Adnan was deprived of a fair trial by two failures of the criminal justice system: (1) a prosecutor who failed to disclose exculpatory evidence in time for meaningful use by the defense, and (2) a defense attorney who did not fight hard enough to obtain this exculpatory evidence, or to review and prepare for this evidence when she was unexpectedly given a reprieve in the form of a mistrial.

In this post, I have provided an outline of the discovery that occurred before Adnan’s first and second trails. It shows exactly what and when Adnan was informed of the nature of the evidence against him — and, in particular, how the prosecution attempted to go to trial against Adnan without having disclosed either the identity of it star witness or his inconsistent statements to the police, or the fact that it intended to use cellphone location data to show that Adnan was responsible for Hae’s murder.

February 28, 1999:

• Adnan is arrested.

April 13, 1999:

• Grand jury indicts Adnan for Hae’s murder.

May 17, 1999:

• The defense files an omnibus request for discovery from the prosecution. The state’s responses are due within 10 days of the request, plus an additional three days to allow time for mailing.

At this point, the only information the defense has been given about Hae’s murder is the (extremely limited) information contained in the indictment and in the warrants. Here is the full extent of the information that the defense was given:

On 09 February 1999, at approximately 2pm., the Baltimore City Police Department responded to the 4400 block N. Franklintown Road, for a body that had been discovered by a passerby. Members of the Armed Services Medical Examiners Office responded and disinterred the remains. A post mortem examination [ruled the] manner of death a homicide. Subsequently, the victim was identified as Hae Min Lee. . .  On 27 February 1999, your Affiant along with Detective William F. Ritz had the occasion to interview a witness to this offense at the offices of homicide. This witness indicated that on 13 January 1999, the witness, met Adnan Syed at Edmondson and Franklintown Road in Syed’s auto. Syed, who was driving the victim’s auto, opened the victim’s trunk and showed the witness the victim’s body, which had been strangled. This witness, then follows Syed in Syed’s auto, Syed driving the victim’s auto, to Leakin Park, where Syed buries the victim in a shallow grave. Subsequently, this witness then follows Syed, who is still driving the victim’s auto, to a location where Syed parks the victim’s automobile. Syed then gets into his car and drives the witness to a location in Baltimore county where the digging tools are discarded in a dumpster.

The defense has not been informed of (1) how Hae was killed; (2) where Hae was killed; (3) when Hae was killed; (4) the identity of the state’s witness; (5) the correct day that the witness was interviewed; (6) where Hae’s car was left; (7) when Hae was buried; (8) where exactly Hae was buried; (9) how the body was found and who Mr. S is; (10) where the trunk pop took place according to the state’s other witness; (11) the existence of a second witness; or (12) where the “digging tools” and other evidence was disposed of.

[Note: Notice how they say “digging tools” there? That’s because in Jay’s first statement, he claims he and Adnan used “a pick” and “a shovel” to dig the hole. Only later does Jay change his story and claim they used two shovels and no pick.]

May 30, 1999:

• Deadline for the prosecution’s responses to the defense”s discovery requests. The prosecution fails to produce a single document to the defense.

June 3, 1999:

• Trial is set for October 13, 1999.

June 16, 1999:

• The prosecution files a motion for an extension of time in which to provide discovery, asking the court for an additional 30 days in which to provide its responses. As the basis for this request, the prosecution cites to “vacation and travel plans.”

• Due to the prosecution’s failure to provide any discovery whatsoever, the defense attempts to contact the Medical Examiner’s office directly in order to obtain a copy of the autopsy report.

June 23, 1999:

• The medical examiner informs the defense that he has been instructed by the prosecutor’s office not to release a copy of the autopsy report to the defense, and that he will only be able to do so with the prosecution’s permission.

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Note: In order to provide context for this post on the prosecution’s use of cellphone evidence, Rabia has given me permission to post transcripts from the testimony of Abraham Waranowitz, the prosecution’s expert witness:

• February 8, 2000
• February 9, 2000

The significance of the cellphone evidence that was presented at Adnan’s trial was extremely limited in scope. By the prosecution’s own admissions, the location data from Adnan’s cellphone billing records did not show the cellphone’s location at any particular point on the day of Hae’s murder. Instead, the nominal purpose of the location data was simply to demonstrate that the prosecution’s theory of the case was not disproven by the cellphone records. The prosecution’s expert witness did not prove that the phone actually was or probably was at any location – his testimony was introduced as evidence that it was at least feasible for the prosecution’s case to be accurate.

The prosecution failed in accomplishing even that limited goal, however, for the reasons discussed below. The use of the cellphone data at Adnan’s trial was a jumbled, contradictory mess. The evidence was both used in a misleading fashion, and also factually inaccurate. Whether attributable to confusion or design, the prosecution misreported the expert’s findings in a way that caused the results of his testing to appear consistent with Jay’s story.

It should be noted from the outset that the inaccuracies, flaws, and distortions contained in the prosecution’s cellphone evidence should be attributed to the way that evidence was presented at trial, rather than to the underlying testing performed by the expert, Abraham Waranowitz. Waranowitz’s testing was not the problem. He conducted testing of the performance of AT&T’s wireless network in accordance with the prosecution’s representations (and misrepresentations) about the locations of sites that were relevant to the case, and at trial he testified as to his limited conclusions based on that testing. As Koenig discussed on Serial, “the way the science [was] explained [ ] is right” (Episode 5) (emphasis added). The expert witness presented the science fairly — but the prosecution abused it. Take, for example, this claim made by Prosecutor Kathleen Murphy in closing arguments:

[Waranowitz] also told you that the phone picks the cell tower based on signal strength in the area. He told you, too, that this map shows you — these bright colors each represent areas in which a given tower’s signal strength is strongest. And in these areas, the cell phone is going to talk to the given tower. (2/25/99 Tr. 61-62) (emphasis added).

The prosecutor’s claim was simply false. Waranowitz never said any such thing. Instead, Waranowitz fairly presented the fact that coverage maps are estimates, based on factors that fluctuate and cannot be predicted with any degree of certainty – but in closing arguments, the prosecutor nevertheless presented the cellphone data as conclusive evidence of the phone’s location at the time of a call.
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This week, the Intercept released Part 1 of its interview with Kevin Urick, the prosecutor at Adnan’s 1999 and 2000 trials. Part 2 of that interview had been scheduled to be released on Thursday, but due to what appear to be some editorial issues over at the Intercept, it has yet to be published. Since I am tired of waiting for it to come out, however, I am going to go ahead and address Urick’s claims in the first part of the interview now.

Urick describes Adnan’s case “as pretty much a run-of-the-mill domestic violence murder.” When asked about whether he harbored any doubts as to the outcome of the case, he told the Intercept,

Urick: No. The reason is: once you understood the cellphone records–that killed any alibi defense that Syed had. I think when you take that in conjunction with Jay’s testimony, it became a very strong case.

Right away, we have a problem. “Once you understand the cellphone records,” Urick says, Adnan’s guilt becomes clear — but Urick himself never understood the cellphone records he used to convict Adnan of first-degree murder. His belief in Adnan’s guilt is based upon a false understanding (or, perhaps, a false professed understanding) of what the cellphone records shows in this case. Although he made numerous factual errors throughout Adnan’s first trial, perhaps the three of the most significant were: (1) his claim that Jay’s statements matched the cellphone records before the call logs and location data were shown to him; (2) his claim that Adnan “checked his voicemail” at 5:14 pm; and (3) his claim that the 7:09 and 7:16 pm calls are proof that the phone was in Leakin Park.

Let’s start with the corroboration issue. Here is what Urick said in the Intercept interview:

Urick: The problem was that the cellphone records corroborated so much of Jay’s testimony. He said, ‘We were in this place,’ and it checked out with the cellphone records. And he said that in the police interviews prior to obtaining the cellphone evidence.

That is simply a false representation of fact. As I discussed extensively in my previous post on the evolution of Jay’s perjured testimony, Jay’s statements to the police did not match the cellphone records before he was shown them. Flat out did not match, full stop. What Urick said in the Intercept interview is not true, as anyone can see for themselves, if they go through Jay’s first and second police statements. Particularly in the first interview, before Jay was ever shown either the call log or the tower data, when not a single call “check[s] out” with his statement.

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The rumors of Serial’s end have been greatly exaggerated — and between Jay’s recent interview with the Intercept, the release of the trial transcripts from the first trial, the upcoming appeal hearing in Adnan’s collateral appeal, and the work being done by the Innocence Project, new information is coming out faster than I can keep up with. I’ll have a more comprehensive post up in a day or two discussing some of those things, but for now, I wanted to address a specific subject: not what lies Jay has told, or why he told them, but how he was able to come up with those lies in the first place.

Because one of the primary arguments raised by those who support the prosecution’s case is that Jay’s testimony, although troubling due to its inconsistencies, is nevertheless indicative of Adnan’s guilt, because it would have been impossible for Jay to have invented a story out of thin air that was sufficient to convict Adnan of first-degree murder. And that is absolutely correct — there is not a chance in the world that Jay could have come up with the testimony he gave at Adnan’s trial, given only a single shot to do so. Jay needed many, many tries in order to cobble together a somewhat believable story. More than that, he needed someone to supply him with additional information about Adnan’s alibi and the prosecution’s physical evidence, and who could identify and correct all the parts of Jay’s stories that were either demonstrably false or else ineffective at incriminating Adnan.

Luckily for Jay, the state of Maryland was happy to help him out with that. Based on the transcripts from Adnan’s first trial, we now have something closer to a complete picture of how the story of the prosecution’s star witness evolved.

1. Jay’s Statements Prior to Police Questioning, January 13 – February 28, 1999: After Hae’s murder and burial in Leakin Park, Jay told at least four friends about his role in covering up the crime. He told different stories to at least three of them — Jenn was given the version about Hae being killed in Best Buy, Chris was given the version about the car salesman and Hae being strangled at the Woodlawn library before the trunk pop later occurring at the pool hall, Tayyib was given the version about Adnan asking Jay for help with the murder and Jay telling him that he would only help with the cover up. At least one of those friends, Jenn, provided Jay with feedback  on the believability of that story, and “told him there were security cameras in the parking lot and at the entrance” of the Best Buy (Episode 8). Consequently, out of fear of what those security cameras might show, Jay attempted to change his story, trying out several more renditions of the trunk pop claim before eventually settling on the story he gave in his first interview, which was that the trunk pop occurred at a strip. (After all — a strip is the last place anyone is going to have a security camera!)

Of course, this attempt at crafting his story ended up backfiring a bit on Jay — because the police got to Jenn first, and she told them the story Jay had first tried out on her, which was that the murder and trunk pop occurred at the Best Buy.

2. Jay’s First Pre-Interview, February 28, 1999: We do not know the contents of the first story Jay gave to the police, because it was not recorded. When the police brought Jay in to the station during the early hours of February 28th, he and the detectives talked for about an hour before the tape recorder was turned on. As a result, here is everything we know about the contents of that first statement:

Detective: During the first interview there were a lot of inconsistencies
Jay: Yes.
Detective: And there are too many to go over but you kind of disassociated yourself from all the information you provided in this interview.
Jay: Yes. (Int.1 at 24-25.)

In other words, Jay’s first attempt to explain how Adnan was responsible for Hae’s murder was a complete failure. It had “a lot” of inconsistencies — and for a story to have a “a lot” of inconsistencies in comparison to his first recorded statement, it must have been damned near incoherent.

3. Jay’s First Recorded Interview, February 28, 1999: After the pre-interview, the detectives and Jay talked through his story until Jay came up with a better version, at which point the tape recorder was turned on. Jay admits he was lying in his first story, but swears that he is telling the truth now.

4. Jay’s Telephone Conversations with Detectives, February 28 – March 15, 1999: Jay acknowledges that the detectives contacted him by phone to ask him “questions challenging what [he] had said” in the first interview (12/15/99 Tr. 158). In doing so, the police alerted Jay to the problems they had found with his story, and gave him the opportunity both to correct those statements, and to talk with potential witnesses (i.e., Cathy, Jeff, Jenn, Mark) and find out whether they had been contacted by police, and if so, what they had said.

5. Jay’s Second Pre-Interview, March 15, 1999: After determining that essentially the entirety of Jay’s first police statement was nothing but a pack of lies, the cops make a surprise visit to Jay and take him down to the police station for another round of interviews. During a three hour “pre-interview,” which was unrecorded, the detectives showed Jay the cell phone records for Adnan’s cell phone, and explained to him why they knew his earlier stories had been false.

CG: And you knew that on the 15th of March, you still felt considered like a suspect; right?
Jay: Yes.
CG: They had at that time, because they shared with you your acquaintance Adnan’s cell phone records; did they not?
Jay: Yes.
CG: Okay. And in fact, they asked you about numbers on the cell phone records; did they not?
Jay: Yes, ma’am.
CG: And they asked you to describe numbers on a cell phone printout; did they not?
Jay: Yes, ma’am. (12/15/99 Tr. 142.)

Jay later seemed to be about to acknowledge that the police “presented” him with the cell phone records prior to the interview:

CG: Well, you’ve already told us, [Jay], that you recall that they had the cell phone records; correct?
Jay: That wasn’t until the 15th, wasn’t it?
CG: No, sir.
Jay: That was the 28th?
CG: That’s what you answered, sir. Do you now not recall?
Jay: The police presented me —
Urick: Objection.
The Court: Sustained. (12/15/99 Tr. 162.)

Urick, however, jumps right in before Jay can elaborate — it seems like he is not particularly keen on having Jay explain exactly what the police did to assist him in correcting his statements.

6. Jay’s Second Recorded Interview, March 15, 1999: Three hours after Jay arrived at the police station, the tape recorded was finally turned on, and Jay gave his second recorded statement.  When confronted with his lies, Jay freely admitted to the cops that he had been lying in his earlier stories, but swears to them that he was telling the truth now.

According to Detective MacGillivary, Jay managed to do a lot better at the second interview. He testified, at the second trial, that he and Detective Ritz had “noticed that [Jay] statement did not match up to the records,” but that “[o]nce confronted with the cell phone records, [Jay] ‘remembered things a lot better’” (Brief of Appellant at 11). Great work, boys.

Of course, the only things Jay “remembered [ ] a lot better” during that interview were the things that the detectives had identified as being false, and told him he needed to change. All of those lies that the detectives hadn’t caught? Jay stuck by them, now with the knowledge that the cops had not been able to disprove what he had said. On the other hand, all the parts of his story that did conflict with the evidence he was happy to abandon, and he adopted a new version of events in their place, telling new lies to replace the lies that had already been uncovered:

CG: Now, the second time that you spoke to them, the time when they confronted you with your earlier lies, you told us you then told them the truth; correct?
Jay: The second time?
CG: The second time —
Jay: Not the complete truth.
CG: on the 15th of March; correct?
Jay: No, ma’ am, I did not.
CG: You didn’t tell them the whole truth?
Jay: No, ma’am, I did not.
CG: You again lied to them; correct?
Jay: Yes, ma’am.
CG: At a time when they had it on tape; correct?
Jay: Yes, ma’am.
CG: You lied the first time and you attempted to correct some of those lies, right?
Jay: Yes, ma’am.
CG: But you again lied about other things, isn’t that correct?
Jay: Yes, ma’am. (12/15/99 Tr. 192.)

So the version of events Jay gives in the second interview is still not the truth, but it is a much improved lie compared to his first version of events. (He even almost succeeds in telling a story that does not involve either Hae’s car or Adnan’s car randomly disappearing!)

7. Jay’s Written Itinerary, March 18, 1999: Although no copy of this document has yet been released, and it is not entirely clear if Adnan’s defense counsel was aware of its existence at the time of the first trial, on March 18th, three days after Jay’s second interview, Jay provided the cops with a written itinerary of every place he and Adnan went on January 13, 1999:

When Jay took the cops on this ride on March 18, to map out the timeline, he told them that after they left the Park and Ride, they went in search of weed. He says that’s when he called his friend Patrick. (Episode 5.)

This is the route that Dana and Sarah try to recreate, and which they ultimately dismiss as a fool’s errand.  But it was certainly a productive trip for Jay, because it allowed him to see, in real time, exactly what parts of his timeline did not match up with reality:

The next stop after Best Buy [according to the March 18th itinerary] is the I-70 Park and Ride, where Jay says they leave Hae’s car for a few hours. It’s just a large commuter parking lot. Jay says he follows Adnan there, Adnan is driving Hae’s car.  . . . When Jay took the cops on this ride on March 18, to map out the timeline, he told them that after they left the Park and Ride, they went in search of weed. He says that’s when he called his friend Patrick. And this is where things start to get off course. There is indeed a call to Patrick on the call log. But it’s at 3:59 p.m. So right away, we have a time problem.

By trial, though, Jay has sorted that out, so that his story better matched the call log. He testified that he called Jenn Pusateri first, at 3:21 to find out if Patrick was home. Jenn testified that, no, Jay would not have called her to find out where Patrick was.  That’s just not a thing that would have happened. But in any case, there is a call to Jenn at 3:21. Jay says that when they didn’t find Patrick at home, they switched course and headed up to Forest Park to buy weed. Dana and I drive that same route. (Id.)

The March 18th itinerary is, incidentally, the very last time Jay tells a version of events that involve a trip to Patapsco State Park. One can only assume that when forced to actually live out the story he was trying to tell, he realized just how ridiculous the Patapsco State Park trip was, and wisely chose to abandon it.

8. Jay’s Phone Calls and Meetings with the Police, Ongoing, February 28, 1999 – April 13, 1999: Jay had numerous other (apparently unrecorded) meetings and phone calls with the police during the course of the investigation. Jay testified that throughout the entire time police were hauling him in for “official” interviews, they were calling him up to chat about smaller problems with his story, and asking him to correct problems with it:

Sometimes they would come and say, “We need to speak with you at this time,” but never an extensive conversation (12/15/99 Tr. 90).

We do not know the specifics of these little chats, as Gutierrez declined to ask about them, but it is safe to assume the conversations either involved questioning Jay about discrepancies in his story (thus alerting him to the parts he needed to change) and seeking clarification about other parts of the case (thus alerting him to other details it would be helpful for him to provide).

9. Jay’s Third Interview, Unrecorded, April 13, 1999: On the day that the grand jury indicted Adnan for Hae’s  murder, the detectives brought Jay in for a third official sit-down interview. The timing of the third interview is no coincidence — as of April 13, 1999, the prosecution had the advantage of having heard all of the testimony presented before the grand jury, and were no longer only relying on Jay’s crazy stories. They now had a much clearer idea of where all Jay’s previous statements had gone wrong, and exactly where Jay’s statements conflicted with that of the prosecution’s other witnesses:

CG: Were you again confronted [on April 13th] about other inconsistencies about what you had said on either the 28th that was taped or on the 15th of March that was taped?
Jay: Yes, ma’am.
CG: Okay. And you again attempted to explain to the detectives what all of these inconsistencies were, correct?
Jay: Yes, ma’am. (12/15/99 Tr. 187.)

Once again, the police presented Jay with a to-do list of all the problems in his story that he needed to fix. But it was not just conflicts with the statements from other witnesses that the detectives needed to have Jay correct — they also needed to make Jay change his story so that it fit the location data from Adnan’s cell records. By that point, the poor beleaguered detectives must have realized that their location data — with its extremely valuable Leakin Park pings — was going to be rendered completely worthless by their star witness’s testimony — with its failure to match the location data in most relevant respects. Either the location data was right or Jay’s statement was right, but it was painfully obvious they could not both be right. And since they needed both for their case against Adnan, that had to be remedied:

CG: And, sir, when you spoke to them on the 13th what things did they ask you about?
Jay: Just specifics of where the cell phone was. (12/15/99 Tr. 194.)

In his testimony at the first trial, however, Jay had something even more interesting to say about the statement he gave to the detectives, during this unrecorded interview:

CG: And that’s why they again attempted to confront you with those lies a month later on the 13th, which was a Tuesday, of April, isn’t that correct?
Jay: Yes, ma’am.
CG: So you lied to them on the 28th; correct?
Jay: Yes, ma’am.
CG: And you lied to them on the 15th of March, correct?
Jay: Yes, ma’am.
CG: And, of course, on the 13th of April you lied to them about other things, did you not?
Jay: No, ma’am, I did not. (12/15/99 Tr. 193.)

Wait, what?! Jay committed to the April 13th story as the truest story of them all? The story in which “[Jay] told police that [Adnan] had killed the victim in Patapsco State Park, and that [Adnan] paid him to help”? (CoSA Opinion, at 9.) That is what Jay is going to claim he did not lie about?

I have no idea what was going on at trial, because, somehow, Gutierrez did not follow up in questioning Jay about why his April 13th story is the Most Truest story of them all. Did the prosecution fail to disclose the contents of this unrecorded interview to the defense, and Gutierrez had no idea what Jay was saying? Or was Gutierrez so incompetent she knew about it, and did not think to question Jay about it? Because this sure looks like it must have been either a Brady violation or ineffective assistance of counsel — either Gutierrez did not have the April 13th story, or else she screwed up, one or the other.

It is clear, however, why the April 13th statement remained unrecorded. Because once Jay started spouting off his story about Adnan paying him to assist him with cleaning up the murder he committed in Patapsco State Park, the police sure as heck were not going to be turning on that tape recorder and allowing all that bad evidence to be permanently recorded. Best to forget that the whole April 13th interview ever happened.

Jay himself appears to have been aware of why the detectives chose not to record the April 13th statement — and consequently, aware of the fact that the detectives were assisting him in preparing his story for trial, by looking the other direction when he screwed it up too badly:

CG: [On April 13th,] [t]hey hadn’t caught up to all of the lies, particularly the new ones that you told them on the 15th,  had they?
Jay: I have no knowledge of that, ma’am.
CG: Right, because they didn’t — they confronted you but they didn’t tell you all of the things that you knew you had lied about
Urick: Objection.
CG: Correct?
The Court: Overruled.
Jay: No, ma’am, they did not.
CG: No, they didn’t because they hadn’t caught them all; correct?
Jay: Hmm, I’m not aware of that.
CG: You don’t know whether they caught all of your lies or not?
Jay: Pardon me?
CG: You don’t know whether they caught all of your lies or not?
Jay: I’m not aware. That’s their job. I’m not —
CG: So it’s their job to catch you up in your lies; correct?
Jay: That’s their job to recite what I say, yes.
CG: It’s easier for them to catch you in lies that they record, is it not?
Jay: Yes, ma’am. (12/15/99 Tr. 192-94.)

And if Jay lies in a police statement, but the tape recorder was not turned on at the time, does the lie really count for impeachment purposes?

10. Jay’s Meetings with Urick, September – December 1999: At the first trial, Jay testified that he met with Urick on two occasions (12/15/99 Tr. 58). The first meeting would have been on September 7th, when he arranged for Jay to have an attorney and negotiated a plea deal. The second time would apparently be a meeting to discuss Jay’s testimony at trial.

Although it is unclear exactly when it occurred, it was likely during Jay’s second interview with Urick that he was provided transcripts of his recorded police statements:

CG: And you know that there’ s a transcript made of what you told them [during the February 28th and March 15th interviews], isn’t that correct?
Jay: Yes, ma’am.
CG: Because you’ve had an opportunity to review the transcripts of both occasions that were recorded in which you lied to the police, isn’t that correct?
Jay: Yes, ma’am.
CG: Yes. And you have in, fact, reviewed the transcripts of both occasions, isn’t that correct?
Jay: No, ma’am. (12/15/99 Tr. 211.)

The only reason you give a witness transcripts of their prior statements, at least under these circumstances, is so that they can be prepared to give better trial testimony. Jay denies that he actually made use of this opportunity, but since he has lied about everything else, there is no reason to believe he is not lying about this too. Besides, whether or not he actually reviewed the transcripts, he fact that he was provided with the chance to do so is significant, and shows how the prosecution was working with Jay to “correct” the testimony he would give at trial.

11. Jay’s First Trial Testimony: By the time of trial, Jay had told his story dozens upon dozens of times. Between the first story he tells and the last, all but perhaps three or four details have been changed, and a great deal of new evidence and data that Jay did not have at the time of his first statement — the phone log, the location data, the statements from other witnesses — have been provided to him, and incorporated into the statement he tells at trial, under oath.

Everything he said in that last version was a complete lie, of course. He said so last week. The whole timeline, the whole trunk pop thing, when Adnan made phone calls and where he was when he did — Jay just made it all up, because he liked his imaginary version better than the truth. It was a pretty good lie, though, all things considered.

And perjury on the scale that Jay has admitted to is not something that just happens overnight — it’s something that takes a great deal of practice and teamwork to achieve.

-Susan