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
