Serial: Why the Nisha Call Shows That Hae Was Murdered at 3:32 p.m.

In my previous posts on Serial, I’ve avoided writing about whether Adnan was responsible for Hae’s murder, and have focused instead on whether the state’s evidence showed that Adnan was responsible for Hae’s murder. (Spoiler: It doesn’t.) From a legal perspective, that’s the more interesting question. Moreover, for the most part, I don’t believe we can figure out what “really happened” — the state’s evidence was just too incomplete. The number of unknowns is so high that the existing record can easily support a dozen possible theories of how Hae was murdered, with no reliable way to distinguish which among them is most accurate.

At least for this post, however, I’m going to stray a bit from the legal theme, and make a proposal for what I believe “really happened.” I think that the best interpretation of the currently available evidence is that Hae was murdered at approximately 3:30 p.m., and that the Nisha Call was a pocket dial that occurred during the killer’s assault.

While there is (obviously) insufficient evidence to show this conclusively, I am reasonably comfortable in assuming that this is what happened, unless and until further evidence is made available to contradict it. Note, however, that this is only an explanation for how Hae was killed. I am not making any sort of claim as to who was responsible for Hae’s death, and there is no way to prove that with the evidence available. All I am arguing is that Hae was murdered at approximately 3:30 p.m., and whoever killed her was in possession of Adnan’s cell phone.

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Serial: An Examination of the Prosecution’s Evidence Against Adnan Syed

In previous posts, I’ve dissected both Adnan’s cell phone records and also Jay’s statements to the police and his testimony at trial. This post, rather than focusing on any single piece of the state’s case, is an attempt to assemble and review all available evidence that supports the state’s case against Adnan. If any readers think there is evidence that I’ve left off, please let me know — all reasonable evidence will be added. My goal is to have as complete a record as possible, with links to the available primary documents. Even for those of you who don’t agree with my analysis, hopefully it will be still be helpful to have a collection of the known evidence collected in one place.

Where relevant, I have also noted which of the three categories the state’s evidence falls into: (1) evidence that the prosecution could and did use against Adnan at trial; (2) evidence that the prosecution could not use against Adnan at trial, but somehow was able to get admitted at trial anyway; and (3) evidence that the prosecution could not use or did not have at the time of Adnan’s trial, but which we have now because it has been made available on Serial. That way, people can evaluate the case against Adnan in light of both the evidence that the prosecution should have been able to use at Adnan’s trial, and also in light of all evidence that is currently availability, regardless of its admissibility for trial purposes.

Summary of the State’s Case

There was no physical evidence linking Adnan to Hae’s murder. It should be noted that this was not because of any lack of effort on the state’s part; in developing a case against Adnan, investigators compared soil found on Adnan’s boots to soil samples where Hae’s body was found, looked for Adnan’s fingerprints in Hae’s car and at the crime scene, tried to match fibers and hairs found at the crime scene with Adnan’s hair and clothes. But all of that came up empty.

And by itself, that might not mean anything. Sometimes criminals are really careful about not leaving trace evidence behind, or just get really lucky. But that does mean that the state’s evidence against Adnan did not consist of any evidence that could show a physical link between Adnan and any of the crime scenes. Instead, the state built its case out of three main pillars: Jay’s testimony, Adnan’s cell phone records, and evidence suggesting that Adnan is the kind of person who could have killed his ex-girlfriend in a vengeful rage.

The first two points I have already addressed in detail (in posts outlining the lack of any objective basis for concluding that Jay’s testimony was credible; the contradictory and dreamlike nature of Jay’s statements concerning Hae’s burial; the indications from the transcripts of Jay’s police interviews that hist statement was coached by detectives; and a comparison of the data from Adnan’s cell phone records and the witness statements). While I have also provided a brief (well, sorta brief…) summary of those topics below, please check the prior posts for the complete discussion on those issues.

That leaves us with the third type of evidence in the state’s case against Adnan: evidence suggesting that Adnan is the kind of person who could have killed Hae. This category include evidence based on witness’s perceptions of an individual’s behavior or character, when that perception had been informed by the perceiver’s knowledge of that individual’s possible involvement in a crime. It includes, for example, evidence that is introduced to show that someone’s reactions to an event were not what his or her reaction “should have been,” or that the way someone had been acting was odd or shady, or that someone was “the kind of person” who might commit a crime.

And I’ll go ahead fully disclose my biases now: as far as I’m concerned, this sort of post hoc, perception-based evidence is the modern day successor to phrenology and tarot card readings. Because I don’t care what kind of person Adnan is or was; I don’t care if he stole candy from babies, or smoked a bowl of weed every morning, or if he bullied kids for their lunch money. I also don’t care if he pauses too long (or not long enough) when answering questions, or if he shows insufficient anger about being imprisoned, or if he was born a Pisces with Jupiter rising. None of that has even the slightest relevance to the question of whether he killed Hae. If Adnan had previously tried to kill someone he was in an intimate relationship with, or even used physical violence against them — well, I would care about that, that would have some relevance, but as far I know there is no evidence whatsoever to suggest anything along those lines. And by the same token, I don’t care what kind of person Jay is or was, either. I don’t care if he has a criminal record, I don’t care if he dealt drugs, and I don’t care if he tried to stab a friend because the friend needed to know what being stabbed felt like. (And I definitely do not care if he owned a rat-eating toad.)

So while I have tried to list all of the state’s evidence against Adnan in this post, I make no promises about giving any serious consideration to “evidence” consisting of things such as “I can tell that Adnan is a sociopath because he once described his facial expression to someone he was speaking to on the phone” is not going to make the cut. You are, of course, free to disagree with me on the significance of that kind of evidence. However, any time the state’s case is based upon a suggestion that Adnan was a “bad person,” and therefore could have been capable of killing Hae, I would encourage you to consider whether or not that sort of amateur psychoanalysis can truly serve as a replacement for evidence demonstrating that Adnan actually killed Hae.

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Serial: More Details About Jay’s Transcripts Than You Could Possibly Need

Full disclosure: this post is something of a cop-out, since I probably will not have time to write another substantive post until this weekend. But while I already addressed a lot of the oddities in Jay’s police interviews, in my previous post about Jay’s descriptions of how Hae was buried, people have been asking about  the rest of Jay’s transcripts. So even though, at this point, I am beating a horse that is extremely deceased, I have cleaned up some of my notes on the rest of Jay’s transcripts. But you’ve been warned — unless you happen to have an interest in the smallest details of Jay’s police statements, this post is not for you.

Also, I want to preface this by noting that, from the comments I have received on my previous posts about Jay’s questionable trial testimony, it would appear there is a large segment of Serial listeners who find all of this irrelevant and pointless. A common response seems to be, “Well of course Jay lied about everything — we already know that. But the fact Jay was never able to tell the truth about what happened does not mean that Adnan is innocent, it just means Jay helped Adnan kill Hae.” And I promise that I am getting to that; there is definitely an important discussion to be had about everything in the prosecution’s case that was not based on Jay’s testimony.

But the fact that Jay lied throughout all of the statements he gave cannot be dismissed as blithely as some people would seem to like. First, although Jay’s lies are often excused on the basis that they were only told  either to minimize his role in the crime, or to protect Jenn, that simply cannot explain the bulk of Jay’s lies. Yes, some of his lies do appear to have been directed at protecting Jenn, and that is an important piece of the puzzle. (And I would fully agree that all of Jay’s lies are designed to protect himself from being charged with a more serious crime.) But most of Jay’s lies are not about things that could alter his culpability for any crimes — in fact, Jay’s statements grow steadily more inculpating as his interviews go on. (Alhough, if anyone would like to theorize about why lying about Patapsco State Park was so crucial to Jay’s defense, please be my guest.)

Second, while it is true, like I mentioned earlier, that one witness’s fabricated testimony cannot be used to prove Adnan’s innocence, by the same token that fabricated testimony cannot be used to prove Adnan’s guilt, either. Because once you agree that Jay’s story is unreliable, inconsistent, and manufactured, then the only way to conclude that Adnan is guilty is to discard everything in Jay’s statements that is inconsistent with the theory that Adnan and Jay worked together to kill Hae (which is a lot of things to discard), and to also assume the existence of a whole host of additional facts that were not contained in Jay’s testimony, or anywhere else.

But once your theory of the case is based on accepting only those parts of Jay’s testimony that are consistent with Adnan’s guilt, and by speculating about the existence of additional sets of facts to which Jay has never testified — well, how is that any different from simply writing a piece of fiction? By using that approach to Jay’s testimony, it is possible to invent a narrative that supports the guilt of just about any individual connected to Woodlawn.

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Serial: Plotting the Coordinates of Jay’s Dreams

A few days ago, the transcripts were released from Jenn’s recorded police interview (from 3:45 p.m. on February 27, 199), Jay’s first recorded police interview (from 12:30 a.m. on February 28, 1999), and Jay’s second recorded police interview (from March 15, 1999). I’ve been trying to update my earlier post on how the witness statements compare to the cell phone records, based on the new information.

But it’s slow work. Because good god, Jenn and Jay’s statements are a complete train wreck. Trying to create a timeline out of their statements made me truly understand what Sarah Koenig and Dana Chivvis were talking about, in Episode 5, while trying to track Jay’s movements on the day of Hae’s murder:

Koenig: I’m trying to think of an analogy of what the uselessness of what we’re trying to do by recreating something that doesn’t fit, it’s like a– like trying to plot the coordinates of someone’s dream or something . . .

Chivvis: I think they call that a fool’s errand.

Because here are a couple of quick examples of what we’re dealing with from these transcripts:

Jay: [Adnan] wanted me to revisit the body.

Detective: And when did that conversation take place?

Jay: Um prior to Hae Lee’s death. (Int.1 at 27.)

And:

Detective: What happened after the conversation with the officer?

Jay: Um ah he ah he got kind of frantic and we had to go back and get the car, we went back and got the car and ah then we went back to my house. I gave him a shovel, gave him a pick. He ah.

Detective: When you go back to your house , who drives, drives Hae Lee’s car?

Jay: We didn’t have Hae’s car then.

Seriously now. What am I supposed to do with that? Adnan and Jay discuss revisiting Hae’s body, and this conversation occurs prior to Hae’s death? Jay and Adnan “went back and got the car” and went to Jay’s house, but then they didn’t have Hae’s car when they were at Jay’s house?

There are dozens of these chronological paradoxes in Jay’s police statements. (And just to make things even more fun, Jenn’s statements during her interview are equally incomprehensible.) As a result, I’m not even sure a meaningful comparison of the various police statements can be done at all — it’s completely impossible to set down a definitive narrative of “this is Jay’s story in the first interview” or “this is Jay’s story in the second interview,” and then look at the differences between them. Because the stories Jay tells in his police interviews have more continuity errors than a bad 90’s sitcom.

And all of these bizarre claims aren’t just misstatements or slips of the tongue that we’re talking about here. Or, if they are, then that alone is grounds for tossing out the entirety of what he told the police — because if that’s the case, Jay is so hopelessly confused that we cannot assume he actually meant any of what he said. If every chronology he gives might have been nothing more than another misstatement, how can we know that anything Jay says is “the truth”?

But of all the things that didn’t happen the way Jay says they happened, there is one thing that didn’t happen the most: his stories about how Hae was buried in Leakin Park. To get an idea of how irreconcilable Jay’s statements are, that is a good place to start.

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Serial: Why Jay’s Testimony Is Not Credible Evidence of Adnan’s Guilt

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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