Serial: The Prosecution’s Bad Faith Withholding of Crucial Evidence Before Adnan’s Trials

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.

July 1, 1999:

  • 11:53 a.m.: The defense files a motion to compel production from the prosecution, noting that, “The Defendant does not even have the autopsy report establishing the time, place and cause of death. Indeed, the State has directed the Office of the Medical Examiner not to furnish the autopsy to the defense.”
  • 12:21 p.m.: The prosecution makes limited disclosures to the defense, consisting of incomplete (and illegible) police reports, partial evidence lists, and poorly scanned black and white photos of the crime scene that do not reasonably allow a viewer to understand what is being seen. The state also files a motion for a “joint trial of defendants.”
  • The prosecution’s limited disclosure includes its own requests to the defense, including requests for:

all written reports made in connection with the action by each expert whom the defendant expects to call as a witness at the hearing or trial, including the results of any physical or mental examination, scientific test, experiment, or comparison,”

and a request that

the defendant furnish the name and address of each person other than the defendant whom the defendant intends to call as a witness to show that the defendant was not present at the time, place, and date as set forth in the criminal [ ] indictment.

The state’s discovery request is ironic in that there was, in fact, no time set forth in the indictment against Adnan, and the indictment incorrectly identified the place of death as “in the City of Baltimore, State of Maryland” – even though the state’s witness had placed Hae’s death in the county.

July 7, 1999:

  • The defense sends a discovery letter to the prosecution outlining its failure to provide substantive discovery to the defense. In particular, the defense requests that the prosecution produce “[a] copy of any statements made by Jay Wilds as an unindicted co-conspirator or codefendant.”
  • The prosecution files a Motion to Bar Disclosure of the identity of the prosecution’s star witness, as well as to bar disclosure of his/her statements, seeking the court’s permission “to withhold discovery consisting of all statements made by [the] accessory after the fact . . . and any affidavits or warrants making reference to such statements.” The prosecution claims that

“divulgence of these statements would place the witness and evidence in jeopardy. Defense counsel’s actions at best create the impression that witnesses could have been compromised, and to allow access to the testimony of another key witness could create the impression that the public interest in a fair adjudicatory process has been compromised.”

The prosecution does not explain why the public interest in a fair adjudicatory process is better served by keeping its evidence and witnesses secret from the defense.

July 8, 1999:

  • The prosecution’s response to the defense’s July 7th letter contains some limited additional disclosures, but in response to 11 of the 20 defense requests, the state responds either by stating that its discovery obligations have been met, or by simply noting that “[a]s the state reviews the file, if any further discoverable information on this topic is found, it will be forwarded to the defense.”
  • Additionally, in response to the defense’s request for production of “[a] copy of any statements made by Jay Wilds as an unindicted co-conspirator or codefendant,” the prosecution states that “[t]here is no unindicted co-conspirator or co-defendant.”

August 2, 1999:

  • The prosecution discloses some additional evidence, such as Mr. S’s role in discovering Hae’s body. However, the prosecution provides only the results of the second polygraph examination of Mr. S, and does not provide the results of the first – which Mr. S failed.
  • The prosecution also discloses, inter alia, where Hae’s car was found.

September 3, 1999:

  • The prosecution discloses, inter alia, that “[t]he State has received the defendant’s cellular telephone records and intends to introduce them as business records at trial. The records are available for inspection upon reasonable request.” The defense is given information about the call log for the first time, only a month and a week before trial.

September 7, 1999:

  • The defense renews its motion to compel, and opposes the prosecution’s motion to bar disclosure of Jay’s identity and statements.
  • The prosecution had argued, in its Motion to Bar Disclosure, that it was not required to disclose Jay’s identity or statements because Jay was “an accessory after the fact and not a co-defendant”; because “[Jay] has not been charged and therefore there will be no jury trial”; and because “the State does not have to provide the statements of witnesses.”
  • In opposition, the defense now argues in its motion to compel that, pursuant to Maryland Rule 4-263(a), the prosecution was required to disclose, without request, ‘[a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged,’” as well as to disclose upon defense request, pursuant to 4-263(b)(3), the “statements of codefendants.”
  • The defense also argues that the prosecution’s disclosures were too vague to allow Adnan to raise an alibi defense:

Moreover, the State has identified, only upon inquest by this Court, that Ms. Lee was murdered sometime in the afternoon of January 13, 1999, but the State has contended it cannot establish the time of death with any further precision. Jay Wilds, according to the State, met Adnan Syed directly after the murder at a prearranged time and location and was present and assisted in the burial of Ms. Lee’s body in Leakin Park. While the State has ‘paraphrased’ Mr. Wilds’ statements for various purposes, the State has not ‘paraphrased’ or revealed any information regarding the actual time(s) Mr. Wilds alleges this activity occurred.

Note that at this stage, the defense is completely unaware that the prosecution intends to argue that Hae’s burial occurred four hours after her death, as the indictment is written as if the burial occurred immediately after her murder.

September 10, 1999:

  • In doing so, Judge Quarles avoids making any ruling whatsoever on whether the prosecution was required to disclose Jay’s statements pursuant to 4-263(b)(3), which requires the disclosure of the “statements of codefendants.” Judge Quarles apparently assumes that an unindicted accessory-after-the-fact is merely a “witness,” rather than a “co-defendant,” but provides no explanation in support of this position.
  • Judge Quarles seems to be unaware that, at the time his order is entered, Jay is in fact an indicted defendant, having been charged – and a plea deal entered – on September 7th. However, the state has not yet disclosed the fact that Jay was charged with accessory-after-the-fact three days previously.
  • Judge Quarles further orders that, regardless of Jay’s status as a “co-defendant,” Maryland Rule 4-263(a) “requires the State’s Attorney to disclose, without request, ‘[a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged.’”
  • The court also orders the prosecution to hand over any statements made by Adnan.

September 13, 1999:

  • The prosecution discloses that Jay has entered a plea agreement.

September 19, 1999:

  • The defense asks Urick if he has any disclosures to make, pursuant to the court’s order of September 10, 1999.

September 24, 1999:

  • The prosecution discloses to the defense that “The State expects to have a witness from AT&T wireless but as of this date the-company has not named its documents representative.”
  • The prosecution also discloses that “the original request for DNA typing could not be processed because at the time of submission there was nothing to type; a new request has been submitted but the results are not expected for 6 to 8 weeks.”

Both of these disclosures are disturbing. First, the state’s disclosure as to the AT&T witness is intentionally worded to appear as if its only purpose for calling the representative is in his or capacity as a document custodian, in order to have the cellphone data admitted into evidence as business records. The prosecution has provided the defense with no indication whatsoever that it intends to call an expert witness to speak to the significance of those records, or that it intends to use the cellphone location data as part of its case.

Second, Urick’s decision to wait until late September to submit the t-shirt for DNA testing appears to have been deliberately calculated so that any results from the DNA test will be returned after Adnan’s October 13th trial. His claim that “the original request could not be processed” is so disingenuous as to border on lying. The shirt was sent out to the lab in early March, but no trace analysis was requested – even though by March 25th, the state did have “[some]thing to type,” because on that date it had transported Adnan to a hospital to take a sample of his blood. Additionally, the lab records clearly show that as of August 31, 1999, the shirt had not been submitted for DNA testing, and was being held in the lab, with “[a] sample of these [blood] stains [ ] retained for future possible analysis.”

October 1, 1999:

  • The prosecution files another disclosure. This time, the state miraculously manages to find the results of Mr. S’s first polygraph report, which was “omitted in the original disclosure.” How convenient that single page happened to get “omitted” the first time it was disclosed. The prosecution also discloses, inter alia, the fact that the ME determined that “the state of the victim’s body at the time of autopsy was consistent with the date of her disappearance.”
  • The prosecution files a motion seeking admission of Hae’s diary at trial, and discloses selected excerpts (but not a full copy) of the diary to the defense for the first time.

October 8, 1999:

  • The prosecution discloses, for the first time, that it intends to call a representative from AT&T as an “expert witness,” although the state not does not disclose that his testimony will have anything to do with location data.
  • The prosecution also discloses that, despite its earlier prediction that DNA testing would take 6-8 weeks, a “preliminary” DNA test had been performed, excluding both Adnan and Jay from the blood samples found on the t-shirt in Hae’s car.

October 9, 1999:

  • The prosecution discloses a one page “summary” of Waranowitz’s oral report. By tossing out almost all of Waranowitz’s recorded results (except for the two irrelevant map pages introduced at Exhibits 44 and 45), the prosecution is able to withhold all but useless tidbits of Waranowitz’s findings from the defense. What the defense is given is meaningless without any accompanying explanation. Moreover, as discussed in my previous post, the oral summary is both inaccurate and misleading.

October 11, 1999:

We are representing Adnan Syed in the above referenced matter. Mr. Abraham Waranowitz, an AT&T Wireless employee, will be testifying at these proceeding. In his initial statement to Mr. Urick, Assistant State’s Attorney for Baltimore City, Mr. Waranowitz mentions a number of cell sites. We are requesting any maps covering the cell sites discussed in his statement, any coverage maps which you have describing the different areas, and any information used by Mr. Waranowitz to distinguish the particular cell sites mentioned.

Note that at this point, the prosecution has not disclosed any information to the defense concerning the locations of the various towers. For that matter, the prosecution has not even disclosed its theory of the case, which involves Hae’s burial taking place at 7:09 and 7:16 pm.

October 12, 1999:

  • On the day before Adnan’s scheduled trial date of October 13th, the defense moves for a continuance on the basis of the prosecution’s late disclosure of Hae’s diary, which the defense did not have an opportunity to review in full until October 6th. The defense also notes as support for its motion that,

Additionally, the continuing non-disclosure of Jay Wilds’ statements, even now that the State has participated in a “plea” by Mr. Wilds, notwithstanding its continued assertions that Mr. Wilds was not and would not be charged mandates a continuance. On September 13, 1999, Assistant State’s Attorney Kevin Urick unexpectedly disclosed that a State’s witness, Jay Wilds, had entered into a plea agreement, which called for Mr. Wilds to enter a plea of guilty as an accessory after the fact to this murder, a circumstance which had previously had been denied in pleadings and in the record by the prosecution. The plea agreement was numbered with Case #9981305801. No criminal information or indictment with that case number exists in the Circuit Court for Baltimore City (or in the District Court). The State disclosed nothing further as to Jay Wilds. Through its own investigation, notwithstanding the intentional misdirection of the State, the defense discovered the existence of Case #29925001 in the Circuit Court for Baltimore City and the fact that there was a plea entered with Mr. Urick present as the Assistant State’s Attorney, by the same Jay Wilds, to accessory after the fact to this murder of Hae Lee, which plea occurred on September 7th- before Judge McCurdy. In that proceeding, a peculiar procedure was utilized, in which there were no facts asserted to support the plea. Indeed, the prosecution asserted on the record that these facts, whatever they may be, will be supplied at some unspecified later date by Mr. Urick. Those facts may arguably also contain exculpatory material.


  • The defense further argues that it is entitled to a continuance due to the prosecution’s late disclosure of the DNA evidence:

The defense was not aware until the State’s September 24th disclosure that DNA evidence would be at issue in this trial. The State has now disclosed “preliminary” results, a term with which neither counsel nor the serology and DNA forensic experts consulted by the defense, are familiar. Defense counsel has been advised by her experts that there are no “preliminary” DNA testing procedures. They have further advised that the only “exclusionary” testing would be serology testing and that such testing or analysis needs to be reviewed thoroughly by experts to be substantiate any claimed legitimacy of “exclusion.”


  • Additionally, in a separate filing, the defense makes a last ditch attempt to subpoena an AT&T representative, for appearance at trial the following day, in order to obtain information about the nature of Waranowitz’s testing, and to understand what exactly he had done.

October 13, 1999:

  • The prosecution files a brief in opposition to the defense’s motion for a continuance, urging the court to proceed with Adnan’s trial as soon as is feasibly possible, arguing that

there is no evidence that has not been available to the defense since at least August 2, 1999. The defense had a completely adequate time to request to view that evidence and conduct any tests it chose. And the defense has been fully apprised as to the State’s actions concerning that evidence. The defense cannot credibly claim at this time that it is being taken by surprise or that it is not adequately prepared for trial.

Judge Quarles is currently in trial. That matter is expected to conclude sometime Thursday, October 14, 1999. The State respectfully requests this Honorable Court to deny Defendant’s Motion for a Continuance, and to order the above caption matter held in Judge Quarles, part 27, to begin trial immediately upon  conclusion of the matter before him.

The mendacity of Urick’s contention that “there is no evidence that has not been available to the defense since at least August 2, 1999” is startling in its scope. The following is an extremely incomplete list of crucial pieces of evidence that the prosecution had not disclosed at all as of October 13, 1999: (1) the list of tower locations; (2) any maps depicting any type of cell coverage or range; (3) the nature or method of the expert’s testing;  (4) the witness statements claiming that the murder took place at Best Buy; (5) the witness statements claiming that the trunk pop occurred at Best Buy; (6) the witness statements claiming that that the burial took place at 7:09 and 7:17 p.m.; (7) the existence and nature of Jenn’s statements to the police; (8) copies of any statements from either Jenn or Jay; and (9) results of non-“preliminary” DNA testing on the bloody shirt.

And yet Urick declares to the court, with a straight face, that “[t]he defense cannot credibly claim at this time that it is being taken by surprise or that it is not adequately prepared for trial.”

October 14, 1999:

  • The court grants a continuance of Adnan’s trial until December 7, 1999.

October 20, 1999:

After expending much time and energy, the defense was able to contact an individual at AT&T Wireless, in Washington, D.C. who identified himself as Mr. Waranowitz’s supervisor. This individual, when asked, would not provide the defense with a valid subpoena address but merely advised that Mr. Waranowitz was not available. However, this individual did indicate that maps, reports, and an outline of Mr. Waranowitz’s testimony were forwarded to your office. Not surprisingly, we have not received them.

The defense requests included, inter alia,

Complete information regarding all phone calls or phones to which Mr. Waranowitz will testify, including but not limited to:

a. the phone numbers called

b. identification of all cell phones involved in either outgoing or incoming calls

c. owner(s) of the phone numbers called

d. the names of individuals believed to have answered or made calls if different from the registered owner of the number

e. the numbers and names of individuals believed to have made incoming calls

f. the exact locations which were “triggered” by relevant cell phone calls, the specific cell phone numbers “triggering” these locations, the times of these calls.

g. the location of the relevant cell phones at issue, including the location of where phone calls were made or received.

h. the details of Mr. Waranowitz’s oral statement, including to whom it was made and under what circumstances

i. complete definitions of terms in Mr. Waranowitz’s statement as reported in your disclosure, including the terms “triggers”, “edges”, “cell sites”, “signal strengths”, “fluctuations” and “mound”.

j. Any and all information which your office or any other law enforcement agency transmitted, directed, suggested or imparted by any means to Mr. Waranowitz in order to obtain his “expert” opinion, or which he reviewed or was made aware of in the course of arriving at his “expert” opinion.

October 28, 1999:

2) Mr. Waranowitz performed a test  of the ATT Wireless System in Baltimore at our request. He orally reported the results of that test to us and we have provided a summary o; them to the defense in our previous disclosure. He [h]as written no reports.

3) The other information the Defense requests is either unknown to the state, not within the control of the State, or not discoverable.

I do not believe there is a way that this statement can be parsed in order to be rendered truthful. Exhibits 44 and 45 were, indisputably, in the prosecution’s possession at this time, and yet none had been disclosed to the defense. These documents were requested, were discoverable, and were the written reports of the expert.

December 2, 1999:

  • “[T]en months after the body of Hae Min Lee bad been discovered, Salvatore Bianca, of the Baltimore City Police Department Trace Analysis Unit release[s] a report concerning hairs recovered from the body. This report concluded that, of the hairs with characteristics sufficient for identification, none of them match the defendant.”

Upon receipt of this report, the defense immediately contacts the prosecution and requests clarification about whether these two hairs matched anyone other than the defendant. The prosecution does not respond.

December 7, 1999:

Note that even the maps sent over to the defense were rendered essentially useless before being disclosed. Compare below a copy of Exhibit 45, as sent to the defense in the expert’s fax, and a copy of Exhibit 45, as introduced by the prosecution at trial:

Exhibit 45, as sent in the expert's fax on the day before trial

Exhibit 45, as sent in the expert’s fax on the day before trial

Exhibit 45, as entered at trial

Exhibit 45, as entered at trial

Additionally, it should also be noted that the tower addresses sent by the expert is inaccurate, as it lists a location for tower L653 that is different from that of what was given at trial.

December 8 – 15, 1999:

  • Defendant’s first trial takes place.
  • On the day that Jay testifies, the prosecution provides the defense with copies of Jay’s first and second interviews. No notes concerning Jay’s statements in his interview on April 13, 1999 are disclosed.

December 30, 1999:

  • Two weeks after the defendant’s first trial, the prosecution discloses the fact that “in addition to the hairs not matching the defendant, two of the hairs recovered from the body of Hae Min Lee did not match Hae Min Lee’s hairs. 12. The State failed to disclose this crucial piece of forensic evidence that strongly suggests the presence of an individual other than the defendant in physical proximity to the victim prior to her death.”

January 7, 2000:

  • The defense files a motion for a Brady hearing, alleging that the prosecution had withheld copious amounts of exculpatory evidence. In particular, the defense argues that the prosecution’s refusal to hand over Jay’s inconsistent and bizarre witness statements was a violation of Brady’s requirements.

The defense was absolutely right. There is no possible argument that the prosecution could have advanced in good faith to claim that Jay’s statements, with all their problems and impossible claims, were not exculpatory evidence.

January 14, 2000:

  • The court denies the defense’s Brady claim, concluding simply that since Jay’s statements had been disclosed during the first trial, the defense had the statements available for use at the second trial, and therefore Brady was satisfied. The court expresses no concern over the fact that the prosecution attempted to commit a Brady violation by wrongfully withholding Jay’s statements. The court’s opinion states that:

Defendant argued that after Wilds’ first statement, there must have been some evidence or statement produced that led the police to re-question Jay Wilds, ultimately leading Wilds to provide inconsistent statements in his second statement. The defense requested that the State produce such evidence, if any.

At the January 14, 2000, hearing, this Court questioned the State regarding any notes in their possession that led the police to seek Wilds’ second statement. The State proffered that it had provided all items that could arguably be used to impeach under Stricker or that were exculpatory under Brady. Since this case is a re-trial much of the material requested had already been provided by way of discovery, Jencks or as part of evidence the State had a duty to disclose under Brady. Further, the State even agreed to turn over a statement of Juwon [ ], a nonwitness that the State does not intend to call at trial. Therefore, this Court is satisfied that the defendant is in possession of any and all materials required under Brady and Stricker. No additional hearing is required and the Court is satisfied that all considerations have been met to afford the defendant the inquiry he requested on this issue.

January 18, 2000:

The prosecution’s failure to previously disclose Adnan’s February 26th statement is inexplicable and egregious. On September 10th, the trial court issued an opinion in which it ordered that “within five days of the date of this Order, the State shall provide to the Defendant all disclosures required by Maryland Rule 4-263(a) and (b)(1) and (2).” Rule 4-263(b)(2) requires disclosure of all “statements of the defendant.” Moreover, on November 9, 1999, in response to further questioning from the defense, the prosecution filed an amended disclosure in which it declared, “All required discovery concerning statements made by or interviews conducted with the defendant ha[ve] been made.”

And yet, somehow, on January 18, 2000, on the eve of Adnan’s second trial date, the prosecution discloses a statement made by the defendant. I see no conclusion that can be drawn from this pattern of behavior other than that the prosecution’s handling of its discovery obligation was a complete farce, and that its deliberate strategy of withholding evidence was a violation of due process.


154 thoughts on “Serial: The Prosecution’s Bad Faith Withholding of Crucial Evidence Before Adnan’s Trials

  1. Susan, The link for Jenn’s and Adnan’s police statements from February 26, 1999 gives a 404 error. Otherwise, brilliant work as always. Thank you.

  2. Incredible. In Canada, the Crown (state) is required to disclose all relevant information – inculpatory or exculpatory – to the accused, prior to plea and certainly well before a trial date is set. This flows from a unanimous Supreme Court of Canada decision, R. v. Stinchcombe (1991), in which the Court said, “the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.” If disclosure is not provided, trial dates are not set; if this causes unreasonable delay in getting to trial, the accused can bring a motion to have his or her charges stayed. So the Crown/police are motivated to provide disclosure quickly (although it still does take quite a bit of time). We also have preliminary inquiries in most serious cases if the defence wants it – a sort of mini-trial where the Crown presents its evidence and a judge decides whether there’s sufficient evidence for the case to go to trial. So the defence gets a good look at all the evidence in advance of the trial without having to present any defence evidence, or even cross-examine if they don’t want to.

    No wonder CG was so quick to seek a mistrial, and sounded so baffled by so much of the evidence. This was an ambush. And the time between the first trial and the second wasn’t really very long to respond to the information, given the tangled mess of statements by Jenn and Jay, the very confusing and misleading cell phone expert evidence, etc.

    • “the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.”

      This is fantastic! Have the courts seen a big difference since this was implemented?

      Yes, I think the states has something similar in philosophy but the culture seems to have moved so far from it–lots of silly wasteful game playing. It does seem like they need to write something like this into law.

    • In the US, what is the penalty for failing to comply with Brady disclosure? I bet if prosecutors could be held in contempt of court (and sometimes were) for hiding or destroying exculpatory evidence the incidence of Brady violations would go way down. Maybe the conviction rate of innocent defendants would also decline?

      • I’d love to see some more discussion on this issue (Brady) in general and the Judge’s overall conduct – I’m not sure too many lawyers may wish to go there. However, I feel the judge made some very poor decisions during the course of this case.

    • They did eventually test the shirt, and confirmed it was consistent with (or could not be excluded from) Hae’s DNA. The report itself is not overly detailed, hard to know exactly what they found, but it’s probably Hae’s (maybe a relative’s).

    • The stain on the shirt was overwhelmingly likely to from Hae, based on the DNA testing. They had no way of testing when the blood got on the shirt, and they did not even attempt to figure out what kind of fluid it was, though the medical examiner assumed it was pulmonary edema, though she arrived at this conclusion by only looking at a photograph of the shirt.

  3. It just gets worse and worse. How can this have happened? I truly don’t understand and am appalled. Is there any chance Urick could be disbarred for lying?

    • Not just disbarred, Urick should be prosecuted. Surely this goes beyond unethical behaviour? Urick is a criminal in my opinion.

      • Couldn’t agree more, but sadly I don’t think his behavior is at all out of the ordinary for a prosecutor hell bent on winning at any cost.

      • Prosecutors are protected by absolute immunity. Sure the MD bar organization can disbar him, but that is infinitesimally small possibility, even for the most egregious of cases (and this, sadly, isn’t).

        • Not infinitesimally small (Mike Nifong got disbarred after the Duke lacrosse case), and slightly higher since it’s so high-profile. But yes, he will probably continue with his life unimpeded by his misconduct.

  4. Bravo! This is an amazingly precise analysis, and I don’t pretend be able to follow all of it, but at the risk as asking a dumb question, who is the ‘2nd witness’ mentioned in #11 on the list of what the defense attorney was not told in your May 17, 1999 entry?

    • Yes, that’s Jenn. The state’s early disclosures refer to a primary witness and a secondary witness in gender neutral terms, but from what we know now, it’s obviously Jay and Jenn.

      The prosecution would’ve known the primary witness was Jay early on (because during the six-hour interrogation of Adnan, the cops told him that Jay had “told them everything”), but they had no idea about Jenn’s role.

      This is from the defense counsel’s notes on the prosecution’s witness list, dated September 29, 1999 — just two weeks before the trial date:

      The defense has no idea that Jenn Pusateri is even a relevant witness.

  5. Bravo! This is an amazingly precise analysis, and I don’t pretend be able to follow all of it, but at the risk as asking a dumb question, who is the ‘2nd witness’ mentioned in #11 on the list of what the defense attorney was not told in your May 17, 1999 entry?

  6. This is a bit off topic, but I really think that Mr. S. might be an important key to cracking this case. The consensus seems to be that he knew of the body’s location through a means other than that which he had claimed. This makes me wonder if he witnessed the original burial, perhaps without being noticed, and was trying to protect himself. Has he been re-interviewed in recent months?

    • I always felt that too. I just think it’s extremely unlikely he happened to have stumbled upon her while searching for a place to pee. I think that he saw something or heard something about a dead body and went to go check it out (which always makes me think of “Stand By Me”). Mr. S worked a school, right? Does anyone know which one? Any chance that he overheard people talk about it?

  7. I am literally sick to my stomach with anger over this. I fully realize the kind of human Urick is, but how did the COURT allow this madness to go on for so long? Seems the system in Baltimore is just rotten to the core. A pox on all their houses.

  8. Phenomenal work, Susan. I am astounded at the depth of Urick’s misbehavior, and that the judge allowed it to stand. The detective work on this case was sloppy, but one could reasonably believe that they were acting in good faith. There is no way, however, to believe that the prosecution was acting in good faith. Urick stinks to high heaven.

    • The problem is you can’t really separate the cop and the prosecution. They don’t really exist without each other.

      I was just playing around with Findlaw when I came upon another case… eeriely similar to Adnan’s case. Another murder, no forensic evidence other than circumstantial… just months before Adnan’s case.

      The main testimony was an inmate Sean Williams claimed to have heard that the appellant, Tony Williams (no relations) confess to him while both were in custody that appellant killed his ex fiancee for insurance money. Appellant was convicted on all counts and sentenced to life + 20. Appellant then filed two appeals to Court of Special Appeals, was denied twice, then when appealing the 2nd denial, finally got the COSA to remand for a new trial.

      Why? Nobody told appellant (and his counsel) that S. Williams was an confidential informant of the BCPD for at least TEN YEARS, has a CI number and all that, had had previously assisted Detective Darryl Massey, William Ritz, and others on various cases. In fact, S. Williams had his charges (of stealing a police car) dropped altogether plus received other considerations for his cooperation.

      In previous denials of the appellant COSA basically ruled that there’s no way the prosecutor for appellant’s case could have know every single affiliation that his witness could have been under. Upon this 3rd review they apparently agreed that this “technically” is a violation of the Brady rule.

      Those who keep up with the Adnan case would have recognized the name Massey as the one who received the two anon calls that pointed the finger at Adnan and Ritz, along with MacGillivray as the lead detectives on the case.

      I think COSA has a slight ‘pro-law-enforcement’ bias, assuming that the LE was doing a thankless job and gave them a bit of slack, but then, I don’t have many data points to work from, and this was merely an impression.

      • Agreed. I’m not saying the detectives weren’t corrupt, just that their investigation could be seen as incompetent rather than corrupt. I don’t see any way Urick’s prosecution could be seen as anything other than corrupt– even if it was just the simple corruption of railroading a defendant because it was the easiest way to close a case.

  9. If you haven’t already, please consider researching the 2003 murder of Baltimore area federal prosecutor Jonathan Luna. The prosecutorial misconduct surrounding both JL’s last court case (he was murdered before it concluded) and Adnan’s own case bear an incredibly striking and chilling resemblance. Both cases deal with prosecutors that evade and stonewall any & all requests for evidence disclosure by the defense. We now know that JL was caught up in actively covering for thoroughly corrupt law enforcement officers and the criminal informants they, in turn, worked with and covered for. I feel sick after reading your post. I pray that somehow, someway all of your hardwork and insight works to get Adnan the second chance he so clearly deserves.

  10. Does this kind of thing really happen in trials? I’m really bothered by the idea that a prosecutor would even *try* to do this, that a judge wouldn’t realize what was going on and stop it, and that the appeal would be pretty well ignored by another judge. This is scary. Aren’t the judges supposed to make sure that the prosecution follows the rules?

    I’m beginning to sympathize with Gutierrez. How could she possibly put on a defense when the prosecutor was pulling these shenanigans? I understand now why she reacted that way regarding the cell phone list (causing the mistrial). Her only hope was to buy some time so she could figure out the state’s argument.

    So am I right that the state never revealed their timeline until after the beginning of the first trial? Without a timeline to go against, how could the defense figure out which alibi Adnan needed? It’s no wonder Gutierrez didn’t talk to Asia McClain. There was no way of knowing that her alibi would be important.

    • “It’s no wonder Gutierrez didn’t talk to Asia McClain. There was no way of knowing that her alibi would be important.”

      Very good point… and frightening because it suggests maybe she wasn’t ineffective (by the constitutional definition).

      This whole system sucks…… the prosecution is required to turn over “exculpatory evidence” – but THEY get to judge whether or not its exculpatory.

      • I’m no lawyer, but it seems to me every person who could reliably place Adnan anywhere other than inside Hae’s car on that date would be important to talk to. Even if their statement implicated him in some way, because if it did you have to expect the prosecution to find that out at some point too.

      • I think EvidenceProf has a blog post which makes it quite clear that the 2.36pm timeline is in play when the prosecutors opens at the first trial.

      • Absolutely wrong. The attorney has a duty to investigate ANY potentially helpful witness. She could certainly conclude AFTER INTERVIEWING HER that Asia would not be helpful. But she had no way of knowing this without interviewing her.

    • When did Adnan ask about a plea deal? I don’t think it was before the first trail began. I thought it was after he’d been in jail for a while, and had a chance to realize how dire things were for him.

        • His explanation from the podcast was that other people being held with him kept asking him what his plea deal was. Before that he did not realise that plea deals were routinely offered.

          He also said that he always recommends that people take the deal – innocent or guilty.

          • But that’s ridiculous. Can you name one innocent person who agreed to spend 20years in prison for murder without knowing whether the prosecution had a strong case or not?

          • I’m not up on case law (maybe somebody else is?) but I read a blog (can’t find it now as it was some time ago) where a defense lawyer was explaining how his client was adamant she were innocent, the prosecutor was offering a plea deal but because the trial hadn’t started, the prosecutor refused to reveal any evidence against the client. The defense advised his client to take the deal because it was so good compared to what a sentence if found guilty might be.

            This is not the blog I was reading but it seems to confirm that position


            “The prosecutor can make and change plea offers without specifying her evidence and without giving reasons for her choices or providing a response to the defense counsel’s arguments.”

            Most plea offers are done before trial so it doesn’t seem unusual for people to have to make a decision based on what the actual offer is compared to possible sentence given before they are aware of the actual evidence against them.

          • Here’s that blog (it was actually an article ) that I read a few weeks ago


            “I recently represented a teenager accused of assaulting a police officer. My client was badly injured, and the officer was not — a possible sign that in this incident, as in many others, the police had done the beating and not the other way around.

            The plea offer was not bad: in exchange for a guilty plea, the prosecution would drop the felony to a misdemeanor, and my client would spend only a week in jail. The incident was captured on video, which, if it showed what my client said it showed, could have exonerated him, but the prosecutor was not obligated to hand over the footage until much later in the case. This would likely take several months, months which my client would have to spend at Rikers. I asked the prosecutor if she would tell me some of what was on the video, so that I could present my client with a fuller view of his chances at trial.

            The prosecutor paused and said, “No, I don’t want to do that.” My client took the plea.”

          • He wouldn’t have had to agree to take the plea deal but it might’ve have given he and his lawyer an idea about his confident the prosecution was in their case.
            Regardless, The problem isn’t whether or not he would have accepted a plea deal. The problem is that he requested that his lawyer look into one and she did not and didn’t tell him that she had not. The latter is also what she did (or didn’t do) with Asias alibi.

    • As a public defender, this is easily explained – the FIRST question an accused is asked is “what is your offer?”. Guilty or innocent, the answer to this question is key… it starts the cost benefit analysis of your plan going forward.

      Adnan’s fellow inmates kept asking him, “what’s your offer?”… Adnan asked CG to check….. she never did so.

  11. Tiny nitpick, but according to the paragraph you presented of information that was available to the defense prior to the request for discovery, they did know Hae had been strangled:

    “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.”

    • Susan’s point is that they didn’t disclose the means of death — how Hae was killed. This sentence is ambiguous: it doesn’t assert that the cause of death was strangulation (much less manual strangulation); it just says that Hae had been strangled.

      Now, it’s a minor point. But I assume (perhaps incorrectly?) that there’s a set of formal conventions for these things, and explicitly including “cause of death” would seem to be one of them.

  12. Susan,
    Is there any way to access what information was presented to the Grand Jury in April? Christina’s files contained notes from Bilal’s testimony (posted on Rabia’s website). Are there any other notes about other testimony? Could the prosecution present Jay & Jenn’s interviews without disclosing their identities to the Grand Jury? Do we know if either of them testified at the Grand Jury? Just curious how after the indictment, the defense still does not know the identity of the key witness.

  13. Susan,
    Did Mr. ‘S’ live anywhere near Grandma’s house? Is it possible he was somehow associated with Jay’s “family”? Did he live close enough that he might witness, or be aware of, certain activities?
    Do we know what questions he was asked on the 1st and 2nd polygraph?

  14. Wonderful work Susan as per usual.

    One minor correction: Under the January 18th, 2000 entry I believe it should say the state or the prosecution, not the defense.

  15. One excuse people will make is that this doesn’t really matter, since the first trial was a mistrial, and therefore CG had plenty of time to review the evidence, call her own experts, etc. The problem with that is that CG apparently thought they were headed towards acquittal when the first trial ended, according to her polling of the jurors. So flying by the seat of her pants, not using any of her own experts, not really understanding the state’s case didn’t seem to matter too much.

    We all have a tendency to make the same mistakes when we do something a second time, unless the first time ended very badly (and even then we often stubbornly make the same mistakes again). Couple that with her steadily progressing illness, and the clear evidence that she wasn’t following even the most basic ethical rules in many of her other cases, and this shameful act of withholding evidence from the first trial pretty much guaranteed that Adnan was screwed.

    If CG had thought she was getting hammered in the first trial, and was still fully competent, then the mistrial would have been a godsend. It would have given her a chance to regroup, and do things right. Instead, it was a perfect storm of prosecutorial misconduct, lying star witness, oversold cell phone data, and ineffective counsel.

  16. I’m not a lawyer, so I have to ask — how common are these kinds of discovery shenanigans?

    Is this typical, unusual, or shockingly unusual? Or does it depend on the culture of the prosecutor’s office and the court?

    • First, I’m not a lawyer. Secondly, I would imagine they’re as common as football teams saying a dropped pass was complete or a complete pass was dropped. The judge is supposed to act as referee but it’s the defense attorney’s job to ensure the Prosecution doesn’t run wild on their client and CG failed to do so.

      • So it’s the defense attorney’s job to make sure the law it enforced? What about when a defense attorney doesn’t do a timely filing for an appeal, etc.? Doesn’t the judge deny it on the simple technicality that it wasn’t timely?

        By your logic, the defense must always play by the rules, but the prosecution gets to do whatever they can get away with.

    • Having practiced until recently as a defense attorney in NYC, I would say this pattern is unremarkable. No disclosure until the last possible moment or until ordered to do so by a judge, poor training on Brady which leads to confusion and ‘mistakes’, win at all cost mentality (established through an office culture that rewards convictions) leading prosecutors always to err on the side of less disclosure. I do believe that other jurisdictions are better. Some reform has resulted from publicity surrounding false convictions.

  17. I really enjoy reading your analysis. Thank you! My question is how common are these tactics? Reading this, I am appalled, but I also have no idea of what the norm is. Is it typical for the prosecution to miss the first deadline, possibly “forget” to include some of the evidence at the first disclosure, etc? I’m assuming this goes far beyond what goes on in most trials, but I’d just like to know where the bar is set. I’m assuming some of this back and forth always happens? If so, at what point in the timeline you presented, did the prosecution’s actions stop pushing the line and jump right over.

  18. Type in Line 1: Should that second ‘defense’ be ‘prosecution’?

    Great work otherwise. Leaves me wanting to hear a voice-disguised quote from not-her-real-name Cathy saying. “Kevin lies. Everyone knows Kevin lies.”

    July 1, 1999:
    ◾11:53 a.m.: The defense files a motion to compel production from the defense, noting that, “The Defendant does not even have the autopsy report establishing the time, place and cause of death. Indeed, the State has directed the Office of the Medical Examiner not to furnish the autopsy to the defense.”

  19. This might not really be that relevant, but is there any way to know who’s hairs were found on Hae’s body? Can Adnan’s team ask for them to be tested?

    • It’ll be interesting to see what, if any, new evidence comes up from Deirdre’s Innocence Project investigation. Any new info on that?

    • You cannot say whose hairs they are unless they match a sample in the DNA database that you’re testing against. You can only say whose hairs they AREN’T, based on the samples you collected. You don’t have samples from all potential killers.

      • In other words: If they don’t match anyone Hae knew or could have known, that gives you precisely nothing.

        And even if they match Adnan or someone Hae knew – depending on where exactly the hairs were found, of course – that still gives you little. Say if Jay’s hairs are found on exposed areas of her body, he would suddenly “remember” that he helped move the body.

        However, if hairs found on areas of her body not normally exposed happen to match a known offender, that gives you something. That’s what Innocence Project is working on, if I understand correctly.

  20. I have a question on the call from the Best Buy pay phone. This came up in the trial as a critical part of the timeline. No phone records were ever presented by the prosecution that showed that a call was made from any pay phone at Best Buy to Adnan’s cell phone. I have to assume that the detectives made every possible effort to obtain that record. There are two options:
    1) there was no working pay phone at Best Buy
    2) there was a pay phone, but there was no record of any call made to Adnan’s phone
    If the prosecution knew that there was no pay phone or call, but presented that as a fact, could that be considered misconduct?
    Why did Adnan’s defense attorney not gather that same information and present it in court as a strong rebuttal? Is that another case of incompetence or worse by CG?

    • It boggles the mind that no one pulled the phone records from the Best Buy pay phone to confirm that someone made a call at 2:36 pm. Unless, of course, there wasn’t a payphone…

      • Also don’t forget that Jay is adamant he got the call around 340, not 236. (the ONE time point in his story that has remained rock solid from the very beginning).

    • I have to assume that the detectives made every possible effort to obtain that record.

      Well, you’d assume that because it’s reasonable, but that’s not what happened here.

      The investigators made no attempt to subpoena records from Best Buy until April 13th — nearly two months after Jenn first told them that’s where the murder occurred.

      • So they tried to subpoena phone records (eventually…) from Best Buy, but there is no documentation of them actually getting said records?

  21. I cannot get over the prosecution’s actions in delaying disclosure, providing partial disclosure, while awaiting a ruling not advising judge when underlying facts (Jay’s indictment) change. It seems so fundamentally unethical.

    As lawyers most of us are in part motivated by an interest in serving justice within the rule of law.
    The more I read about prosecutions in the USA, the more I am convinced there’s a fundamental problem with the way these criminal cases are politicised and managed according to political imperatives rather than the ethical boundaries everyone assumes prosecutors will follow.

    Susan, do you have any view about whether this timeline for the prosecution’s disclosure is reflective of normal procedures? I’ve certainly heard from a number of defence lawyers (Deirdre as well as one of the contributors to Criminal Writers on Serial podcast) suggest this sort of sharp practice is not unusual. If so, why don’t the courts do nothing to curb it? It seems fairly outrageous to me.

    • “As lawyers most of us are part motivated by an interest in serving justice within the rule of law”

      Exactly. I have no problem with a vigorous Prosecution, provided that the prosecutor thinks they have the right person. The State has a duty to pursue the guilty, not just secure convictions to make themselves look good. Prosecutors being elected is a bad thing.

    • “I cannot get over the prosecution’s actions in delaying disclosure, providing partial disclosure…”

      Think about it from Urick’s perspective… to this day he says Jay’s shifting story was merely “collateral”, it meant nothing. In his twisted mind he has no ethical obligation to disclose collateral, irrelevant, and meaningless information.

      That’s why the system is so fucked up…. the prosecutor gets to decide what is “exculpatory”.

  22. If Jay was with Adnan when they buried Hae, did the police ask Jay where the body was? In order for Jay to get a plea deal, he can not lie. How come a passer by found the body?

    • Mr. S found the body before they talked to Jay (without a body, it could have been a simple missing persons case). Jay didn’t just “come forward.” He had little choice. The police suspected Adnan, looked at his cell record, noticed a few calls to Jenn at the time Hae disappeared, questioned Jenn first, who denied knowing anything. The next day, after talking to Jay (who she knew had been calling her that day, that he borrowed Adnan’s phone and in any case she didn’t really know Adnan anyway) she showed up at the station with a lawyer and a statement leading them to Jay. So they questioned Jay, who said Adnan killed Hae.

    • Like you I wondered if the police asked Jay about the location of the body. Wouldn’t the police want to be sure that he could back up what he was asserting? If he knew where the car was abandoned then if I were the investigators I’d like to see if he could corroborate what I already knew from Mr S, ie the burial site.

  23. Unbelievable! Incredibly detailed work as usual. I don’t know how you have time to do this.

    Your posts along with Rabia’s, EvidenceProf’s and the Serial podcast itself have made me realise (a non lawyer – normal member of the public!) how little I know about the legal system in my own country (the UK) and hoping that it surely can’t be as bad as the US system seems to be. Vowing to put this right, I have spent the last few mornings at my local Crown Court watching a murder trial (coincidentally of a young Chinese nurse called Rui Li whose body was found in the boot of a car – beyond that there are no real parallels). So far it has been really enlightening and reassuring. I can only describe the process that I have seen as “Gentlemanly” even though there are women on both the defence and prosecution team. It seems very polite, very proper, very organised and extremely slow!!! But fascinating. At one point the Public Gallery was cleared (only about four of us) so that private discussions could be held and the judge thanked us all for attending, a nice touch. I think this is because so few people take any interest at all in the legal process until it effects them personally.

    Thanks for opening my eyes to this vitally important part of our so called “civilisation”.

  24. Every additional blog you post makes me wonder, how the hell can Adnan’s conviction stand at this point? I just listened to your interview on the True Murder podcast and you said it’s a long shot that his appeal will overturn his conviction. Our justice system is truly f*d up that if that’s the case.

  25. Susan – you have comprehensively covered the state’s discovery shinanigans regarding the AT&T and forensive evidence. I think I have another example for you. Whilst checking over the testimony of Dr Rodriguez, the anthropologist, I came across this (p247, line 1) “After you disinterred this body and you made your notations, sir, were you asked to produce a report?” “No ma’am”. In fact, ASA (Assistant State Attorney?) Wash interviewed Dr Rodriguez and made notes of the interview. Later, on 31 July 1999, Kathleen Murphy prepared a summary of ASA Wash’s notes of the interview. The notes are sparse and confusing. It seems to me that this was another method used to avoid having any police witness statement or a written report which the prosecution would have been obliged to reveal to the Defence. It’s shocking and disgusting. Was most of the expert evidence produced in verbal format like this?

    What is particularly odd is the absence, when Dr Rodriguez testified, of what potentially were significant identifying characteristics of the burial and burial site mentioned in the notes – the rocks and “green plant underneath”. I makes me wonder why Urick didn’t ask him about this and other things. It’s such a pity Guitierrez didn’t pick up on that. Also strange are the conflictions in the summary prepared by Kathleen Murphy – “Area had been dug out” but “couldn’t tell if tool used”. I wish we had ASA Wash’s notes and Dr Rodriguez’s notations taken after the body of Has was recovered.

    • “What is particularly odd is the absence, when Dr Rodriguez testified, of what potentially were significant identifying characteristics of the burial and burial site mentioned in the notes – the rocks and “green plant underneath”.

      Wow, that is very interesting. Some folks on reddit recently have noted that she was found on her right side, but that the lividity marks on her body were on her front (as if she was face down, not on her side). The lividity on her front was found in her extremities, but was most pronounced on her head and torso.

      Some have theorized that this means that her body was either 1. ) Stored lying face down for a period of at least 6-8 hours before burial; or 2.) She was buried face down and then repositioned after the lividity had set in.

      Because one of the men who exhumed her body testified that he found liquid in the soil in front of her mouth that is consistent with how the body releases fluids after death, I was thinking that option #2 was not very likely. (Please note, I don’t know if the release of fluid is a continuous process or if it happens during a specific time after death). However, if there was an absence of the kind of plant that would grow under the body during the burial time…that makes me reconsider.

    • That’s a great point. We don’t have a comprehensive report of the crime scene, because the investigators apparently valued protecting facts from disclosure to defense over preserving an accurate record.

  26. Susan — as ever, this is breathtakingly good and very well expressed. I hope you have the kind of career where you get to influence things top down one day.

    I apologise for asking you and others a similar question to one I have asked before but each new post makes it more baffling to me. Why didn’t they charge Jay?

    I am not saying he IS guilty – we can’t know at the moment – but I am really really struggling to understand why they (a) stopped investigating Jay and (b) went through all this distortion, mendacity, mess and risky effort to pin it on Adnan.

    Even in real time, if you have Jay and are listening to what he is saying/lying about, you have to consider him major suspect. All right, you then switch for a to Adnan – of course – but then – as you move through the case/evidence – you surely surely start to think “wait – back to Jay”.

    It just seems so hard (legally) to make the case against Adnam. Especially not knowing what might turn up by way of defence/alibi and not knowing CG was going to be quite so poor. And they clearly know this – are scared stiff of any challenge – hence their behaviour. They know it is crock of crap.

    Is it simply “momentum”? Better chance of a conviction so let’s go for it “whatever”? We’re all too busy?

    Sure, you look as close as possible ar Adnan but surely surely surely you don’t stop investigating Jay? And surely surely surely as soon as you realise the paucity/difficulty of the case against Adnam, you go back to the man who is leaking details and information from every utterance however mendacious?

    I just don’t understand why you would opt for the ‘nothing works and he can’t tell us anything but we kinda think he did it’ charging option over the ‘he knows tonnes about the murder, car, burial, locations etc and he’s busy telling it to us in all kinds of ways AND he is already admitting to major involvement’ charging option?

    It makes no sense from their point of view, never mind ours…

    • I think the primary reason for not charging Jay was that, as soon as they charged him with anything, he would have got a lawyer for free. He would no longer be the state’s witness and under Urick’s direct control. He would have had an independent counsel and there was at least a risk that the state would then lose its key witness. If they had charged Jay, they risked losing both him and Adnan.

      Jay was actually only charged after Urick had obtained the services of a lawyer Urick chose. As soon as Jay accepted that lawyer, he was charged. He was literally taken from one room, after he agreed to use Urick’s recommended lawyer, into another room and charged immediately he entered that room! This kept Urick much more in control of things.

      As well as the official plea agreement, which guaranteed Jay a maximum of a 2 year sentence if Urick, at the end of the trial, was satisfied with his testimony and 5 years if he wasn’t. There was also a ‘verbal’ side deal made between Urick, Jay and Jay’s lawyer. It was never written down. We don’t know everything that it covered but it at least allowed Jay to walk away from the official plea agreement at any time without prejudice. This was the opposite of what the plea agreement said he could do! All of this was revealed in Guitierrez’s cross examination of Jay in the first trial.

      I strongly suspect, over and above what was revealed in the court room about the unwritten side plea, that Jay was also promised extra special help with leniency at the sentencing stage if he helped to secure the conviction of Adnan. This would have been the incentive for Jay to go along with the official agreement and to, effectively, stay under the control of Urick. He had the greatest of incentives to get his story ‘right’, be as persuasive as possible and help nail the case against Adnan. As long as he was cooperating like this, the police were not going to investigate him further – they didn’t even search his house where he got the shovels/tools to bury Hae! Why? Because they didn’t want to lose their witness.

    • If they’d started investigating Jay, I suspect he’d have gotten a lawyer who’d have told him to stop talking. Could Jay’s previous statements have been thrown out because he was talking without council? That would have blew the case against Jay AND Adnan. Or could the police still have used Jay’s first statements against Adnan? Jay could always testify against what he told the police at trial.

  27. I couldn’t even bring myself to read this whole article I was so sick to my stomach. I was a felony prosecutor in FL in one if the largest offices. My home state gets a lot of grief when it comes to criminal cases. But we’ve had ‘open’ discovery for decades. That means all the Defense has to do is file a discovery request and we give them EVERYTHING. Period. The only info I ever held back were my own ‘run sheets’ that had my work product and if it was a child sex case, a CPS report (which it’s existence was disclosed and they could move to have it ordered to be turned over). The more I learn about this prosecutor, the more confused I am as to how he still has a license. The ‘plea deal’ with Jay, hooking Jay up with an attorney who is willing to do it pro bono, and encouraging Don to lie and berating him – twice- for failing to do so. I now live in TX, where the state passed a law last session requiring open discovery. Of course, it was a bill named for Micheal Morton who was wrongly imprisoned for 25 years for his wife’s murder of which he was innocent. Why do these prosecutors focus on winning over justice??? Sick.

    • Because they are incentivized to do so. People respond to incentives, just as Jay became Urick’s dog to save his own neck. Sadly many prosecutors are merely incentivized to get a conviction once an indictment is handed down. Kudos if you were one who truly wanted to see justice served by not putting innocent people in prison, and oh by the way, letting the guilty ones go free in the process.

      • I think it has tondo with State law. If you have to provide everything, there’s no incentive. I’m normally a States’ Rights person, but these travesties are so wide spread, I think it should be handled nationally. Forget Brady – we shouldn’t need it. I believe our jury system is the best system out there, but they have to be given the information.

      • Oh, and I had a mentor in law school who was a former Federal prosecutor who always reminded me that prosecutors are the first line of defense to uphold the Constitution. Whenever I taught law students trial advocacy, I emphasized that as well.

        • All prosecutors should be as ethical as your mentor and yourself! Until they are, they only way to prevent outlandishly unethical behavior is to prosecute it (irony noted) or establish rules that don’t incentivize it.

    • I’ve just looked up Michael Morton’s case. What a travesty. Do you think there might be a chance that Urick could be similarly charged? I hope so. He’s a downright disgrace to the profession.

      • Unfortunately, I doubt it because the prosecutor in that case was found to have violated Brady. That was the basis for a lot of the action against him. The Maryland courts don’t seem to think this was a Brady violation, though I don’t understand how not.

    • This is exactly what I was hoping for: another prosecutor weighing in. Are all court cases like this? Are things being pulled out of context? Absolutely no offense, Susan, but you’re giving me one data set. It tells me a lot more when another prosecutor agrees with you.

      • Brian, I can only tell you what offices I’m familiar with are like. I just know FL law doesn’t really allow for these discovery violations. But, that doesn’t prevent tricky plea arraignments or coaxing a witness. The atmosphere in my office was nothing like that. No one ever quizzed me about my trial stats – they were just supportive. I’ve heard a lot of TX offices do emphasize trial stats. But this late discovery makes it really difficult to adequately defend someone. I was really critical of Adnon’s attorney until I read this post about MD discovery rules. Presenting a trial is much more difficult than they make it look on tv. The more info, the more talented you have to be to make organized clarity of it all. You have to make it easy for the jury (not dumbed down, but like I said, organized). At the end of the day, I would say from my experience, this is not typical. I hope I’m right.

        • Thank you for lending some perspective. That’s very helpful! It’s hard for a lay-person to understand what might legitimately happen in a trial, and where the prosecution is crossing the line. It’s helpful to hear that Ms Simpson (and Rabia) isn’t the only one to say something’s fishy with the prosecution.

          Maybe you could help with another question. Was Jay adequately represented? Sure, he didn’t end up going to jail. But he *did* have to plead guilty to felony accessory to murder. Would a defense attorney not hand-picked by the prosecutor have tried to suppress his previous statements? Would they have told Jay not to talk? This would have destroyed the state’s case against Adnan.

          • It’s so hard to say. The circumstances are so confusing, I still do not understand what happened with Jay and any plea. I do know that whatever was going on should’ve been fully disclosed by the state and seized upon by the defense. The ‘hook up’ with the private attorney is so bizarre it smacks of trying to protect the star witness. Jay got a really good deal on what may have turned into a conspiracy or worse. So, I’m not sure what else a defense attorney would’ve done. The way I understand it, Jay was not Mirandized but I doubt he met the criteria (being questioned while in custody). So it would be hard to throw out his statements. My understanding is he went to the police, so he wouldn’t have had a right to an attorney until he was arrested/charged. It’s not even clear to me what triggered his right to an attorney.

  28. Susan, in light of all the new evidence, is there any way to approach the court of appeals (or some power in Maryland) and say: it’s blindingly obvious that the jury got this one wrong, we have mountains of reasonable doubt there, Adnan’s due process was clearly violated, and the conviction must be thrown out/new trial in order?

    Why pursue this narrow avenue of ineffective assistance of counsel, if we can demonstrate that most reasonable people would see that the original verdict was unfound?

    I guess another question is: why is it so difficult to rectify a wrong conviction in our legal system?

    Not a lawyer here, so I would love all you brilliant legal minds to help me understand this….

    • Because once a person is convicted, the burden is on them to overturn the court’s decision. You cannot just throw out court decisions like that. It would be utter chaos. An appeals process was followed in the wake of the conviction and sentencing; unfortunately, the process led nowhere because it was not nearly as vigorous as what Susan is doing 16 years hence.

  29. Pingback: Forget Everything You Know | Split the Moon

  30. Hey Susan just listened to your interview on the True Murder podcast, it was a great recap. I’ve always thought for the most part that Adnan was involved in some way even though his trial was a shit show. But one thing you said on the podcast pretty much sealed it for me. It was when you quoted part of Jays testimony. I’m well aware of how much lying he has done but one thing he said in particular is really interesting. When he said something along the lines of “Adnan told me he was worried that his DNA might be under Hae’s fingernails.” For some reason it didn’t stick until you said it. But I can’t think of a scenario where Jay would ever mention DNA if he didn’t know Adnan did it. I think there are really only 3 general scenarios here; (1) Adnan did it
    (2) Jay did it and is pinning it on Adnan
    (3) Jay is covering for a 3rd party and is pinning it on Adnan
    IMO if it is 2 or 3 no way does Jay EVER bring up DNA. That would be the last thing he would talk about. Saying something along those lines is essentially telling the cops to test it. Curious to see what you think. Thanks for doing all this, it’s been a great read.

    • And yet the cops never tested it.

      My suspicion is the cops fed that line to Jay. It’s the only way I can see them deciding it wasn’t worth following up on after all. The only other option is that they disbelieved Jay about whose DNA they might find there, and didn’t want to have that confirmed.

      • Susan,
        One thing I worry about. How secure is the DNA evidence, or any evidence, that has been collected in this case? Given the manipulation and tampering that has gone on, is it possible that evidence may have been deliberately destroyed or tampered with? Who had access to it in the past, and who can access it now? Does the prosecutor have unquestioned and unguarded access?
        I can’t help but feel paranoid, considering the shameful conduct by so many people in authority.

      • That is weird, are there any down sides to not testing DNA in a case like this? If it comes back not in favor of the party who tested does it really look that bad?

        Another comment that really stands out for me is when Adnan called Jay “pathetic” on his way to the stand. That just sounds like something you say when you are disappointed or feel betrayed. If you are being wrongly accused “pathetic” is just a really weird thing to call someone especially when you are a well spoken smart kid like Adnan.

        Thanks for the quick response.

        • I just want to say I have to disagree with you on the “pathetic” comment by Adnan. I can easily imagine using that word if I were in his position. Also, he didn’t have a lot of time to articulate the ‘ideal’ comment (whatever you think that might be) in the brief moment that it took Jay to pass by.
          Regardless, Jay IS pathetic, and he is also likely a murderer.

        • Actually it’s the Judge who says that Adnan said something that indicated he [Jay] was pathetic. We have no idea what Adnan actually said.

          • Ah ok. But ‘pathetic’ to me indicates Adnan had some expectations of Jay who is clearly not fulfilling them/betraying him. If I was completely innocent of everything related to someones death I wouldn’t call the accuser pathetic. I say something more along the lines of “dude why the fuck are you doing this to me!” I mean think of someone walking up to you now and accusing you of something you would never do, and didn’t do. Its just a weird thing to say, if he said it. As with everything in this case, who knows how accurate the info is.

          • Yeah – he could have said ‘you lying c*** for all we know and the judge felt it better to ‘translate’ that.

        • Is there a downside to testing the DNA? From the States point of view you could says a) the monetary cost is a downside, why bother if you’re sure someone is guilty even though it would make the case more airtight. b) If you are not so charitable it might produce evidence that shows your perp is likely not guilty – so why take the risk.

          From the Defense teams point of view – they don’t have to turn over evidence to the prosecutor if it implies guilt so no downside, unless they too are cutting corners and trying to save money (although I did read that neither Adnan or any of his defense lawyers (he’s had several) even knew there was DNA evidence to test)

          From Adnan’s point of view – if he’s innocent then there’s no downside to testing unless there’s something he’s not telling us like a fight with Hae shortly before she disappeared. It might produce evidence that he is innocent. If he’s guilty and is 100% sure she didn’t damage him in the struggle – then no downside to testing as he knows it will show nothing. If he’s guilty and he knows he was scratched then hell no, he won’t want that tested!

        • “That just sounds like something you say when you are disappointed or feel betrayed.”

          I think having a buddy tell cops that you committed murder when you didn’t would leave a person feeling disappointed and betrayed.

      • Why would Jay’s (or anyone else for that matter) opinion on whose DNA it might be matter at all when it can be tested? Isn’t having someones DNA better than a 19 year old pot head who changes his story every chance he gets? Why would they be afraid of the results, seems like it would make every ones job easier or at the very least point them in the right direction. Sorry for all the ?’s, just trying to understand how this system works. Thanks again for all your time and attention on this.

        • There can be problems with DNA evidence. The case of a UK prisoner called Brian Parsons, convicted of murder, is a case in point. One of the many, many failings in his murder conviction was the forensic DNA evidence. News footage had caught the forensic pathologist gathering evidence and accidentally cross contaminating evidence by putting his hand in one evidence bag and then picking up another piece of evidence putting that in a bag and then going back to the other bag and picking up the initial evidence again before sealing the bags. Accidents happen. That was another awful case full of impossible time frames, faulty expert evidence, likely mistaken identity of another person called Brian Parsons etc etc. You can look his case up. Like Adnan’s case, it was complicated and confusing.

      • Susan, do you know why the innocence project has not put in a lodgement to try and get the evidence retested? What is the holdup? If I was adnan and if I was innocent I would be taking every action possible.

    • Scenario 3 works if Jay is being foced to cover from the 3rd party out of threats on his life and is attempting to help Adnan who he knows is innocent. If the cops test the DNA and it belongs to someone else (the 3rd party he is protecting), Jay still does not snitch and the right person is caught. In his Intercept interview Jay said something to the effect that he considered suicide due to the pain and guilt he felt for his part in the crime and for the way others now viewed him. That could very well be true. I cannot know what was in his head. But when I read that, I thought that level of distress doesn’t fit with helping to bury a body. Especially not in Jay’s world. It fits better with the guilf over condemning an innocent person to life in prison to save yourself. He knows Adnan is innocent and he can’t do anything about it.

      • That seems pretty unlikely, IMO he is most likely trying to keep other people out of the story to protect them while still turning in the guilty party. I’m starting to think that may have been what he was talking to the cops about in the unrecorded session(‘s?). Maybe he said I can give you the guy who killed her but I have to do it without bringing other people in who could be charged as accomplices. Because they were blackmailed or whatever. These other parties could of been so entwined in the story that it made it really difficult to leave them out and still make sense.

        Also I don’t really know what Jay’s “world” is though, if he just deals pot and is apparently someone who loves animals (someone on Serial mentioned it) than yeah, helping bury a body would definitely be hard to cope with. I don’t know if he is used to violence like this first hand.

        • Yes, Jay is actually a really swell guy who can’t cope with violence. Unless it’s just trivial things like wife beating and such…
          Disorderly conduct and resisting arrest (1999)
          Second degree assault (2006)
          Domestic violence.(2008 and 2009)
          Second degree assault of a police officer, resisting arrest, and failure to obey (2009)

          So yeah, there’s all that (plus the drug dealing, the criminal family connections, and burying a murdered teenage girl). But poor Jay is really just misunderstood.

          • Yeah like I said, I literally don’t know about Jays world. Never looked at his record. For some reason you interpreted that as me saying he’s a swell guy. Thanks for the rap sheet. If it’s not too much trouble try harder at not being a dick in your next post.

          • Matt, sorry but I am frustrated that some people still think Jay is, or might be, a victim. No you didn’t say he was a swell guy, but you did say that, in your opinion, he was just tying to protect others, while doing the right thing by turning in the guilty party. I think that is close to saying he’s a good guy. But sorry about the tone of my post.
            If you’ve been following all of the developments, especially Susan’s detailed analysis of the evidence, I don’t understand how anyone could think Jay wasn’t involved, and not just as an accessory after the fact. It also seems plausible that someone in his family circle was involved. Things seem to be unfolding quickly now, so hopefully we will find out the truth, or something close to it.

          • Matt…go on the reddit serial thread and look for “grandma’s house”. Jay’s world was brimming with criminals and family, sometimes one and the same. There are two places that can be called “grandma’s house”, and one of them is listed as the home address in many criminal records during this time period.

          • Matt
            To get a better understanding of Jay and the world he was in, look up the serial thread on reddit. Search for “Grandma’s House”. To borrow a summary from what I believe to be a Susan post there:

            The user /u/ViewFromLL2 wrote:
            “Here is what we know, but in sanitized terms:
            (1) the address given for Jay on Serial’s site is an address he has previously used around the time of Hae’s death, but it is not clear which adults lived at that house or what Jay’s connection to it was;
            (2) there are at least two other addresses in W Baltimore associated with Jay around the time of Hae’s, with similar levels of uncertainty about Jay’s connection;
            (3) Lots of Jay’s family was living at “Grandmother’s House” at around the time of Hae’s death;
            (4) drug activity with connections to people living at “Grandmother’s House” involved something other than weed, and involved what appears to be distribution at what was at least a somewhat significant level.”

            Other reddit users have also noted that Grandmother posted bail for many serious criminals in the years surrounding this crime.


        • The problem with Jay giving up the right guy to the cops but coming up with a story that avoids implicating anyone except him and Adnan is that the State had one – pick me up call at 2.36pm, back to track, picked up after track, bummed around for a while, buried Hae at 7.00pm. There’s huge problems with that timeline (not least that Hae seems stubbornly to still be alive!) but it fits the phone evidence and implicates no one except Adnan and Jay.

          Jay won’t commit to that story though. He is adamant (until the recent Intercept Interview) that he is with Jenn until at least 3.30pm. His story and the phone records don’t really come together until he’s picked up Adnan after track. The prosecution says that doesn’t matter because Hae is still alive then – but it does matter. Jay is shown the phone records, he remembers things alot better but still only manages to match them for the second half of the day.

          If it was a cops and Jay working together for a straight forward fit up (the right man for the wrong reasons) then there is no reason why Jay’s story wouldn’t perfectly match the States – it doesn’t, so there is something else going on. Something Jay wants to hide which is contrary to what the State want him to do.

          • Anna, to be clear, I think Jay is a scumbag trying to cover for other scummy friends and save his own ass. He is also a moron. I think you are getting hung up on the word ‘protect’ which might not of been the best choice on my part. And I also of course think he was involved, I’ve never said he wasn’t or even entertained the idea. My opinion is Jay’s deal seems to be; give up the mastermind (for lack of a better term) and we’ll go easy on you and keep others out.

          • Matt,
            I agree with all of that. I had always thought Jay was “the one”, but it is obviously much more complicated. I haven’t ruled out the possibility that Jay did it, then called in family contacts for help. Now I’m thinking it is more likely that someone in that circle was responsible, with Jay being involved, but covering for the “mastermind”.

            Perhaps Jay did hurt or injure Hae, then went to the “family” for help, and they made the decision to finish the job? But it seems unlikely that Hae came into contact with the family that day, without Jay making it happen for whatever reason.

            By the way, I have read that Jenn had a less than pristine background and was familiar with the family. She is reported to have been present during some of their busts for illegal activity. I am trying to find a link to verify that, but if it’s true, it adds another worm to the can.

  31. Hi, Not related to this post but I am not on Reddit or twitter. I wondered if the suspiciously acting B/M reported by the witness may have been Mr S looking for the body he heard about? I know it’s just speculation… but it’s one the speculators on Reddit haven’t suggested.

      • There’s a report in Rabia’s recent post wherein a black male (B/M) witnessed someone acting suspiciously in Leakin Park on (I think) February 11, 1999, right after Hae’s body was found. He thought it might be pertinent to the case. The detectives investigating decided that it was not relevant.

  32. Susan – Just listened to the True Murder Podcast and you were so thorough with every detail. The discussion of Adnan’s counsel, Christina Gutierrez , prompted me to think of Dana Chivvis’ comment regarding if Adnan is innocent he is the “unluckiest guy in the world ” referring to the chain of events on January 13th. After that, paying thousands and thousands to an attorney who can’t defend his case (who was previously known as a “pit bull” in Criminal Defense) , whose comment gets a mistrial, is found to be a corrupt attorney and gets disbarred ? I would agree with Dana — luck is not with Adnan. ( I do know CG had diabetes , MS and passed away in 2004 of a heart attack…)

    • Dana’s point, though, was that there was too much there for it to be just bad luck. She was suggesting that under all this horseshit there’s just got to be a pony. I think she’s wrong. Pretty sure that if you looked this hard at every single wrongful conviction case, you’d find a lot of things that look like too many instances of bad luck all coming together.

      • I agree Kate, does Dana phone up every lottery win and express disbelief at their win – because the odds of actually winning are so small? No, because so many people enter the lottery that some are bound to get lucky. So many people are tried that if everyone involved in their prosecution does the minimum required or is just out for a win….then some people are bound to get unlucky.

      • I have looked at many wrongful conviction cases and this case doesn’t resemble any of them. Here we have unlucky coincidences coming from all directions.
        – his ex gets killed shortly after she moved on to another man
        – he lents his car and phone to the one who later accuses him and who is definitely involved
        – his phone somehow accidentally dials Nisha at the worst possible time
        – less than an hour after the police called, his phone pings L689B and an hour later L653A that covers the location of her car while he is at home or at the mosque or doesn’t remember
        – he happed to ask her for a ride after school, exactly the time she goes missing and later lied about it
        – Jenn..

        • But other people also look suspicious but no one seriously suspects them of murdering Hae. I’m wondering whether, if you look hard enough at anyone, you can find some circumstantial evidence that makes them look guilty of any random crime.

          Particularly if you ignore any other evidence. So the Nisha call for example could have been checked by the cops by pulling her records but they didn’t bother.

          Jay was shown the phone records and it helped him remember things alot better.

          The Leakin Park pings have a covering memo from AT&T saying incoming calls are not useable for positioning purposes – the cops (and the prosecution) ignore that. (The prosecution go one step further and misrepresent how voice mail is accessed despite AT&T saying that it represents a voice mail being left and not accessed)

          The post mortem exam shows that burial time of 7.00pm is almost certainly
          impossible – everyone ignored that.

          The post mortem exam cast makes Jay’s story of Hae was dead in the trunk of her car all afternoon before being buried straight away next to impossible. Everyone ignored that.

          Asia, not contacted by CG, Found by PI and then contacts Urick of all people – pretty bad luck.

          The appeals court not recognising that to the students, the library is on campus.

          So yes, I would say Adnan has had some incredible bad luck and some incredibly shoddy investigation by the cops who had no interest in looking for any evidence that may have disproved their Adnan did it theory. Add to that clusterfuck – a seriously debilitated defense attorney and a prosecutor who bent the rules as far as they would bend.

          A perfect storm and one I’d bet a large percentage of people could get caught in if they were put in that position.

          • Well stated. To see this all lined up in a row clearly drives home the atrocities this case suffered.

        • My answers would be similar to the previous poster:

          “– his ex gets killed shortly after she moved on to another man”: ..but there is no solid evidence he wished her ill or wanted to kill her (let alone planned the killing).
          “– he lends his car and phone to the one who later accuses him and who is definitely involved” … and the reason Jay accuses Adnan of murder is precisely because he had his car and cell phone all day. It was normal for Adnan to lend his car to Jay. I’d go one step further and suggest they were probably dealing drugs together, which is what Adnan has been hiding all this time.
          “– his phone somehow accidentally dials Nisha at the worst possible time”. …but we know it’s very easy for a phone to inadvertently dial the first programmed number if all buttons are pressed and held at the same time. And we know the real Nisha call happened weeks later.
          “– less than an hour after the police called, his phone pings L689B and an hour later L653A that covers the location of her car while he is at home or at the mosque or doesn’t remember” …. incoming calls are not reliable for location – And even for outgoing calls the phone could have been south of Leakin Park, or Jay could have had the phone while Adnan was at the mosque.
          “– he happened to ask her for a ride after school, exactly the time she goes missing and later lied about it” … We do not know if this really happened.

          Bottom line, there are mountains of reasonable doubt. No sane jury should have convicted him based on Jay’s testimony and misrepresentation of cell phone records.

  33. Pingback: Undisclosed Podcast - The State vs. Adnan Syed.

  34. Hi Susan,

    Thank you so much for all of the work you, Colin Miller, and Rabia Chaudry have done for Adnan’s case and in creating Undisclosed.

    I don’t know if you’re still reading these comments, but if you are, I have a question about the State’s disclosure of the autopsy report: Did the defense ever receive a full copy of the report (you mentioned they received a summary of the ME’s opinion in October confirming that the state of Hae’s body was consistent with a January 13th date of death), and if so, when did they receive it?

    I ask this because I know you talked about the issue of lividity in the most recent episode of Undisclosed, and Professor Miller recently wrote a blog post about Ms. Gutierrez’s other case in which she failed to properly question the ME about inconsistencies with the livor mortis, and I was wondering if and when she had access to information concerning lividity in Adnan’s case.

    Best of luck going forward with completely destroying the State’s case of Hae’s murder (which you’ve essentially already done, in my opinion)! I have faith that you all will succeed in releasing Adnan from an unjust imprisonment; and I hope that you are additionally able to find out what really happened to Hae that day in 1999 and finally bring her murderer to justice.

  35. Pingback: U2A4 – Synthesis – Maryland v. Justice, the Case for Adnan Syed – Nolan's World

  36. Pingback: Forget Everything You Know - Rabia Chaudry

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