead, like Butler claimed? Maybe — but there is no evidence to support it, aside from Butler’s confusing and inconsistent testimony. The January 14, 1999 edition of the Baltimore Sun did not list any results for Woodlawn’s wrestling team, although it is at least possible Woodlawn had a match for which the score somehow did not get reported. (Neither of the Chesapeake teams appear to have had a wrestling match  on the 13th, either. There are two different public schools called Chesapeake — one in Anne Arundel County (“Chesapeake-AA”) and one in Baltimore County (“Chesapeake-BC”). It is unclear which team Butler was referring to; although it is more likely Woodlawn was playing another Baltimore County team, it is possible they could have had matches against an Anne Arundel school as well. In any event, neither team has scores reported for a January 13th match in any newspaper which covered Maryland high school athletics.)

Moreover, there is some evidence that Woodlawn did not have a wrestling match at all on January 13th — because they had a match against Loch Raven the day before, on January 12th. Although it is possible that the Woodlawn team had matches two days in a row, on both the 12th and 13th, it seems unusual that the results for the match on the 12th would have been reported, but the match on the 13th would not:

The high school wrestling schedule in the January 13th edition of the Baltimore Sun also failed to list either Chesapeake or Woodlawn among the teams to be competing that afternoon:

What This Means:

While it is possible that the Woodlawn wrestling team had an unreported match on January 13th, what we do know is that, if they did play a match that day, it was against a team other than Randallstown. This is important for two reasons.

First, this means, in regards to the Don Note, that either: (1) Hae did not write the note on January 13th, or (2) Hae lied to Don about having a match at Randallstown, or was mistaken about where the match actually was. Option 2 seems unlikely. There is no reason for Hae to have sought out Don just to lie to him about where she was going, and since the Randallstown match had been the week before, it is unlikely she would have mistakenly believed the match was that week.

That leaves Option 1. Hae did not write note on January 13th — she wrote it on January 5th, the day of the Randallstown match.

Summer remembers that Hae was going to drive herself to the Randallstown match, and that she was pissed off when Hae was a no-show. But what if Summer’s memory is correct about Hae not being at the match, but wrong about the date? Randallstown High School is only two miles from Owings Mills Mall, where Hae and Don worked. If she were driving herself to the match that day, that would explain the note: she planned to swing by the mall first and leave it on Don’s Camaro. Don’s timecards show that he worked at the Owings Mills store from 9am to 6pm on the 5th, so his Camaro would have been there.

This would also explain why the note was still in Hae’s car. The note was never delivered, because after writing to let Don know she was “sorry [she] couldn’t stay,” Hae changed her mind and decided she could stay after all, to hang out with Don at the conclusion of his shift. She stood Summer up.

As /u/j2kelley has pointed out, evidence that Hae went to Owings Mill Mall that day comes from Hae’s bank records, which show that Hae made two purchases in Owings Mills on January 5, 1999:

As Hae did not work at LensCrafters at any point that day, there is nothing to explain why she would have been at the mall that day, other than to see Don.

But what about the interview mentioned in the Don Note? It is possible that both Graham and Butler were mistaken about the date of the interview, but there is also another possibility. What if there were two interviews?

According to Butler, the taping was being done by the Baltimore County Athletic Program, for “scholar athlete of the year” (first trial) or for a “particular award” that is given “[w]henever [a] student has excelled and met all the qualifications for Baltimore County,” for which “they do a taping session which is aired on the Baltimore County Educational Network” (second trial). In both trials, Inez described how Hae needed to get her uniform before the interview, because the network had come to “tape her in her uniform.”

In closing arguments, however, Murphy seems to have completely forgotten Butler’s testimony, despite the fact she was the one who handled the direct examination. She tells the jury the following:

Hae was very excited about being taped for a local news show. She recalls in great detail how Hae came running into the concession area at 2:15, right after class. She was in such a rush that she didn’t even pay for the snack that she got because she knew she was coming back. She had to go to the wrestling match, and Ms. Butler told you, with no hesitation, that these were in fact the clothes that Hey Lee was wearing on January 13th. She was wearing a skirt and light jacket and top. She wanted to look nice for the taping. (2/25/00 Tr. 52-53.)

So the interview was with a “local news show,” and Hae wanted to “look nice for the taping,” by wearing a skirt and top — even though Butler described how it was an award given by the Baltimore County Athletic Program, and Hae was taped in her uniform, not her regular clothes. Now, it is possible that Murphy just has no idea what she is talking about here. I can’t rule that out as a possibility. Maybe she didn’t listen to Butler’s testimony, and she was just winging it in her closing argument. The state made dozens of assertions in its closing argument that were factually inaccurate, so this could simply be another example of that.

Or, maybe, Murphy knows something about Hae’s interview that we don’t. Could there have been two days Hae was interviewed, one of which involved Hae being interviewed in her regular clothes, rather than her uniform? Remember, Butler testified that the athletic department “came out that particular day to tape her in her uniform, and at a later point they get like a gold medal and other certificates and awards from Baltimore County” (2/04/00 Tr. 11) (emphasis added). This may be an allusion to the fact that the Athletic Program came out on more than one day to film interviews. On the 13th, they came out to film Hae in uniform, but perhaps they had also come out on another day — like on January 5th — to film her for a longer interview segment.

Then again, it is also possible that Murphy and Butler were both just wrong, and there was only one interview, which was filmed on January 5th. After all, Butler was wrong about Hae going to the wrestling match, so she could have been just as wrong about the interview date, although Graham being incorrect is harder to explain.

Second, the fact the Woodlawn wrestling team was not playing Randallstown on January 13th means that Hae could not have been intending to go to a wrestling match that afternoon. The only way Hae could have gone to both work and to the match was if Woodlawn had been playing Randallstown. If Woodlawn was, in fact, playing Chesapeake that day, then there is no possibility whatsoever that Hae could have made it to both; the two locations are 45 minutes apart, and according to Butler, the game was scheduled to start at either 6:30 or 7:30 p.m., at the exact same time Hae was supposed to be working at LensCrafters.

Based on the inconsistency in Butler’s statements and testimony (and in particular her initial statements to police stating that Hae was not going to be at the wrestling match that night), it seems instead that Hae must have been planning to go to work all along. Perhaps Butler’s confusion comes from the fact she, too, remembered that Hae had failed to show up for a wrestling match, just like Summer also remembered — only she was confusing the Randallstown match for the one at Chesapeake. Or perhaps Butler is just too unreliable of a witness, and what she testified to cannot be considered credible. Either way, there is no reason to believe that Hae had intended to go to a wrestling match on the afternoon of January 13th.

-Susan (with special thanks to Beverly!)

As a preface, I want to be very clear: this post is not about Don. Rather, it is about the the State’s investigation of Don, and the failure thereof. Nothing herein is evidence that Don was involved in Hae’s murder, because the fact that an alibi went unverified does not mean that that the alibi was untrue. As a result, while there is no reason to believe Don was not at the Hunt Valley store on January 13, 1999, the flipside is that the police did not have reliable evidence from which they could conclude Don was at the store that day, either.

Don was not involved in Hae’s murder. Although there was evidence that, at the time of the original investigation, should have caused the police to take a special interest in Don — e.g., Debbie’s statements to the police about Hae’s plans, and the note found in Hae’s car — it appears now that the evidence did not actually suggest that Hae was on her way to see Don at the time of her disappearance. Back in 1999, however, the police did think that — and their failure to investigate Don as they should have is probably a big part of the reason why all the uncertainty about the wrestling match never got sorted out at the time of trial.

In investigating Hae’s murder, the police ignored any line of inquiry that did not directly lead towards building a case against Adnan. Their investigation of Don was a perfect example of this; they made the minimum possible effort to have him “ruled out” as a person of interest, and did little or nothing to investigate whether he might have relevant information concerning Hae’s disappearance. (A similar tactic was used with Mr. S. Although Mr. S failed a polygraph when asked if he was trying to withhold information from investigators, he was re-tested a few days later, and “passed” the polygraph once it was reduced to a single question, which was whether he knew the method in which Hae had been killed.)

Don and Adnan should have been of equal interest to investigators. Both had recently been in romantic relationships with Hae, and both should have had their alibis vetted.

Don and Adnan were not treated similarly by investigators, however. While Adnan was the focus of extensive investigation by both the Baltimore County and the Baltimore City Police, the investigation into Don was at best cursory (and, in the case of the Baltimore City Police, nonexistent). Although the police alleged that Don had been excluded as a suspect due to a confirmed alibi, this can only be said to have been “confirmed” under the loosest possible interpretation of that word.

Don’s alibi was that he had been at work on the day of Hae’s murder. Although he usually worked at the LensCrafters in Owings Mills, Don said that on January 13, 1999 he was  working at a different store, in Hunt Valley. However, the police did not speak to a single person from the Hunt Valley store, nor did they  obtain any employment records that could confirm his alibi. Instead, the police asked a single employee from the Owings Mills Mall location whether Don had worked at Hunt Valley that day, and although she stated that he had, her source for that information may have been Don himself.

Nothing more was done to investigate Don’s alibi until September 1999, when Adnan’s defense attorney filed a subpoena under seal requesting that LensCrafters produce all employment records for Don from the relevant time period. On October 4, 1999, LensCrafters produced records that showed Don had not worked on January 13, 1999.

Thereafter, Prosecutor Kevin Urick had a phone conversation with the LensCrafters legal department. Although the defense’s ex parte subpoena had been filed under seal, he somehow learned of it and obtained his own copies of the documents that LensCrafters had produced to the defense.  Two days later, following Urick’s phone conversation with the LensCrafters legal department, LensCrafters suddenly found an “additional time keeping record” that showed Don had, in fact, worked on January 13th. However, in a separate cover letter issued directly to Urick (and which LensCrafters did not include in its production to Gutierrez), LensCrafters went out of its way to notify Urick that the “General Manager on 1/13/99″ was “also Donald’s mother” (emphasis in original). Moreover, a review of the newly-discovered timecard shows that there are several oddities that call its authenticity into question.

The Cursory Investigation of Don

On the night that Hae’s family filed a missing persons report, Officer Adcock had a phone conversation  with Don at around 1:30 a.m. His report, written at the end of his shift on January 14th, provided the following:

I spoke to victim Lee’s boyfriend [Don]. [Don] advised he does not know the whereabouts of Ms. Lee. [Don] advised that he talked to Ms. Lee last on 1/12/99.

It should be noted that I spoke to [Don] on 1/14/99.

Another Baltimore County officer spoke to Don on January 14th, presumably later in the day, and reported the following:

The victim’s boyfriend [Don] [ ]advised he has not seen the victim since 1/12/99. Harford County sheriff was requested to check the area surrounding [Don’s street] for the victim and or her vehicle. At this time, with negative results.

Don did not mention to either officer that he had been at work that day, nor did he mention that he and Hae had made plans to meet up after Hae’s shift at LensCrafters. The first mention of any alibi for Don came a little over a week later, when Detective O’Shea spoke to him over the phone:

On 01/22/99 the assigned interviewed Don[ ]. Don said the last time he saw Hae Lee was on 01/12/99. Hae was at Donald’s residence in Bel Air. Donald said Hae was in a good mood and she was happy about their new relationship. Hae did mention to Donald that she argued with her mother about breaking curfew and phone privileges. Hae did not indicate to Donald that she was planning to go anywhere.

Hae left Don’s residence at 2230 hours and paged him when she arrived home at 2330 hours. Donald called Hae and they spoke on the phone until approximately 0300 hours. Hae told Donald that she would call him after she left work on 01/13/99. Hae was scheduled to work the 1800-2200 shift. On 01/13/99 Donald went to work at the Hunt Valley LensCrafters store. Donald did not speak with Hae while he was at work. Don worked until approximately 1800 hours. Don arrived home at 1900 hours and he was advised by his father to call the Owings Mills store. Donald called the store and he was told that Hae Lee was missing.

Don has known Hae Lee since 10/98. Hae and Don started to date on 01/01/99. Donald said Hae broke up with Adnan in mid-December of 1998. Adnan came to the store after he broke up with Hae. Donald met Adnan and Donald said Adnan was polite and cordial.

Hae told Donald that she spent the summer of 1997 or 1998 in California with her father. Hae also said she would like to live in California.

O’Shea submitted his report on February 11, 1999, only two days after Hae’s body was found. To judge from the tone of the report, as well as the investigators’ conduct at that time, the police had already dismissed Don as a possible suspect by the time the report was written.

Six days later, on January 28th, O’Shea spoke to Debbie about Hae. She told him the following:

Debbie said she saw Hae at approximately 1500 hours on 01/13/99. Hae was by herself and she was inside the school near the gym. Hae told Debbie that she was going to see Don[ ] at the mall. Debbie did not see Hae leave the school.
Debbie said Hae was excited about her relationship with Don[ ]. Hae would fight with her mother, but it was nothing serious enough to make her leave.

A little over a week after first interviewing Don, O’Shea interviewed “CM,” a manager at the Owings Mills LensCrafters. Although the manner of interview was not specified, it is worth noting that on the day the manager was interviewed, Don was working at the Owings Mill store all day — and thus, if the interview was in person, Don would have been there when O’Shea spoke to CM.

On February 14, 1999, O’Shea submitted the following report of his interview with the manager:

On 2/01/99 [O’Shea] interviewed [CM, a manager at LensCrafters in Owings Mills]. [CM] said Hae Lee was scheduled to work at 1800 hours on 01/13/99. Hae did not show up for work nor did she contact anyone.
[CM] said Don[ ] was working at the Hunt Valley LensCrafters on 01/13/99. [CM] said Don[ ] arrived for work at 0902 hours. He took a lunch break from 1310 to 1342 hours. [He] left work at 1800.

As O’Shea’s reports typically indicate when his interviews occurred in person, his conversation with CM most likely occurred over the phone, not at the LensCrafters store.  Don worked at LensCrafters all day on February 1st, and had O’Shea gone to the store in person, Don would presumably have been interviewed at the same time. As a result, the source of CM’s information about Don’s work schedule at the Hunt Valley store was not disclosed in O’Shea’s report. The source may very well have been Don himself, as it does not appear that different stores had access to each other’s employee records (or, if they did have shared access to employee time keeping records, then, as discussed infra, that itself raises additional concerns about the authenticity of those records).

Three days later, O’Shea went to the LensCrafters store and interviewed Don again, this time in person. O’Shea’s report merely noted that Don gave “the same” information he had previously provided:

The assigned met with Don[ ] in person on 02/04/99 at Owings Mills LensCrafters store. The information obtained was the same as provided in this correspondence.

After Don’s first interview, O’Shea was  informed by Debbie — who was believed to be the last person known to have seen Hae — that Hae had been on her way to “see Don at the mall” when she left Woodlawn High School. Despite this, O’Shea did not question Don about whether he and Hae had made plans to see each other that day, or even whether Hae knew at which mall he would be working.

In addition to the interviews with O’Shea, a consultant assisting with the missing persons investigation spoke to Don sometime in January and had the following to say about him:

Don: Co-worker and new boyfriend. Contacted both by police and by [consultant]. [Don] appeared mature, articulate but not overly concerned. Although helpful and polite he did not sound in any way emotionally concerned with Hae Lee’s disappearance. He felt she had gone to California to be with her father. But he did state that he hoped she would contact him. He did say that she had a girlfriend whose parents were away on vacation for the week (ending 1/16). He did not know who it was but offered the information “just in case”.

…

A missing persons report was taken by Officer Adcock at 5:15 PM. Mandy Johnson, Director of the Enehey Group, spoke with Hae Lee’s colleague at LensCrafters, Don[ ]. Hae Lee had recently begun dating [Don], and she seemed very enthusiastic about the their relationship. He stated that they had gone out together the night before her disappearance January 12, 1999. He confirmed that this was the last time he saw her. He said that he called her later to assure she had arrived home safely. During the date, he claims she told him that she’d had an argument with her mother earlier that day and that she had expressed the desire to live with her father in California. When asked how she would accomplish this, [Don] seemed to think she would either drive there or leave her car in the Satellite Parking Facility at BWI Airport and fly by commercial airline to California. He did not appear as enthused about their relationship as Hae Lee’s diary indicates that she was.

The consultant’s conversation with Don was the last time that Don was contacted by anyone from the State, in connection with either the missing person or the murder investigations. Following the discovery of Hae’s body, Don was never contacted by the Baltimore City Police, nor did Ritz or MacGillivary make any attempt to verify Don’s alibi beyond the summary report provided by O’Shea on February 14th. They never obtained his timecards for January 13th, never spoke to anyone who had actually seen Don on that day, and never discovered that Don’s manager at the Hunt Valley store was his mother.

During the murder investigation, Don’s name did get mentioned numerous times, however. All of Hae’s friends told the police that, at least initially, they had believed Hae had run off with her new boyfriend:

From Becky’s statement.

From Becky’s statement.

From Debbie’s statement.

From Debbie’s statement.

Although Don succeeded in convincing Debbie that Hae was not with him, it appears that Don may have been one of the sources of the subsequent rumor that emerged to explain Hae’s whereabouts: that she had gone to California to live with her father. Debbie told the police that she “d[id]n’t know for sure” who started the California rumor, and that it may have been she  and Aisha. However, the California rumor may have been passed on to Debbie by “Donnie” during their  seven hour phone conversation, as Debbie did not mention anything involving California during her own interview with O’Shea on February 1st. Per  the police files, Don was the earliest known source of the California claim: he had told the consultant some time in late January that during his date with Hae on January 12th, she expressed a desire to run off to California. He also stated that he thought she might have flown or driven there. Although Inez stated during a February 1st interview that Hae “wanted to contact her father in California,” Becky told police that Inez had told her and Adnan that “she thought Hae went to California”.

Other than the statements from Becky and Debbie indicating that they initially believed Hae was with Don, Don’s name comes up only two other times in the Baltimore Police Department’s files. The first comes from an undated, unsigned page of notes taken on a sheet of paper with BPD letterhead:

None of Hae girlfriends like

new boyfr.

New boyfriend assaulted Debbie.

There is no indication where this information came from, and as a result, I do not consider it to be a credible report. However, it does indicate that the police were being fed information by someone who claimed that Don had “assaulted Debbie,” and yet the police did absolutely nothing to follow up on it.

The final time that Don’s name appears in the police files is in the “Don Note,” which was discovered in Hae’s car on February 28th. The police never questioned Don about the note, despite their belief that it was written on the day of Hae’s murder, and despite the note’s corroboration of Debbie’s statement that Hae was on her way to “see Don at the mall” when she left WHS (ostensibly to deliver this note).

Moreover, although Don testified at trial that the police had questioned him about his plans to see Hae on January 13th, there is no indication in the police file as to what Don’s response may have been. Don testified that he did “not recall” what he had told the police, and as a result, there was no evidence at trial concerning Hae and Don’s plans for that day:

CG: And, sir, you were made aware, were you not, that in fact someone from Woodlawn had told the police that Hae Min Lee had said she was going to hook up with you after she left school?
Don: (No response.)
CG: Were you not told that?
Don: No.
CG: And were you asked about any plans you may have had to be with her then?
Don: Yes, I was asked that.
CG: All right. And you told them you had no plans to see her that day, correct?
Don: I do not recall what I told them.
CG: You don’t recall what you told the police who contacted you about the disappearance of your then girlfriend?
Don: No, ma’am. (2/01/00 Tr. 76.)

The only other pre-trial record of Don’s alibi comes from the defense files. In March 1999, defense investigator Drew Davis  visited the Owings Mills LensCrafters in an attempt to verify that Don was there on 1.13. The manager on duty (who was not the same manager that O’Shea had spoken to) turned Davis away and told him she could not give him any information about Don’s alibi:

Private Detective Andrew Davis responded to LensCrafters located in Owings Mills Mall in Owings Mills. PD Davis spoke to manager, [DA]. PD Davis was advised that any information that was obtained from Lens Crafters would have to be obtained through their general manager. PD Davis was also instructed to speak to Detective Joe O’Shea from Baltimore County Police Homicide. No further information could be provided.
. . .
PD Davis was able to speak to a police official who was involved in this investigation. PD Davis was advised by the subject that all alibi’s provided by Don, Hae’s current boyfriend, were confirmed and he had been completely ruled out as a possible suspect. PD Davis was also assured that the police had an “air tight” case against Adnan Syed in this case. The police official was confident that they had in fact arrested the correct person.

The police officer that Davis spoke to (presumably O’Shea) neglected to mention that Don’s alibi had been “confirmed” by a manager at a store where Don had not worked on the day of the murder and that no store records or eye witnesses could confirm that Don had actually been at Hunt Valley that day.

Summary of the Investigation into Don

The investigators’ complete disinterest in Don is baffling. The Harford County sheriff did conduct a search for Hae’s car in Don’s neighborhood on the night of January 13, 1999, but that was the most extensive investigation into Don that was ever performed. In investigating Hae’s disappearance, and later her murder, the police:

• Never spoke to anyone at the Hunt Valley LensCrafters store.
• Never obtained Don’s timecards for January 13, 1999. Although manager at the Owings Mills store informed Detective O’Shea (likely over the phone) that Don had worked at Hunt Valley that day, the source of that information was not identified.
• Never discovered that Don’s mother was the manager of the store where he said he had worked.
• Never questioned Don about Debbie’s statement that Hae was  on her way to see him when she disappeared.
• Never questioned Don about the note found in Hae’s car that indicated she had been on her way to see him when she disappeared.
• Never questioned Don about the police notes indicating Hae’s “new boyfriend assaulted Debbie.”

In addition, following the discovery of Hae’s body, the Baltimore City Police (who were handling the murder investigation) spoke neither to Don nor to anyone at either LensCrafters store. The Homicide Unit’s only sources of information about Don were  Detective O’Shea’s reports of his interviews with Don and the Owings Mills Mall manager, which were  written 2+ weeks after those interviews took  place.

The Prosecutor’s Procurement of Don’s Alibi

On September 24, 1999, Gutierrez filed an ex parte motion for issuance of a subpoena to LensCrafters requesting Don’s employment records. By filing the motion ex parte, the existence of the subpoena could not be disclosed to the prosecution, because:

Investigation into the background and whereabouts of Hae Min lee and Don and the credibility of chronicle of the events surrounding January 13th are essential to the defense investigation and is attorney-client protected and privileged work product. The material sought in this request is specifically related to its investigation. More important, the confidentiality of the investigation results should be maintained and can be maintained only if the requested subpoena is issued ex parte.

The subpoena requested that LensCrafters produce:

1. [Don’s] work schedule(s) for the period of his employment with LensCrafters
2. any and all disciplinary records or incidents reports concerning or involving [Don]
3. any and all records of customer complaints concerning or involving [Don]
4. any performance evaluations of Don

The subpoena was not limited to Don’s employment records with the Owings Mills location. In fact, Gutierrez’s motion identified Don as an “employee of the Hunt Valley Lenscrafters store.” All records concerning Don’s employment at LensCrafters should have been produced, but the Hunt Valley location was the only store that the defense identified by name.

The court granted the defense’s request, and the LensCrafters subpoena remained under seal, undisclosed to the prosecution:

Undisclosed to the prosecution in theory, anyway. On October 4, 1999, LensCrafters produced certified copies of Don’s employment records to the defense, including copies of Don’s timecards for the relevant period. On the same date, however, LensCrafters also produced copies of those same documents to Urick. Somehow, Urick discovered that the defense had issued a subpoena to LensCrafters, and responded by filing one of his own.

There is no indication as to how Urick learned of the defense’s subpoena, filed ex parte and under seal. It could easily have been a mistake, with someone accidentally serving papers they should not have served; that happens often enough. What happened next is harder to explain, however.

In the October 4, 1999 production from LensCrafters, only a single timecard was produced for Don for the week of Jan. 9 – Jan. 16th for work done at the Owings Mills Mall store (as indicated by the store number).  That timecard showed that Don did not work  on either Tuesday, January 12th, or Wednesday, January 13th:

Two days later, on October 6th, LensCrafters sent a second package to Gutierrez in response to the subpoena, this time providing a single additional document that was not contained in the earlier round of production. Unlike the previous round of production, this time LensCrafters included an explanatory cover letter, which informed Gutierrez that, “In response to your subpoena requesting Don[‘s] time keeping records, please find enclosed, an additional time keeping record.” This time, pursuant to a “thorough search of LensCrafters’ records pertaining to Don[ ],” LensCrafters was able to discover a record that was not found when LensCrafters made its previous production on October 4th:

This timecard, from the Hunt Valley store, showed that Don did work from 9:02 a.m. to 6:00 p.m. on January 13th, with a lunch break from 1:10 p.m. to 1:42 p.m. He also worked on Saturday, January 16th, from 9:18 a.m. to 1:06 p.m. (Intriguingly, and in contrast to every other timecard produced by LensCrafters, Don was credited for working 4 hours on Saturday, despite time entries showing he had only clocked in for 3 hours and 48 minutes.) Other than this single timecard, no further records concerning the Hunt Valley location were produced.

Or at least no further records were produced to the defense. Additional records were produced to the prosecution, however. On October 7, 1999, LensCrafters sent a second production package to Urick, accompanied by the following cover letter:

The October 7, 1999 letter has two primary points of interest. First, Sandra the paralegal  noted that, at some point, she and Urick communicated directly by telephone and discussed the existence of additional timecards from the Hunt Valley store. This phone call presumably occurred some time in the preceding three days, as no such conversation was referenced in LensCrafters’ October 4th production to Urick. Because no similar call was also made to the defense, it appears that Urick took the initiative of contacting LensCrafters, rather than vice versa. Following Urick’s call to LensCrafters, they seem to have ‘found’ an “additional time keeping record” they had previously overlooked. This newly discovered timecard was then sent to the defense, without comment, on October 6th.

Second, Sandra went out of the way in her letter to Urick to stress that the general manager of the Hunt Valley store was, in Sandra’s words, “Donald’s mother.” There was no reason for her to do so, other than that she apparently found this fact relevant — relevant enough to  receive extra emphasis in her cover letter to Urick.

Urick apparently did not share this view. That Don’s mother was the general manager was never introduced at trial.

In addition to the concerns raised by the cover letter accompanying the “additional” timecard, I also have concerns about the timecard itself. For the following reasons, its origins seem questionable:

(1) The Employee Numbers. Don’s employment number on the Hunt Valley timecard was #0097. The employment number for Don’s mother was #0110. Since employee numbers were assigned sequentially by employment date, this would indicate that Don was hired before his mother. This is certainly possible, but given that Don was an 18-year-old new-hire on 7/12/97, it seems unlikely that he would have been hired (at a minimum) several months ahead of his mother, who was the store’s general manager.

(2) Who was the “friend [Don] arranged . . . to fill in for at the store in Hunt Valley”? Don worked as a Lab Tech for LensCrafters, usually at the Owings Mills Mall location. In Episode 12 of Serial, Don said that on January 13, 1999 he was not at the Owings Mills Mall store, because he had “arranged to fill in for a friend at the store in Hunt Valley.”

However, the weekly schedule for the Hunt Valley store showed that no lab techs were scheduled to work at 9am on January 13, 1999. The only three lab employees on the schedule were Charles (the Lab Supervisor) and Kevin and Mark (Lab Techs). Although Charles began work at 9 a.m., his timecards show that he worked his full shift that day, which means Don could only have been filling in for either Kevin, who was scheduled to work from 1 p.m. to 9 p.m., or Mark, who was scheduled to work from 11 a.m. to 9 p.m.

Why, then, would Don have needed to be loaned to the Hunt Valley store to work from 9 a.m. to 6 p.m  when no lab tech was scheduled to work that shift? It does not appear that Hunt Valley had any need for lab techs to start work at 9 a.m. on January 13th — in fact, from Monday through Thursday, no lab tech began work at the Hunt Valley store before 11 a.m.

(3) Why did Don work the same shift he usually worked at the Owings Mills Mall store? Although 9 a.m. to 6 p.m. was not a shift that any lab tech worked at the Hunt Valley store during the week that Don worked there, it was a shift that Don frequently worked at the Owings Mills Mall store:

So if Don was filling in for a tech at Hunt Valley, none of whom worked a 9-to-6 shift, why did Don work that shift at Hunt Valley on January 13th?

(4) Where is Don’s overtime pay? Don’s timecard shows he received no overtime pay for the week of 1/16/99. However, with his shifts at Owings Mills and Hunt Valley combined, he worked 45.9 hours that week.. Why was he not credited for the extra time? If Don’s manager at Owings Mills, CM, could instantly review Don’s work records at the Hunt Valley store — as her interview with O’Shea implies — and if Don was “on loan” to the Hunt Valley store, then it is difficult to see how federal overtime laws would not have applied to his situation.

(5) How did Don manage the shifts at both stores on January 16th? According to the timecards, on Saturday, January 16, 1999, Don worked at Hunt Valley from 9:18 a.m. to 1:06 p.m., and then at Owings Mills Mall from 1:29 p.m. to 9:57 p.m. This means that twenty-three minutes after physically clocking out at the Hunt Valley store, Don had driven to Owings Mills, parked his car, gotten into the store, and clocked in again. This timeline is within the realm of physical possibility, but just barely – as Hunt Valley and Owings Mills are 23 minutes apart, going at the speed limit.

(6) Don’s employment records suggest cause for additional scrutiny of his timecards. A review of Don’s employee records should have suggested to both the defense and the prosecution that the oddities in Don’s timecards warranted closer consideration. For instance, an employee review from June 1999 noted that Don “need[ed] to understand the possible consequences of falsifying company documents”:

Other employee reviews, such as one from February 1999, referenced undisclosed ‘integrity issues’ that had undermined the trust of his coworkers:

Don does not like to admit mistakes, making it difficult to learn from them. This also undermines the confidence and trust the associates have in him because of possible integrity issues.

Don’s quality of interactions with others is not always positive. . . Don is quick to place blame, & does not wish to take personal responsibility. Don needs to calmly communicate to the associates what [?] they should be concerned with. Don must also realize that when he is agitated he will not be able to communicate positively to the associates. Body language is very important. One must remain calm and appear unflappable even in the most difficult situations.

Don needs to begin building trust with fellow associates. Don needs to understand that this can be accomplished by supporting associates instead of pointing out negatives. One way is to remain calm and show control when things are difficult in the lab.

What Don’s Unverified Alibi Shows

First, I want to stress again that I do not believe Don had any involvement whatsoever in Hae’s death, not is there evidence to suggest that he did. The only difference between Don and Adnan was Jay; without Jay’s (inconsistent and often incoherent) statements, Don and Adnan had exactly the same evidence stacked against them. Both had witnesses who gave statements indicating that they may have had access to Hae at the time of her disappearance (although the only witness who saw Adnan and Hae together uniformly said that Adnan had not gotten a ride with Hae; both Debbie and the note in Hae’s car were believed by investigators to show that Hae had been on her way to see Don when she went missing). And both had alibis that were suggestive but not 100% confirmed by the police investigation.

An unverified alibi is not evidence that an alibi is false, however. Although Don’s timecards do have unexplained oddities, even if it were shown that this documentation had been created after the fact to confirm his alibi for Hae’s murder, that would not mean Don was not actually at work that day (or, even if he hadn’t been at work, that he had been involved in the murder). What it does mean is that the investigators’ focus on Adnan as their sole suspect caused them to overlook even the most basic investigatory steps, such as verifying the victim’s boyfriend’s alibi. The investigators did not undertake any efforts that were not aimed squarely at proving Adnan’s guilt, and aside from taking the minimum effort necessary to exclude both Don and Mr. S as suspects, no one else was ever investigated as a suspect in Hae’s murder.

-Susan

Two big updates before today’s post:

First, Rabia Chaudry, Colin Miller, and I will be launching a new podcast to cover all the new developments in Adnan’s case. The first episode of Undisclosed will be released on April 13th, so check us out then.

Second, Rabia and I were back on The Docket this morning, this time for a special on the Science of Serial. Clint Van Zandt and Dr. William Manion joined us to discuss the crime scene analysis and the autopsy report:

The Science of ‘Serial’ Part I: Crime Scene
Physical evidence is missing from the 1999 murder of Hae Min Lee according to crime analyst Clint Van Zandt who states the murder, method of transportation and body disposal are not linked. Attorneys Seema Iyer, Rabia Chaudry, and Susan Simpson discuss.

The Science of ‘Serial’ Part II: Autopsy
Forensic Pathologist Dr. Bill Manion has problems with livor mortis when determining an approximate time of death of Hae Min Lee. Attorneys Seema Iyer, Rabia Chaudry, and Susan Simpson discuss.

The murder of Hae Min Lee was investigated by Detectives William Ritz and Gregory MacGillivary. To date, three defendants who were convicted of murder pursuant to investigations by either Ritz or MacGillivary have since been released from prison, after it was determined that they had been wrongfully convicted.

Those defendants are Ezra Mable, Sabein Burgess, and Rodney Addison. As the civil complaint filed last week by Burgess aptly summarizes, the convictions in all three cases were

the result of the Baltimore Police Department’s policies and practices of pursuing wrongful convictions through reliance on profoundly flawed investigations. In a race to clear murder cases, the Department cut corners and rushed to judgment.

The problems in the underlying investigations ranged from simple incompetence — such as failure to interview obvious witnesses or to properly preserve forensic evidence — to intentional distortions of the evidentiary record — such as the fabrication of witness reports. In each of these cases, the investigators’ tunnel vision led them to either ignore or avoid evidence that contradicted their chosen theory of the case, and to withhold any exculpatory evidence they accidentally stumbled upon. Moreover, in both the Mable and Burgess cases, allegations have been made of deliberate wrongdoing by police officers who prioritized clearing cases over identifying the actual perpetrators of the murders they were investigating. Improving the detectives’ numbers became a higher goal than identifying criminals and building solid cases against them.

The prioritization of good statistics over good investigations can be seen not just in the resulting false convictions, but also in the resulting murder charges that were so unsupportable that they never resulted in prosecution by the State. Even though these cases were voluntarily dismissed by prosecutors who determined there was an insufficient basis to try the defendant, each charge was nevertheless recorded as a “cleared” case for purposes of the detective’s track record. For example, from 1998 and 1999, Detective Ritz was involved in at least 42 investigations which resulted in charges of first- or second-degree murder. Of those 42  murder charges, however, 15 were nolled or otherwise dismissed voluntarily by the State after it was determined that the evidence was insufficient to permit the prosecution to proceed. This “charge them all and let the prosecutor sort them out” style of policing was a major cause of a schism that developed between the State’s Attorney’s Office and the BPD. It was also a major contributor to each of the false convictions discussed herein.

Ezra Mable

In 2002, Ezra Mable pled guilty to second-degree murder and was sentenced to 25 years’ imprisonment. His plea was motivated by the State’s representation that two eyewitnesses had seen him fleeing from the murder scene moments after the crime, as well as by the State’s failure to disclose mountains of exculpatory evidence. For example, both those eyewitnesses had identified another man — a drug dealer who worked with the victim — as the killer. In 2009, after nearly a decade in prison, Mable wrote his own Petition for Post-Conviction Relief. In an unusual move, the Baltimore City State’s Attorney’s Office joined him in moving for his release, which was granted in 2010.

In 2013, Mable filed a civil suit against, inter alia, the City of Baltimore, the Police Department, and Detective William Ritz for their roles in securing his conviction. Mable’s complaint summarized the events that led to his incarceration in a way that could equally apply to Adnan’s arrest and conviction:

[T]he Defendants [ ] resolved to focus entirely on Mr. Mable and did not attempt to determine the actual truth in their investigation or to develop a case based on truthful facts. Motivated by a desire to quickly solve Mr. Dukes’ murder and make an arrest in this highly publicized case, the Defendants adopted a theory, and then abused their investigation and authority to construct a case to fit it.

As Mable ultimately did not pursue his lawsuit, there is no record of how the defendants would have responded to his allegations . However, the fact that the State’s Attorney’s Office joined Mable’s Petition for release makes the following impossible to dispute: something was very, very wrong with his conviction. If a jailhouse motion in a ten-year-old murder case was able to convince the State’s Attorney’s Office to join his petition and request his release, the facts must have been overwhelmingly unfavorable to the State. Such an event simply does not happen in the absence of extraordinary circumstances.

It is also telling that, shortly after Mable was freed, one of the lead detectives on his case left the Baltimore Police Department. That detective was William Ritz.

The man Mable was convicted of killing, Kevin Dukes, was a drug dealer in the Cherry Hill neighborhood. Shortly before his death, Dukes had reportedly learned that one of his dealers, a man named “Eddie,” had been cutting the drugs supplied by Dukes, and pocketing the money from the extra sales. Relations between Eddie and Dukes devolved further, and

Mr. Dukes, thereafter, informed his friends that he was trying to procure a gun for protection because “Eddie was going to kill him for his drugs.” On the day of Mr. Dukes’ cold-blooded murder, he met up with his drug dealers for their weekly meeting. Immediately thereafter, Eddie was seen getting into Mr. Dukes’ motor vehicle where Mr. Dukes was found soon after, dead, shot multiple times at close range.

Detective Ritz, along with Detective Hastings, supervised the investigation into Dukes’ murder. After arriving at the crime scene, the officers quickly concluded that Dukes had been murdered while in the car. (As detailed in the complaint, however, the physical evidence is not wholly consistent with this theory.) Although the police did not find any witnesses at the crime scene, in the days following the murder they received numerous tips identifying “Eddie” as the shooter.

A few weeks later, two patrol officers ran into Eddie on the street. They determined that he was  the man whom tipsters had identified in the Dukes murder and picked him up for questioning. However,  when the officers got back to the station, their supervisors

advised [ ] that Eddie was not wanted as a suspect. Defendant Ritz was contacted and advised that Eddie had scars on his neck consistent with the reports the Defendants had received that Eddie was scratched on his neck just prior to murdering Mr. Dukes. However, Defendant Ritz, after acknowledging that there was a witness that stated that Eddie was scratched in the neck by Mr. Dukes just prior to the shooting, advised Defendant Roney to release Eddie. Eddie was never questioned and there was never any DNA test ordered.

Despite the reports that Dukes scratched his killer before his death, scrapings from his fingernails were not tested for DNA. In Mables’ complaint, it was noted that the Baltimore Police Department routinely ordered the crime lab not to conduct DNA tests:

In at least nine homicide, sex assault and burglary cases, Baltimore police detectives instructed crime lab technicians not to follow up on convicted criminals’ DNA found on evidence at crime scenes because they determined it was not relevant to their investigations, police said.

Baltimore State’s Attorney Patricia C. Jessamy has requested a complete review of cases handled by the lab, saying that prosecutors and defense attorneys need to be made aware of all the evidence police collect. 

But if the State had no forensic evidence linking Mable to the crime, no witnesses who saw him at the crime scene, and no evidence that he had any motive to kill Dukes, how did the State end up convicting Mable of Dukes’ murder? By inventing eyewitnesses. Two of them.

The first witness was Ms. Frazier. Early in the investigation, another woman informed the police that Frazier might know something about Dukes’ murder. Two months later, they

contacted Ms. Frazier, but she was not interested in meeting with them.  In the days that followed, the Defendants repeatedly phoned Ms. Frazier and, when it became clear that Ms. Frazier was ignoring the Defendants’ attempts, they began to stakeout her residence.

Eventually, staking out Ms. Frazier’s residence, the Defendants were able to pull her motor vehicle over to the side of the road on a cold, pitch-black, mid-November night. Upon information and belief, they searched it for any incriminating evidence and recovered a quantity of illegal narcotics. It is, however, unclear whether the quantity of narcotics belonged to Ms. Frazier or whether the Defendants planted them in her motor vehicle during their illegal search.

On the side of the road, as the night was quickly turning into the next day, Ms. Frazier was presented with mug shots in a photo book full of black and white copies of black men’s faces. She was given a choice, either she could identify someone in the photo book as Mr. Dukes’ shooter or she would be arrested for the possession of illegal narcotics recovered from her motor vehicle. Upon information and belief, Ms. Frazier also had her children in her motor vehicle, which the Defendants seized upon by warning her that if she were arrested, the Department of Social Services would be notified and would take the children away from her.

Under this high-pressure, high-stakes roadside interrogation by the detectives, Frazier eventually picked a photo out of the book they provided her — a photo that turned out to be that of Mable. However, Frazier “signed the picture of another black man ten minutes later, who was noticeably lighter, was not chubby, had hair that extended beyond his ears, and was approximately ten years older than Mr. Mable. That second man was Eddie and she was sure he was the shooter.”

The following day, Frazier was interviewed again, and this time her statement was recorded. However, her “stated recollections were so basic that anyone who knew even the most minuscule amount about Mr. Dukes’ murder could have come up with her story.” She also stated that she had not clearly seen Dukes’ killer, informing the detectives that, “I saw the shooter get out of the passenger side of a gold vehicle but didn’t get a good look.”

Despite Frazier’s identification of Eddie as the shooter, and her statement that she failed to clearly see the killer, Detective Ritz

testified before a grand jury that two witnesses had identified Mr. Mable, one of which was Ms. Frazier. However, not only did Ms. Frazier not make a positive identification of Mr. Mable, but rather she stated that she didn’t get a good look at the shooter and identified Eddie nonetheless. These three exculpatory statements and others made by Ms. Frazier were never disclosed to the State’s Attorney’s Office, the Circuit Court for Baltimore City, or Mr. Mable’s attorney.

The second “eyewitness” was Taylor, another local woman. There was no evidence that Taylor was even a witness to Dukes’ murder, but the detectives made her an offer similar to the one they made Frazier: make an identification in the Dukes murder and you will not be arrested for possession of narcotics.

Taylor’s statement, however, did not match Frazier’s, and Taylor was unable to provide basic details concerning what she had witnessed:

Taylor stated that she was at a friend’s house, but had trouble indicating where it was . . . Taylor’s story started out with her looking out a window. Then, her story changed to her looking out a screen door that faced north on Round Road. She stated that she observed someone parking Mr. Dukes’ motor vehicle on Round Road and not drifting down a hill as was stated by Ms. Frazier. Then, Ms. Taylor stated that she left the screen door. Less than a minute later, she claimed to have heard a series of gunshots, which made her return to the screen door “and that is when [she] saw the guy in those pictures [she] had identified running away from the car. . . .

She was [ ] adamant that the shooter exited Mr. Dukes’ motor vehicle through the driver’s side door, which would have required the impossible task of climbing over Mr. Dukes, who was seated in the driver’s seat of the Vehicle, slumped over to the passenger side. In stark contrast, Ms. Frazier was sure that the shooter exited from the passenger side of the Vehicle.

[ ] Ms. Taylor’s identification of the shooter from the photo array should not be a surprise: “Mr. Dukes was killed, supplied him, the guy I just identified the photo of, Eddie, and the other dudes be on Bethune Road selling weed.”

Despite Taylor’s alleged refusal to identify Mable as Dukes’ killer, Ritz and the other officers falsely reported that Taylor had in fact positively identified Mable:

When Ms. Taylor still maintained that she did not see Mr. Mable exit Mr. Dukes’ motor vehicle, but rather Eddie, the Defendants resumed threatening Ms. Taylor with arrest and prosecution for the possession of illegal narcotics. The Defendants again suggested that Ms. Taylor could avoid arrest by saying that she had seen Mr. Mable with a gun exiting Mr. Dukes’ motor vehicle. When she repeatedly told the Defendants that she never saw Mr. Mable with a gun or at all, the Defendants continued to badger and threaten her, and became angry.

With a total disregard for the truth, the Defendants reported that Ms. Taylor told them that she did in fact see Mr. Mable exit Mr. Dukes’ motor vehicle with a gun. The Defendants deliberately suppressed the fact that they had apprehended her, had lied to her to get her to say that she had seen Mr. Dukes’ shooter, had pressured and coerced her to make an identification of the shooter, which unfortunately for the Defendants happened to be Eddie, and lied in their report that Ms. Taylor positively identified Mr. Mable.

In the face of the prosecution’s claim that it had two strong eyewitnesses linking Mable to the crime — and due to the State’s failure to disclose the volumes of Brady material that showed the case against Mable was an illusion — Mable pled guilty to the murder, likely on the advice of his court-appointed attorney.

Why did Ritz and the other officers go to such lengths to incarcerate a man against whom they had no evidence? The charges against Mable do not seem to have been personal. Rather, it appears he was selected as the suspect in Dukes’ murder because Frazier happened to pick his photo out of the photo book Ritz and Hastings presented her with, even though Frazier would instead identify Eddie as the killer a few moments later. Ultimately, as Mable alleges in his complaint, the detectives decided to go ahead and prosecute Mable because “[t]he most important criteria for [the investigation] was that Eddie not be prosecuted.” Although Mable does not outright state as much, what the described circumstances seem to be point at is that “Eddie” was a confidential informant — and a highly valued one at that.

Sabein Burgess

Sabein Burgess was wrongfully convicted of murder in 1995 and spent 19 years in prison before successfully proving his innocence in 2014. Last week, he filed suit under 42 U.S.C. § 1983, asserting claims against members of the Baltimore Police Department involved in securing his conviction. Three of the defendants named in Burgess’ suit should be familiar to those following Adnan’s case: Detective Ritz, Sergeant Detective Lehmann, and criminalist Van Gelder. (It is worth noting that Lehmann was also involved in the Mable investigation.)

On the evening of October 5, 1994, Sabein Burgess left the home he shared with his girlfriend, Dyson, and her four children. When he returned, he found his girlfriend’s body in the basement. She had been shot multiple times. Burgess ran to tell a neighbor to call 911 before returning to try to assist Dyson by clearing blood from her airway. Minutes later,

. . . police arrived at the home in the 2700 block of Barclay St., and found the house’s basement door ajar with the smell of gunpowder wafting up the stairs, according to court documents. An officer ordered Burgess, who was downstairs with Dyson, to come out with his hands where the policeman could see them. Burgess was cuffed and his hands were swabbed for gunshot residue. http://truthinjustice.org/sabein-burgess.htm

The crime scene technician “swabbed the inside of the palms of both of [Burgess’]  hands.” Burgess was then

taken to the police station where he was interrogated by the Officer Defendants. During that interrogation, the Officer Defendants told Plaintiff that he was going away for murder. When Plaintiff denied any responsibility for the crime, the Officer Defendants told him that they would find people to say that Plaintiff fired the gun that killed his girlfriend.

With no evidence linking him to the crime, Burgess was released. However, one month later, Daniel Van Gelder, of the Trace Analysis Unit, issued his findings from the  gunshot residue (“GSR”) analysis, and concluded that GSR had been found on Burgess’ hands. Based on this forensic evidence, Burgess was arrested.

Van Gelder’s forensic findings and trial testimony were inaccurate and misleading for two primary reasons:

First, Defendant Van Gelder’s falsely reported that GSR swabs were taken from the “webbing” of Plaintiff’s hands – between the back of the thumbs and forefingers. But the “webbing” of Plaintiff’s hands were not swabbed; instead, the technician swabbed the inside of the palms of Plaintiff’s hands. That lie was important because Defendant Van Gelder used it to falsely state that the GSR results showed that Defendant either fired a gun or was adjacent to a gun that was fired. According to Defendant Van Gelder, there could be no other reason for GSR to show up on that part of Plaintiff’s hands.

Second, Defendant Van Gelder also falsely stated that any positive GSR finding from Plaintiff’s hands could not have been the result of the transfer of GSR particles from Ms. Dyson to Plaintiff when Plaintiff was cradling her in his hands after she was shot. That statement was not only patently false, but also had no legitimate basis in science.

The Burgess complaint notes that, in other cases handled by Van Gelder, his results had been similarly distorted so as to strengthen the significance of his findings:

[I]n the case of Tyrone Jones, the Laboratory misrepresented the findings of GSR testing. Defendant Van Gelder stated that he found 17 unique particles when in fact only one particle was found.

These issues go far beyond Van Gelder, however. In 2004,

[Baltimore Crime Laboratory] director Edward Koch, Sr. stated that only people who have fired guns will have unique gunshot particles in the web of their hands, an organizational belief that finds no support in legitimate science.

Even after GSR testing was moved to headquarters [and away from stations that had live firing ranges] an internal audit showed that the cleaning bucket, floor in the testing room and a police officer’s handcuffs all had GSR particles on them.

Unless that cleaning bucket had recently fired a weapon, the Trace Analysis Unit should have known that its expansive conclusions about the significance of GSR residue were not scientifically sound. Nevertheless, even in 2005, Detective Massey was still repeating the false claim that “the presence of gunshot residue [is] proof that [a defendant] fired a gun [or] was in close proximity at the time [a] weapon was fired.”

Because the detectives failed to find any evidence other than the GSR test that linked Burgess to the murder, the State’s case against Burgess ultimately boiled down to two facts: (1) Burgess was the victim’s boyfriend; and (2) he had the greatest opportunity to commit the crime. In other words, the prosecution’s theory of the case was “of course the boyfriend did it, who else would have?” A key component of the State’s success in securing Burgess’ conviction was its disregard for due process and Brady, by withholding exculpatory evidence from the defense. Although an eyewitness — Dyson’s son — had told police on the night of the murder that Burgess was not responsible, the police falsely reported that all of the children were  asleep at the time of the offense:

Notwithstanding their threats to Plaintiff, as early as the night of the murder, the Officer Defendants knew that Plaintiff was innocent.

That night, the Officer Defendants spoke to Ms. Dyson’s children. Ms. Dyson’s son came out of his bedroom after he heard someone at the door. Ms. Dyson’s son told the Officer Defendants that he then saw someone barge into their home right before his mother was killed. The Officer Defendants asked Ms. Dyson’s son if that person was Ms. Dyson’s boyfriend. Ms. Dyson’s son told the Defendants that it was not Plaintiff.

Despite the obvious exculpatory value of this statement, it was never disclosed to the prosecutor or to Plaintiff or his criminal defense lawyer.

Because Ms. Dyson’s children had just lost their mother, their grandmother did not let them see or speak to Plaintiff or his criminal defense attorney.

Instead of disclosing the exculpatory information provided to them by Ms. Dyson’s son, the Officer Defendants fabricated police reports stating that all of Ms. Dyson’s children were asleep at the time of the shooting and therefore did not see anything. Based on the Defendants’ false statements, the prosecutor repeated that false narrative in her opening and closing statements at Plaintiff’s criminal trial.

Following a two-day trial, Burgess was convicted of Dyson’s murder and sentenced to life in prison. Two years later, in October 1998, one of the real perpetrators of Ms. Dyson’s murder, Charles Dorsey, wrote a letter confessing to the crime. Dorsey stated that Plaintiff was doing time for a murder that he had committed. Dorsey repeated that admission several times in letters to Plaintiff’s criminal defense attorney and acknowledged that by doing so, he could face charges for first-degree murder.

Eventually, Detective Ritz decided he ought to interview the man who kept confessing to Dyson’s murder:

Nearly one year later, Defendant Ritz and another Baltimore police detective interviewed Dorsey but did no additional follow-up because, according to their report, Dorsey’s confession lacked details that the real killer would know.

That claim, however, was patently false. For example, Dorsey not only told the Detectives about the caliber of weapon used, but also the correct number and location of the gunshot wounds sustained. Dorsey also correctly told Defendant Ritz that he removed a safe with money and personal papers from a second-story bedroom.

According to Dorsey, he and another person, Howard Rice, were the sole perpetrators of the Dyson homicide; Rice forced his way into Ms. Dyson’s home with Dorsey following later behind, and they both shot and killed her in her basement.

Detective Ritz was either so incompetent that he could not catch a murderer who was confessing to the crime, or else so corrupt that he believed Dorsey’s confession but decided to sweep it under the rug because he did not want to have a successful (albeit false) conviction reversed.

The fact that Ritz already had evidence implicating Rice in Dyson’s murder — a fact corroborated by Dorsey’s repeated confessions — suggests that the latter explanation may be the more accurate of the two:

Even before Dorsey confessed, the Defendants were well aware of Howard Rice’s involvement in the Dyson murder. In fact, the Officer Defendants knew of Rice’s culpability before Plaintiff was even convicted.

For example, in 1996, the Officer Defendants questioned an unrelated witness about whether Rice was responsible for the Dyson shooting.

Of course, the police never disclosed to Burgess’ defense that they suspected Rice’s involvement in the murder, just as they failed to disclose the exculpatory statements made by Dyson’s son.

Rodney Addison

In 1998, Rodney Addison was convicted of the murder of Lewis Jackson, who was shot while sitting in his car in October 1996. MacGillivary was one of the detectives responsible for the investigation into Lewis’ murder.

Addison was identified as a suspect when a witness who claimed to have seen the shooting through her apartment window picked his photo out of a photo array.  He was released in October 2005, after nine years’ imprisonment, when it was discovered that the State had withheld exculpatory witness statements:

[T]hree witness statements contradicting the testimony of the state’s sole witness, Frances Morgan, were obtained by Baltimore police during their initial investigation. Yet they had not been released to Addison prior to his trial. A Public Information Act request for all police documents in Addison’s case led to disclosure of the exculpatory statements. In October 2005 Baltimore City Circuit Court Judge Edward Hargadon ordered a new trial. He said the state’s failure to disclose the three exculpatory witness statements “undermined the confidence of the entire verdict.” Two months later, the Baltimore State’s Attorney Office dismissed the murder charge, stating they did not have the evidence or witnesses to pursue another trial. The dismissal resulted in Addison’s release. 

Although the State’s Attorney’s Office has insisted that “that the ruling for a new trial did not represent exoneration,” the State’s only witness recanted her testimony against Addison at a post-conviction proceeding:

[The court] ruled that the state did not disclose three witness statements that contradicted the sole witness they put on the stand – Frances Morgan, who testified that she saw the shooting through a window in her apartment. . . .

But she couldn’t see the Springhill Avenue murder scene from the window, and she didn’t see it, she would acknowledge years later, first to defense attorneys and then in court.

Addison suspected this all along. He raised this point at his 1998 trial. “I think I can prove that the witness was lying on the stand yesterday when she said she looked out her window,” he blurted out to Judge Roger W. Brown on March 23, 1998, two days before he was convicted.

Defense attorneys visiting the scene years later would evaluate the window and determine that it was not physically feasible to see the car from that window.

Morgan and her mother testified in a post-conviction hearing that she did not see the murder and was getting high on cocaine at that time.

In addition to Morgan, two out of three witnesses whose original statements were not given to the initial defense attorney were interviewed and testified in post-conviction hearings.

One man, Ernest Green, testified to witnessing the shooting, asserting that Addison was not the man he saw that day.

And yet, despite the fact that the State’s only evidence against Addison was an eyewitness who did not actually see the murder, the State’s Attorney’s Office still went on the record stating that the dismissal of the charges against Addison “did not represent exoneration.”

Similarities Between the Investigation Into Hae’s Murder and the Mable, Burgess, and Addison Cases

The investigatory practices that were employed in the Mable, Burgess, and Addison cases are strongly reminiscent of those in the Hae Min Lee investigation.  In each case, the police decided on a suspect on the basis of flimsy evidence and prior assumptions and then conducted an investigation aimed at proving that suspect guilty, even in the face of exculpatory evidence that should have alerted investigators to their errors.

Failing to Test DNA and other Trace Evidence

As highlighted in Mable’s civil complaint, the Baltimore Police Department regularly instructed the forensics lab not to test evidence that the police feared might “complicate” their investigation. This practice of failing to test seemingly relevant DNA evidence was also followed in the investigation into Hae’s murder. At the burial site in Leakin Park, investigators found a brandy bottle a mere 8 inches away from Hae’s body and a rope only 5 inches away. Despite the presence of human epithelial cells on the brandy bottle, the DNA was never tested. Similarly, although the rope was a potential murder weapon, the police ordered it held without testing. Later, that rope seems to have gone missing, as it failed to turn up during an evidence review, and it is unclear if it was ever located thereafter.

When a body is found in a wooded area that is isolated from foot traffic, and a rope and a liquor bottle are found within inches of that body, testing any DNA receovered from those items should have been common sense. Especially so in this case, as it did not involve a situation in which there was so much trash around the crime scene that police were unable to sort what was relevant from what was not. There is no record of any other trash found within 120 feet of the body; everything else collected from the Leakin Park crime scene was found along the roadside.

Although Urick — through the use of leading (and misleading) questions — tried to create the impression that the burial site was a trash-strewn rubbish heap, this is belied by the evidentiary record. The only pieces of trash in between the “no dumping” sign and the creek that are shown in the record or identified by any witness are the brandy bottle and the rope. There is no record of any non-organic materials anywhere in the vicinity of the body that were not collected either by the BPD (the bottle, rope) or the military team (trace evidence).

Any reasonable person who observed the crime scene should have concluded that there was a high probability that both the rope and the brandy bottle were related to Hae’s murder. And yet, in conjunction with State’s Attorney’s Office, Ritz and MacGillivary decided that the rope and brandy bottle — much like Dukes’ fingernails in the Burgess case — should not be tested, even though it was conclusively shown that DNA samples were present on at least one of the items, and possibly both:

On Monday, 29 March 1999 at 0900 hours, this investigator continued with the above captioned investigation and met with supervisors and technicians from the Trace Analysis Unit and Latent Print Division. During the meeting with each respective unit, all of the evidence was carefully reviewed. During the afternoon hours, a meeting was held at the Violent Crimes Division of the States Attorney’s Office. Those attendance were A.SA Division Chief, Mr. Mark Cohen, Team Captains, A.SA Ms. Ilene Nathan, A.SA Donald Giblin and AS.A Ms. Vickie Wash. The purpose of the meeting was to review and discuss all facets of the investigation, past, present and future in preparation for the indictment phase of the criminal proceedings against defendant, Adnan Syed.

Similarly, the investigators recovered at least three hairs from Hae’s car that were never even used for analysis, or examined to determine if they might be suitable for DNA testing. They likewise failed to conduct any forensic tests to determine whether or not Hae’s body had ever been placed in the trunk of her car or Adnan’s.

Although there does not appear to have been any fabrication of forensic evidence in Adnan’s case, the crime lab’s handling of the evidence was still concerning. Take, for instance, the testimony of the criminalist with the crime lab who performed much of the forensic analysis that was presented at trial:

Bianca: I inadvertently got some fibers mixed in with my hairs, and when I wrote the report, because somebody said, hey, hurry up and get this report done, we are going to trial soon, I had all my hairs separated which I needed some extra time to do, separated. I didn’t have any fibers other than the red fibers that I found in the body bag that I gave to Mr. VanGelder. When I looked, I thought, oh, I have all my hairs to do, and in there I had fibers. That’s why I needed to correct my initial report. I had hairs and I had some fibers mixed in with my hairs. When I cleaned them up to do my comparison, I realized, oh, darn, I wrote down I didn’t get any fibers but I have fibers. So I wrote a report. I could have tossed them away but that’s not the right thing to do. So I wrote a correction and said, look, I have to correct the initial report, I found some fibers. (2/01/00 Tr. 183-185) (emphasis added).

I suppose the criminalist should be commended for deciding against the casual destruction of evidence, but his testimony, combined with the series of other errors and inconsistencies in the other laboratory reports, does not inspire confidence in the forensic analysis that was performed in this case.

Offering Deals That Can’t Be Refused

When asked why he agreed to help Adnan bury Hae’s body, Jay told the Intercept that it was “[b]ecause at the time I was convinced that I would be going to jail for a long time if he turned me in for drug dealing, especially to high school kids.” Jay’s explanation is nonsensical; someone that you know committed murder is not going to turn you in on a drug charge. His answer makes sense, however, if understood as an explanation for why he told the cops he helped Adnan with the burial: he was convinced he would be going to jail for a long time if he was prosecuted for drug dealing.

Jay was forthright about this fact in his Intercept interview. He explained that he only agreed to talk once the police assured him that he would not be prosecuted for any drug-related offenses:

Well first of all, I wasn’t openly willing to cooperate with the police. It wasn’t until they made it clear they weren’t interested in my ‘procurement’ of pot that I began to open up any. And then I would only give them information pertaining to my interaction with someone or where I was. They had to chase me around before they could corner me to talk to me, and there came a point where I was just sick of talking to them. And they wouldn’t stop interviewing me or questioning me. I wasn’t fully cooperating, so if they said, ‘Well, we have on phone records that you talked to Jenn.’ I’d say, ‘Nope, I didn’t talk to Jenn.’ Until Jenn told me that she talked with the cops and that it was ok if I did too.

I stonewalled them that way. No — until they told me they weren’t trying to prosecute me for selling weed. . . That’s the best way I can account for the inconsistencies. Once the police made it clear that my drug dealing wasn’t gonna affect the outcome of what was going on, I became a little bit more transparent.

Jay’s account is a familiar one; it closely matches the description of the witness-identification (and witness-intimidation) techniques that Detective Ritz employed in the Mable case. In that case, you’ll recall, it  was alleged that the detectives “contacted Ms. Frazier, but she was not interested in meeting with them. In the days that followed, the [detectives] repeatedly phoned Ms. Frazier and, when it became clear that Ms. Frazier was ignoring the [detectives’] attempts, they began to stakeout her residence.” After staking out her home, they were able to make a traffic stop, where Frazier was given a choice: identify a murderer, or be arrested for narcotics.

Following Jay’s agreement to talk on February 28th, it appears that Jay did receive favorable treatment with regards to pending charges against him. On January 27, 1999, Jay had been arrested for disorderly conduct and resisting arrest, but on March 5, 1999 — just five days after giving his first recorded statement to Detectives Ritz and MacGillivary — a stet was entered. A stet is, in effect, a conditional dismissal of a charge; the prosecutor agrees not to prosecute, but reserves the right to re-open charges at any time within the next year should the defendant fail to abide by the conditions imposed by the stet.

Following Adnan’s trial, Jay’s continued imperviousness to criminal charges is remarkable. In all, since he became a witness in Hae’s murder, 25 different charges against him — including a half dozen assault charges — have been nolled or otherwise dismissed by the prosecution. Moreover, despite repeatedly violating the terms of his probation for  the charge of  accessory after the fact to murder, the probation violations were dismissed. (In fact, his conviction for accessory after the fact is oddly absent from the records checks performed in connection with later arrests.)

Concluding that Witnesses Are Irrelevant Without a Legitimate Basis

In the Burgess case, Ritz interviewed Charles Dorsey, one of the men responsible for the Dyson’s murder. Although Dorsey confessed to the crime and provided a detailed description of how the murder had been committed, Ritz wrote up a report that dismissed Dorsey’s statements as irrelevant. Ritz “did no additional follow-up [with Dorsey] because, according to the[ ] report, Dorsey’s confession lacked details that the real killer would know.”

In the Mable case, Ritz did not directly interview the man that numerous witnesses had identified as Dukes’ killer. However, when other officers brought Eddie in for an interview, Ritz ordered the officers to release him, even though the officers had informed Ritz that Eddie had injuries consistent with witness reports about the events leading up to Dukes’ death:

Defendant Ritz was contacted and advised that Eddie had scars on his neck consistent with the reports the Defendants had received that Eddie was scratched on his neck just prior to murdering Mr. Dukes. However, Defendant Ritz, after acknowledging that there was a witness that stated that Eddie was scratched in the neck by Mr. Dukes just prior to the shooting, advised Defendant Roney to release Eddie. Eddie was never questioned and there was never any DNA test ordered.

It does not appear that Ritz ever provided an explanation for why he ordered Eddie to be released without being interviewed, even though: (1) Dukes’ family believed Eddie was responsible; (2) a witness told police that Eddie was bragging about the murder; (3) “[numerous sources reporting]  that Eddie’s neck was scratched in an altercation with Mr. Dukes just prior to when Eddie murdered him in cold blood”; and (4) an anonymous caller told the police, “I know who shot someone in Cherry Hill and his name is Eddie.”

This unexplained (and inexplicable) dismissal of relevant witnesses is a pattern that was also present in the investigation into Hae’s murder. For instance, on the day it was announced that Hae’s body had been found, a potential witness — Mr. A —  walked into the Woodlawn police station and told them he had seen a young man acting suspiciously near concrete barriers in Leakin Park. Detective Ritz and Sergeant Lehmann were sent to interview Mr. A, but failed to record the substance of Mr. A’s statement. Instead, their report provided only a few sparse details about the witness interview, and then concluded — without any explanation whatsoever — that what Mr. A had seen “[wa]s not connected to the murder of Hae Lee.”

In several instances, Ritz interviewed witnesses who were materially relevant to the State’s case, but then failed to disclose any details of what those witnesses said. For example, after receiving a witness report on April 28, 1999 about “Neighbor Boy” — and how he had informed his neighbor Laura that he had “personally s[een] Hae Lee’s body in the trunk of a vehicle” — the detectives waited over three months before interviewing him. They then dismissed Neighbor Boy as having no relevance to the case, even though Laura’s report about his statements included details about the case that were not publicly disclosed at that time.

In still other instances, the detectives inexplicably failed to interview witnesses who should have been a top priority to the investigation. For instance, although Jay and Jenn told the police that they had informed five different individuals about Hae’s murder prior to their police interviews, only one of those individuals — Jeff J., Cathy’s boyfriend — was ever interviewed by the police, and the notes from that interview, like the notes from the Neighbor Boy interview, were not preserved in the case file. The other four individuals that Jay and Jenn claim to have told about the murder — Chris, Tayyib, Nicole, and Josh — were never interviewed at all, or if they were, no record of those interviews was kept. Similarly, although Debbie reported that a classmate, ‘Takera,’ had asked Hae for a ride on the afternoon of January 13th, the police records do not indicate that Takera was ever interviewed by the police. Ritz and MacGillivary likewise failed to contacted anyone who lived near (or parked in) the vacant lot where Hae’s car was found, even though those witnesses could potentially have had valuable information concerning how long the car had been parked there, or perhaps even who had left it there in the first place.

There is good reason to be skeptical of these odd lacunae in the investigatory records. In the Burgess case, for instance, the police fabricated a police report which falsely claimed that there had been no witnesses to Dyson’s murder. In fact, there had been a witness to the murder, and the witness said the killer was not Burgess. The police notes concerning that witness statement were disappeared, however, and a false police report was written that claimed the witness was asleep at the time of the murder.

As a result, with Adnan’s case, that leaves us with two possibilities. It is possible that, in investigating Hae’s murder, the police simply did not bother to take notes when they spoke to Jeff J., Neighbor Boy, and Patrice. If so, that was inexcusable police work. It is also possible, however, that notes of those interviews were taken — in which case those notes were withheld from the defense, presumably for the same reasons that the statements of Dyson’s son were withheld in the Burgess case.

-Susan

Note: Rabia Chaudry (Split the Moon), Colin Miller (Evidence Prof Blog), and I started a podcast. It’s called Undisclosed, and it follows Adnan Syed’s case and current appeal. New episodes will be released every other week, on Mondays, and in case that is too long to wait, on the off-weeks we will be releasing short addendum episodes with updates and previews.

Before reading the post below, I recommend at least listening to Addendum 1, as some of the new information covered there is discussed in this post. And be sure to check us out next Monday, for Episode 2

In closing arguments, the prosecution “is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence,” United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991)). However, this latitude does not permit a prosecutor to make false and factually unsupported claims during closing arguments, as “[i]t is a fundamental tenet of the law that attorneys may not make material misstatements of fact in summation.” Davis v. Zant, 36 F.3d 1538, 1548 n. 15 (11th Cir. 1994). Accordingly, prosecutors have an “obligation [ ] to avoid making statements of fact to the jury not supported by proper evidence introduced during trial,” as “the interest of the Government in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’ and that ‘the average jury . . . has confidence that these obligations [of fairness and accuracy] will be faithfully observed.'”  Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969),  (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

In the case against Adnan Syed, this obligation was not respected. Prosecutors Kathleen Murphy and Kevin Urick displayed a reckless disregard for the truth in their closing arguments to the jury, both by making material misrepresentations about the physical evidence and by misstating witness testimony. For many of the misrepresentations made in closing, it is difficult to see how the prosecutors could have been unaware of the falsity of their arguments. Regardless of whether those misrepresentations were made intentionally or not, however, the prosecutors in Adnan’s case were “exceedingly reckless, and paid too short shrift to the prosecutors’ ‘obligation’ to seek a conviction only on the basis of facts in the record.” United States v. Mageno, 762 F. 3d 933 (9th Cir. 2014) (quoting Gaither, 413 F.2d at 1079).

Below, I have set forth (in blue) a selection of claims made in the State’s closing arguments, by Murphy, and rebuttal closing, by Urick, and provided an analysis of the accuracy of their representations to the jury.

Closing Arguments (Murphy)

He felt the little bone in her throat pop and still he continued to hold her there 10 seconds, 15 long seconds, and it was done.

False. In reality, it takes several minutes to kill someone this way, as the State’s own expert testified:

Murphy: Based on your experience, how long approximately would it take for someone to die of strangulation?

Dr. Korell: Well, it depends on how long the pressure is applied. Now, if somebody applies pressure on the neck for ten seconds or so, and then the person becomes unconscious, then unconsciousness leads into death a couple of minutes later. (2/02/00 Tr. 42-43.)

Murphy’s “10 seconds, 15 long seconds” story was therefore factually untrue — which she must have known, because she was the one to question Dr. Korell on direct. She made the claim anyway, however, to support the State’s nonsensical timeline. In order for Hae to have been dead by 2:36, Adnan did not have minutes to spare while actually committing the murder.

Think again about Dr. Korell’s testimony and what this autopsy report tells you. We know that Hey Lee was a passenger in the car. The Defendant told Jay Wilds that as she struggled, as she tried to get away, she kicked the wiper lever. You saw a video showing this wiper lever, how it dangled from the steering column on the car. That was consistent with what Jay Wilds said. In order for Hey Lee to kick this wiper lever, we know she was in that passenger seat.

False. Jay did not testify that Hae kicked the “wiper lever.” He testified that, “[Adnan] said that he thought she was trying to say something to him like apologize or say she was sorry, and that she had kicked off the turn signal in the car” (2/04/00 Tr. 142). The turn signal was on the left side of the steering column. Although the prosecution’s witnesses alternately  claimed both the right side and left side switches were broken, depending on what was convenient for the prosecution’s narrative, Hae’s brother has said it was the left-hand turn signal, and his account seems the most credible.

There is no conceivable way Hae could have kicked the turn signal from the passenger seat, but the prosecution convinced the jury otherwise by packing two lies into this short section of the closing arguments: that (1) Jay had testified Adnan told him the “wiper lever” was broken during the struggle, and (2) that Jay’s testimony was consistent with Hae being in the passenger seat at the time of her death, when in reality his statements show the exact opposite.

Dr. Korell told you about bruises on the right side of her head. Think about it. She struggled, she’s pushing to get away, and her head is pushing against the window next to her. We know she was in the car, the very car that was used to take her body to Leakin Park.

True to the testimony, but factually inaccurate. Murphy’s argument here are based on permissible inferences drawn from the existing record — Dr. Korell did testify to something like this — but the factual accuracy of the underlying witness claims is unsupportable based on the evidence presented. The blunt force injuries to Hae’s skull were not consistent with the scenario described by Murphy, as Evidence Prof Blog has discussed in great detail. Accordingly, we do not know she was killed in the car, or that her car was used to transport her body. There was no supportable evidence that either scenario occurred, beyond Jay’s testimony, because the State declined to do any forensic testing that could have confirmed his account.

Consider the other evidence, the map in the car, the map with the palm print of this Defendant and the single page that’s ripped from this map, sitting in the back seat of that car. She was in Leakin Park in the very car where she was murdered.

Misleading. Murphy’s argument is certainly within bounds of prosecutorial discretion here, but it is worth noting that it was phrased in a misleading fashion. Adnan’s palm print was not found on a map of Leakin Park. It was found on the cover of a map book he had used all the time while he and Hae drove around together in the weeks and months before her death. Although Murphy implied that Adnan’s print was found on the map of Leakin Park itself, it was not. (Moreover, the “page that’s ripped from th[e] map” does not even show the part of Leakin Park where she was buried.

Consider also the photographs. Does this look like the trunk of a teenager’s car? No. She had sports equipment, she had other things that were all moved to the back seat, and you can see that in the pictures, because her body was put in this trunk by this Defendant. This was the car used to take her to Leakin Park and it’s the car in which she was killed.

False. Hae, like many high school students, kept her car in a fairly messy state; multiple witnesses have confirmed this. The fact that Hae’s backpack, books, and a few other items were found in her backseat is in no way evidence that items were moved from the trunk to the backseat of the car.

Moreover, the claim that sporting equipment,had been moved from the trunk of Hae’s car appears to be a bald-faced lie. (Unless the police inaccurately inventoried evidence, of course, which I support cannot be ruled out). Nothing introduced at trial or in the evidentiary record indicates that any sporting equipment was found in the backseat of the Sentra. In fact, when investigators found the car, Hae’s lacrosse and field hockey sticks were still in the trunk:

KU: Now, the next exhibit, State’s 15, have you had a chance to examine that?
Thomas: Yes, sir, I have.
KU: And what, if anything, does that indicate?
Thomas: This indicates the rear trunk area of the vehicle and the contents contained inside of that area.
KU: And could you explain what each picture shows
Thomas: Yes. The top left picture shows a lacrosse stick, hockey stick, a jacket, umbrella, and the index card packet. The lower left photograph indicates an envelope that was found beneath the carpeted area of the trunk, like right on top of the spare tire. The upper right photograph indicates papers  that were found once the red jacket was moved to the side. These are the items that were found beneath the red jacket. (1/31/00 Tr. 60-61.)

As there was no actual sporting equipment in the backseat of Hae’s car, Murphy’s claim that equipment was moved from the trunk of the Sentra to the backseat was empty speculation not supported by the record.

If this weren’t true, why hide the car? Why take it to a place where it’s not likely to be found for quite some time, and it was not. Consider also the testimony about the T-shirt in the car. Yung Lee told you he recognized this shirt. It had been his and he knew that his sister had used it as a rag in her car and she kept it stuffed in the map pocket next to the driver’s seat.

Misleading. Murphy’s conclusions are the exact opposite of what a criminal profiler would tell you. Had she been killed in her car, her body would more likely have been left there. Taking the trouble to transport the body to a second location suggests that the first one was connected to the killer. And, while the use of the rag perhaps suggests wiping for prints, that in itself cannot suggest that the car was the murder location, as prints would equally have been left by whoever drove her car and left it off Edmondson Avenue.

Remember when Dr. Korell told you about a process called pulmonary edema? This occurs when a person dies and a foamy blood comes from their nose or their mouth. She said it happens right after death. She said it can happen spontaneously or it can happen when the body is moved. And you can bet when blood came from the nose or mouth of Hey Lee that this Defendant took great care to wipe that blood to keep it from getting on him. The blood on the T-shirt is Hey Lee’s. Dr. Korell told you that blood appeared to be consistent with the very process she described. Consider the placement of the T-shirt, crumpled in the driver’s seat, as if it had been sat on. After he wiped the blood from her nose and mouth, he discarded it on the seat. Perhaps he used it again later to wipe the steering wheel. He tossed it away without another thought.

True to the testimony, but factually inaccurate. Dr. Korell did claim that she could identify the photos of the bloodstains on the t-shirt as “pulmonary edema,” but her claim was based on nothing more than junk science. First, that identification could not be made by looking at a photo. Second,  Dr. Korell’s description of pulmonary edema and the process by which it comes about is not consistent with any medical literature or with the opinions of any experts who have looked at the record, all of whom concluded that there is no reason to expect that, in a strangulation case, there would be pulmonary edema “com[ing] from the[] nose or [ ] mouth . . . right after death.”

Contrary to Murphy’s claims, then, the t-shirt found in Hae’s car does not provide supporting evidence for the prosecution’s theory that she was murdered there.

We know also that Hey was killed on January 13th, the day she disappeared, the last day she was seen by her family and friends. We know this because Jay Wilds says it and we know it for so many other reasons.

False. We “know” Hae was killed on January 13th only because Jay Wilds said it. There was no other evidence presented that she died on the day she went missing.

Remember the testimony of Mrs. Inez Butler-Hendricks from Woodlawn High School. She remembers talking to Hey that day. Hey was very excited about being taped for a local news show. She recalls in great detail how Hey came running into the concession area at 2:15, right after class. She was in such a rush that she didn’t even pay for the snack that she got because she knew she was corning back.

Misleading. At the second trial, Inez did testify that Hae had not paid for her snacks and said she would pay later; Murphy is right about that. But it’s worth noting that Inez perjured herself in doing so — in her second police statement, she described how Hae had paid for the snacks.

Murphy’s closing also sidestepped any mention of the fact that Hae did not simply “run up” to the concession stand — she drove up to the concession stand. She was already in her car, sans Adnan, by the time Inez saw her drive away, with no apparent way for Adnan to have intercepted her afterwards.

She had to go to the wrestling match, and Ms. Butler told you, with no hesitation, that these were in fact the clothes that Hey Lee was wearing on January 13th. She was wearing a skirt and light jacket and top. She wanted to look nice for the taping.

False. Inez never testified that Hae had been dressed up nicely for a interview on January 13th, and neither did anyone else. Hae was filmed in her field hockey uniform, she was not trying to dress nicely for the taping. Murphy either fabricated this detail or based it on evidence not in the trial record.

She was wearing hose, hose that Jay Wilds remembers seeing on her body, the taupe colored hose, the hose that were scratched and torn because her body had been in there long enough for animals to begin digging away at it.

False. Inez Butler testified that the hose were not colored:

Murphy: Do you recall what Ms. Lee was wearing on that day?
Inez: A little short black skirt, light colored blouse, and some real high black heels.
Murphy: Okay. Did she have anything on her legs?
Inez: She had some nylon stockings, but they weren’t colored stockings, they were just clear stockings. (2/04/00 Tr. 19.)

Jay was the only witness who remembered that Hae was wearing “taupe” colored hose.

Remember her bank records. There is not a single moment of activity on those records after January 13th. Up through January 13th, were there any significant withdrawals that would enable her to take a trip or go somewhere? No. A couple dollars here, a couple dollars there. On January 13th, $1.71, enough for Hey to stop and get a soda or a snack on her way home from her boyfriend Don’s house sometime after midnight. There’s not a single transaction after that. We know she was killed that day.

True to the record, but factually inaccurate. Had Murphy actually looked at the bank records she was referring to, she should have realized that the purchase in question was made on January 11th, not January 13th.

Additionally, although this was not presented at trial, if Murphy read the case file then she knew that Hae had reportedly told friends she had access to $3,000, somehow. In which case, Murphy’s argument about the lack of withdrawals from her bank account doesn’t mean much of anything.

And most importantly, ladies and gentlemen, consider what we know about Hey Lee. She’s a bright girl, she’s a busy girl. And on January 13th, 1999, she had lots of things to do. What does her schedule that day tell us? We know she was in class at 2:15. Aisha [ ] had that class with her, and so did the Defendant. Aisha [ ] told you that at the end of class at 2:15 Hae was talking to the Defendant. We know she immediately went to the gym area because that’s where Inez Butler him [sic]. They told you in great detail about their encounter.

Misleading. Murphy’s closing once again glosses over the fact that Hae was already in her car by the time she reached the gym, and Adnan was nowhere in sight.

Moreover, Murphy’s closing argument here was only possible because Aisha did not testify to the fact that, as recounted by Krista, she had witnessed the same conversation as Becky — the one in which Hae said that she could not give a ride to Adnan, because she had “something else to do.” Becky had seen Hae and Adnan walk away in different directions after the conversation, Hae down the hallway towards her car in the back lot, Adnan in the opposite direction.

We know that she left immediately to pick up her young cousins who were just in elementary school.

True to the record, but factually inaccurate. One cousin, singular. Although Officer Adock’s missing persons report had falsely claimed that Hae was picking up two cousins that day, Hae’s brother, Young, testified that she was only picking up one.

By 3:00, it was known to her family that she had not done this.

False. Murphy’s claim was contrary to the record, a fact which she ought to have been well aware of. Although Young was not asked at the second trial what time his family had learned of Hae’s failure to pick up her cousin, at the first trial he testified that the cousin’s day care had called at 3:30 to tell them that the cousin had not been picked up. Multiple other sources have also provided that the pick-up time was 3:15 or 3:20, and there is no source that provides that Hae would have been late for the pick-up if she was not there by 3:00pm.

Ladies and gentlemen, Hey Lee was dead in 20 to 25 minutes from when she left school. And we know that she was dead because she was supposed to return to Woodlawn High School and travel with the rest of the team. We know this didn’t happen because Ms. Inez Butler, who remembers so well seeing Hae that afternoon, had to go in Hae’s place with the rest of the team because she didn’t show up.

Misleading, and factually inaccurate. Hae was going to work at Owings Mills Mall that afternoon at 6pm, not to a wrestling match. But even accepting for the moment that there had been a wrestling match (although no documentary evidence of such a match exists) and that Hae was supposed to be there (contrary to Inez’s initial statements and all other evidence concerning her plans for that afternoon), the wrestling match story provides no evidence that Hae was dead within 25 minutes of leaving school. Inez testified that the bus for the Chesapeake match would not leave until 5pm, and Hae’s supposed failure to show up at the school then has nothing to do with whether she was dead 20 to 25 minutes after leaving school.

Take a good look at State’s Exhibit 19. This is a note addressed to Don in Hey’s car. We know she wrote this the day she died. “Hey Cutie, Sorry I couldn’t stay. I have to go to a wrestling match at Randallstown High but I promise to page you as soon as I get home, okay? Till then, take care and drive safely. Always, Hey. P.S.: The interview went well and I promise to tape it so you can see me, as many and as often as you want.”

She refers to things we know she had to do that day: the taping, the taped interview, the wrestling match at Randallstown. Maybe she intended to put it on his car,  we don’t know. She never had a chance to do it.

False. Nothing in the trial record supported Murphy’s claim that the wrestling match at Randallstown was a “thing . . . she had to do that day.” The only witness whose testimony mentioned a wrestling match at all was Inez Butler, and she testified that the match had been at Chesapeake, not at Randallstown. Although the claim that the match had been at Randallstown was a way of shoehorning the Don Note into the prosecution’s invented narrative of what happened on January 13, 1999, it was not supported by any evidence at trial, and was not factually true.

And the most important, the most telling example regarding how we know this was the day she was murdered came from her brother, Yung Lee, through the fact that this Defendant never called her house again.

Misleading. Murphy’s claim here is true to the record, but nevertheless absurd. Why on earth would Adnan have called Hae’s house, when he knew she was not there? As far as we know, none of her friends ever called her house again, because they knew they wouldn’t reach Hae by doing so.

What is telling about this argument, however, is Murphy’s unwillingness to make the claim that Adnan never tried to page Hae again. Because the prosecution can’t show that. They never obtained Hae’s pager records — and likely were wary of alerting the jury to this fact.

Let’s talk for a while about Jay Wilds because, clearly,  this case hinges on his testimony. At the very beginning of the case, Mr. Urick asked you when you hear Jay Wilds think to yourself, why him? Why is he the one in this position? Well, think about it. Do you really believe that the Defendant could go to one of his upstanding magnet school, honor student friends or a friend from the mosque to assist him with this act?

True. The prosecution’s closing argument correctly acknowledges that Adnan’s conviction was dependent on Jay’s testimony — testimony that we now know was perjured, by that witness’s own admissions.

You don’t have to like Jay Wilds or like what he did to know that he’s telling the truth. You had an opportunity to watch him, not only hear him but watch him, as he sat here and testified. And remember, as he sat here and he recounted specific details of that day, remember the look on his face as he was asked to recall that moment in the Best Buy parking lot when he saw the body of Hey Lee. The look on his face, an expression that told you he wasn’t looking at anything in this courtroom, he was seeing again the body of a dead woman, something he’d never seen before and something he told you is going to stay with him forever.

Subsequently disproven, due to witness’s admission of perjury. For someone who could “see[ ] again the body,” and who was going to have that image “stay with him forever,” Jay sure  has a startling inability to recall where that actually was when this occurred. Although Murphy appealed to Jay’s convincing act on the stand as proof of his truthfulness, Jay was perjuring himself at the time that he was giving this testimony. The trunk pop, he now acknowledges, occurred not at the Best Buy, but somewhere else entirely, and it happened later that evening, not at 3pm in the afternoon.

You know he knows what happened. But more importantly, you know he was with the Defendant on January 13th. How do you know that? Let’s look at the cell phone records. You heard from a young woman by the name of Nisha. . . . There is a phone call to Nisha on the Friday at 3:22 p.m. Nisha told you she does remember a call when the Defendant called her and said, “Say hi to my friend Jay.” Jay Wilds told you about the exact same call as they’re driving from I-70 parking lot where they left Hae’s car. Jay tells you yeah, and then he called some girl in Silver Spring and he asked me to say hi to her. Jay Wilds and Nisha don’t know each other. Nisha told you they were together.

False. Nisha testified that Jay and Adnan were together at the video store where Jay started working on January 31st. She also said Adnan was walking, not in a car, at the time of the call. Nisha was uncertain of the date of the call, and Jay did not remember that the call had even happened until he was “reminded” by the police.

Also, the Nisha Call was actually at 3:32, not 3:22. But I’ll let that one slide.

You heard also from [Cathy]. [Cathy] was at University of Maryland at Baltimore all day, at a conference. She came home to her apartment around 5:30 that afternoon and sometime after 6 — and she knows this because she watches “Judge Judy” – – the Defendant and Jay come to her apartment together. She remembers this because she doesn’t know the Defendant, and he’s acting shady, he’s acting strange. What does he do when he comes to her apartment? He slumps over on the floor and hides his face. This is memorable to her. [Cathy] told you that the Defendant and Jay Wilds were together.

True to the record, but factually inaccurate. Murphy is correct; Cathy did say that she had been at a conference at UMAB all day before Adnan and Jay came over. However, Cathy’s conference was on January 22nd, not the 13th. Which means Cathy does not have any memory of Adnan and Jay visiting her apartment on January 13th — in fact, she remembers them visiting on a different day entirely — and her only reason for believing that the visit took place on January 13th was that she had been told that is when it happened by Detective MacGillivary. Her own memories place the trip on a different date entirely.

Although there is no proof that the State knew at the time of trial that Cathy had the wrong date for when Adnan and Jay came over, the prosecution should have been on alert that there was a strong possibility this was the case, given that (1) Cathy’s testimony is replete with inconsistencies about Adnan’s visit that cannot be reconciled with a trip that took place on January 13th; (2) that Jay and Jenn failed to remember any trip to Cathy’s during their first statements to the police; and (3) that Cathy by her own testimony only knew Adnan had visited her apartment on January 13th because Detective MacGillivary told her so.

Jennifer Pusateri told you that after she received that page from Jay to pick him up, she goes to Westview Mall to meet Jay. Who pulls up but the Defendant, driving his car with Jay Wilds in it. Jennifer Pusateri told you the Defendant was with Jay Wilds.

True. Mostly. Jenn did testify that she got a message to pick him up at Westview, but she could not remember how she got this message. Jay “must have” called her, but she doesn’t really know:

KM: At some point did Jay call you?
Jenn: Yea, he must have called me to tell me to go pick him up in front of Westview Mall.
. . .
KM: And what happened with this next page, Jay said what?
Jenn: To come and pick him up in front of Westview Mall parking lot, or maybe I talked to Jay on the phone, one or the other. (2/15/00 Tr. 189, 191.)

More important, though, is that although Jenn testified to somehow getting a message to pick Jay up from Westview and then going to Westview to get him, Jay does not recall this happening. He said he went home after the burial and that Jenn picked him up from his house, not from the mall:

I got to my house and I was in my house for maybe five minutes. I instantaneously changed all my clothes and put them all in a bag. . . . My mother kept trying to talk to me. I was real agitated. I just left real quick. I got into Jenn’s car and I told Jenn to drive back around to these shovels. (2/04/00 Tr. 156-57.)

Either Jenn never saw Adnan that night, or Jay perjured himself about peripheral details. Or both.

Jay Wilds was sincere.

False. He lied relentlessly at trial, and even those who most feverishly believe in Adnan’s guilt would not argue otherwise. The prosecution had to have known he was  lying, too, or else they would not have felt the need to re-write his testimony in their closing arguments.

You heard a lot of questions and a lot of testimony about the inconsistencies of his statements, and I’m sure you’re going to hear a lot more. Jay Wilds never once told you that he didn’t lie to the police. He was honest with you. Yeah, I did it, and he gave you the reasons why.

Misleading. Admitting that you are a liar is not “being honest.” Jay can be honest in admitting that he lied to the police in every previous statement he had ever given, and then continue to lie in the next statement he gives. The following is from the first trial, but it provides a perfect description of Jay’s version of “honesty”:

CG: [During the interview on April 13th,] [t]hey hadn’t caught up to all of the lies, particularly the new ones that you told them on [March] 15th,  had they?
Jay: I have no knowledge of that, ma’am.
CG: Right, because they didn’t — they confronted you but they didn’t tell you all of the things that you knew you had lied about?
KU: Objection.
CG: Correct?
THE COURT: Overruled.
Jay: No, ma’am, they did not.
CG: No, they didn’t because they hadn’t caught them all; correct?
Jay: Hmm, I’m not aware of that.
CG: You don’t know whether they caught all of your lies or not?
Jay: Pardon me?
CG: You don’t know whether they caught all of your lies or not?
Jay: I’m not aware. That’s their job. I’m not —
CG: So it’s their job to catch you up in your lies; correct?
Jay: That’s their job to recite what I say, yes.
CG: It’s easier for them to catch you in lies that they record, is it not?
Jay: Yes, ma’am. (12/15/99 Tr. 192-94.)

Yes, Jay was very honest in admitting that he had no problem lying to the cops. His position is clear: it is not his job to tell the truth, it is the cops’ job to figure out when he is lying. And, if they fail to catch onto one of his lies, then he will continue to tell it.

And why did he not tell the police on at least two occasions the full story?

Misleading. Why did Jay lie to the police on “at least” two occasions? Murphy knew damned well that he lied to the cops on a minimum of four separate occasion, and very likely on more occasions still that were not officially documented. It is not that Jay limited his lies to two of his statements, it is that the State chose to limit its taping of Jay’s lie to only two occasions.

Why [did he not tell the police the full story]? Because he wanted to protect people he knew. He wanted to leave Jen Pusitari out.

False. Jay never left Jenn out of the story. In his first interview, he named her as someone he had told about the murder on the night it happened — which he had to know would be sufficient to get the cops to interview her, and would place her in a position of either lying to the cops or confessing that she had committed the felony of accessory after the fact to murder. Jay also identified Jenn’s little brother, Mark, as his (false) alibi witness, and roped him — or should have roped him — into a murder investigation, when he would have faced the choice of either confirming Jay’s lie or lying himself.

In Jay’s second interview, Jay was really not trying to protect Jenn. He told the cops that he had twice informed Jenn of Adnan’s plans to kill Hae, once on the afternoon of January 12th and once on the morning of January 13th, but that Jenn had just shrugged and went about her day:

MacGillivary: Jennifer never really like Hae, correct?
Jay: Yeah, I mean.
MacGillivary: So I mean, did she actually even care?
Jay: Not really.
MacGillivary: Did she say you know, oh I can’t believe this, we’ve gotta stop this?
Jay: No.
MacGillivary: What did she say to you?
Jay: Ah.
MacGillivary: Oh well?
Jay: That mother fucker is crazy yoh.
MacGillivary: And that’s it, okay.  (Int.2 at 48-49.)

Either Jay was lying at trial when he claimed Jenn had not known about the murder plot, or he was lying in his interview when he said she had known about it. Either way, if Jay’s lies were designed to protect someone, it wasn’t Jenn.

He wanted to leave [Cathy] out.

True. Sort of. Jay wanted to leave Cathy out of the story because she was not part of the story in the first place. When the cops falsely concluded that he had been at her house on the day of the 13th, however, Jay happily incorporated her into the narrative.

He wanted to leave out the fact that the Best Buy parking lot was the place where the Defendant and Hey Lee had sex.

False. Jay did testify to something like this at trial, and Murphy was properly entitled to raise it in closing arguments. However, there is no chance that Murphy actually believed, even for an instant, that Jay had testified truthfully on this point. To see why, let’s review his various statements concerning the Best Buy lie.

In Jay’s second statement to the police, he told them he had lied about Best Buy because he was trying to protect himself (in some unexplained way).

MacGillivary: Why did you lie about the location?
Jay: Ah, I figured there was camera’s there or somebody had spotted him during what he was doing.
MacGillivary: But if you actually didn’t assist in her murder.
Jay: I’m associated with it.
MacGillivary: Why would you lie about the location?
Jay: Because I’m associated, I’m associated with it. (Int.2 at 58.)

By the time of the first trial, Jay’s explanation for the Best Buy lie had  morphed into something a little more coherent, although it was still odd:

KU: In the first statement, you told the officers that you had met the defendant who had Hae’s car at a strip on Edmonson?
Jay: Yes.
KU: In your second statement, you said you met him at the Best Buy, and which Best Buy is that?
Jay: The one on Security Boulevard.
KU: And is that in the State of Maryland?
Jay: Yes.
KU: Why was — why the difference between the two statements?
Jay: Really there was no reason. I just felt more comfortable if the cops had returned me to a place I feel comfortable in. (12/14/99 Tr. 214-15.)

By the time of the second trial, however, his explanation for why he lied had transformed into something far more noble. Jay was the accessory to murder with a heart of gold, who was willing to bury Hae in a shallow grave and leave her family worrying for weeks before they found out the truth, but who was unwilling to “embarrass” her by acknowledging that Adnan and Hae had used the Best Buy as a hookup location:

KU: Now, why did that change between the first and second statement, or why did you not say in the first statement what you said in the second one?
Jay: The significance of Best Buy, I didn’t want to — I don’t know, bring anything out that didn’t need to be brought out about Hae.
KU: And what was the significance of Best Buy?
Jay: That’s where her and Mr. Syed used to have intercourse. (2/15/00 Tr. 134.)

Forgive me for a moment, but there is only one response to this kind of perjury: Bull. Shit.

No one following this case believes Jay’s story here for even half a second, and I am not going to pretend otherwise. We all know Jay was lying about this. Urick knew it too — after all, he was the one who questioned  Jay on direct about this very subject only a few weeks before — but he nevertheless allowed Jay to perjure himself on the witness stand. (Not to mention that, in addition to the vacillating nature of his stories, the lie he told at the second trial was as nonsensical as the explanation in his first interview. Jay could have told the truth about Best Buy and then denied having any knowledge of Best Buy’s supposed significance, if that’s what concerned him, but he was lying to hide something else.)

He didn’t leave himself out of those statements. He tried to leave out other people.

False. Many of Jay’s lies left him out of critical parts of the story that he later admitted (whether truthfully or not) to having a role in. He lied about helping to dig the hole. He lied about knowing in advance of Adnan’s plans to kill Hae. He lied about where he was from 12:30 to 3:30pm on January 13th.

So let’s talk about cell phones. We all got quite a lesson in cell phone technology, the AT&T wireless system. You heard from an AT&T engineer, Mr. [Waranowitz]. He told you, too, that this map shows you — these bright colors each represent areas in which a given tower’s signal strength is strongest. And in these areas, the cell phone is going to talk to the given tower.

Liar, liar, pants on fire. No maps are capable of depicting where a “cell phone is going to talk to the given tower,” and Waranowitz never claimed anything like that at trial. Even Urick got this one right, in arguments before the bench:

I will proffer to the Court that when we went to Mr. Waranowitz — when we were talking to him we said. we’ve got cell phone records and we have statements that this AT&T wireless phone were in these locations and these calls were received were made. Is it possible to test the system to see if it is possible for the system to respond in those places in these manners and that was the test to check out the cell phone records and the statements co see if it can be shown that this — that the system can respond in this way. He explained to use you can never say from a cell phone record the spot where something was, you can never prove that. (2/09/00 Tr. 17.)

Yet Murphy informed the jury that we can use their expert’s shiny, scientific maps to tell where the phone could have been when it “talk[ed] to the given tower.”

What we wanted to know with those tests were, for example, if Jay Wilds said that the Defendant answered his phone in Leakin Park, was that true? If [Cathy] said he answered the phone at her apartment down by UMBC, was that true? Well, ladies and gentlemen, the cell phone records support what those witnesses say and the witnesses support what those cell phone records say. There’s no way around it.

False. The witnesses and cell records do not match. First, with regard to Jay, his claims about the calls made in Leakin Park require time travel and teleportation to even approach the truth. Ignoring that aspect of his testimony, though, Waranowitz never even tested the burial site. His testing cannot be said to corroborate Jay’s stories, because there is no evidence that L689B (the Leakin Park tower) could provide reception over the burial site, and based on geographic conditions, it is not likely that it could have.

Second, with regard to Cathy, the only reason the cell logs match her testimony is because the prosecution falsely informed the jury that Waranowitz’s testing found that L655C, rather than L655B, covered Cathy’s street. Cathy’s story was itself the result of her mixing up  the date of Adnan’s visit, so any perceived “corroboration” between the cell records and her testimony proves only how malleable the tower location data truly is.

The Defense may try to suggest to you that this system doesn’t work and there’s no rhyme or reason for this pattern of phone calls. That’s not so, there is a rhyme and there is a reason. Think about it. The witnesses could not have known what cell site they were in when they were making calls and they certainly couldn’t control that. They were probably unaware that the calls were even being recorded in this fashion. Do you think Jay Wilds, when confronted with these phone calls, said oh, L608C, I better put [Cathy’s] house into this? No. The witnesses can’t control it and they weren’t aware of it, and that’s why you can’t get around this evidence, ladies and gentlemen.

False. That is exactly what happened. Jay did say, when confronted with the cellphone records, “Oh, L608C, I better put Cathy’s house into this.” He also said, “Oh, L654C, I better put Cathy’s house into this,” and “Oh, L655A, I better put Cathy’s house into this.” Jay demonstrably adapted his story to fit the detectives’ misconceptions about the cell records, and Murphy’s closing arguments on this issue were nothing more than a cruel joke.

Remember that January 13th, for these witnesses, was not any special day at the time. They had no idea that day that over a year later they were going to be asked to sit here and testify in a murder trial. The first time any of them were even asked to remember that day was weeks, maybe months later, but people remember what is important to them.

True. This applies equally to Adnan.

And again, consider Ms. Inez Butler; she remembers talking to Hey immediately after class, 2:15, because she remembers Hey left in a hurry and Hey didn’t come back. And that had an impact on her because she had to travel to the wrestling match. People remember what is important to them.

True. Inez Butler’s testimony also demonstrates the extreme flexibility of witness testimony in general. She should have remembered that she had to travel to a wrestling match because Hae failed to show, but in her first police statement, she told the cops that Hae was not supposed to go to any wrestling match that evening.

The Defendant picks Jay up and they go to the mall. At some point, the Defendant goes back to school and he gives his car and his cell phone to Jay Wilds at that point in time. Where Jay Wilds goes in this period is not clear. It’s not clear from Jay, it’s not clear. Nobody knows. . . . He thinks he may have gone to — looking for marijuana. Maybe he did.

False. Jay testified that he knew exactly where he was during the entire time period Murphy is referring to: Jenn’s house. Murphy’s closing argument makes up testimony that Jay never gave to explain why the cell phone records are wildly inconsistent with his testimony.

But it is clear from these cell phone records that Jay Wilds is nowhere near Hey Men Lie. He is nowhere near Woodlawn High School where we know she is. Jay Wilds is over here and Jay Wild, is downtown. . . . [ ] [T]he records are clear, he’s nowhere near Hey Men Lee.

False. At 3:15pm, the cell phone records show that Jay received a call that originated on L651C — the same tower that Waranowitz testified could be triggered from Woodlawn High School. The call before that was 2:36, which means, going by the cell records, from 2:41pm onwards, Jay could have been at Woodlawn, and near Hae.

In fact, in Jay’s very first statement of all, that’s exactly where Jay told the cops he was, shortly after 2:30pm on January 13, 1999. He said he was at Woodlawn High School. That story is far more consistent with the cell records than anything else he has said.

Jay does remember at 12:43 p.m., while he’s downtown, he gets a call from the Defendant. The Defendant says I’m not ready for you yet but pick me up at 3:45. At this point, Jay is still in the city, L652A.

Liar, liar, pants on fire. Murphy either had no idea what Jay actually said at trial, or she was lying, because Jay never once claimed to have been in the city that day. At trial, Jay testified to the following concerning the 12:43pm call:

KU: Okay. Now, did there come a time when you went over to the [Pusateri] house?
Jay: Yes.
KU: And what if anything did you do there?
Jay: We entered, me and Mark , and we both went down to the basement. We started playing Play Station probably for about a half an hour. I asked him if he would like to come to the mall with me, I hadn’t finished shopping yet, and he said sure. Right before we left, I received a phone call on the cellphone. It was Adnan and he was asking me where I was. I told him I was at Jenn’s playing video games. I asked him if he was ready yet and he said no. We left and we went to [Westview] mall. (2/04/00 Tr. 129.)

Everything Murphy said about the 12:43 call was made up out of thin air. To be fair, Jay’s actual testimony was equally made up out of thin air, so it is not as if her closing arguments were any more false than what Jay had actually testified to. Nevertheless, Murphy was not entitled to substitute her preferred fabrications for the ones Jay actually said at trial, even if her version sounded better.

We know that class ended at 2:15 that day. And remember back to Aisha’s testimony. The Defendant was talking to Hey Lee at that point in time and Inez Butler sees Hey as she rushes out of school, grabs her snack, and heads out the door. Ladies and gentlemen, she’s dead within 20 minutes.

False. Hae did not “head[ ] out the door” when Inez last saw her. Murphy was trying to distract the jury from the fact that Hae had pulled up next to the concession stand when Inez saw her last and then drove away with Adnan nowhere in sight.

2:36 p.m.[,] the Defendant calls Jay Wilds, come get me at Best Buy. Jay Wilds is at the home of Jennifer Pusitari at this point, and the records are clear. Call no. 28 occurs in the cell area covered by L651B. This is the area that the AT&T engineer told you covers Jennifer Pusitari’s house.

False. There was no testimony to support the claim that the 2:36 p.m. call was the “come-and-get-me” call, and the State’s star witness expressly testified otherwise.

Jay: We came back to Jenn’s house and went back down to the basement. I believe Jenn called on the telephone when we returned home, and soon after I got another call on the cellphone. This time he was asking me like had I had it turned off or something like that or something, was it on, and I told him yes, it had been on. I sat at Jenn’s and I played video games.
KU: And did there come a time when Jenn came home?
Jay: Yes.
KU: And did there come a time when you left?
Jay: Yes.
KU: And where did you go when you left?
Jay: Well, in his last phone call, he was like I need you to come get me at like 3:45 or something like that he told me , and I was like all right, cool. I waited until then and there was no phone call, so I was going to my friend Jeff[ G.’s] house. . . Jeff wasn’t home. As I was leaving his street, I received a phone call. It was Adnan. He asked me to come and get him from Best Buy. (2/04/00 Tr. 129-30.)

Jay told the jury that the 2:36 call was either from Jenn, or else it was Adnan telling him to come pick him up at 3:45. Jay did not pick Adnan up at 3:45, and since Adnan did not call back, he left Jenn’s house. Only at around 3:40 did Adnan call Jay.

The State’s timeline is impossible unless you assume that the star witness — the one whom Adnan’s conviction hinged upon — either lied about everything he said happened that day, or could not remember any of the details. Jay “remembered” what time Adnan called, because he had been specifically waiting for a call at around 3:40. By his own admission, he was watching the clock, and knew exactly what time it was when Adnan called. And it was not at 2:36pm. Or even 3:15pm. Actually, it was not a call that ever happened, according to the call logs. Everything Jay testified to concerning those calls was a lie. Murphy must have known that, too, judging by her willingness to disregard everything he said and make up a new story in her closing arguments.

The 2:36pm call was also not a “real” call, in that it almost certainly could not have involved a conversation between two people. The call was five seconds long, and billing began as soon as the caller connected with AT&T’s facilities. Even if the connection to Adnan’s phone occurred in a second, and Jay answered on the first ring, that leaves 3 seconds to talk. Why would Adnan go to the trouble of lending his accomplice a cell phone so that he could assist in the murder, and then not even confirm that Jay had heard the most important part of the communication?

So Jay drives to the Best Buy, and it is there that the Defendant, for the first time, opens his trunk and shows Jay Wilds the body of Hey Lee. By 3 p.m., by 3 p.m., her family knows she hasn’t picked up her cousins.

Liar, liar, pants on fire. At the second trial, the prosecution carefully avoided asking Young what time they found out that Hae was missing. They made that mistake in the first trial, and Young told them that the family had not received a call from the day care until 3:30pm. Since the prosecution did not repeat this mistake in Trial #2, Murphy arguably had the leeway to falsely claim that Hae’s absence was noted by 3pm, even though there was no evidence to support it, and Young’s testimony and Adcock’s witness report contradicted it. However, the statement was clearly untrue, and it is hard to see how she would have been unaware of that fact.

The Defendant gets Jay to follow him to the I-70 parking lot where they leave Hey’s car, and they then head back towards Woodlawn from the park and ride together. It’s at that point, at 3:32 p.m., that the Defendant calls Nisha in Silver Spring. She says hello to Jay. We know they are together at that point in time. That call lasts for 2 minutes and 22 seconds. . . . This occurs in the coverage area of L651C, the pink area, which would be consistent if they were heading back towards Woodlawn from the I-70 parking lot.

Liar, liar, pants on fire. Again, we are left with two options: either Murphy had no clue about what had actually happened at Adnan’s trial, or she was making things up to suit her story as she went along. There are so many false claims in this one paragraph that they need to be isolated before I can address them.

• This occurs in the coverage area of L651C, the pink area, which would be consistent if they were heading back towards Woodlawn from the I-70 parking lot.

The Nisha Call (which did originate on L651C, Murphy got that much right) is in no way consistent with “heading back towards Woodlawn from the I-70 parking lot.” Going by Waranowitz’s records, L651C’s eastern overlap area fell on Woodlawn High School. Someone heading back to the high school from the I-70 Park’n’Ride — which is east and south of WHS — would not be in L651C. However, since the 3:15 and 3:21 calls also originated on L651C, the phone could not have been travelling from east to west at the time of the 3:32 call.

• “[T]hey then head back towards Woodlawn from the park and ride together. It’s at that point, at 3:32 p.m., that the Defendant calls Nisha in Silver Spring.”

Murphy’s closing argument is a new, never-before-heard version of January 13th. It is not as insane as Jay’s own story, to be sure, but it lacks any basis in the evidence. Contrary to Murphy’s more logical tale, Jay testified that the Nisha Call was made during one of those time warps that so frequently strike Woodlawn. After the Phil Call (at 3:48pm), and after leaving the Park’n’Ride to head south of Leakin Park at Athol Ave., Jay called Patrick (at 3:59pm) to see if he was home. He was not, so they drove all the way back to the north side of Leakin Park to find weed, and while driving along Forest Park Ave., he and Adnan then traveled back in time to 3:32pm, so that Adnan could make friendly chit-chat with Nisha:

KU: What if any phone call did he make?
Jay: To a young lady, I believe somewhere in Silver Spring.  . . .
KU: Do you remember where you were at that time?
Jay: Forest Park Avenue.
KU: And where were you going at that time?
Jay: To buy marijuana. Patrick was not home. (2/04/00 Tr. 136-37.)

Yes, Murphy’s version makes for a much better story than does Jay’s version, but that does not mean there was any evidence to indicate it had actually happened.

Now, at some point in this time frame we know that the Defendant goes to track practice. He tells Jay Wilds I need to be seen. So Jay Wilds takes him to track practice. In the meantime, Jay Wilds goes out to Forest Park looking for marijuana. He makes a phone call to Jennifer Pusateri at that point in time, 4:12 p.m. We know that that call at 4:12 p.m. was in the coverage area of L689C. You see 689 on the top right, the dark brown area on the left side is C. That covers the Forest Park area. That makes sense with what Jay Wilds is telling you.

Liar, liar, pants on fire. At this point in the closing arguments, Murphy was no longer even pretending to describe the trial that had just occurred. Maybe she was reciting the details of Jay’s undisclosed April 13th interview, or maybe she just thought her version sounded more compelling than the witness’s. (If so, I agree with that assessment.) Here is what Jay actually testified to:

KU: What if anything did you do at that point [after the 3:59pm call]?
Jay: That’s when we drove up to Forest Park Avenue.
KU: And what did you do there?
Jay: We purchased marijuana.
KU: When you say we, who do you mean?
Jay: Me and Mr . Syed. . . .
KU: Do you remember where you were when th[e] [4:21] call was made?
Jay: No, I do not.
KU: After you purchased the marijuana, and you purchased it where again?
Jay: In Forest Park.
KU: Where did you go after that?
Jay: We turned and I believe at this time he wanted to get back to track practice because he said he needed to be seen. (2/04/00 Tr. 139, 141-42).

Although Murphy describes Adnan showing up at practice shortly after 3:30pm, Jay himself was clear that Adnan did not show up at track until at least 4:20pm. Murphy also argued that Jay alone went to Forest Park to buy weed, even though Jay testified he had Adnan both did. He even remembered how much each of them contributed to the weed purchase.

At some point in time, the Defendant calls Jay, come get me from track practice. 5:13 p.m., you see that – – of calls that the AT&T engineer described to you. Call no. 18 and 19, this shows he was checking his voice mail.

False. The call was someone leaving a voicemail, while Adnan’s cellphone was out of service range. This was clearly described on AT&T’s communications to the State, but somehow they never noticed that fact.

[Cathy] remembers a conference until 5:30 that. day. She gets home and she sits down to watch “Judge Judy,” and it’s at that point, she remembers, that the Defendant and Jay Wilds come to her apartment and they’re acting so strange.

True to the record, but factually inaccurate. Cathy did remember that Adnan and Jay had visited her apartment on the day that she had been at conference downtown from 9am to 4:30pm. Problem is, that conference was on January 22nd, not January 13th.

Now, [Cathy’s] house, Gateway Terrace, down by UMBC, and Mr. [Waranowitz] put a little circular sticky here on the block where she lives. He also told you that there are two very strong sites, depending where in the block you are, L608C and L655A. Now, look closely at calls 14, 15, and 16. Notice that the cell sites correspond exactly to what he told you, L608C, L655A.

True. But only because the prosecution falsely reported the expert’s findings to the defense. In its disclosures to the defense, the prosecution inaccurately stated that Waranowitz’s testing had determined that L655A covered Cathy’s house. And, at trial, Waranowitz did verbally confirm, when asked, that L608C and L655A covered Cathy’s street. However, his actual test results found it had been L608C and L655B, not L655A. Due to the prosecution’s method of using only “oral expert reports,” which allowed them to control all information from experts that went to the defense, this misstatements of Waranowitz’s results was allowed to occur.

Consider Yung Lee, Hey’s brother, opens the diary, thinks he’s calling Don because on a page scribbled over and over with Don’s name is a cell phone number. He suddenly realizes it’s not Don he’s called, it’s the Defendant, whose voice he knows because he’s called their home before. He asked if he knows where his sister is. What’s the Defendant’s response? Why don’t you try her new boyfriend?

False. Young did not testify to the scene Murphy describes.

KM: What was your conversation about?
Young: It was about my sister, if he knew where she where she could be.
KM: And did he say whether he knew where she was?
Young: No. (1/28/00 Tr. 28.)

Jay is the one who said Adnan suggested that Young  “try her new boyfriend,” not Young himself.  Young did not hear what Jay claimed was said during his phone call with Adnan.

Remember too that [Cathy] heard the Defendant answer a call while he was in her apartment, and what she heard concerned her. He said the police want to talk to me, what should I do? And a third person, Officer Adcock, from the Baltimore County Police who began to investigate this as a missing person, he calls the number because Yung Lee has given it to him. He calls the number and talks to the Defendant on the cell phone. All three of those calls are consistent with those calls that came into [Cathy’s] house.

False: Only two of the calls were consistent with Cathy’s apartment, according to Waranowitz’s testing. More importantly, no one actually heard a sequence of calls that matches the call records. Cathy did not hear those calls because they did not happen on the day Adnan actually visited her apartment, and while Jay may have heard them, he testified to something completely different (something which renders Cathy’s testimony impossible):

KU: And what if anything happened [while at Cathy’s]?
Jay: We smoked a little more. He received a phone call from Hae’s parents asking if he knew where she was. He told them he didn’t know where she was.
KU: Did you hear his conversation?
Jay: Yes.
KU: What did he say?
Jay: He just told them no, I haven’t seen Hae, I don’t know where she is, try her new boyfriend . Then Hae’ s cousin or someone had called ba.ck but it was the wrong number . They thought it was the new boyfriend’s number and it was his cellphone number or something like that.
KU: Did any other calls come in?
Jay: Uh-huh. He received a phone call from a police officer who was asking about Hae. (2/04/00 Tr. 144-45.)

Jay’s story is obviously coached. He has been told about the mix-up with Adnan’s number from Hae’s diary, and incorporated it as a false detail in his story.

And interestingly enough, after the Defendant has this conversation, you know, the police want to talk to me, he jumps up, leaves the apartment. And what’s the next thing he goes to do? He goes to get rid of the body. Now you know by that phone call that somebody else, somebody who hasn’t told you from the witness stand, somebody else knows about this because he sought their counsel, sought their advice in that crucial phone call.

And the next thing he does is goes to get rid of the body, and who does he call? 6:59 p.m., he calls his best friend Yassar Ali. Isn’t it ironic that that is the name that comes up in connection with the anonymous phone call to the police as to who might know something about this?

Ridiculous. And not at all “ironic.” If Adnan has someone he can call up and get advice on how to dispose of a body, then why isn’t that person with Adnan instead of Jay? Jay is literally the world’s worst accomplice. He is useless, won’t dig, argues incessantly, and doesn’t actually provide any assistance. But Adnan knows someone who can advise him on the finer points of getting rid of a body, and he didn’t choose him to be the accomplice?

There is also nothing ironic about the fact that Yaser’s name comes up in connection with the anonymous phone call. The Yaser call did not connect to Yaser’s phone, no call made to Yaser that day did. Yaser also did not call Adnan that day. Which means Yaser has no involvement with Hae’s murder beyond the phone records.

Which raises an interesting question. If the only connection Yaser has to the murder is Adnan’s cell records, could that suggest that whoever made the anonymous phone call had Adnan’s cell records?

At this point in time Jay Wilds knows he’s not going to meet Jennifer as they had previously arranged. So at 7:00 he pages Jennifer Pusateri. He leaves that confusing message that she tells you about. Jay Wilds and the Defendant go to Leakin Park — time. And the next phone call, calls 10 and 11, are crucial. Jay Wilds tells you that as they’re entering the park, preparing to bury the body of Hey Lee, Jennifer Pusateri returns that call.

False. I don’t know what trial Murphy was watching for six weeks, because it wasn’t the one for which we have transcripts. Jay testified that Jenn returned his page while they were digging, not as they were entering the park.

Jay: I had paged Jenn and while we were digging, she had called back, and he just told her he was busy now and hung up the phone. We dug for a little bit and he said that’s good enough. (2/04/00 Tr. 151.)

Murphy’s explanation in closing arguments makes more sense than anything Jay said — because (1) L689B would not have been expected to provide cell coverage at the burial site, but would provide coverage at the park entrances; and (2) who bothers to answer the phone while busy digging a grave, anyway? — but it also has no basis in the trial record.

[Jenn] returns the call because the message is confusing. She knows the cell phone number because it’s on her Caller ID, so she calls the cell phone. Jay doesn’t answer. Jennifer tells you someone else answered and said Jay’s busy right now, he’ll call you back.

False. Jenn did not testify that she “return[ed] the call because the message [wa]s confusing.”  She returned the call because Jay’s message to her pager conflicted with the previous message that Jeff had passed onto her from Jay (2/15/00 Tr. 188; 2/16/00 Tr. 136).

Jenn also testified that she got Adnan’s cellphone number off her caller I.D. (2/15/00 Tr. 188), but can I just take a moment to note how weird this part of Jenn’s testimony is? The whole point of a pager is that you give someone a number where they can call you back. Why is Jenn digging up a number from her caller I.D. from three hours earlier in order to return a page Jay just left her?

Jay Wilds spoke to the detective — I’m sorry. Jennifer Pusitari spoke to the detectives before Jay Wilds did, yet Jay Wilds tells you about the exact same phone call.

False. During Jenn’s first interview, she did not say that ‘someone else answered and said Jay’s busy, he’ll call you back.’ All that she told the police was that she called “his cell phone,” and that the following happened:

Ritz: So you finally got the message straightened out? Then what happened?
Jenn: Right, that Jay would call me when he was ready to be picked up. (Jenn Int. at 13.)

There is nothing about someone other than Jay answering, let alone Adnan answering. There is nothing even about Jay being “busy.” Jenn learned, either from Jay or someone else, that he would call her when he was “ready” to be picked up.

This is hardly proof of Jay and Jenn having consistent stories, because Jay’s first story includes nothing like the call Jenn describes. Only two weeks later did he manage to remember a story even slightly similar.

Not only did she know this person [who killed her], ladies and gentlemen, she cared about this person. You heard how busy she was that afternoon. She had places to be, she had things to do. For her to take time to give anyone a ride, she had to have cared about him enough, and you know from the witnesses that she did. She’d given him a ride just two days prior. It’s in her diary.

Liar, liar, pants on fire. Hae’s last two diary entries are dated January 6th and January 12th. Neither mention Adnan. Her diary does mention that on December 31st she had dropped Adnan off at the Sears near Owings Mills Mall to get his car, but Murphy’s closing twisted this into the claim that Hae had given Adnan a ride “two days prior.”

(Although it should be noted that there is alternative possibility here, to explain Murphy’s misrepresentation to the jury. Maybe there was a diary that mentioned giving Adnan a ride — a diary that was never disclosed to the defense? Perhaps that diary was what Murphy was thinking of? But more on that later.)

It should also be noted that, contrary to Murphy’s closing arguments, Hae did in fact turn down Adnan’s request, because she had “something else” to do. But the defense was unaware of this fact — as far as I have been able to ascertain, no record concerning Aisha and Becky hearing Hae tell Adnan she had something else to do was ever disclosed to the defense.

You know that this person was present at Woodlawn High School because there is only a small window of opportunity — the opportunity is the key word — for this person to get in her car. She had to leave Woodlawn High School and drive immediately to the elementary school to pick up her cousins. That person had the opportunity at Woodlawn High School to stop her and get in her car.

False. Multiple witnesses stated that Hae needed to pick up her cousin at about 3:15 or 3:20 at a day care that was 10 to 15 minutes away. The prosecution argued that Hae left school at 2:15pm. By the State’s timeline, she had 45 minutes to do “something else.” If you’re going by reality and not by the State’s theory, then Hae left school around 2:25 — giving her 35 minutes before she needed to be travelling towards the day care.

And we know too that this person had access to her car. She was killed in her car.

False. All of the State’s evidence to show she was killed in her car is meaningless. There was no evidence that makes it more likely she was killed in her car than somewhere else.

Rebuttal Arguments (Urick)

Urick’s rebuttal arguments were shorter than Murphy’s, but contain more than their fair share of misrepresentations.

KU: And let me give you an example of a type of inference that you can draw from this case. The Defense told you that nothing puts the cell phone between roughly 12:40 and 9:00 into the Defendant’s hands

CG: Objection. That’s not what I argued.

THE COURT: Overruled.

KU: — other than the testimony of Jay Wilds.

False. Admittedly, Gutierrez’s closing is such a disaster that it is hard to know what exactly she did argue, but this appears to the portion of the defense’s closing that Urick is referencing:

And so, they give you a test that tells you — they can’t tell you in whose hand the phone was located. What they suggest to you is the only thing you know are when Jay Wilds could have said in his hands. You know from the records the times these calls were made, either to his cell phone, this one, or from it.

Whatever Gutierrez meant, Urick wrongly characterized her argument by claiming that the defense position was that “nothing puts the cell phone . . . in[ ] the Defendant’s hands” from “12:40 to 9:00.”

Now, there is some other evidence that puts that cell phone into the Defendant’s hands. It’s the pattern of calls: Krista Meyers told you about leaving a message on the Defendant’s voice mail. You see at 5:14 that voice mail is checked. Somebody got into the voice mail to hear the message that was left on the voice mail.

False. Krista did not testify that she left a voicemail before 5:14pm, because she knew she had not been home at that time. Additionally, the 5:14pm call was, as discussed above, a message being left to voicemail, not voicemail being checked. This evidence does not “put the cellphone into [Adnan’s] hands” at that time.

[Krista] remembers talking to the Defendant, that he told her he had talked to the Baltimore County Police and that at the time he was calling her he was in his car. This is at 9:03 and 9:10. Nisha is called at 9:01. That is a pattern of facts from which you can draw an inference. You can draw another inference from that as well. The Defendant was not at the mosque. Everyone told you that the prayer session at the mosque was from 8 till 10, it was 2 hours long and it was a continuous prayer. He is not at the mosque. The cell phone proves he’s not at the mosque.

So misleading as to be false. This is not how prayers at mosque during Ramadan work. The phone records are completely consistent with Adnan being at mosque shortly after 8pm, and popping out to get on his phone once calling was free at 9pm. Urick’s description of “continuous prayer” completely misses the point.

The Defense wants you to think that the State is required to talk to every single person, to look at every little thing. And what do they tell you that the State overlooked? They showed you [Becky’s] journal. Of course, they got it from the State in the first place.

Misleading. Gutierrez failed to make any effective arguments on this point, but the basic evidence that the State failed to check is as long as it is startling. And, Gutierrez’s failings aside, the defense obviously couldn’t raise arguments concerning all the evidence that the State didn’t turn over, because they never knew about those failures in the first place.

The Defense then says well, there was this ATM transaction on January 13th, they could have gone out and talked to the manager, could have done all these other things, that they overlooked all this other stuff.

The defense was right. The prosecution completely believed that the receipt found in Hae’s car proved that her credit card had been used in west Baltimore on the day of her death, and never felt the need to check it out. This is insane, and indefensible. Had the receipt been what the prosecution thought it actually was, the entire case would have been turned on its head.

And how do we know the prosecution never bothered to check the receipt out? Because if they had, they would have realized the receipt had nothing to do with her death. But at the time, they were so scared of what evidence they might find if they looked into the Crown receipt that they simply did not check at all.

Now, what they are doing is saying don’t look at the evidence they actually have, which are all the fingerprint analyses that were done, all of which eliminate any suspect other than the Defendant. Other than the victim’s, his fingerprints are the only ones found in the car. That is a circumstance that you can make an inference from. The fact that it’s on the book, that the page from the Leakin Park map was torn out is another fact that you can draw an inference from.

Liar, liar, all the pants are on fire. Urick straight up lied to the jury during closing arguments, or else he was being willfully careless with the facts. Either way, the result was the same: the jury was falsely informed that there was forensic evidence strongly implicating Adnan in Hae’s murder. Worse yet, the prosecution made this misrepresentation during rebuttal closing arguments, knowing full well that the defense would never get a chance to fact-check those claims.

But the evidence introduced by the State at trial provided no support for Urick’s claims, and based on the print examiner’s testimony, it is hard to see how Urick could have been unaware of that fact:

KM: Thank you. Ms. Talmadge, you examined a number of items in connection with this case. Did they all have prints on them?
Talmadge: No.
KM: What other efforts, if any, did you make to determine the source of remaining prints that were not identified?
Talmadge: Well, there were several prints that were remaining from everything that was processed and also from what Mr. Sanders recovered from the vehicle. The remaining partial latent prints, if they were suitable to go into our computer system, I did enter sixteen prints into the Morpho computer system to see if we could come up with any identifications, and we did not make any identifications off of those remaining prints. (2/01/00 Tr. 31.)

Adnan’s prints were far from “the only ones found in the car.” There were at least 18 unidentified prints in and on Hae’s car, and probably more. (As the prosecution chose to provide the defense with illegible copies of positive print reports, and also chose not to disclose full information concerning the unidentified prints that were found in the car, it is impossible to be certain what all was found.)

KU: You’ve got the hair analyses. And remember what Mr. Bianca told you about his analysis. He told you not that the analysis excluded the Defendant as a suspect but he told you that he could not state that there was a match here because there were not enough of the characteristics that they look to to be able to say there’s a match here.
CG: Objection. That was not Bianca’s testimony.
THE COURT: Overruled. And the jury’s been instructed that what the attorneys say is not evidence. It’s their collective recollection as to what the evidence is. You may proceed, Mr. Urick.
KU: And Mr. Bianca told you that one of these characteristics is pigment color of the hair and he told you that the Defendant’s hair pigmentation and color was unique. He told you those hairs had the same unique pigment coloration as the Defendant’s hairs but there were not enough of the total criteria to say as a conclusion there was a match.

Liar, liar pants on fire. In the forensic reports prepared prior to trial, Bianca concluded that Adnan was excluded as the source of the two hairs in question. The report of his oral statements to the prosecution provided that

[o]nly two hairs were determined to have sufficient characteristics so as to say they were not hairs of Ms. Lee; futher they were not hairs of Adnan Syed.

In his written laboratory report, Bianca likewise concluded that

[n]one of the hairs examined were consistent in microscopic physical characteristics with the head hair sample from Adnan Syed

There was no ambiguity in his wording. The hairs did not match Adnan’s hairs. At trial, Bianca, confirmed that none of the hairs examined were consistent with the samples obtained from Adnan:

CG: And in regard to your December 2nd report, sir, your December 2nd reports, sir, they are stapled together as State’s Exhibit 27(a), and one report is dated 12/2/99, correct?
Bianca: That is correct.
CG: And that’s about the hair, correct?
Bianca: That is correct.
CG: And that says that there are no hairs that are consistent in your analysis with Adnan Syed, correct?
Bianca: That is correct. (2/01/00 Tr. 186-87.)

Concerningly, he also testified to the opposite, on re-direct, but even there, he never said what Urick claimed in closing:

KU: When you examined the sample of hairs from the defendant’s head, what if anything did you notice about the color of the hairs?

Bianca: Well, they were sort of unusual. His hair is black and along the perimeter of the hair shaft there was dark pigmentation on both sides, which is sort of unusual. Two hairs that I looked at had that same characteristic but the hair color was different. It was slightly different in intensity of black. Because of that, I couldn’t make a comparison and say that it was his hair. Now, with the state of the art of hair comparison, our lab no longer calls a hair comparison that used to say matched in all characteristics . We no longer do that. That gives false information in essence. It gives the people the idea that if you say a person’s hair matches, that it came from them, and it doesn’t mean that. It has never meant that. All it means is they have the same characteristics, and hair characteristics are not unique. As I said earlier, a thousand other people could have the same characteristics as another person’s hair.

In other words: the hairs were different colors, but had a similar characteristic. Even with Bianca doing some inexplicable flip-flopping on his conclusions, he still said nothing like what Urick alleged in closing arguments, which was that the hairs “had the same unique pigment coloration as the Defendant’s hairs.”

While on the topic of Bianca, however, I’ll also note that his dramatic shift between his written report and trial testimony was not the only bizarre thing about Bianca’s forensic analysis in this case. Bianca also testified that, after discovering in between the first and second trial that he had screwed up his initial forensic analysis and provided inaccurate reports, he considered simply throwing everything away and hiding his mistake:

I suppose Bianca should be credited for not giving in to his first instinct, but it does call into question the caliber of the scientific analysis being before performed by the Forensic Lab.

The Defense says the State didn’t test suspects. We got Don[‘s] work records showing that he was at work till 6:00 the day of the 13th. His alibi is ironclad.

Misleading. Urick is telling the truth about the State “getting Don’s work records.” After all, based on the sequence of production from LensCrafters, Urick seems to have had a role in ensuring the existence of those cards, which LensCrafters was initially unable to locate. But as for “ironclad”? Hardly. Besides, the State did not even pull those records until a week before the scheduled trial date — that is not evidence that the State, during its investigation, actually inquired into other possible suspects.

And when was this [phone] service taken out? January 11th, two days before the murder. Well, the Defense had people say well, he needed to talk to girls. He went with Hey Men Lee from the spring of 1998 till December of 1999 without a cell phone. He had no problems in that relationship. They say well, he needed it for work. He had been working for four months. And as what? An emergency medical technician who’s trained in how to save lives. He had been able to work satisfactorily for months without a cell phone. He had a pager if they needed to contact him, he had a home phone.

Misleading. The State had Adnan’s home phone records (which, for the record, do not appear to have been disclosed to the defense). They knew which girl Adnan was calling in January prior to getting the cell phone, and why it was he needed to get a cell phone to call her: because it was long-distance and Adnan had racked up a $50 phone bill in just two weeks talking to her. A bill his parents could see.

But besides the perfectly legitimate reason for which Adnan had bought a cellphone, the prosecution’s argument is ridiculous because the cellphone was entirely unnecessary for the murder. Why buy a cellphone so that, after you commit a murder, you can use a payphone to call an accomplice who is sitting next to a landline? Even under the State’s theory of the case, the presence of the cellphone was irrelevant to the commission of the crime.

As to the cell phone, Mr. Abromowitz testified as to the functioning of the system as a test to see — if the witness said the phone was at a particular place and we have a cell phone record, can we test it somehow to see if the system operates that way. He said yes. He said I can go to the same spot and see what signal the phone originates. And he told you it’s the phone that selects the cell tower because it latches onto or identifies the strongest signal that it can.

Well, once we did that, when he went to the Gateway Terrace location where [Cathy] lives, he found  that there were two almost identical strength signals, either one of which a cell phone could originate a call through and that those were cells 608C and 605A. And lo and behold, three calls in the time period that two different witnesses put them at that location, both of those sites originate calls out of this cell phone.

False. The prosecution incorrectly reported Waranowitz’s findings so that they would match the calls on the phone log. However, Waranowitz’s actual results did not match what his testing equipment recorded.

But yes, lo and behold, test results that the prosecution recorded based on an expert’s oral statements were inaccurate in a way that perfectly matched the prosecution’s theory of the case. In the words of Kevin Urick, “That’s a circumstantial fact that you can draw any reasonable inference that you want to [from].”

But you’ve got something else in this case. The Defense says that it was this anonymous tip that made the police fixate on the Defendant. Well, you notice what they overlook is that it’s clear, if you look at that anonymous tip, it didn’t come out of the Woodlawn community, it came out of the Muslim community because it contains information that only people in the Muslim community could have known, such as Yassar Ali’s phone number, which is the same one that’s on the records and also had his name, although the person who took it thought it was a V instead of a Y, so he wrote down Vassar instead of Yassar.

Misleading. Jay also knew Yaser, and they had several friends in common. Jay and Yaser even attended the birthday party of a mutual friend together in late January. Yaser’s number was also listed in the phone book.

And there’s something else that tells you that this was the Defendant, and Ms. Murphy touched on that. It’s the way the crime was committed. This was an intensely personal crime. It took maybe 15 seconds. It took 15 seconds, by the way, to kill Hey Men Lee. Have you ever thought about how much you can think about in 15 seconds? And the person who did this had a lot to think about because this was an intentional, deliberate killing.

False. This claim is still just as false as when Murphy made it.

Now, the Defense told you it’s fantastic that Jay Wilds could look in the trunk of a car for 10 seconds and see taupe stockings and identify Hey Lee. No, it’s not. Not when you’re in a very heightened, traumatic situation. If you’ve ever stepped into the street and seen a car coming for you, your life flashes before your eyes. When you’re in that type of situation, time seems to take forever because you are intensely focused on what’s happening. You pick up details that you normally don’t pay attention to.

Misleading. The fact Jay’s life may have been flashing before his eyes does not explain how he could see that a body that was laying face-down in a trunk had blue lips.

The Defense’s Closing Arguments

You may be wondering how Adnan’s defense attorney responded, in her own closing arguments, to all of these half-truths, misdirections, and lies. Did she point out the prosecution’s misrepresentations? Correct the record concerning the actual forensic evidence? Point out the impossibility of the State’s timeline, and the obvious perjury of its star witness?

Not exactly. Here are some of the devastating arguments that she made instead:

What evidence you have before you is that the records — when this entry was made, at what time of day. The thing that could have clearly established that she signed for whatever purchase added up to 1.71 and that it was the owner of the ATM card that used it on 1/14, 1999, might have been – – even though – – the man on whose testimony they based charging — they never looked at them. They had these. And they’ll say that this is in April they got the records. Assistant State’s Attorney, Homicide Division, Courthouse East, here, this building. And look at the entry that says January 14th, 1.71. Or find out what’s — where is that Crown? Maybe somebody saw her. And at the same time — did nothing — sent to them.

and

In — don’t have a system of — we don’t pick the jurors who are charged by judges to act as referees. We don’t allow subjects charged by the police to have lawyers who have a role — I stand up here because I have a role. You take an oath to listen to the evidence and to listen to me — Detective McGilvery decides that he believes the anonymous call from an Asian male, whoever that is.”

and

Ms. Murphy focuses on, the Tina residence, the young — non-Muslim — who met Adnan at a party on Scarlet Place, right down the street, and likes the attention that a handsome young boy is playing with her this phone as technologic as you get, has on it the scroll system anybody could make that call. But more important, the only – – is Jay Wilds – – this most important call is to Ms. Murphy, go the Tanner residence in Montgomery County, took place at 3:32. Now, according to Jay Wilds, he’s and Adnan — well, I’ll call you around 3:30 — Jay testified how he didn’t call at 3:30. 3:30 came and went, so he got in his car and he started to go, and Jen Pusitari — so according to — Jay Wilds — he was in the car that night – –

and

And based on what Jay Wilds said, they came in the middle of the night — Adnan Syed. And — even if you can get past his story that his urge to urinate is so great, 2.9 miles from his house, right off Dogwood Road, right off of where Dogwood Road intersects with Woodlawn, on which is Woodlawn High School. He had to urinate so bad and he was so concerned, as he said, about this privacy and not being seen that he walked into the woods, 127 feet — him sign this — we never heard and you can’t speculate. But the one thing you can assume, if there was something else there that would hurt Adnan —

If you have had any doubts as to how Adnan was convicted on the basis of such shoddy evidence, I suggest you read the closing arguments in full. Particularly Gutierrez’s closing. After doing so, you will probably figure out why the jury only needed a lunch break to reach a verdict — and it has little or nothing to do with the evidence against him.

-Susan

Previously, on both Undisclosed and our blogs, Colin, Rabia, and I have discussed the significance of the medical examiner’s findings concerning livor mortis. To recap, Dr. Korell’s autopsy report concluded that Hae’s body had fixed anterior (frontal) lividity, and that she had been buried on her right side. She testified to these same facts at trial:

CG: So that, that would tell you that the body was face down when the livor was fixed.
Dr. Korell: Right.
CG: Would it not?
Dr. Korell: Yes.
CG: Okay. Because that would mean the blood would pool on the front of the body .
Dr. Korell: Correct.
CG: And that wouldn’t happen if the body post-death were on its side.
Dr. Korell: Correct. (2/02/00 Tr. 79-80.)

Of course, there’s a problem here. If the body were buried on its right side sometime during the 7:00pm hour, this would preclude the anterior lividity described by Dr. Korell, which means that Jay’s story is dramatically and provably false with respect to the events of January 13, 1999.

Although the 7:00pm burial story would be disproven if looking solely at the autopsy report, two critical questions remained about the report’s validity.

First, was Dr. Korell correct about the anterior lividity? The autopsy photographs were in black and white, which is far from ideal, but multiple forensic pathologists were able to conclude,  after reviewing the photographs and autopsy report together, that Dr. Korell was correct in finding anterior lividity. All found that the lividity was anterior and even on both sides, meaning that the body was laid out flat, not leaned to one side or the other, at the time lividity fixed.

Second, was Dr. Korell correct that the body had been buried on its right side? The autopsy report concluded that it was, but because the State had never permitted the defense to obtain copies of the crime scene photos, we could not independently confirm this. However, there is no reason to think that this part of the report was in error. The autopsy was performed by two pathologists: Dr. Korell and Dr. Aquino.

And, although Dr. Korell had not been present at the crime scene, Dr. Aquino was:

(Progress Report, 6/10/99)

As one of the pathologists conducting the autopsy had personally observed the body at the Leakin Park crime scene, he was able to personally assess and report the positioning of the body. His conclusion that the “[t]he body was on her right side” was based on his own observations, not second-hand information from investigators. But did Dr. Aquino somehow make a huge blunder in his autopsy report, writing that Hae had been found on her right side, when really she had been laid out on her front?

In theory, this question should have been trivial to answer. In theory, there should have been crime scene photographs, body diagrams, and reports by crime scene technicians and the forensic anthropologists who performed the excavation, which would have described in detail the positioning of the body and other key facts about the crime scene. In theory, these basic facts should have been part of the record from Day One of the investigation.

In practice, however, there was nothing. No diagrams, no notes, no photos. Aside from the autopsy report, the position in which Hae’s body was found was a black hole as far as the case files for both the police and the defense were concerned. It was not until nine months after the incongruent findings in the lividity had first been noticed that the crime scene photographs were finally obtained by MSNBC, in connection with The Docket’s latest Serial special.

Before explaining what the photographs show, however, let’s review the failures that resulted in a situation in which the defense was denied access to any evidence concerning how Hae had been positioned at the burial site, and why it has taken so long to get conclusive answers to what should have been some of the most basic facts about the case.

The Investigatory Record

It is notable that not a single document in the police record describes the position in which Hae’s body was found. In fact, not one of the reports provided anything beyond the most generalized descriptions of the crime scene. The following is the entirety of available record that was produced to the defense before trial:

(Progress Report, 6/10/99)

(Crime Scene Narrative, 2/09/99)

(Progress Report, 2/16/99)

(Police Report, 2/09/99)

(Surveyor’s Map)

(Evidence Diagram)

There’s not a single word in any of them which describes how the body was positioned in relation to the ground. Based on these reports, the only facts discernible at all as to how the body was found at the crime scene are that it was:

1. Partially buried;
2. Behind a 40′ log;
3. Approximately 15′ from the west end of the log;
4. With the head pointing towards the south, and feet pointing towards the north; and
5. Located either 127′ or 114′ north of N. Franklintown Road (depending on which map you’re using).

Later, on August 2, 1999, the prosecution produced the following memo to the defense, which was described as the “oral report of Dr. Rodriguez,” the forensic anthropologist who disinterred the body:

Oral report of Dr. Rodriguez

This brief, triple-hearsay memo was the only report ever provided to the defense concerning the forensic findings at the crime scene. It is a prosecutor’s summary of another prosecutor’s notes of a conversation that she had with the forensic anthropologist five months previously. This document exists because in February 1999, prosecutor Vicki Wash spoke to Dr. Rodriguez, and she took notes of what he said. In July, prosecutor Kathleen Murphy wrote a summary of Wash’s notes, and then gave that to the defense.

So whatever Dr. Rodriguez found in his examination of the crime scene, his analysis was filtered through two different prosecutors before Adnan’s attorneys ever got a chance to see it. There is no way to know if Wash’s note were accurate and included everything of importance, and no way to know what Murphy’s “summary” of those notes left out. As a result, we have no idea if the oddities in this short report are truly things Dr. Rodriguez said, or if they are merely the result of a mistaken transcription by either Wash or Murphy in their various iterations of the report. Green plant material underneath — does plant material remain green if buried underground for a month? Orange fiber found on body, blue fiber found beneath body — but wait, why did the trace analysis unit conclude that there was a red fiber, a colorless fiber, and a pink-orange fiber found on the body? Is Rodriguez’s orange fiber near the shoulder Van Gelder’s red fiber near the head, or was it Van Gelder’s pink-orange fiber from a root? And what about the blue fiber, should we just assume it’s the colorless fiber that testing was done on?

Van Gelder’s Trace Analysis Report

Prior to trial, the only other evidence of what the crime scene looked like that was handed over to the defense came from Mr. S’s police interviews. On the night of February 9, 1999, one of the detectives wrote down the following based on what Mr. S had said:

Mr. S’s Police Statement

Mr. S also provided the following sketch:

Mr. S’s Sketch

And that’s it. Nothing whatsoever concerning whether the body was on its side, back, or front. Almost nothing concerning how it was buried. And inconsistent information concerning even the location of where the body was found.

Discovery

From the beginning, the prosecution was playing games with what information it turned over concerning the burial site. Although initial discovery was (eventually) handed over by Urick on July 2nd, that discovery was decidedly lacking. Five days later, Gutierrez wrote to Judge Quarles outlining the numerous deficiencies in the State’s production:

1. Any and all sketches, diagrams, and photographs of the crime scene, to include the victim as welI as any evidence collected.

2. A legible crime scene log. The log provided was cut-off.

. . .

7. All police reports, only incomplete reports were provided.

8. A copy of Det. Bradshaw’s follow-up investigation report. The report in the materials provided is cut-off.

. . .

11. A copy of any report or documents prepared by Dr. Rodriguez, the forensic scientist at the crime scene.

. . .

14. Autopsy photographs. The photocopies provided are not legible.

. . .

16. The Medical Examiner’s log with any and all notes made by any personnel concerning the collection of the body.

In addition to the materials that were simply not produced at all, crime scene logs and reports were only partially produced, and the quality of the autopsy photos was so horrible that they showed nothing beyond a rough outline of the body.

The State’s response denied that any further records concerning the crime scene existed:

In other words, information concerning the burial site had simply never been recorded by anyone. The prosecution’s position was that no one had, at any time, made any diagrams or took any notes of how the body was found at the burial site. Dr. Rodriguez and his team, who had been specially brought in from the Armed Forces Institute of Pathology in Washington, D.C., in order to assist the BPD with the recovery of the body, had failed to document any aspects of the crime scene.

It is worth noting that this is absolutely insane. No investigation should ever, under any circumstances, be conducted this way. There are two possibilities here: either the prosecution falsely represented to the defense (and to the court) that no such documents existed, or else Dr. Rodriguez and his team neglected the most basic aspects of a proper forensic investigation and failed to document any of their activities. See, e.g., Hutchins v. State, 339 Md. 466, 475, 663 A.2d 1281, 1286 (1995) (“The State [ ] ha[s] an obligation to disclose [ ] any written reports or statements and the substance of any oral reports and conclusions of [any ‘experts consulted by the State’] regardless of whether or not the State expected to call [those experts] to the stand to testify.”).

The only further information provided concerning Dr. Rodriguez’s (or Dr. Korell’s) findings consisted of the following disclosure on October 1st:

Nothing else was ever produced about the crime scene. No diagrams, no analysis, no notes, no reports. According to the prosecution, Dr. Rodriguez was brought in from Washington to conduct a forensic recovery that BPD was unequipped to handle, but failed to write down a single thing concerning his work.

Obtaining the Crime Scene Photographs

Without any documentation of the crime scene, the only remaining way to determine how the body was positioned is through the crime scene photographs. That catch was that the defense did not have any crime scene photos; Urick had refused to ever provide copies, and instead only permitted the defense to briefly view the photographs prior to trial.

Gutierrez, to her credit, relentlessly and repeatedly sought the photographs, such as in the following letters to Urick:

Defense Letter to the State, 8/5/99

Defense Letter to the State, 9/7/99

Defense Letter to the State, 1/6/00

But it didn’t work. Other than the brief two-hour viewing that Urick permitted prior to trial, and during the trial itself, the defense never had access to these photos.

However, at trial, the prosecution introduced into evidence a series of eight photographs of the burial site, which Dr. Rodriguez described in his testimony. These photographs were acquired from the court last month, and, finally, we were able to definitively confirm what we have known for months: the lividity findings combined with the burial position preclude the possibility of a 7:00pm burial.

These photos were shown to Dr. Hlavaty, who was interviewed in Episode 5 of Undisclosed. After reviewing the newly obtained images, she was able to confirm that the body was positioned on its right side. Because the photos were in color, she was also able to confirm, once and for all, the presence of lividity on the anterior surface of the torso.

In addition to the lividity findings, though, it is worth noting that these findings are also highly significant in terms of what they show about the crime scene. In particular, the body was not at all concealed to the degree that I had expected, based on the trial testimony and police reports that I have been reviewing since Serial ended. The majority of the body is above the level of the forest floor, and is concealed primarily by a pile of loose soil and dead leaves that have been thrown into a pile on top of it. Much more of the body was exposed than I had expected, as well.

My reaction to the photographs was, in fact, much the same as Mr. S’s reaction was to the crime scene. The first thing you notice is that the earth has been disturbed; it is blatant and would be hard to miss. A pile of leaves and dirt have been thrown into a pile, and the forest floor surrounding the pile is bare dirt, as if someone had scooped up all the leaves in arms’ reach to add to the pile. After looking at the dirt and leaf pile, the most striking features are the glossy black hair, and below that the white of Hae’s jacket collar, as well as the completely exposed foot sticking out from the pile of leaves. Large portions of the left knee and hip are also exposed, although the color and texture of the taupe stockings allow those portions to blend in better with the surrounding brown and tan leaves.

The Pressure Marks

The photographs also provide confirmation that Hae’s body was laid out frontally after death because of what they show concerning the pressure marks. Lividity causes discoloration in the areas of the body where the blood has settled due to the effect of gravity, but in addition to the areas of discoloration this process also leaves pressure marks that appear as white patches on the skin. Pressure causes compression of the blood vessels, which results in blood being unable to settle in those areas, and therefore no discoloration occurs, even in a location that is otherwise the lowest area of the body.

In this case, the pressure marks found on Hae’s body provide further evidence that Hae had been buried after lividity had become fixed. First, there are the marks found on Hae’s shoulders: a series of three are similar-sized pressure marks, two on the right and one on the left, at roughly the same level of the body and roughly the same shape. I have made a diagram depicting theses marks’ approximate location:

The areas marked in white are pressure marks with unambiguous and distinct borders. The areas marked in beige are approximate representations of the pressure marks, but their shape is less clear from photos; the beige should be interpreted to show location and general shape, rather than exact appearance.

The pressure mark on the farthest right of Hae’s shoulders was the most distinct, with clear, straight borders, and its shape is that of a distinct double-diamond pattern:

The dimensions are very precise. Based on the ruler provided for scale, the double diamond mark is:

• 2 1/2″ inches from top to bottom
• 1 1/8″ across at widest
• 5/8″ across at narrowest

The two diamonds on the right shoulder are 2″ apart from point to point, and 1″ apart from the fattest part of the diamonds.

There is also a divot in the center of the rightmost diamond. Its placement makes it appear artificial, as if it were part of the construction of the item. This is especially so when combined with how symmetrical and straight the edges are; whatever it is, I do not think it’s organic.

There is no way to determine if this pressure mark was due to contact with an object in that shape, or if, for example, the object was bar-shaped and the double-diamond pattern is simply a result of greater pressure against the clavicle and shoulder and lesser pressure in-between. The other two marks (one other on the right shoulder, closer to the neck, and a third one on the far left shoulder) do appear roughly similar in shape and size, but their shape is not as distinct as is the one on the far right, as the borders are not as defined and they are not as clearly depicted in available photographs.

Dr. Hlavaty could not identify a possible source based on the marks, but she did confirm that they were pressure points that demonstrated anterior lividity. Although others have suggested that the marks may be caused by bra straps, the pressure marks do not line up with how the bra was on the body, and do not seem to be consistent with pressure marks that would have been caused by that. Whatever their source may be, there was nothing found at the Leakin Park crime scene that could account for the existence of these marks, and the body’s position did not cause these areas to be exposed to any greater pressure than the surrounding areas were subjected to.

The second significant pressure mark is the one found on the far left anterior surface of the torso, starting at a point slightly above the navel and ending at a point slightly below it. Tracing over the pressure mark gives the following zigzag shape:

This pressure mark falls at the same level as the waist of Hae’s pantyhose, which had been twisted about; the pressure mark resulted from the constriction of the pantyhose where the waist had bunched due to twisting.

The location of this mark is significant in that it confirms that, when lividity fixed, the lower left side of the body’s abdomen was flat against whatever surface the body was resting on, causing blood to pool there. If lividity had fixed while the body was in the position in which it was found, no lividity could have developed in the lower left anterior of the torso.

What the Newly Obtained Crime Scene Photographs Show

For obvious reasons, we will not make copies of the photographs available to the public, and it is my very deep hope that no one else takes it upon themselves to publish them. Hae’s family doesn’t deserve that, and there is no excuse for such an action. However, the information contained in the photographs is important for Adnan’s case, and a subject of legitimate interest. In order to provide access to this information, while not making sensitive and potentially upsetting photographs available to the public, I have created a model to show the positioning of Hae’s body at the crime scene, as well as the portions of the body that were exposed when it was discovered by Mr. S.

I have taken every effort to make the model as faithful to the photographs as possible, so that when viewed from the same angle the model’s position matches the positioning shown in the photographs. A few caveats are in order, however: (1) In order to show the visible collar, the area of the neck has been obscured; (2) the positioning of the left hand is not shown in the photographs, and could either be palm up or palm down; it is depicted here as palm down; and (3) although all of the hair is depicted in the model, only the top portion of it was actually exposed as the crime scene was initially found; the lower portions were not visible until later stages of excavation. Also note that currently displayed images have been updated slightly from their original depiction when this was first posted.

Areas of the model marked in blue show the portions of the body that were exposed to the air, and which were visible in photographs prior to any recovery work had been done: the right foot, the left knee, the left hip, a portion of the right wrist and hand, the collar of Hae’s jacket, and the back of her hair.

Orange has been used to mark two of the more prominent pressure marks that would be visible based on the positioning of the model: one on the left shoulder, and one on the left lower torso. The marks on the right shoulder would have been obscured.

Not all of the body was placed below ground; some portions of the body rested on soil at the same level as all of the surrounding forest floor. However, a portion of the body — primarily the torso — rested in a recessed area. In order to depict these conditions, I have used wires to hold the clay up, although in the photographs, these limbs are supported by the soil at the edges of the recessed areas, or by the forest floor itself.

According to Detective MacGillivary, there was a “natural depression” near the log, which is what the body had been placed in.  Although Dr. Rodriguez’s triple-hearsay oral report describes the area as being “dug out,” he never makes this claim in his trial testimony, and simply describes that where she was placed was “very shallow.”

This shallow depression was longer than it was wide, and only large enough to fit parts of the torso. The right knee is resting directly on the forest floor; the exposed areas, mark in blue, show where dirt and leaves had fallen off the sides of her leg, exposing all of it to air except for the lowest inch or so, which is obscured by leaf litter. The left hip is similarly exposed, with the sides uncovered by dirt and leaves due to the effects of gravity, although debris often remained directly on top of the body part. The right foot was entirely exposed and jutted at an angle into the air. The left arm was covered in leaves and not visible; although it was the highest part of the body, the leaves and soil were piled deepest over that area. The right elbow was the lowest part of the body, but is bent sharply so that the hand reaches upwards towards the surface. There was only a single rock placed on any part of the body, and that is the rock referenced in Dr. Rodriguez’s report that was placed on top of the hand. The positioning of the right hand, which indicates that it may have been in rigor at the time of the burial, makes me suspect that the rock was placed in order to hold the hand down, as otherwise rigor would have caused it to stick up well above the forest floor. With the rock on it, only a sliver of the back of the hand, where it meets the wrist, is exposed.

Additionally, it should be noted that the body was not “against” the log as it has sometimes been described. These photos show the model’s position with reference to the log and the rock:

Based on the crime scene photographs, there is no possibility that Hae was buried in Leakin Park prior to the fixation of lividity. This puts the earliest estimates of her burial at no sooner than 8-12 hours after death, and quite possibly longer. This means that, if Hae was killed shortly after leaving school, the burial could not have taken place before approximately 10pm.

-Susan

In yesterday’s bonus episode of Undisclosed, I mentioned that I agreed with Colin about how Jay’s borrowing of Adnan’s car and phone appeared to be directly tied to their involvement in weed dealing, and further that, based on the calling patterns from the cell records, it appeared that Jay had been regularly borrowing Adnan’s car/phone on Wednesdays during the time that Adnan should have been at track. Since I’ve gotten a few questions about it today from listeners curious about it, I figured I’d put up a quick summary of the records I’m referencing.

First off, though, I should note that any “drug dealing” at issue would be the type of “drug dealing” that necessitates the use of scare quotes — there is no suggestion that anything more serious was going on here than teenagers providing pot to other teenagers. Moreover, based on Jay’s statements in his first police interview, whatever he was involved in was clearly some small time stuff, based on the total dollar amounts involved:

(Side note: I wish the police had actually gotten a copy of this check, but I guess they knew it looked really bad for their “Adnan blackmailed Jay into helping with a murder” story.)

So with that in mind, here’s what the phone records show:

Days on which (a) Adnan had a cellphone¹; (b) Woodlawn had track practice²; and (3) Adnan was eligible to be at track practice³:

• Jan. 13
• Jan. 26
• Jan. 27
• Feb. 1
• Feb. 2
• Feb. 3
• Feb. 4*
• Feb. 5

Days on which Adnan should have been at track practice, but on which there was phone activity inconsistent with Adnan being at track practice⁴ from 3:30 to 5:00pm:

• Jan. 13
• Jan. 27
• Feb. 1
• Feb. 3

Days on which Adnan should have been at track practice, but between 3:30 and 5:00pm there were calls made from Adnan’s phone to Patrick, “a guy [Jay] bought marijuana from a whole lot” (2/04/00 Tr. 134):

• Jan. 13
• Jan. 27
• Feb. 3

Days on which Adnan should have been at track practice, but between 3:30 and 5:00pm there were calls made to NHRN Cathy (who was Jay’s friend, and did not know who Adnan was):

• Jan. 27
• Feb. 3

Days on which Adnan’s phone made calls originating on either L689B (a.k.a. “the Leakin Park tower”) or L653C (tower on Edmonson Ave., south of Leakin Park):

• Jan. 13
• Jan. 27

Weed dealers (a) who sold weed to Jay; and (b) who, according to AT&T’s maps, Jay had to drive through L689B and L653C’s coverage areas in order to get to their houses:

• Patrick.

Woodlawn HS depicted top left. Leakin Park is the grassy area to the center/right of image. Cell towers are marked by triangles. Blue line marks Cooks Avenue, which is mentioned repeatedly in Jay’s stories, and which both L653C and L689B could provide coverage for.

In sum, there is a correlation between (a) Wednesdays that Adnan should have been at track and (b) times when the phone activity shows calls to people only Jay would be calling. Similarly, there is also a correlation between (a) days that Adnan’s phone made calls to a weed dealer that lived near Leakin Park, and (b) days that Adnan’s phone made calls originating on L689B and L653C.

You can draw your own conclusions as to what else this pattern of activity may represent, but it does show that Jay being in possession of Adnan’s phone on a Wednesday afternoon during track practice would not have been an unusual event during this time frame.

-Susan

¹ Adnan got his cellphone on January 12th, and available cell records run through February 18th.

² There were track meets — and therefore no track practices — on January 12th, 25th, and 28th, and Woodlawn High School was either on a break, had a snow day, or was on a half-day exam schedule on January 14th, 15th, 18th, 20th, 21st, 22nd, and 29th.

Additionally, I’ve only considered here the time period from January 12th – February 5th, due to the fact that Adnan does not appear to have regularly attended track practice following that date. The track meet on January 28th was the last regularly scheduled competition, and although the track season technically continued after, only the school’s top athletes would be competing in the remaining championship meets, Adnan not among them. So although Adnan continued to make sporadic appearances at practices following the last regular season meet, his attendance is reported to have significantly dropped off and it does not appear he went much or at all after the first week of February.

³ Per a track coach interviewed by the detectives, students who had missed school were not eligible to participate in athletics programs that afternoon. Adnan was out of school for a religious holiday on January 19th, and marked as absent on the 25th. He is also marked as absent on February 4th according to one record, but no absence is marked on another, so it’s not completely clear if he was eligible for track that day.

⁴ January 26th and February 4th also show some activity during these time periods, but not activity would be inconsistent with his attendance at track on those days, so I’ve not included them on this list. On January 26th, there was a call to check voicemail at 4pm, and on February 4th, there was a 10 second call to Adnan’s friend Peter at 4pm. Both calls were on towers that would be expected for a call made from Woodlawn High School.

As I assume anyone bothering to read this blog would already know, Adnan’s PCR hearing concluded last week after five days, eight witnesses, and approximately 3,000 donuts consumed by various members of the Undisclosed team. We published daily on-the-fly podcast updates of the hearing while it was ongoing, and in a week or two, we’ll be following up with a full-length episode recapping the entirety of the hearing in greater detail.

In the meantime, however, I’d like to take a moment to address some comments made by the prosecutor, Thiru Vignarajah, at a press conference held immediately after hearing ended. During this press conference, he outlined what he believed to be the State’s strongest evidence that Gutierrez was not ineffective in failing to investigate Asia McClain as an alibi witness, in a manner very similar to the claims he had made earlier that day during his closing argument:

Reporter: What’s the state’s best evidence, and why do you think the State is going to win the hearing?

Vignarajah: [. . .] Although there are victims of ineffective assistance of counsel, Mr. Syed is not one of them. And if you’re looking for the best piece of evidence for that, all you have to do is look at the record that defense counsel had in possession until very recently, and what you see is investigative step followed by investigative step, scrutiny after scrutiny, lines of cross examination that were pioneering at the time, and were conducted by one of the most seasoned, effective defense attorneys of her time.

And if you want to focus on two thing it would be this:

First, that the security officer at  the Woodlawn Public Library was interviewed within 3 days of Mr. Syed’s arrest along with the track coach, and so if anyone was wondering if the investigators and the attorneys were taking seriously a potential alibi, they certainly were, and the defense’s own file confirms that.

And secondly, again it’s not a conspiracy, it’s common sense, when you’re client is asking how mail is scrutinized, when you see notes that your best friend is telling detectives that a girl named Asia is being asked to type up a letter, and then you see that letter with lots and lots of facts that come from exactly one place, which is the defendant’s own search warrant, it’s pretty clear that a seasoned attorney like CG could see those warning signs a mile away.

These claims are varying degrees of misleading, irrelevant, and false. They are not based on evidence, but on the prosecutor’s misinterpretation of completely innocent materials found in the defense file. To show why, I will go through them line by line, and explain the actual basis of the State’s claims, and why the reality is radically different from what the State would have the public (and the court) believe.

Although there are victims of ineffective assistance of counsel, Mr. Syed is not one of them. And if you’re looking for the best piece of evidence for that, all you have to do is look at the record that defense counsel had in possession until very recently, and what you see is investigative step followed by investigative step, scrutiny after scrutiny.

If this were the case, the State would have shown this evidence during the hearing. Since he did not, we can safely assume that the defense file does not, in fact, contain evidence of a thorough investigation performed by Cristina Gutierrez.

Does the defense file, as Thiru claims, show “investigative step followed by investigative step”? Well, yes, it is in fact a defense file, so by definition it contains a record of an investigative step followed by another investigative step. But the fact that investigative steps were taken is not evidence in the State’s favor; it is an obvious fact that anyone would know, with or without looking at the defense file. That some form of investigation occurred says nothing about the quality or effectiveness of that investigation. For instance, sending multiple subpoenas to inaccurate addresses is an investigative step — it is just not a very good one. Likewise, obtaining copies of the photos in the prosecutor’s file is an investigative step — but failing to follow up with those photos with a medical expert was an investigative misstep with disastrous consequences for Adnan. Pulling a copy of the Woodlawn High School yearbook and calling the top 8 track athletes listed there is also an investigative step — but choosing to investigate alibi witnesses for the time Adnan was at track based on the track team’s relative athletic ability rather than by their relative likelihood of having seen Adnan on January 13th is so stupid it is tragic.

In short, the State’s evidence that Gutierrez performed a thorough investigation amounts to no more than unsupported claims during a press conferences, which were submitted in lieu of any evidence that existed in a form that permitted it to be presented to the court.

lines of cross examination that were pioneering at the time,

Here, I believe, the State is referring to Gutierrez’s cross of Waranowitz here. He mentioned at some point during the hearing that she was the first to make certain challenges to cellphone evidence, that defense attorneys to this day continue to use. Of course, he neglected to mention that those lines of cross-examination are based on a completely lack of understanding about the functioning of a cellular network.

If further proof is needed of Gutierrez’s complete dereliction of duty when it came to the cell evidence, let’s look at her own words on the subject:

And yet, according to the State, the attorney who did not even look at the cellphone evidence, because she did not care about it, was incredibly effective — indeed, pioneering! — in the field of cell evidence defense.

and were conducted by one of the most seasoned, effective defense attorneys of her time.

The attorney that Thiru is calling “the most seasoned, effective defense attorney of her time” set a state record for most claims brought against her before the Attorney Grievance Commission. Her failures to take even the most basic steps in many of the cases she was involved in during the same period of time she represented Adnan (i.e., failing to brief issues, failing to communicate plea offers, falsely claiming to be consulting with experts she was not) have resulted in incredible amounts of damage to the clients she victimized, both those whose stories we know and many more still whose we do not.

And if you want to focus on two thing it would be this:

First, that the security officer at  the Woodlawn Public Library was interviewed within 3 days of Mr. Syed’s arrest along with the track coach,

On March 3rd, Drew Davis, the defense investigator hired by Adnan’s attorney, interviewed Officer Steve. He did not take any notes of this interview, and the only reference made to these notes in the defense file is from a billing invoice that Davis submitted:

Asserting that this document has any relevance to Adnan’s claims in the PCR hearing is so strained that it borders on meritless. On March 3rd, it is virtually certain that neither Adnan nor his defense attorneys had Asia’s letters, which were mailed no sooner than March 2nd and March 3rd. We do not know why Davis spoke to Officer Steve, or what he spoke to him about, but there was nothing significant enough about the conversation to be worth preserving. According to Thiru, though, this is the State’s best evidence against Adnan, because it is proof that shortly after Adnan’s arrest, his attorneys were looking into whether they could locate alibi witnesses for where Adnan was after school that day.¹

But if Adnan’s first words to his attorneys were, “I think I was at the library and then I was at track,” that is evidence of innocence, not evidence of guilt! It is the same alibi he is advancing now at the PCR hearing, and his bail attorneys’ prompt initial steps to investigate that alibi shows that they took Adnan seriously.

The fact Officer Steve (presumably) had no useful information to provide the defense investigator is not evidence, in any respect, that Adnan’s alibi was no good. It just means the single witness Davis spoke to could not verify it. In no legal universe is that a basis to desist all further investigative efforts.

As was made clear from the testimony last week of both the Woodlawn librarian and the security guard, however, the security guard’s failure to specifically recall seeing Adnan on January 13th is yet another meaningless fact with no evidentiary relevance. Both the Woodlawn librarian (called by the defense) and the security guard (called by the State) testified that they might remember a student they spoke to that day, but hundreds of students came through the library between 2pm and 4pm, and they would not be able to say whether or not a student hadn’t been in the library based on whether or not they remembered seeing them.

To comment briefly on Officer Mills: his testimony is on my top 10 list of most bizarre witness testimonies I have ever seen in court. Officer Steve was contacted a week before the hearing, and interviewed twice. He was then subpoenaed to testify for the state for as to three facts:

1. He does not recall being questioned by Davis, Adnan’s attorneys, or anyone else in connection with this case
2. The library did not have cameras in January 1999 (and therefore Asia is lying)
3. Adnan Syed was not in the library on January 13, 1999 (and therefore Adnan’s attorneys reasonably did not pursue the Asia alibi)

At trial, he then testified to the following:

1. He does not recall being interviewed by Davis, Adnan’s attorneys, or anyone else in connection with this case

Assuming that Davis really did speak to Officer Steve on March 6, 1999, Officer Steve’s lack of memory of that encounter doesn’t have much significance for Adnan’s case. If, for instance, Davis asked him, “Do you have any records of a disturbance on Jan. 13, 1999,” then Officer Steve would never have known in the first place that he’d been questioned in connection with Adnan’s arrest.

2. He did not remember any cameras on that side of the library building, but it was possible there were cameras he did not know of, because that was not his responsibility.

My notes from the hearing have two exchanges which should clarify how little light Officer Steve was able to shed on this. First, on direct,

Thiru: Is it possible there were cameras at the library that you did not know of?

Officer Steve: Yeah, it’s possible, possible.

And then on cross,

Chris: Could there have been cameras at the library you were not aware of?

Officer Steve: Yes.

Officer Steve has no idea if there were cameras. There could have been, he just did not know of them because they were not his responsibility.

3. He did not see Adnan Syed in the library on January 13th,  but he easily could have been there and Officer Steve either didn’t see him or didn’t remember seeing him.

During cross, Officer Steve frankly acknowledged that, despite what the detectives’ notes said, he could not say for certain whether or not Adnan had been at the library that day. Perhaps he misspoke when speaking to the detectives, or perhaps the detectives took liberties in what they wrote down. Either way, the following exchange tells you all you need to know about whether Officer Steve actually believes he could tell whether or not Adnan had been at the library that day:

Chris: They showed you yearbook photos of a number of students from 17 years ago?
Officer Steve: Yes.
Chris: And they asked you to determine if one of them had been in the library on January 13, 1999?
Officer Steve: Yes.
Chris: That’s kind of a ridiculous question, isn’t it?
Officer Steve, speaking in a knowing/amused tone: I’m not answering that one!

So Officer Steve’s testimony was a complete dud for the State. Nothing about his testimony supports the State’s position at the PCR hearing in any way. The bar for “best State’s evidence” must have been set very low indeed, if this makes the cut.²

and so if anyone was wondering if the investigators and the attorneys were taking seriously a potential alibi, they certainly were, and the defense’s own file confirms that.

Yes, Adnan’s initial attorneys were taking the investigation seriously, because that is what an attorney is supposed to do. Unfortunately, Flohr and Colbert only represented Adnan during the bail stage, and six weeks after his arrest, Gutierrez took over his case. It is Gutierrez’s failure that is the basis of Adnan’s IAC claim, and the fact that his bail attorneys were competent and diligent has no bearing on Adnan’s claim that Gutierrez was ineffective in her representation of him.

And secondly, again it’s not a conspiracy, it’s common sense, when your client is asking how mail is scrutinized,

What Thiru is alleging never happened, and there is no evidence to support it. And unless he is an idiot — which, without question, he is not — he had to have known that the notes that are the basis of his claim have nothing to do with any obstruction of justice scheme. In short, a prosecutor for the State of Maryland misrepresented evidence at Adnan’s PCR hearing, in support of his claim that another attorney — one who was in fact present in that very courtroom — had been and continued to be complicit in a scheme to fabricate the existence of an alibi witness.

Everyone, regardless of their position on Adnan’s guilt, should find this horrifying.

To explain what is going on, it helps to look at the document that is the “source” (scare quotes warranted) of the prosecutor’s claim. The defense file contains a page of notes written by Chris Flohr (Adnan’s attorney during the initial bail hearings) on March 6, 1999, the top of which looks like this:

These notes contain short, jotted-down references to a number of issues related to Flohr’s representation of Adnan, such as administrative matters, information needed for investigative purposes, getting legal releases signed, and fixing the bail issue in which Adnan’s date of birth was incorrectly listed.

In short: this is an attorney’s to-do list. A list of things for Flohr to discuss with his client when he sees him in jail, things for him to pursue as lines of investigation, and paperwork issues to be taken care of. Items were checked off as he went along — like after Flohr told his client about how to have people send him self-addressed stamped envelope in their letters to him so that he would be able to write them back, and after Flohr gave a routine cautionary reminder that everything his client sent and received through the mail could and would be monitored by authorities.

While I do not know what regulations Baltimore City jails had in place in 1999, sending an inmate a self-addressed stamped envelope with a piece of paper is, in institutions where permitted, a standard way of giving the inmate you are writing the materials necessary to actually write back, and that is clearly what Flohr’s notes here are referencing. As shown from guides published by correctional institutions and other agencies about how to write to inmates:

• Each week a prisoner is allowed to send one free letter. If they want to send more than this then they need to purchase stamps and envelopes from the prison shop/canteen. Alternatively you can post self addressed stamped envelopes to the prisoner so they can post letters back to you
• Inmates will be permitted to receive only the following types of materials through routine mail: [. . .] Self-addressed stamped envelopes. These items do not count toward the 15 page limitation for additional materials, but cannot exceed the equivalent of 20 (1 ounce) first class stamps.
• Further, inmates may possess only the personal property, materials, supplies, items, commodities and substances received or obtained from authorized sources, as permitted in the institution’s procedures. Even the possession of excessive stamps can become an economic bargaining tool. Sending a client only self-addressed pre-stamped envelopes avoids any problems.

But even setting aside all that, Thiru’s conspiracy claim has overlooked an obvious point that disproves his entire argument. Namely, WHY THE FREAKING HELL WOULD ASIA NEED A SELF-ADDRESSED STAMPED ENVELOPE FROM ADNAN?? Asia isn’t in jail! Asia can buy her own envelopes and stamps! And buy her own “one piece [of] paper”! Why, oh why, would this notation from Flohr ever be, in any universe, evidence of Adnan asking for materials that he could use to solicit a false alibi from an acquaintance?

Flohr’s notes are, as anyone with criminal law experience should be able to see, about people writing letters to Adnan, and have nothing do with a hypothetical request to enlist an attorney’s help to carry out a conspiracy to fake an alibi. Flohr’s notes are not, as anyone with common sense should be able to see, about how Adnan can obtain materials to write out to another person and request that they write back with a letter that sets forth a falsified alibi.

In the words of Justin Brown, “I have a problem when prosecutors present info in a manner that they know to be inaccurate.” Thiru is a very smart man, and I will not insult his intelligence by presuming he holds a genuine belief in such a stupid theory, but that raises a much more troubling concern. At the PCR hearing, Thiru accused another attorney of being, at best, silently complicit in a scheme to commit obstruction of justice, and at worst, an active participant in the scheme, despite the fact that Thiru knew or should have known that his supporting “evidence” for this claim was a sham.

This is not okay. This is so far from okay.

Moreover, Flohr was actually in the courtroom for most of Adnan’s five day hearing, available to testify at a moment’s notice. If Thiru believed that Adnan had solicited Flohr’s help in constructing a false alibi, then he should have called him to the stand and asked him about it, not used his imagination to conjure up a conspiracy out of a defense attorney’s routine checklist of things to discuss with his client.

As with the rest of its case at the PCR hearing, however, the State preferred to submit its own willful misinterpretations of innocuous notes in lieu of any actual evidence.

 when you see notes that your best friend is telling detectives that a girl named Asia is being asked to type up a letter,

The Ja’uan notes issue has already been addressed in detail in other places, so I will just add a couple notes to it here. First, if anyone doubts the way in which notes jotted down by the police during an interview can be misleading when read out of context, simply look at Officer Steve’s testimony for your proof. Second, for Thiru to be right about the Ja’uan notes, it would mean that Ritz and MacGillivary were such terrible detectives that a defendant’s friend told them about his scheme to falsify an alibi, and they didn’t take a damned step to follow up on it.

And then there’s one other point in response to Thiru’s claim that is critical: although Thiru says, “when you see notes that…,” implying that Adnan’s attorneys made strategic decisions based upon their interpretation of the Ja’uan notes, such a thing never could’ve happened. Why? Because those notes were not disclosed to the defense until 2010. At the time of Adnan’s trial, no one connected with the defense in any respect ever had a clue those notes existed. The defense could not have obtained this information from Ja’uan, either, because Gutierrez’s team did not make contact with him until February 20, 2000, at the very end of the second trial, and those notes reflect nothing about any possible knowledge he might have had of either Asia or Adnan’s alibi defense. In short, Thiru’s conspiracy reading of the Ja’uan notes had nothing to do with any decision, strategic or otherwise, ever made by the defense.

and then you see that letter with lots and lots of facts that come from exactly one place, which is the defendant’s own search warrant, it’s pretty clear that a seasoned attorney like CG could see those warning signs a mile away.

Thiru made this claim a half dozen times during the hearing, and questioned Asia about it on cross, aggressively and at length. But it is not true. There is exactly one fact that appears in both the search warrant affidavit and Asia’s letters: that Hae was buried in Leakin Park. That’s it. No other facts from Asia’s letters appear anywhere in the search warrant.

Plus, the “facts that come from exactly one place” part of Thiru’s argument is even more bogus, given that not only are the “facts” from Asia’s letters self-evidently not in the search warrant affidavit, but that during the course of the PCR hearing Thiru had been shown numerous sources that did contain those facts, and that Asia would have had access to on March 2, 1999. I guess he must’ve forgotten about that by the time the press conference rolled around.

And this is what Thiru calls the State’s best evidence in opposition to Adnan’s petition for a new trial?

Damn, no wonder I feel so hopeful.

– Susan

1. We know that Adnan told his attorneys that he believed he had a conversation about Ramadan with his track coach, Coach Sye, on January 13th, because that’s what Coach Sye says the defense investigator asked him about. The same day that Davis interviewed Coach Sye (March 6th), he also went to speak to the library security guard. To the extent that any inference can be drawn from this, it is that Adnan may have also identified the library as another location he had visited after school on the day of Hae’s disappearance.

2. So, all that aside, what actually is the deal with Officer Steve? Why on earth did the State call him in the first place, and what exactly did Officer Steve think he was talking about?

Well, best I can figure, based on the exhibits and testimony from the hearing, Officer Steve was under the belief that Hae had been murdered before January 13, 1999, and that he was being questioned about whether he had seen her killer in the library after her death.

Take a look at what the detectives’ notes say from Officer Steve’s second interview:

When [Officer Steve] saw Syed’s picture, he can say for certain he was not in the library the day of Wed, Jan 13, 1999

If Syed was in the library [Officer Steve] states he would have brought it to the attention of police.

At trial, Officer Steve gave testimony that was almost identical to his previous comments to the detectives the week before:

Thiru: If you had recognized Mr. Syed [in the library on January 13th], what would you have done?

Officer Steve: Call 911.

A perfectly reasonable response — if you mistakenly believed that, as of January 13, 1999, Adnan had been a murderer that the police were trying to arrest. Officer Steve testified that he remember seeing Adnan’s picture in the news, so he knew what Adnan looked like, and — as Officer Steve reasonably testified  — if he had seen this murderer at the library where he was a security guard, he would have responded by calling 911. Therefore Officer Steve is confident he did not see Adnan Syed in the library on January 13, 1999, because if he had, he would have called the police to  alert them to the fact that he had found the murderer they were looking for.

So Officer Steve’s testimony was not ridiculous at all, although it appeared that way at first glance. His only mistake was in assuming that the detectives were asking him reasonable questions, and he responded accordingly. Because why on earth would detectives show up at a security guard’s workplace and ask him something as ridiculous as whether he could confirm whether or not a student of no particular note had been it the library on a specific (but uneventful) day 17 years ago? No detective would be useless enough to ask such a thing, surely.

In today’s episode of Undisclosed, Postconviction Relief Part 5: Closing Thoughts, we discussed in greater detail how the cellphone records at Adnan’s trial were not the authenticated copy of records that they were purported to be. Although Exhibit 31 — a.k.a. the Frankenzibit — had been presented by the prosecutors as an authenticated copy of AT&T’s business records, the documents that were authenticated by AT&T had been substituted for a different and unauthenticated copy of the records, from which all fax information had been removed.

You can see these differences four yourself by comparing Urick’s fax to AT&T requesting authentication of the State’s copies of the cellphone records, and Exhibit 31 as it was admitted at trial. To show the differences between the two documents, I’ve provided below a side-by-side comparison of each page. (Note that the substantive records begin at Page 2 of Exhibit 31; the first page is the affidavit from AT&T’s custodian.)

Page 2 Comparison

The second page of Exhibit 31 is the subscriber information sheet from AT&T’s 2/17 fax. In the document Urick sent to AT&T for authentication, the top line reads: “SENT BY: 2-17-99 ; 11:30am ; AT&T WIRELESS SVCS-  914103962257 ; #2.”

In Exhibit 31, the top line has been chopped off, and the entire page has been shifted upwards — including the hole punches on the left-hand side, which are now noticeably higher than those on the authenticated copy.

Page 3 Comparison

The third page of Exhibit 31 is the last page AT&T’s 2/22 fax, containing part of the phone records for January 12, as well as blank entries for phone records from January 9 – 11 (prior to the phone’s activiation). On the left side of the document faxed by Urick to AT&T, the edge of the original fax header is visible, while it has been removed from the copy submitted as Exhibit 31.

Page 4 Comparison

The fourth page of Exhibit 31 is the second to last page of AT&T’s 2/22 fax, containing part of the January 14 records, all of the January 13 records, and the beginning of the January 12 records. In Urick’s fax to AT&T, the fax header information has already been almost entirely cut off (although it remains present in the prosecution’s other copy of the January 13 records from the 2/22 fax). However, because the original fax from AT&T was slightly askew, the border of the fax header information is not parallel with the page’s text, and runs off at a ~15° angle. In the corresponding page from Exhibit 31, this has been corrected with the help of a paper guillotine; however, because of the angle required to even up the page, the sheet of paper was no longer a rectangle, and copies made from the cut sheet show where fax header side was cut off (circled in blue, top right of image).

The shadow from where the paper is lying on the copier glass is visible, demonstrating that the corner is not at a 90° angle.

Page 5 Comparison

The fifth page of Exhibit 31 is the third-to-last page of AT&T’s 2/22 fax, containing the beginning of the January 14th records and part of the January 15th records. In Urick’s fax to AT&T, a recognizable portion of the fax header information line is present:

However, in the document submitted as Exhibit 31, the fax header has been removed, and the entire page has been repositioned so that the text is angled correctly.

To break down how this happened, and why this switch went unnoticed at trial, it helps to review a timeline of events resulting in the creation of Exhibit 31:

• On February 17th and 22nd, during the investigation into Adnan, AT&T faxed copies of Adnan’s phone records to the BPD (the 2/17 and 2/22 faxes, respectively). These copies had fax header information prominently displayed on all pages. It looked like this:

• Copies of these phone records were provided to the prosecution in preparation for Adnan’s October 13th trial date.
• On October 8, 1999, Urick faxed four pages of phone records (one from the 2/17 fax, three from the 2/22 fax) to AT&T’s custodian of records, with a letter stating, “Pursuant to your telephone conversation this date, I am faxing you four pages of AT&T Wireless billing records that we obtained per a subpoena. I would appreciate it if you could return the records to me as certified business records.”
• The cellphone records faxed to AT&T had the fax header partially removed, although the header remained fully or partially visible on three of the four pages.
• AT&T’s records custodian reviewed the cellphone records sent by the prosecution, and on October 12th the custodian provided a sworn affidavit stating that “The attached copies of billing records are maintained by AT&T in the ordinary course of business.” The affidavit and records were then sent back to the prosecution for use at trial.
• The prosecution discarded the certified copies of the phone records that it received back from AT&T, but kept the custodian’s sworn affidavit.
• Using its own copies of the phone records, the prosecution prepared a new set of the four-page phone records, from which all traces of fax header information had been excised.
• The affidavit from AT&T’s custodian was then reattached to the prosecution-constructed version of the phone records, and the new records — which had not been reviewed or certified by AT&T — were submitted as certified business records at Adnan’s trial.

In switching an authenticated copy of the phone records for an unauthenticated copy, the prosecution may very well have been motivated by expediency rather than strategy. After all, by that point, the documents would have been a fax of a fax, and possibly a fax of a fax of a fax. He may have decided that the certified business records sent back by AT&T were too messy, and decided to substitute the authenticated records for a “cleaned up” version, one which had been snipped and rotated to make it more professional in appearance.

But the prosecution’s motives in making the switch are irrelevant. An inadvertent failure to disclose exculpatory information has the same constitutional effect as a deliberate failure. Here, regardless of motive, the result was the same: although the genuine certified business records had information which plainly identified them as copies of a faxed document, the counterfeit version did not. A reasonable attorney reviewing Exhibit 31 — such as, say, the Deputy Attorney General of Maryland — could very reasonably conclude that,

 “Indeed, the ‘Subscriber Activity’ reports [sent by AT&T] were neither identified as exhibits nor admitted into evidence. What was admitted into evidence were cellphone records accompanied by a certification of authenticity, signed by an AT&T security analyst, and relied upon by the State’s expert who himself was employed by AT&T as a radio frequency engineer.”

However, contrary to the State’s claims in its recent briefing before the trial court, what was admitted into evidence (1) was a subscriber activity report, and (2) was not a certified business record authenticated by AT&T, but instead a different copy of the phone records that was missing information present in the genuine copy. This isn’t just a case questionable corner cutting by the prosecution that has no practical significance, however. If the instruction sheet is determined to be material and exculpatory evidence by the court, this was a Brady violation. Even had Gutierrez known that AT&T sent the instruction sheet along with all of the billing records that it faxed over — which she didn’t, because the prosecution did not disclose those records to her — Gutierrez still had no reasonable way of knowing that Exhibit 31 was itself a document faxed to BPD by AT&T, to which the instruction sheet applied. The fax headers identifying the origins of Exhibit 31, and directly linking the records to the instruction sheet, had been eliminated, even though that information was present in the genuine copy of the records authenticated by AT&T.

-Susan

Most of my free time these days goes to the podcast — or, at least, that’s my excuse for why I haven’t blogged regularly in over a year now, and I doubt I’ll be resuming regular blog posts again any time soon. But I felt the need to write something about what happened two weeks ago, about this future that has not yet happened but soon will be, compelled by a vague feeling that I did not want to let this moment of suspension pass without registering my dissent.

If you’re the kind of person that would be reading this blog, you probably already know about the Hamilton affair. To recap, on Friday the soon-to-be Vice President Pence decided to attend Hamilton, a musical about the American Revolution with an emphasis on parts of America that Pence’s stated policy positions would not appear to support. At the end of the show, as Pence was leaving, Vice President Burr’s actor read out a statement while the rest of the cast linked arms behind him:

We had a guest in the audience this evening. And vice president elect Pence, I see you’re walking out, but I hope you will hear us, just a few more moments… We have a message for you sir, and we hope that you will hear us out. Vice president elect Pence, we welcome you and we truly thank you for joining us here at Hamilton: An American Musical. We, sir — we are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights, sir. But we truly hope that this show has inspired you to uphold our American values, and work on behalf of ALL of us, all of us. We truly thank you for sharing this show, this wonderful American story told by a diverse group of men and women of different colors, creeds, and orientations.

In response, the president elect of these United States took to Twitter to denounce the Hamilton cast for “harass[ing]” the vice president elect, declaring that such public statements of dissent “should not happen.” He then demanded that the cast “apologize!” for voicing their concern that the new administration will not protect them.

Our wonderful future V.P. Mike Pence was harassed last night at the theater by the cast of Hamilton, cameras blazing.This should not happen!

— Donald J. Trump (@realDonaldTrump) November 19, 2016

You’re going to hear this a lot more over the next four years, but: this is not normal, this is not okay, and this is not going to be okay. Trump’s words are chilling, both figuratively and constitutionally, and although the fact those “words” took the form of a social media rant may add an extra air of dystopian parody to the whole mess, they are no less dangerous for that. But I think what leaves me the coldest, what amplifies those feelings of anxiety and alarm the most, is that Trump spent a few extra precious characters out of his 140 to decry that there were “cameras blazing” when this act of dissent occurred. The cast of a Broadway musical humiliated his proxy, and then that humiliation was broadcast to the world. In the president-to-be’s mind, “This should not happen!”

The Hamilton affair was not, of course, an isolated event. Among Trump’s very first acts as the President Elect of the United States was to announce that protests of his presidency were “very unfair” to him, and to inform the world that those protests were not genuine expressions of disagreement among the populace, but an artificial insurgency funded by shadowy forces, and (somehow also) incited by a corrupt media. In the days since, he has launched a barrage of attacks that have de-legitimized the media, both by directly describing a major media publication as “failing” and “dishonest,” and by making self-aggrandizing and fabricated claims of his achievements, which in turn were picked up and reported on by those in the media clinging to the antiquated belief that reality is a meaningful construct for this administration.

And yes, I agree that the Hamilton affair is only one of many serious and disturbing developments in recent days, most of which are being shamefully under-reported. That does not mean that it can or should be dismissed as a theatrical sideshow, though. A president elect’s expressions of outrage that the citizenry would use the First Amendment in a way he doesn’t like is a big deal. The message is clear: the president will be calling out and attacking individual citizens who expose him to public criticism. Unfortunately, based on the experiences of the past 12+ months, it’s a safe bet that this event’s significance will be mostly overlooked in favor of sensationalist headlines and false equivalencies, and the whole kerfuffle will be forgotten entirely by Monday. And all the other presidentially disqualifying events of the weekend will, somehow, be lost in the shuffle.

That’s where the hopelessness starts to find root. What can be done, when the president himself is understood to be so intrinsically corrupt that acts of his corruption cease to be newsworthy events? And why have so many Republican lawmakers capitulated to this pretense that Trump is an acceptable president, when I still believe, must believe, that they too know the emperor has no clothes?

That last question is mostly rhetorical. The opportunity for unchecked and unpopularly-elected power was too much to turn down, and they have convinced themselves things will go better for them than they did for Faust. They believe that they can channel Trump to serve their own ends; I think they are wrong about that. Either way, they have willingly gambled on this country’s future by supporting Trump in the hopes that, when it all shakes out, they will be able to use this opportunity to further their own agendas while minimizing Trump’s more “awkward” policy positions, even knowing that, should the dice land the wrong way, their support will enable Trump to carry out his unconstitutional goals.

The Hamilton affair is one more warning that our elected officials are wrong to make this wager. Trump’s ongoing series of tweets raging at this display defiance by private citizens — four tweets in total, at last count, with one deleted — is not a meaningless distraction, it is a warning. President elect Trump does not have the capability to tolerate dissent to his rule. Although there are many contenders to choose from, it is this failing, I think, that will be the greatest threat to our nation. The guiding stars of Trump’s life are an obsession with vengeance and an unquenchable need for affirmation by the external world; the danger ahead lies in that the office of the presidency will provide him with nearly unlimited resources to fulfill this first directive, while rendering the second permanently beyond his reach.

Starting on January 20th, Trump will attempt to use the power of his office to enforce a belief that he is a worthy leader. He will not succeed. When he realizes that he will never have the respect of the people, he will settle for having their fear instead. If need be (and it will probably need be), he would try to break the Constitution to protect his own ego.

There is no possibility that Trump might instead do well enough at the job to earn the validation he believes is his due, and therefore have no need to mandate it. Trump has no abilities that are desirable in a statesmen, and has displayed no aptitude for government administration. Although his “talents for low intrigue and the little arts of popularity” aided him as a campaigner, it is those same attributes that led some of the founding fathers, in an ill-conceived attempt to prevent a Trumpian figure from one day ascending to the presidency, to place the choice of the executive in the hands of a special group of electors rather than with the people. That it was this subversion of the democratic ideal that ultimately made a Trumpian presidency possible is an irony that has not gone unnoticed, but there may be some cold comfort to be drawn from knowing that it was not democracy itself that failed here.

If things go as well as could possibly be hoped, the next four years will be a painfully awkward moment in our nation’s history. Things will probably not go as well as could possibly be hoped. If things go bad — like, darkest timeline bad — we may end up learning the answer to Trump’s favorite campaign-trail question: what do we have to lose? Because there may have been periods in our history where four years of rule by an autocratically-inclined idiot would have caused minimal damage, but those times are long past. Our institutions and economies are too interconnected for us to miss a step and not cause the rest of the world to stumble, and we are now living on a planet that, day by day, is becoming less hospitable to human life.

My hope is that, four years from now, we’ll be able to look back at this post and mock it for being overwrought alarmism, and that our institutional mechanisms for self-correction will turn out to have been more robust than my fears. If that happens, I’ll laugh too, at myself, and in relief. I think, though, that denial of the threat Trump poses is more dangerous than any alarmism could ever be, and the American exceptionalism that tells us this can only get sorta bad, that this can’t actually get scary bad, will drag us down faster than Trump’s petty vindictiveness ever could.

Because it takes no special insight to predict that the coming administration is a threat to this country in a way no other administration has been. Trump’s threats to the First Amendment are only one facet of his manifest unsuitability, as he has spent all of 2016 and a good chunk of 2015 demonstrating. For a heavily abridged sampling,

• Trump does not value the truth, either coming from himself or from others. He lies, constantly, for his own gain; not even his most ardent supporters would (or could) deny that, they just pretend this is a strategy. Which, okay yes, it is, but it is also a terrifying threat to our national security. Our allies cannot rely on America’s word, because the executive is our voice in the realm of foreign affairs, and beginning on January 20, 2017, our word will not be tied to any single objective meaning and will have no predictive value. If you doubt the danger, ask yourself this: what happens when other nations have no idea whether the president of the United States was telling the truth when he said he thought more countries should obtain nuclear weapons, or whether he was telling the truth when he said he thought they should not? What happens when they ask themselves how their neighbors will answer that same question?

• Trump is corrupt. He is going to wield the office of the president for his maximum financial benefit, and is making only the barest efforts to pretend otherwise. I do not think he will continue with the pretending for much longer. He has already begun laying the groundwork for his newest theme: there is nothing improper or even undesirable for a president to increase his wealth through being president, because he’ll be increasing everyone else’s wealth at the same time, too. He is already profiting from being president, by having his financially untenable hotel propped up by foreign dignitaries that feel compelled to stay there in order to curry presidential favor. He has also had the family members that are running his business empire sit in on meetings with foreign heads of state, and is seeking to have his son-in-law get the top secret clearance necessary to be privy to his foreign affairs briefings; this information will necessarily be used by the Trump family to further the interests of their businesses, because it is impossible that they will not take that information into account when making business decisions.

• Trump is supporting a white nationalist agenda. He claims to have been elected due to the economy, but his appointments so far have shared one overwhelming focus: white men obsessed with the national security threat posed by non-whites and non-Americans. Only one appointment so far (hi there, Mr. Priebus) breaks this mold, by being just the regular sort of Republican with no close ties to white supremacists, people that have proposed Muslim registration as a national security measure, and/or Russia. All the rest have openly espoused racism and xenophobia as desirable attributes in a government, or are openly on the payroll of foreign despots.

These are not the kinds of things that can happen to a country and then have everything somehow come out okay. These are the kinds of things that happen to a country just before something very dangerous and undemocratic occurs. I do not know what can be done to stop it, but I do know that no resistance can begin until Trump’s fascism is recognized for what it is.

To those who support Trump, I would encourage you to disagree with this assessment while remaining open to the possibility that there may be genuine cause for alarm. Maintain awareness of what the Trump administration is doing and how that compares to our ideals as a nation, and if, at a later date, you should see something his administration has done that undermines those ideals, then speak out against it, even if you maintain support for his presidency as a whole. And to those who are frightened about what the future holds, well, I am right there with you. All I’ve got is this: as a nation, we are really good at falling down and getting back up again. One of our greatest virtues has always been our ability to come back from disaster, even though as often as not we were the ones that invited it in. There is no reason to think it is impossible for us to do so once more.

For those of us who believe that this country has a promise it has not yet managed to fulfill, there is much to grieve, but America has never been close to perfect. The fact we’re even less close now is not an excuse to give up on efforts to strive in that direction. Our current president will likely come to regret, along with the rest of us, his dangerous expansion of the executive power, but Obama’s words to his daughters on what Trump’s election means are the best chance we have of making it through this intact: “[Y]our job as a decent human being is to constantly affirm and lift up and fight for treating people with kindness and respect and understanding.”

-Susan