Serial: A Comparison of Adnan’s Cell Phone Records and the Witness Statements Provided by Adnan, Jay, Jenn, and Cathy

Like everyone else in the world, I’ve been listening to Serial. For those who haven’t listened in yet, Serial is a weekly podcast covering the murder of 17-year-old Hae Min Lee, who was killed on January 13, 1999. Her ex-boyfriend, Adnan Syed, was subsequently convicted of first-degree murder and kidnapping, and is currently serving a life sentence. (And if you haven’t listened to the podcast yet, turn back now and come back when you have. Otherwise, the minutiae of these cell phone records won’t be interesting in the slightest.)

The evidence against Adnan was complicated and deeply ambiguous. That’s unsurprising — after all, there’s a reason his case was chosen to be the subject Serial’s first season. But while there’s much we do not know about the the investigation into Hae’s murder and the state’s case against Adnan, based on what the show has covered so far, and what has been made publicly available about Adnan’s two trials, there are many reasons to be unsettled by his conviction.

This doesn’t mean Adnan is innocent. It’s unlikely that there exists conclusive evidence as to whether or not he is guilty of the crime for which he was convicted, absent the unlikely discovery of new and decisive DNA evidence. But even though Adnan likely cannot demonstrate that he was wrongfully convicted, the prosecution’s case against him was troublingly thin. Even for those who think Adnan probably did plot and carry out the murder of his ex-girlfriend — and there are plenty who do — it is hard to say that there wasn’t room for some very reasonable doubts about his guilt.

Legally, there was sufficient evidence to support Adnan’s conviction; he’s not going to win any appeals there. An eye witness — Jay, Adnan’s weed dealer and casual friend — testified to his guilt, and the jury had the right to find that testimony to be credible. And Jay unquestionably had detailed knowledge about Hae’d murder. Although Jay and Adnan were not close friends, on the day that Hae was killed Adnan had allowed Jay to borrow his car and cellphone. Later that day, after she was killed, Adnan and Jay got high together.

Jay claims he had nothing to do with Hae’s death. He just knew where she was buried, how her body was positioned in the grave, and where her car had been abandoned afterwards because, according to Jay, Adnan had turned to Jay after killing Hae, seeking his assistance in covering up the crime. Jay told the police all this six weeks later, after the police pulled Adnan’s cell records and saw that he had called one of Jay’s friends seven times on the day of Hae’s murder. The police went to talk to that friend, Jenn, to find out why Adnan was calling her so much, and learned from Jenn that (1) Jay had been calling her, not Adnan; and (2) after picking up Jay from a mall on that day, Jay had told her that Adnan had killed Hae.

Because those cell phone records are the only evidence, aside from Jay’s testimony, that provide any support whatsoever for Adnan’s conviction — there was no physical evidence linking him to the crime — understanding what the cell records show — and do not show — is a highly significant part of the case. Provided below is a summary of the data from each of the 31 calls made to or from Adnan’s cell phone that day — including the time, who the call was to, the duration, and the cell phone tower that the call was routed through — and a summary of how that data compares to the testimony and statements given by key witnesses in the case.

A note on the significance of the location data: It should be stressed that the tower data — that is, the record of the tower and antenna that a call was routed through — provides us with a probabilistic (and not determinative) location for where the call was made or received from. The fact that any particular call may have been routed through a tower and antenna that covers a particular territory does not necessarily mean that the call was actually made or received from within that territory. Calls can be routed through towers other than the one they are closest to for any number of reasons, and two calls made from the exact same location within minutes of one another could be routed through different towers. As a result, it should be assumed that at least a few of the 31 calls made from Adnan’s phone that day were made or received outside of the territory marked for the tower the call was routed through.

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

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The Presumption Against Extraterritoriality vs. the U.S.’s Jurisdiction Over Invasions of its Neutral Rights: Can Chiquita and Balintulo Be Reconciled with the 18th Century Case Law on Extraterritorial Jurisdiction?

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

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

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

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Post-Kiobel, the Lower Courts Are Only Pretending to Apply the Presumption Against Extraterritoriality in Alien Tort Statute Cases

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

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

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

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

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

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Google Earth Map for the Timor Sea Maritime Boundary Dispute

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

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

Map Explosion

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

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

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How Australia Overplayed Its Hand in the Timor Sea

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

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

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

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The Historical Context of Australia’s Political and Legal Strategy in the Timor Sea

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

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

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

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

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

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

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A Timeline of Events Leading up to Timor-Leste’s ICJ Claim Against Australia

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

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

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

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