Serial: The Prosecution’s Bad Faith Withholding of Crucial Evidence Before Adnan’s Trials

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