Serial: The Maryland Court of Special Appeal’s Unpublished Decision Denying Adnan’s Appeal in 2003

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 was the outcome of Adnan’s initial appeal, which was rejected by an unpublished opinion in 2003.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

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

Syed v State - MD CoSA Opinion - No. 923-00 - cover

The Opinion’s Discussion of the Facts

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

  • Jay testified at trial that he had never been part of any premeditated plan to kill Hae. Adnan and Jay spoke on the phone on the night of January 12th, but their conversation consisted entirely of, “Whatcha doing?” “Nothing.” The following day, Adnan called Jay to talk, and Jay told Adnan that he needed to buy a gift for Stephanie. Adnan offered to take Jay shopping, and they spent an hour and a half shopping together (this time at Security Square Mall), before Adnan let Jay borrow his car, so long as Jay promised to pick Adnan up after school.
  • It does not appear that Jay’s testimony provided reliable evidence that Adnan’s plan to kidnap and murder Hae had been premeditated. According to Jay, during their shopping trip on January 12th, Adnan did make a comment about how Hae made him so mad that he was “going to kill that bitch,” but (1) that statement was not connected to Adnan allowing Jay to borrow the car, and (2) it does not appear that Jay testified that Adnan’s statement was said in seriousness, or that Adnan ever suggested he actually had a plan for accomplishing it.
  • Jay testified that he got into Hae’s car, the Sentra, when he had Adnan were at the Park’n’Ride to drop off Hae’s car. This is fascinating — because in all of his police interviews that we have seen, Jay adamantly insisted that he never once got into Hae’s car at any point. What changed? Were there forensics found linking Jay to Hae’s car, which he had to alter his testimony to explain? 
  • Jay testified that he went to Cathy’s apartment to smoke weed with Cathy and her boyfriend after dropping Adnan off at track. This is partially consistent with his statement in the second police interview (in which he said he that after dropping Adnan off at track he went to a park to smoke a blunt, went to his house, and then went to Cathy’s). However, Jay’s testimony was false with respect to this claim, because (1) Cathy testified that she did not arrive home from work until 5pm that day, and that after she had arrived home, Adnan and Jay unexpectedly showed up at her apartment without advance notice; and (2) the cell tower records for that time period are completely inconsistent with the phone having been at Cathy’s.
  • Jay claimed that after he and Adnan went to Cathy’s after Adnan’s track practice, both he and Adnan passed out on the floor of Cathy’s apartment. This claim is not particularly significant, but interesting in that this contradicts both Cathy’s testimony (she claimed that Jay had been weirdly chatty and amped up that night) and Jay’s previous statements (which claimed that only Adnan had passed out).
  • Jay does not appear to have explained why Adnan decided that, after track practice, he and Jay should unexpectedly show up at Cathy’s apartment — someone who was a complete stranger to Adnan — rather than deal with the body hidden in the trunk of Hae’s car. This is never explained in any of Jay’s police statements, either, and I was hoping at trial someone would at least have asked Jay to explain why they decided to do this.
  • Jay testified that he had no knowledge that Adnan had intended to ask Jay for help in burying Hae’s body. Adnan only told Jay “you have got to help me get rid of Hae” after the police had called him while they were at Cathy’s house, and this is the first Jay had heard that he was going to be involved in burying the body. Jay testified that he had agreed to Adnan’s request “because he feared that appellant would use appellant’s knowledge of his drug dealing against him.” (While there is no direct evidence that could exist to disprove this claim, I would not that I have yet to encounter a single person who believes that Jay was telling the truth about why he agreed to help bury a body.)
  • Jay testified that he paged Jenn “from Leakin Park.” This is contradicted by the cell tower records, and, to my view, significantly undermines the prosecution’s case. Either Jay is lying about paging Jenn from Leakin Park (in which case his testimony should not be relied upon), or else the cell records do not provide even remotely accurate data on the cell phone’s location at the time of a call (in which case the cell records do not provide evidence of Adnan’s guilt, because they are demonstrably inaccurate).
  • Jenn knew that Hae’s death had been caused by strangulation when the police first spoke to her on February 26th, even though that information had not been made publicly available.
  • It is bizarrely unclear when Jay took the police to the location of Hae’s car. The court’s opinion notes (at 9) that “[Jay] eventually took the police to where the victim’s body was buried and to where the victim’s car was located,” but from context, it appears that this may have occurred after the April 13th interview. Jay testified at trial that on February 28th, during his first interview, “he lied to the police about the location of the victim’s car,” which would seem to be consistent with the opinion’s ambiguity as to when Jay lead the police to the car. We know, however, that evidence from Hae’s car was documented and itemized as of February 28th, which is consistent with Jay having shown the cops the location of her car immediately after his first interview. I am very curious to see if the trial transcripts clarify what is going on here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From an entry dated May 14, 1998,

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

From an entry dated May 15, 1998,

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

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

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

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

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

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

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

Hae.

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

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

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

-Susan

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121 thoughts on “Serial: The Maryland Court of Special Appeal’s Unpublished Decision Denying Adnan’s Appeal in 2003

  1. It just seems like the deeper you look at any part of this, the more casual sloppiness you see. The detectives, the prosecutors, the judge in the second trial, the jury, Adnan’s own attorney in the second trial, and the appeals court all failed in some way. It’s really tragic, and frightening that the checks and balances in our system can fail so easily.

      • I say ‘casual’ in the sense that I think virtually all these people were not corrupt, but just going through the motions of doing their jobs. I have a background in medicine, and I used to see a lot of mediocre doctors who did not commit malpractice or fraud, but who really didn’t do much good, either. There’s a vast gulf between doing good, thorough work and being flat out corrupt or negligent. I think all these folks fell into that gulf, and with nothing to act as a backstop, a guy is rotting in jail while none of these people are spending a minute second guessing themselves.

    • I don’t think corruption is the right word here. I think it is a laziness, an apathetic attitude owing to the set of characters. It appears to me to be a Paki boy kills Korean girl with a ghetto guy as best supporting actor. 2 trials already, who cares? We are done! atmosphere surrounding the states position

    • Yeah, lots of wild contradictions to his previous statements. Doesn’t even seem to be a cursory attempt to pull it all together or deal with any of his previous inconsistencies. Interesting that he has tossed out his one previous consistent assertion, that he was at Jenn’s till at least 3:30.

      Also interesting is that he now says he had lots of weed stashed at his grandmother’s house, and doesn’t make an attempt to explain why he called Phil and Patrick or why he previously said he and Adnan drove around trying to score weed. Plus he gives a wildly differing version of the burial and the visit to Cathy’s. It’s like all he can remember from 15 years ago is that there was a car and a phone and he didn’t do anything.

        • I’m reminded of a story Gerry Spence used to tell about a defense attorney’s inept defense (that I will no doubt mangle): “Ladies and gentlemen of the jury, my client could not have done this crime. He as not even in town at the time of the murder {pause} . . . and if it’s proven that he was actually at the scene of the crime, I assure you, he did not pull that trigger {pause}. . . and if it’s determined that his finger prints are on the trigger of that gun, well, it was definitely self defense!”

          Jay throws up multiple defenses about each and every part of his participation in this crime, without regard to his previous defenses, and without regard to how each part hangs together or fits with the phone evidence.

          I’m shifting my take on Jay. I really haven’t thought he fit the criteria of a sociopath (and I say this as a psychiatrist), and I’m still not sure he does. But he lies the way some sociopaths do — seemingly as a sport, to see what he can pull off. It’s like he’s trying to shift blame on one level, but on another level he’s fucking with everyone, daring people to tell him he’s totally full of it.

          • Thanks for this post. The more of Jay that I read, the more his lies often feel like sheer habit. They don’t feel calculated or cunning. He seems to take no care whatsoever to ensure that his lies match up or support whatever previous narrative he has spun.

            I admittedly am not a psychologist or familiar with the taxonomies of lies/liars. But the sporting sociopath you describe strikes me as the sort of person who would be more calculated, thorough and devious. Jay comes across like he has little interest in any narratives that have come before and completely incapable of consistency absent the assistance of Baltimore’s finest or the DA.

          • I’ve had people in my life that lie like Jay does and after many years of trying to figure it out I explain it to myself as ‘bubble thinking’. They have a reality that exists for the moment and the as the bubble they are in shifts, so does their reality. They get that intellectually, but some part of their inner psyche is ‘off’. It’s hard to explain. The people I know who are like this are from a family that does have a fair amount of Personality Disorder within it (diagnosed), but this behavior doesn’t really fit any of the typical Personality Disorders. The same person I know that has the lying problem Jay does also may have a history of substance abuse across generations, so I often thought that was a factor as well.

            My antenna quivered every time I heard Jay speak on Serial and the same reading the transcripts. Once you’ve had your life ruined by damaged people, it becomes easy (imperative?) to pick up on cues like this. Two of my closest friends both did not see this at all. But neither had any experience with slippery people.

        • Well at least Nisha and others can be used to corroborate that Adnan had other girls (aka player) what can corraborate Jay’s story now that he changed the time of the burial from 7pm (when the Tower pings in Leakin park) to this new claim they buried the body at midnight? Seems lcrZy to go to prison for life + 30 on a ever -changing “truth-agreement “. Need I remind people Jay did not go to jail for one day for this situation???? SHADY

      • So then the question is- does that admission on the record of an interview help? The interview says that the content was edited for clarity so presumably they have audio of him being interviewed.

        Does Jay admitting to perjury open up anything for Adnan’s proceedings?

      • Susan, can Jay’s recent interview affect Adnan’s appeal? If you were Adnan’s attorney, what would you be doing with the recent interview? Anything?
        I am just STUNNED that Jay is now saying the burial was close to midnight! That changes everything!

          • Although obviously a defendant has no chance of defending himself against any new timeline introduced so isn’t a reasonable measure of someone’s guilt imo.

            Maybe Adnan has a great alibi for around midnight – we don’t know. It’s the same reason I’d be reluctant to believe Jay is the murderer just because he and Adnan’s phone are knocking around the Woodlawn area when it is likely Hae is abducted and murdered – he might have a really good alibi as to why he’s there but it’s never investigated.

          • And it contradicts the testimony Jay, Jenn, and Stephanie gave that close to midnight they were together. He also says it started raining, while that apparently started around 4:30 am.

            With every previous inconsistency Jay’s new story shores up, it creates a few new inconsistencies.

        • I’m sure I’m in the minority, but nothing Jay says changes anything for me. He has so many different stories. What’s one more? The only thing I am certain of is that Jay knew the location of the car, and that’s only because he showed the police. That means he is involved in the crime because a) why would he willingly subject himself to possible prosecution if he had nothing to do with the crime; b) the suggestino that he knew about the car and did NOT have any involvement is prima facie implausible.

          There have been so many contradictory and questionable stories told in this case, the only way I could proceed was by setting aside the stories and asking myself this question, “In the period between 2:25-2:45 (when Hae could have left the school), and 3:15, what is the least improbable way that Hae could have been intercepted?” I worked this out in detail on a reddit post. Either Jay or a Jay associate must have intercepted Hae, because we know Jay is involved in the crime. I have yet to see a non-Adnan theory that struck me as more probable than the theory that Adnan met up with Hae after school. I’m not saying these non-Adnan theories aren’t possible, or that I don’t have reasonable doubt in the legal definition. I’m saying that when I line up the theories about what happened in that 30-50 minute period, Adnan comes out as the most likely culprit. This is my “real life” opinion. The legal case is another matter, and I leave it up to the lawyers to argue.

          • But because Jay’s story is clearly a mess, there’s no particular reason to suspect Adnan other than the fact that he knew both Jay and Hae. If you’d added another column to your Reddit post with the heading “someone else who knew both Jay and Hae” they would have come up as just as likely a suspect as Adnan. There may well have been a number of people who knew both J and H, who could have had all kinds of motives, we just never got to hear about them because the podcast focused entirely on Adnan. There’s nothing to tie Adnan specifically to this crime other than Jay’s word.

          • But remember, Jay was in Adnan’s car. If he wanted to flag Hae down, it might not have been that hard.

            I think there is a location Hae went after school that we don’t know. The note to Don was written after her interview that morning. It wasn’t email, it was on paper and seemed intended to be left for Don (on his car or on his door, maybe a mail cube at one of the Lense Crafters he was working at). But she never got to drop it off. Was she planning to drop it off before or after getting her niece? So many questions.

          • Also, Debbie said in her police interview that she saw Adnan that afternoon around 3-ish, in his track clothes at school by the guidance counselor office. There isn’t time for Adnan to have done this.

          • Hae didn’t have to be “intercepted.” She could’ve stopped for any number of reasons, including because she saw Adnan’s car on the road or parked somewhere.

      • There’s no like button on here.
        I still can’t figure out what he thinks he has to gain by coming out with the “truth” now.

        • How did Adnan get to Hae in the first place if she did not give him a ride? He couldn’t have killed her if he didn’t somehow meet up with her! How would he contact her after she left to do the errand she mentioned as the reason she couldn’t give him a ride?

  2. So likely the D.A. was worried that if Jay lawyered up with a public defender that they would potentially lose control of him and his testimony, so they concocted what looked like a deal to Jay with an outside lawyer who would go along with it, to get the “Adnan did it” story they wanted from Jay. I know it’s all speculation but any reason why they didn’t make a straightforward plea deal? Worried that it would be on the record in a way that the defense could too easily use to knock down the State’s one, lying witness?

    • The only thing that makes sense to me is that Urick was terrified of his only witness flipping. Without Jay, there was no case. If Jay had gotten a decent attorney, they would likely have realized that the state had no case against him whatsoever, except for his own ridiculous, coerced, and impossibly contradictory statements, and therefore may have advised Jay that it could be in his interest not to plead guilty to a felony.

      But Urick couldn’t just get Jay to plead out, either, because once a plea was entered and done with, Urick would have lost his ability to control Jay. He needed Jay to give a story that was not completely and utterly stupid, and Jay had proven in his previous four police interviews/statements that he was incapable of doing that if left to his own devices. Ergo, have a friend represent Jay so that the friend can coax Jay into doing what the prosecutor asks, and promise a non-binding sweetheart deal for Jay, with the understanding that if Jay says what the prosecutor wants to hear, the prosecutor will let him walk.

      • This is by far the clearest explanation of Urick’s behavior so far. We can assume Urick thought this was all OK since his detectives likely told him they were positive Adnan did it, and he never second guessed them. So faced with a killer going free, he played fast and loose with the rules ‘for the greater good.’

        • No, because if they charge Jay with the murder, he gets a public defender who will rip Jay’s police interviews and the hours not filmed to shreds. That lawyer would’ve fought tooth and nail to get Jay’s confession of involvement with burying the body thrown out, and the cops wouldn’t have any evidence that *anyone* was involved with Hae’s murder except possibly what Jay admitted to. As soon as they charge Jay, Jay is no longer their friend. And without Jay, you’ve got no story. No story means no conviction. Better to play nice with Jay and try to get Adnan for murder.

      • There is no question that the secret plea was inappropriate, but as far as I can tell Gutierrez never articulated why. Yes, the prosecutor didn’t disclose it, but the standard is still, so what? You are correct, Jay was the only source of any evidence of this crime, and an attorney the state’s attorney’s office didn’t control would have seen the true leverage Jay had here — no need for him to agree to five years in jail for being an accessory to murder the state could never prove without Jay himself. It wasn’t that the state controlled Jay, but that Jay was in control of the entire prosecution, he just didn’t know it. And by giving him a free private attorney friend of the prosecutor, he never would. All he would ever know is that if he gives the testimony Urick wanted he’d never go to jail. But Adnan’s lawyer never articulates this — that is, the prosecutor’s motivation for the concealment — and the appellate brief doesn’t either. The most Gutierrez ever does is argue that it is a strange and unique arrangement, but never why this is relevant. She needed to say “Your Honor, I need to elicit this testimony so I can argue to the jury that the state itself understands the only relevant evidence comes from Jay, and that by creating a sham plea and giving him a sham lawyer the state can control what he testifies to by creating an air of coercion that conceals the fact that they have no such leverage over him.”

        The plea is withdrawable by Jay not for his benefit, but for the benefit of Benroya. She can do a favor for Ulrick but cannot send a client to jail for years under a plea ‘negotiated’ by her under these circumstances. But the judge didn’t see any of this, which is why she, I think in good faith, assumes it to be strange but ultimately confusing and irrelevant.

      • “He needed Jay to give a story that was not completely and utterly stupid, and Jay had proven in his previous four police interviews/statements that he was incapable of doing that if left to his own devices.”

        I’m seeing this a different way. I mean, was Jay really ever “left to his own devices” beyond the first interview? From that moment on, including the 3-hour untaped pre-interview, it seems like his entire story and timeline has been controlled and manipulated by the cops and/or the prosecutor to get a more jury-friendly and damning storyline.

        Let’s face it – without Jay, they were never going to solve OR get a conviction for Hae’s murder (there’s no real physical evidence). My guess is that the cops know Jay’s story is problematic, but realize that they have no case whatsoever against either Adnan OR Jay without one or the other’s direct testimony. The “jealous ex-boyfriend” story is a MUCH easier sell to a jury than whatever motive we might ascribe to Jay, which leads them to the conclusion that they need Jay’s story to work, like it or not.

        I’m guessing that, in the 3 hour pre-interview, Jay is confronted with the phone records that destroy his original story. At this point, Jay either confesses to being present while Adnan murders Hae, or maybe the cops just scare him into thinking that’s how it’s going to play. Detective Ritz (who has been accused of coaching and coercing witnesses in the past), tells Jay the only way out is to correct the story so that it meshes better with the phone records, and help them get the statement they need.

        I really think Jay’s story is constantly changing because he’s telling someone else’s lie, a series of events either fudged or moved around by the cops to fit the narrative and improve the case against Adnan.

  3. Wow. I was just going to comment about how Jay saying he paged Jenn from Leakin Park further undermines the reliability of both cell tower pings and Jay and how…

    But then I saw Jay’s interview. The burial was now “closer to midnight.” I have no words.

    • I can’t believe the burial was closer to midnight – Hae would be in full rigor mortis by this time, curled up in the back of a trunk, There is no evidence of this at her burial.

      I dunno *shakes head* – is there a doctor in the house?

      • Not a pathologist, but I am a doctor. However, my info is from textbooks, not experience with dead bodies, so take this all with a big grain of salt.

        Rigor mortis typically starts setting in within a few hours, and is maximal around 12-24 hours after death, then starts to dissipate as decay sets in. It’s seen first in small muscles and takes longest to fully develop in the large muscles of the legs (i.e., the knees and elbows will lock up before the hips and shoulders). There are some important caveats. If someone is exercising at the time of death, or struggling against being strangled, their muscles are heated up, and rigor mortis can start almost immediately. This is because rigor mortis is a biochemical reaction, and the muscles being depleted ATP will trigger faster onset.

        Against that, temperatures close to freezing will slow down the development of rigor mortis. I believe it was in the 50’s that afternoon, and then got very cold in the early morning as a storm front moved in bringing freezing rain. Since the body was in the trunk of the car, and the car had been driven earlier that day, and Hae’s body was curled up, I don’t think the body would have been significantly chilled until it was taken out of the trunk. Some references state that rigor mortis actually starts faster in cool temperatures. So on balance the temperatures the body would have been exposed to might have accelerated rigor mortis, and very likely would not have prevented it.

        Another factor is that thin people develop rigor mortis faster, and obese people may not develop it at all. Hae was, of course, very thin.

        The bottom line is that if she were being buried around midnight, after being kept in the trunk of the car for 9.5-10.5 hours, some significant degree of rigor mortis would have set in. I have no idea if it would be complete, but I think it would be substantial, and the body would be difficult to spread out. There would be significantly less rigor mortis if she were buried several hours earlier. My guess is that if the burial were around midnight, she would have ended up still being curled up as she was in the trunk, unless the joints of her limbs had been intentionally broken.

        • Thanks, Kevin! Per the recently released trial transcripts, the coroner said Hae had no cuts or bone breaks or anything, except that she had pre-death bruising around her left eye (like she’d been punched or hit her head) and then of course the strangulation injuries. So she wasn’t too far into rigor when she was buried.

      • I looked this up and it sounds like cold environmental temps can decelerate rigor mortis. Also, it’s minimal up to 8 hours. FWIW. (Not a doctor)

        • It is definitely not minimal up to 8 hours except in special circumstances (e.g., infants, obese people). I’ve seen photos of corpses frozen with rigor mortis in crazy positions within 2-6 hours of death.

          As for the cold, remember that she was in the trunk, and at the time of the murder it had been 55-57 degrees with no rain and minimal wind. The trunk would have warmed up when the back seat was pushed down to put the body in, and her body would have warmed the trunk space as it cooled. Outside the car, it didn’t start getting really cool till around 9 pm (http://www.wunderground.com/history/airport/KBWI/1999/1/13/DailyHistory.html?req_city=NA&req_state=NA&req_statename=NA&MR=1). There would have been a delay before things got that cold inside the trunk.

          • Thanks Kevin, I appreciate (I think ;)) your detailed response. So are we agreeing that the midnight burial is possible but implausible due to the normal way a body behaves after death?

  4. Susan, I want to thank you (thank you!) for all of your wonderful Serial posts. You are a credit to your profession and to the English language.

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

    IATNAL, but how is Urick not perjuring himself here?

    • He’s not under oath, so it couldn’t be perjury anyway, but I would want a chance to review all of the transcripts and available records before suggesting it was a knowing misrepresentation. Sometimes attorneys forget details about a specific case and say things based on what they assume to be true, in general, and it’s very possible that’s what happened here. Or that there was some nuance/caveat in his actual wording that made his statement technically true (which is the only kind of true that matters for this).

      The real problem is that Adnan’s defense was deprived of any opportunity to challenge Urick’s mistaken claims, or to adequately demonstrate why this arrangement was so troubling.

  6. For some time now, I have been suspicious as to whether Jay ever independently knew where Hae’s car was left. Now we learn that the police already had an official accounting prepared as to the contents of her car on February 28 th, a day before Jay took them to it? I would say that is faster than any other police work ever accomplished in b’more. I think the car was found sometime before Feb. 28 and it was clean. Anybody’s guess where it was found. Personally, I don’t think Jay or Adnan had anything to do with her death.

    • I agree. I also think Don’s alibi is very weak, and it is a great injustice that his phone records and whereabouts on the day Hae disappeared were not investigated.

    • I feel the same I don’t think either one of them did it. But then, why would Jay lie (the police can definitly make a person lie so it goes the way they want it).

    • I think Jay’s first interview ends in the very early hours of the 28th Feb so there is time for the cops to have processed the car without any shenanigans going on.

      Of course we know he had several hours of untaped discussion with the cops but there is no actual evidence that the cops told him or showed him pictures of where the car was. Unlike the evidence that the cops showed pictures (of what?) and the phone records to Jay.

  7. The inherent problem with state courts of appeal is that the judges or justices are usually picked by the governor, and whoever he or she typically is, chooses from lower court judges not necessarily on the basis of all the area attorney’s opinions regarding his or her fairness, but what judges would be most skeptical of any appeal. “Get me a list of the toughest judges” “Yes governor” Case in point: Mike Tyson’s rape appeal. The family had vigorously denied under oath that they ever talked to attorneys in pursuit of a cash settlement; it was wholesale perjury. And his famed Harvard law professor attorney Alan Dershowitz said it was the strongest case he ever filed. Appeal denied. Indiana Supreme Court.

    As in this case, facts do not matter. Like the ham sandwich-indictment-capable grand juries, the fix is in. ( I have actually watched some appeals courts during oral argument as they routinely ignore rights and evicerate every aspect of the constitution.)

    Federal appeals courts, fortunately, a different story.

  8. Can’t wait to hear your analysis of Part 1 of Jay’s “interview” released today.

    You above analysis of the legal issues is spot on. Too bad they weren’t further appealed to the Maryland Supreme Court (or, perhaps they were, but I just am not aware). I never ceased to be amazed at how ignorant courts are concerning the limited exceptions to the hearsay rule. In my (civil) practice I repeatedly have seen absolutely insupportable interpretations of the exceptions, too.

  9. In the appeal, did Adnan’s lawyers argue that the evidence was insufficient to convict him? It doesn’t appear they did. What do you make of that?

    • No point. Insufficient evidence only works when there is literally no evidence to prove an element of an offense. Here there was evidence that Adnan committed the murder, in the form of Jay’s testimony. Credibility can’t be revisited on appeal.

      • But isn’t this the very question the podcast and you are asking: was there sufficient evidence to convict Adnan? I agree that, from a legal perspective, the answer is “Yes, there was sufficient evidence, because the jury found Jay credible.” But aren’t you arguing that Jay’s testimony is so riddled with problems that it was in fact legally insufficient, and that the question of Jay’s credibility should have been taken away from the jury?

        • Different standards. A prosecutor should never bring a case that can’t be proven beyond a reasonable doubt, but on appeal, the standard is not whether or not there was evidence that proved a fact beyond a reasonable doubt — it’s whether there was *no* legally sufficient evidence to support an element. I’m not arguing a sufficiency standard here, because a jury is free to believe an inconsistent, evasive, and contradictory witness. But just because a jury might somehow find a ridiculous witness credible does not mean a prosecutor should give a jury the option to do so.

          • Thanks. Just a clarification: the sufficiency standard in a criminal case is whether the evidence is sufficient to convince a rational trier of fact of each element beyond a reasonable doubt. See Jackson v Virginia, 443 US 307 (1979)
            (“In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.”)

      • While credibility can’t be revisited, what about the basis for the credibility? We have the admission of a juror that the only reason they believed Jay was due to the misrepresentation of Jay’s deal. They thought he is going to jail anyhow.

        Their logic is faulty regardless. Even if he would sit for being an accomplice, if he is the murderer he still has reason to lie about Adnan. Obviously he would rather be charged for accomplice than as the murderer.

        Nor do I understand the idea of any limitation of what can be revisited. This means that we can have someone that we actually all know is innocent but we’ll keep him in jail because of a law!?

  10. In light of the latest from Jay: the bizarre nature of the plea-not-technically-a-plea deal crafted by the prosecutor jumps out as ingenious and perverse….it sounds like the statute of limitations on perjury does not apply when testifying as part of a plea deal…however, if it wasn’t recognized as an official plea deal, then Jay could lie all he want and not fear perjury.

    Also, if Jay is so concerned for his safety and Adnan is connected to a ‘west side hitman’ or a Pakistani gang/posse, where is the evidence that Jay asked for any request for protection or was ever considered for witness protection? Was Jay ever threatened at any time during or after the trial? It seems that part is all made up….or, to theorize here, perhaps he is fearful of somebody else…..the person that was complicit in the murder of Hae….if anybody other than Jay was even involved.

    Did Hae threaten Jay about his drug dealing? Did Jay tell somebody higher up in the supply chain that there was a girl causing him problems? Was there ever an investigation into what Jay’s potential motive would be? It seems all that is missing for Jay is a motive.

    • Wasn’t it disclosed that Hae was upset at the fact that Jay was cheating on her good friend, and it seemed like a good reason for Hae to want to “get in his face” directly? Given her personality- and that they were all at a very emotional age of their lives,it seems as though Jay could have reacted in the worst way toward Hae in the heat of an argument.

      • Yes, I believe it was disclosed that Hae may have said she was going to confront Jay about his extracurricular activities.

        What are the chances the prosecutor randomly crafted a bizarre ‘plea’ deal that just happens to be inadmissible as evidence for the defense while also protecting Jay from long-term perjury charges. He was already found guilty of his crime and served no time–so don’t think his sentence can be changed at this point and don’t think perjury laws would still apply.

        Short of Jay being charged with the murder itself, he seems to have gotten away ….with murder?

  11. Pingback: Rachel's Rambles | Serial Podcast Link Roundup

  12. I don’t think there is really any lack of clarity about when Jay took the police to the car. According to his February 28 interview, page 31:

    Ritz: Before during the interview prior to turning the tape on, you stated to Detective MacGillivary and myself that you’d be willing to take us out and show us where the vehicle’s parked.
    [Jay]: No problem.
    Ritz: Ah are you still willing to do that?
    [Jay]: Yes sir.
    MacGillivary: Also you can show us where ah initially that day you met up with him on Edmondson Avenue?
    [Jay]: It’s only four blocks down from the car is.

    Within a few blocks of Edmondson avenue is correct… if he didn’t take them directly to it, he at the very least identified a very specific area for them to search.

    He did lie to the police about the location of Hae’s car… he lied about the location of the car when he first saw it earlier in the day.

  13. Love your blog an how you line everything up. I did want to tie up one thread. You say, “Equally concerning is that after the speed plea arrangement, and after an ex parte chambers hearing the following day to discuss Jay’s reservations about the attorney arrangement before Judge McCurdy, Jay’s new attorney seems to have completely vanished from the picture, and Jay’s attempts to contact her failed. In attempts to contact his attorney, Jay even called the judge’s chambers and the prosecutor’s office in an attempt to contact his attorney. . .”

    In fact (an even more mysterious) he did see her again. She defended him on a couple of other charges on 9/14/00: Charged with possession of marijuana, found guilty and fined. 6/1/01. This second one is very confusing and it looks he was given a suspended sentenced to a year of detention and three years probation for driving an unregistered vehicle on a suspended license.

    All of this makes me further think that deals were being worked for Jay. In his interview his biggest concern and fear seems to be that people will think he was a snitch. I wonder if that is because he was. I wonder if all of these deals were because he was an informant.

    • I have wondered the same thing. It is possible he was or was turned into an informant. Bizzare that he always got off on sweet heart deals.

  14. Pingback: #Serial: Gobsmacked by Jay | The Confluence

  15. Susan,

    You are going out of your way to advocate for Adnan.

    Are you being paid by anyone regarding this case? You seem to be spending an obsessive amount of time on it for it to be a ‘hobby’.

    • Love comments like these. I can tell you I’ve spent scores of hours listening to Serial, discussing it, reading this blog and a few others, pouring through Reddit postings, posting detailed comments, researching, reading court materials. I personally know others who are just as fascinated and invested. And none of us have anything to gain.

      I started as a fascinated observer, just trying to make sense of things. At times I’ve considered Adnan the prime suspect, but as I’ve poured through the information, especially thanks to Susan’s spectacularly clear summaries and analysis, I’ve come to believe Adnan is innocent. So at this point I could be considered an advocate, but I certainly didn’t start that way.

    • I’ll speak up for her here, as she’ll probably consider your post so silly that it doesn’t warrant a response. Susan brings a detail-focused perspective to the many things that interest her, and I think it’s more accurate to call her “intensely driven” rather than “obsessive.” You’ll see the same devotion to a subject matter in her posts on the Alien Tort Statute or the Trayvon Martin case. The encyclopedic nature of her work is a testament to her skill, not a suggestion of bias.

      So no, she’s not getting paid.

      xoxo,
      Michael

      • When the suggestion is that the cops lied on the stand (Adcock testifying that Adnan said he asked Hae for a ride) it crosses over the line of an encyclopediic venture and turns into something that sounds like it’s biased. I found her writings informative up until that point now I think it’s an advocacy to free a murderer from prison.

        • Steve, please don’t falsely attribute statements to me that I never made. I don’t believe Adcock lied. I questioned his testimony for exactly the same reason I questioned Becky and Krista’s statements — the record is maddeningly unclear right now, and the exact basis of the statements reported in Serial has been left ambiguous and unclear.

        • @Steve. When someone mischaracterizes what someone else has said like you have just done, I must admit I start wondering what their own agenda is?

          If you have evidence that proves beyond any reasonable doubt that Adnan is a murderer then please do share.

  16. Susan – if you find Hae’s letter to be hearsay, you must believe it introduced into evidence for purposes of proving the truth of the matters asserted.
    The suggestion is ludicrous. It’s tantamount to proclaiming that the following matters couldn’t be proven true using the letter (among others):
    >>that Hae truly was “really getting annoyed” at the time of the writing
    >>that Hae truly wanted to make things easy for her and Adnan
    >>that Adnan truly knew people break up all the time
    >>that Adnan’s life was not going to end
    >>that it appeared to Hae that Adnan didn’t respect her enough to accept her decision
    >>that Hae really was more certain she was making the right choice, as of 7.45am on the day the letter was written
    >>that Hae really thought she couldn’t be in a relationship like they had
    >>that Hae truly expected to be busy “today, tomorrow , and probably till Thursday”
    Flat non-hearsay, Susan. Not a close call at all.
    Your arguments as to admissibility, proof-value, and relevance obviously are not pertinent to the question presented for review. (But interesting, nonetheless.)

  17. Impressive work Susan! Thank you for sharing. I have to admit the last installement of serial was very disappointing in my opinion…. It lacked of depth.
    I am not sure it s right place to say that but something comes back all the time: that the fact Adnan ask Hae for a ride shows that he planned to kill her…. Why would he ask her that in front of everyone if it was the case ?

    • Not to mention, all the other evidence shows that Adnan did _not_ end up getting a ride with Hae after school. Multiple witnesses saw Hae after school (~3:00 p.m.) without Adnan. So, the evidentiary value of the whole “Adnan asked Hae for a ride” become nil when it seems that he didn’t actually get the ride.

    • For one thing I’m not sure Adnan asked Hae for a ride “in front of everyone,” there’s a single statement to that effect aside from the officer’s testimony.

      Secondly, asking someone for a ride isn’t proof of anything, much less murder. Jay had his car and phone – is it so unreasonably to think that if he wanted to leave campus he would need to ask someone for a ride? Why not Hae? They were still friendly.

      Either way, if you believe the testimony that Adnan asked for a ride, you also have to believe the same testimony stating that she declined and he didn’t fuss about it one bit.

  18. Susan – first I’d like to congratulate you, Rabia Chaudry, and the Serial Team on your amazing work.

    Kevin – I have a few things I’d appreciate your input on in trying to establish the time of death.

    If rigor mortis can set in after a couple of hours then it would seem to me (in the short time frame for the burial provided by Jay) that the longer the delay in removing poor Hae’s body from the trunk the greater the likelihood of the presence of rigor mortis. My understanding is that Hae’s body was neither curled up nor the limbs broken when found which, I think, suggests that when her body was removed from the trunk of the car rigor mortis was not well established. It suggests not only that the new time of burial proposed by Jay (after midnight) is implausible but also that the time of the murder proposed by Susan is more likely than the time suggested by the prosecution because that is when rigor mortis would have been least evident.

    Now for lividity. Lividity is a process whereby skin bruising occurs on a body after death. Once the heart stops pumping the blood around the body, the blood cells, pulled by gravity, sink to the ground causing discoloration of the skin where the blood settles. It starts after 30 minutes of the heart stopping but can be reversed to a certain extent for up to 6 hours but then it is set. I wonder what the autopsy found about the discoloration of Hae’s skin and how this compared to the ground contours at the burial site? If my understanding of lividity is correct, the closer the time of death to the time of burial, the more likely it would be that the discoloration of the skin on her body would match the contours of the ground on which she was placed.

    • Yes, I agree with your summary about rigor mortis (again, with the caveat that I’m not a pathologist and going from pathology textbooks and forensic studies).

      As for lividity, I’m not sure how much could be determined when the body had been exposed to the elements, beginning to decompose, with rocks stacked on it, for several weeks. It’s possible if Jay’s new story were correct, and the body were in the trunk curled up for 10 hours or so that there could still be evidence of lividity that would be inconsistent with the burial site, but my guess is that this would be a tough call. I did a quick read-through of the pathologist’s cross-examination at the first trial, and I didn’t see any discussion about lividity related to the gravesite, so there’s not much more I can say about that.

      • Thinking more about this, I have to believe that the pattern of lividity at autopsy was largely consistent with the pose the body was found in by the police, otherwise the pathologist would have mentioned it. As you allude to, if the body had been in a contorted position in the trunk for the approximately 9 hours of Jay’s latest story (midnight burial), there’s a high likelihood that the pathologist would have seen something awry in the pattern of lividity.

          • The forensic pathologist’s testimony from the first trial was recently posted on Rabia’s blog (www.splitthemoon.com). Check out ‘dec14redact’ and start at page 21. To my knowledge the actual autopsy notes have not been released, and if they have, I haven’t seen them.

        • Kevin – Someone asked if it was possible that the murderer tried to knock Hae unconscious. I had read that Hae had bruising to the eye socket and the back of the head so I wanted to try and check out if she might have been hit on the back of her head and the force of the whack might have caused her head and neck to then move forward with force and hit the window or some other object causing an injury around her eye socket but I don’t think that the pathologist’s evidence supports that. If she had been hit on the right side of the back of her head I think she would have received an injury to the left side of the front of her head but the two areas of bruising are on her right side. Is my reasoning correct? Therefore, I believe Susan’s hypothesis that her injuries to the head were simply caused in the struggle are, yet again, supported. What do you think?

          • I read somewhere that the turn signal lever was broken…that would support the “hit on the head” theory.

          • She received two head injuries. One was to the back of the head on the right side. If you feel the back of your head for the lump where the skull ‘ends’ – that’s the region of the bruising on the right side. The other injury was in the cheek/ear/eye socket area on the right hand side (temporal muscle). If she had been punched or hit on the back of the head, the velocity of the punch would follow through and the trajectory of the head would be in the direction of the punch. Therefore the force from a punch to the right hand side of the back of the head would send the head forward and to the left. If the head then made contact with an object, the follow through injury would be on the left hand side of the face, not the right hand side. There are no black eyes, lacerations or fractures to the skull which could have occurred if she’d received a massive blow. She did have bleeding in the eye but the pathologist said this was consistent with strangulation being the cause and Adnan’s advocate did not challenge that. Two injuries on the same side of the head is consistent with the head being banged against a nearby object (eg a windscreen) on two separate occasions as she struggled against her attacker. The turn signal lever being broken is also indicative of a struggle. Kevin – you might be able to answer this.

          • The head injuries were in the region of the temple and the occipital bone (the whole back of the head). The injuries they don’t sound like there were caused by a weapon or a sharp object. The simplest way I can see to explain them is that Hae was sitting in the driver’s seat of her car, and someone in the passenger seat punched her hard twice in the head before she could defend herself (there were no defensive wounds on her arms/hands). Either the first blow surprised her and turned her head away, and the second hit her in the back of the head, or she turned away from the blow and was hit in the back of the head, and then hit in the temple. The occipital bone is a thick part of the skull, but the temporalis bone is thin and probably the easiest place to hit someone and stun them.

            This is pure, wild speculation, but the injuries are consistent with two well placed, quick blows and not a lot of messing around. It makes me think the person doing it could have been experienced at punching people out, and it isn’t consistent with an argument that turned messy and escalated (I don’t believe her clothing was torn in a way that would commonly happen in a conventional struggle).

            It’s impossible to know if she was knocked unconscious or just dazed by the blows, but I assume the two blows came first, before her neck was grabbed. Otherwise she would have had the chance to grab the door handle, honk the horn, or fight back and generate defensive wounds. She wasn’t a small or weak person (5’8″, played lacross).

            The hyoid bone was fractured, which is probably most consistent with being strangled from the front, with the thumbs over that bone. This is a very tiny, thin bone in the front of the throat. The hand position could have been the opposite, but that seems less probable to me. I didn’t see a mention of a pattern of bruising consistent with finger tip indentations, so I wonder if the murderer wore gloves, which would have made that pattern less distinct. Use of a rope couldn’t be ruled out, but there was no marking consistent with that, and ropes tend to leave distinct patterns of both skin abrasion and bruising.

            Initially I thought the turn signal was probably broken when her body was pulled into the back seat so it could be pulled into the trunk without the body being moved outside (perhaps by her leg hitting it post mortem), but I didn’t see any bruising/marking on her legs consistent with that. As I visualize now, I can imagine the killer throwing himself towards her after he punched her. By pivoting his body and throwing his right hip against the steering wheel, he’s practically facing her and would have tremendous leverage to strangle her. Or by putting his foot on the console to get more leverage and hitting the signal stalk with his knee or thigh, it would be easy to break that signal off.

            The killer could also have been trying to incapacitate her so he could assault her. I think her car was small enough that this would have required trying to recline the drivers seat, which would be another chance for him to break the signal stalk. I think she was too tall for the head blows and the signal stalk to be damaged by the same part of the attack.

            I feel kind of sick to my stomach in writing this. I hadn’t really tried to visualize what her last moments might have been like before. I’m reminded of how fascinated I was by my pathology rotation in med school, and also how I knew I couldn’t do that work day in and day out. I may well have missed some evidence that would help clarify what those final moments were like, but I think this is a pretty reasonable set of assumptions based on what I know.

          • Thank you Kevin. I’m so sorry to have asked you to try to assess this. Your analysis sounds logical to me. I was trying to assess whether someone had come prepared with an instrument to knock her unconscious and then strangle her – premeditated – or it was a spur of the moment attack. It sounds like a sudden assault. I feel awful too trying to speculate like this but I personally believe that Adnan is innocent and that’s a dreadful tragedy too. It’s so so sad. Terrible. Thanks again.

          • No need to apologize. I think it was useful, and helped clarify some things for me. If anyone who knew Hae is reading this, I apologize for the graphicness of what I wrote. I hope no one who knew her is actually reading this.

            The attack could have happened other ways (standing outside car, a left-handed guy punches her, throws her back in car; standing outside car talking to someone while a second person comes around behind/beside her and punches her, etc.), but I think this version is as likely as any, and more than most.

            In terms of premeditation, I think a male who had thrown a few punches in his life could be confident that they wouldn’t need a weapon to subdue a young woman. The premeditation could have been literally moments before the attack, as the person found an excuse to get into her car, already intent on attacking. Or it could have been some kind of very rapid escalation. In either event, I can imagine that Hae never really saw it coming until the first punch.

  19. The issue that concerns me the most, and was barely touched on much in the podcast or in the various commentaries discussing the case, was the likelihood of serious and illegal police misconduct, to the extent that Jay may have been fed the details of his story surrounding his knowledge of the location of Hae’s car.

    Most people point to the fact that, since Jay knew where Hae’s car was and apparently “led the police” to the car, this must indicate that Jay was involved to some extent in the murder and/or in burying of evidence thereafter. However, it seems to me that, since Hae’s car was never hidden from view, and wasn’t parked in some remote place, that the police could have well found her car prior to Jay’s police confession, and manufactured and fed him the facts surrounding the car, the body, helping in the burial, etc.

    This could help explain why Jay’s story concerning the event is continuously in flux and all over the map in terms of its details. That is, since the story was never his to begin with, he has no ownership or real memory regarding it, and keeps filling in details to fit what he thinks he should be saying, bungling it up with each retold version.

    If the prosecutor was involved in fabrication of evidence, and used, threatened or enticed Jay to be their vehicle for introduction of such fabricated evidence, that could mean that Jay really had no independent idea of where Hae’s car was, and did not assist in any burial. Rather, the police were the source of this story and it’s details to begin with, which were rigged to fit with their preconception (rush to judgment) that Adnan was guilty, yet they desperately needed evidence to win a conviction, so Jay was coached, cajoled, threatened into lying on behalf of the police. Don’t forget, we have that three hours when the police were grilling Jay but before any interview recordings were made. What was in those three hours? Evidence of police misconduct, manufacturing of evidence, I wonder.

    At any rate, this leaves wide open the possibility that the crime could have been committed by another party altogether, such as the serial murderer who had murdered another Asian woman and was known to be at large in the area at the time.

    • This is basically my theory as well in terms of the meddling of both police and prosecutor. I’m not so sure in terms of feeding him the car story, but anything’s possible at this point.

  20. How does Jay’s April 13 statement to the police regarding getting paid by Adnan not make him an accomplice? Wouldn’t that be Jay’s motive to kill Hae?

  21. Hello! Your analysis is great! Thank you for putting all this together. I was wondering if you were considering analyzing Jay’s most recent statements to the Intercept with respect to all the call logs that you have already updated. It is not surprising to see his statements fully change again. I am also wondering if the new trunk pop house makes sense geographically. He mentions that the trunk pop happened with traffic to his left. Would that be possible. Do you have details on the location of this grandmother’s house?

    thanks!

    • I’ve got a post on the trial transcripts/Intercept interview done, and it’ll be posted just as soon as I get a chance to format it for WordPress. But while I started to outline Jay’s latest story, I gave up once it turned out that every single event was “does not match any previous story, does not match any physical testimony, does not match any witness testimony.” In short, there is nothing there to analyze, because it is too disconnected from reality.

      But there is one part of his story to Intercept that goes a long ways to explaining the cell data. If there was a trunk pop, I think it did occur at grandmother’s house, like Jay now claims — only it was at around 4:12 p.m., and it was not the grandmother’s house where he claimed to live. Because it appears that Jay was at his “grandmother’s house” both before and after Hae’s murder, during the 12:41, 12:43, and 4:12 calls.

      • If the trunk pop was done there in the Forest Park area, then that could explain calls 19 and 20—Adnan was driving Jay back to his grandmother’s house when they both used the phone. Adnan dropped Jay off who immediately got Hae’s car, which was never at the Park and Ride and went, probably with an accomplice, to bury the body. Jay kept Adnan’s phone, perhaps without his knowledge. After the burial Jay got a ride back to the Mosque where he may or may not have given the phone back to Adnan directly–left it in his car or waited for him to leave the Mosque and got a ride to where Jen picked him up. You would think Adnan would remember something if the latter occurred but maybe not.

  22. This isn’t related to this post, or any others – just something I’ve been wondering about. It was Ramadan so Adnan hadn’t eaten for many hours on the afternoon 13 January. Surely he would be feeling tired/sluggish etc – would this have some impact on his ability to strangle Hae, and perhaps have some impact on his memory of the day? Research consistently shows a decrease in daytime alertness, mood, and wakefulness during the fasting month of Ramadan, and some studies have demonstrated a significant decrease in memory function. Just some thoughts…

    • I think whatever fasting he was doing would pale in comparison to being stoned in terms of memory impairment. I don’t think we can make the case he would have been too weak, if he was strong enough to go to track practice and do normal activities.

      • Didn’t someone (the coach?) say that Muslims didn’t have to actually participate in track activity on Ramadan, for this very reason?

  23. Can someone clarify whether CG tried to get the charge of kidnap thrown out? I can’t understand what evidence was presented by the prosecution to prove beyond reasonable doubt that Hae was kidnapped. The timeline, when tested out by the Serial producers, only just allowed time for a murder to happen basically immediately Hae met her murderer. The pathologist presented no evidence to show she was tied up or was held against her will (ie struggling). I don’t recall seeing any witness testimony that Adnan somehow kidnapped her. How is he supposed to have done that, when and where was she held. I’m confused. Thanks.

    BTW I want to congratulate everyone who has contributed to this blog. The quality of the analysis is outstanding. I’ve never read anything like this before. It’s truly impressive and feels like a positive community effort to genuinely and intelligently investigate these tragic circumstances.

  24. Susan – really enjoy your analysis, thank you for very insightful work. After reading your blog, which effectively shred’s Jay’s testimony, there is one portion of the show that really puzzles me. When Sarah had hired the former detective as an expert to evaluate the police work, I recall he basically endorsed the work of the two detectives. After knowing what I know now thanks to your work, this is very surprising. I’m left to believe there is some blue wall at work here, or the expert witness does not want to speak out against the law enforcement community and hurt his chance of future employment. Has anyone else commented on this aspect?

    • He chose his words carefully. He thought the investigation into Adnan’s guilt was better than average, but the detectives’ interviewing methodology was where things went astray. He doesn’t come out and condemn it, but his skepticism and concern was pretty plain:

      But what I’m saying is this: the mechanics, the documentation, the steps that they took, and all of that, they look good. Okay? I would have probably followed this same route. However, what we’re unsure of is what happened to change Jay’s story from A to B, and we do not know what happened in the interrogating– those three hours and that will always result in a question as to what the final outcome should have been.

      • Recall Sarah’s shock, which reflected my own, upon hearing from this detective that the main goal is getting a conviction, not getting to the truth.

  25. I just reviewed the evidence logs, and noticed an error in the blockbuster video sku codes. I worked at blockbuster for three years and still have the process memorized.

    Blockbuster had a standard way of creating bar codes “movie type-store number-part number-copy number” so 33-24083-611143-007

    the 33 would have been a rental. The next part 24083 and 40238 would have been two different stores. (The log says they are both from the same store) The last part of the second item was not long enough for a part number. The copy numbers are fine as is.

    Just another example of incorrect reporting.

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