The Docket – February 13, at 1:00 p.m. est, : Just a quick note — Rabia Chaudry and I will be appearing on MSNBC Shift’s the Docket tomorrow, for a one-hour Serial special. You can watch online, it should be a good show! Unfortunately, former prosecutor Kevin Urick had to cancel and will not be joining us – but hey, that just means there will be more time for us to actually discuss the evidence in this case.
On February 16, 1999, less than a week after Hae’s body had been found in Leakin Park, a grand jury had already been convened to investigate whether Adnan should be indicted for her murder. At that point, the only evidence to suggest Adnan had been involved in her murder (or, at least, the only evidence that the prosecution has ever chosen to disclose) consisted of an anonymous phone call that was placed on February 12th, by an “Asian male 18-21 years old,” who “advised investigators [they] should concentrate on the victim’s boyfriend[,] Adna Ansyed.” With this flimsy evidence as a starting point, a grand jury began investigating Adnan, and issued a subpoena for his cellphone records.
When investigators received the location data associated with those phone records, they thought they saw something very important: the 7:09 and 7:16 p.m. calls had originated on tower L689, in Leakin Park. On the strength of these two little numbers, from the print out of a cellphone billing record, the state’s entire case was born. Adnan was in Leakin Park at 7 p.m., burying Hae’s body — or so the story goes — because the cellphone records showed he was in Leakin Park then, and Jay said he was in Leakin Park then. Case closed. From that point onward, the detectives believed that it was settled fact that Hae had been buried in the 7:00 p.m. hour, and all further evidence that they obtained was filtered, shifted, or disregarded, in whatever way was necessary to fit that theory.
And that meant filtering, shifting, and disregarding a lot of evidence. As a result of their fixation upon the 7:09 and 7:16 p.m. phone calls, the investigators and the prosecution overlooked the fact that all the rest of the evidence in the case showed that Hae had not been buried in Leakin Park shortly after 7:00 p.m., but rather had been buried at a much later time — long after the “Leakin Park phone calls,” and long after Adnan and Jay had gone their separate ways that day.
a. The Medical Examiner’s Findings
In claiming that Hae had been buried at 7 p.m., the prosecution either overlooked or ignored the fact that this timeline was contrary to the medical examiner’s findings with respect to livor mortis. As Hae’s body was found to be positioned on its right ride at the burial site in Leakin Park, and as the pattern of lividity found by the medical examiner showed that Hae had been left on her front for an extended period of time after her death, her body was not buried until at least eight hours after her death, and most likely even longer than that.
Hae’s body was positioned on its right side:
When Mr. S led investigators to the burial site in Leakin Park, they found Hae’s body was laid out on its right side, in a shallow depression behind a log, and covered over with dirt and large rocks. The positioning of the body was confirmed by the report of the medical examiner:
The body was found in the woods, buried in a shallow grave with the hair, right foot, left knee, and left hip partially exposed. The body was on her right side. (Autopsy Report.)
In accordance with the prosecution’s MO in this case (and, presumably, many other cases during this time period) there are no written records aside from the autopsy report which documents the position of Hae’s body at the burial site. Although a forensic anthropologist, Dr. William Rodriguez Ill, Ph.D., was present at the crime scene to oversee the disinterment of Hae’s body, he never produced any written reports of his findings or observations. This was part of the state’s litigation strategy, pursuant to which those involved in the investigation refrained from committing their findings to paper whenever possible — because if an investigator’s findings were not preserved in writing, then the prosecution could not be required to produce that writing to the defense.
As a result, everything we know about Dr. Rodriguez’s analysis of the crime scene comes from oral statements that he made in the months after Hae’s body was found. His first statement was made to Prosecutor Kathleen Murphy, on July 31, 1999, and following his statement, Murphy took notes concerning the portions of it that she deemed to be worth writing down. The result was a brief, five-line memorandum, which had the following to say about how Hae had been buried:
Rocks piled on her. Area had been dug out. Dirt over it. Large rocks on body, one on hand. Keep animals from dragging body off. Way body is exposed – animal activity.
Soil samples: typical of wooded area, highly organic. Collected plants, green plant material underneath. Couldn’t tell if tool used.
Notably, the fact the body was positioned on its right side was absent from the prosecutor’s brief memo. However, although Dr. Rodriguez also avoided ever testifying at trial as to how the body had been positioned at the burial site, his testimony did indirectly confirm that Hae had been buried on her side:
Dr. Rodriguez: Well, here we see in this photograph a number of the leaf debris has been brushed away. We can see we’re beginning some excavation to trowel out around the body producing its outline. You can see the leg here bent at the knee (1/28/00 Tr. 164).
If the body had been laid out frontally, in a way that could have been consistent with the livor mortis findings, then photographs would not have been able to depict the leg “bent at the knee” unless the leg had been sticking straight up in the air — a fact which I assume would have been noted, had that been the case.
Additionally, evidence that Hae’s body had been buried on its right side also comes from Jay’s initial statements to the police, and his descriptions of how Hae had been buried. Although Jay’s statements are useless when its comes to figuring out the truth of what happened on January 13, 1999, they are very useful when it comes to figuring out what the investigators knew about the crime, and when they knew it. Based on Jay’s first interview, the investigators knew that Hae had been buried on her right side, because they made sure that Jay specified those facts in his statement:
Detective: She’s face down, what side is she laying on?
Jay: Her right I think.
Detective: Right side?
Jay: Yeah. (Int.1 at 17-18.)
The detective’s obvious coaching of Jay’s statement shows that the detective, at least, knew that the body had been positioned on its right side.
Livor mortis was present only on the anterior surface of the body:
As noted in the autopsy report, livor mortis was fixed on the body’s anterior surface:
Rigor was broken to an equal degree in all extremities. Lividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure. [L]livor mortis was prominently seen on the anterior-upper chest and face . A poorly defined paranasal areas of dark discoloration of the skin was seen extending into the right face which approximately measured 1-1/2″ x 2″. (Autopsy Report.)
I have looked at the autopsy photos, and the Autopsy Report is accurate in how it describes the pattern of livor mortis. The only visible lividity is on the body’s chest and neck, and it is equal in both prominence and coverage area on the right and left sides. There is no observable lividity in the limbs, and there are no observable differences between the right and left limbs. In other words: everything about the autopsy findings is consistent with livor mortis.
Moreover, at trial, Dr. Korell testified that the body was on its front at the time livor mortis became fixed:
CG: [T]he livor you [observed] was frontal?
Dr. Korell: Yes.
. . .
CG: So that, that would tell you that the body was face down when the livor was fixed.
Dr. Korell: Right.
. . .
CG: And that wouldn’t happen if the body post-death were on its side.
Dr. Korell: Correct.
CG: From your observations. . . [Y]ou can only tell us that livor fixed on the front of the body.
Dr. Korell: Correct.
CG: Which would indicate that at the time livor fixed, sometime post-death, that she was laid frontally.
Dr. Korell: Yes.
CG: And that’s all you can tell us.
Dr. Korell: Correct. (2/02/00 Tr. 69-70.)
Why Hae could not have been buried at 7 p.m.:
According to the prosecution, Hae was dead by 2:30 p.m., and buried at around 7:16 p.m. — a little under five hours after her death. However, as is generally accepted by every single person other than Urick who is familiar with this case, Hae was not dead by 2:30. Multiple witnesses saw her at school at 2:30 p.m., and at least two witnesses have stated that they saw her alive at school as late as 2:45 (Summer) or 3 p.m. (Debbie) that day. The earlier plausible time of death is about 3:15 p.m., which means that, if the state’s theory about the Leakin Park cellphone pings is correct, she was buried approximately 4 to 4.5 hours after death.
Why is this significant? Because it means that the only way she could have been buried in the 7:00 p.m. hour is if someone later came back, disinterred the body, rolled it onto its side, and buried it again.
The lividity on Hae’s body was found solely (and prominently) on her anterior, which means that for at least eight hours after her death, and possibly much longer, her body was laid out on its front. Only after the livor mortis had become fixed — at least 8 and possibly as much as 24 hours later — could she have been buried on her side as the investigators found her.
After a period of time, usually not less than eight hours, sometimes a much longer period of time, the pooling of the blood, the lividity will fix in the tissues where it is settled up until about eight hours or so.
If one moves a body, if a body is found face down, and four or five hours after death this individual is found and the body is turned over, placed on the back, then the pooling of blood will change direction and start pooling toward the back. But after a period of eight to twelve hours, the blood is fixed in that location. So that moving the body will not alter the distribution of the lividity.
As this applies specifically to the current case, a forensic medical investigator had the following to say:
According to the forensic medical investigator, if Lee was in the trunk on her side for five hours or more, she would have a good deal of lividity indicating that she was on her side. Because the autopsy report showed that the primary lividity was frontal, she would have needed to be face down. If she was on her side for about five hours after death, she would have less lividity in the front, and they would have been able to say that she was moved from side to frontal exposure. Again, if the change in position was closer to four hours after death, the lividity could be more mixed. Finally, even if it took twelve hours for Lee’s lividity to become fixed, her lividity was all frontal, and this could not have happened in the trunk of a car unless she was somehow in a position that was consistent with solely frontal lividity.
Consequently, the only possible way Hae could have been buried at 7 p.m. is if the following series of events occurred:
- By no later than about 4:30 or 5pm (depending on the timeline), Hae’s body was removed from the Sentra and laid out frontally;
- Two hours later, the body was put back in the Sentra;
- Sometime shortly after 7:16 p.m., Hae was buried in Leakin Park on her front; and
- Someone returned at a later time after lividity had been fixed (which would have occurred anywhere between 11 p.m. on January 13th and 3 p.m. on January 14th, but owing to the cold conditions was more likely later rather than sooner), dug the body up, repositioned it, and then re-buried it again.
As there is no way to reconcile these events with either Jay’s timeline or the prosecution’s timeline (in which Hae’s body was left in the Sentra for 4 to 5 hours after death), the only plausible conclusion is that (a) Hae was not left in the Sentra for an extended period of time after her death; and (b) Hae was not buried at 7:00 p.m. on January 13th.
We do, in fact, have additional evidence that support the burial in Leakin Park taking place only after livor mortis had become fixed. In Jay’s interview with the Intercept, he had the following to say:
NVC: Ok. So then [after the pick-up at Best Buy] you and Adnan parted ways?
Jay: Yes. He left in his car and I was trying to collect myself at my [grandmother’s] house. I was pretty distraught, fucked up, feeling guilty for not saying nothing. I don’t know whether he calls me when he’s on his way back to my house, or if he calls me right outside the house. He calls me and says ‘I’m outside,’ so I come outside to talk to him and followed him to a different car, not his. He said, ‘You’ve gotta help me, or I’m gonna tell the cops about you and the weed and all that shit.’ And then he popped the trunk and I saw Hae’s body. She looked kinda purple, blue, her legs were tucked behind her, she had stockings on, none of her clothes were removed, nothing like that. She didn’t look beat up.
If the body looked “kinda purple,” then what Jay is describing took place several hours after Hae’s death, after lividity had already developed to a significant degree. This is consistent with a burial taking place in the early hours of January 14th, and not at 7 p.m. on January 13th.
b. Evidence from the Burial Site
The medical examiner’s findings are not the only evidence from the burial site that demonstrate the absurdity of the prosecution’s 7:00 p.m. burial theory. As discussed above, Prosecutor Murphy’s notes of Dr. Rodriguez’s description of the burial site provided the following:
Rocks piled on her. Area had been dug out. Dirt over it. Large rocks on body, one on hand.
The “large rocks” used in burying Hae’s body cannot be reconciled with Jay’s descriptions of Hae’s 7 p.m. burial, however, because there are no rocks larger than pebbles in the area immediately around where Hae was buried. The only rocks of substantial size are found in the Dead Run creek bed, which is about 50 feet past the grave site (1/31/00 Tr. 109). Someone who wanted to gather rocks would not just be able to walk back and grab them, however. Dead Run’s banks are steep and uneven, and the creek bed itself is about four feet lower than the bank edge. Getting down to the bank to collect rocks would require an awkward scramble, and then climbing back out again while holding onto large rocks would be even trickier. In the dark, with no moon and no flashlights, it would be a treacherous and messy process; it could not be done either quickly or without getting scratched up and muddy.
Moreover, Jay also says there was snow on the ground when he and Adnan were burying the body. However, the temperatures had reached a high of 57 degrees on the day of the murder — any snow on the ground would have been melting, and melting snow would have resulted in even more mud, and even more treacherous footing, than there otherwise would have been.
After spending half an hour digging a hole in hard ground, and then spending however much longer scrambling up and down the Dead Run banks to gather rocks in the creek and carry them back to the burial site, the mud and dirt on their clothes would have been noticeable. In order to avoid attracting considerable attention after the burial, they would have needed very much to change their clothes before being seen in public again.
c. Traffic Conditions Make a 7 p.m. Burial Time Highly Implausible
The road that runs through Leakin Park, and off of which Hae was buried, is not a highway, but it is no desolate back road, either. North Franklintown Road is a by-pass street with significant traffic, and during the evening rush hour there would have been a steady flow of commuters driving by. A car pulled over on the side of the road for longer than a few brief moments would have been noticed, and brought unwanted attention. More importantly, however, there is no possible way someone pulled over on the side of N. Franklintown Road could have removed a body from a trunk without running a huge risk of being seen by a car passing by. (Moreover, as the burial site is positioned just after a bend in the road, anyone at the pull-over spot would be unable to tell if a car was just about to approach from that direction! Even if there was a break in the traffic, there would be no way to know how long it might last.)
Despite this, the prosecution wanted the jury to believe that Adnan would have pulled his car over to the side of N. Franklintown Road, during the tail-end of the evening rush hour, and then pulled Hae’s body out of the trunk by himself before somehow dragging or carrying it back into the woods — all without being seen by the many cars that would have been driving past at 7pm. This did not happen; it is crazy to think that someone trying to bury a body would have been that reckless, or, if they were that reckless, could have carried out the murder and buried the body without being seen by anyone.
d. The Witness Statements from Jay and Jenn
When the police interviewed Jenn and Jay, on February 27th and 28th respectively, their stories were remarkably consistent with respect to Jay’s alibi during the probable time of Hae’s death, but were irreconcilable with regard to the series of events that took place later that evening, and, in particular, where Jay went after burying Hae’s body and ditching Hae’s car. Jenn told the police that she picked up Jay from Westview Mall at 8 p.m.; Jay, in contrast, told the cops that he went home immediately after the burial and Jenn picked him up from his house.
These are completely different stories, and both cannot be true. Or rather, both cannot be true if you accept the prosecution’s theory of the 7 p.m. burial. Once you strip away the artificial timeline imposed by the investigators, though, both of their versions of events can easily be reconciled: Adnan dropped Jay off at Westview at 8 p.m., and Jay went immediately home after burying Hae. This is because Jenn and Jay’s statements were descriptions of two completely separate events, which had occurred at two very different points in time. Jenn’s story takes place at 8 p.m., when she picks Jay up from Westview Mall, after Jay and Adnan had spent the evening hanging out together. Jay’s story takes place many hours later, after he finishes up with burying the body in Leakin Park in the early morning hours of the 14th, and immediately heading home to change his clothes, due to the dirt he was covered in.
Let’s start with Jenn’s statements. On February 27th, Jenn told police about the day when Adnan’s cellphone had made several calls to her home phone. According to Jenn, she had hung out with Jay in the middle of the afternoon, and that after leaving her place “well after 3:45 p.m.,” he later paged her around 8 p.m., asking her to pick him up from Westview Mall. When she got to the mall, Adnan and Jay pulled up, and Jay hopped out of Adnan’s car and got into hers, at which point Jay launched into the story about how “Adnar killed Hae” [sic].
What Jenn doesn’t say is that Hae had been buried at 7:00 p.m., or that her body had been buried in Leakin Park, or that she had even been buried at all. The detectives — misled by their erroneous fixation on the 7:09 and 7:16 p.m. calls — interpreted Jenn’s statements as a description of how the burial had, indeed, taken place shortly after 7:00 p.m., in accordance with their interpretation of the phone records, but that’s an inference that they drew, not a statement that came from Jenn.
Because according to her, Jay’s story about what he and Adnan had done in the 7:00 p.m. hour had involved travelling to the city to be dropped off at “some broad’s house”:
Detective: When he made reference to going down into the city he said he dropped him off at some house and he had to pick him back up, did he say whose house that he took him to?
Jenn: No, ah he did say to a different broad’s house, he said a different chick’s house, chick’s house.
So according to Jenn, Jay told her that he and Adnan had been visiting “a different chick’s house” in the 7:00 p.m. hour. Jenn’s statement therefore does not corroborate the 7:00 p.m. burial theory, because she is very clear that she has no idea what Adnan and Jay were up to prior to her picking him up at Westview. At trial, Jenn stood by her February 27th statement to the police, and told exactly the same story about what had happened regarding the pick-up in Westview Mall:
Detective: About what time, if you know, did you receive that message from Jay?
Jenn: About eight o’clock . . . he paged me to tell me to come pick him up at Westview Mall parking lot.
. . .
Detective: So at some point then you picked up Mr. Wilds?
Detective: And where was that?
Jenn: In front of Value City at Westview Mall.
Detective: Was anybody with Jay?
Detective: Who was that?
Detective: . . . Did you have any conversation with Adnan at that point?
Jenn: He spoke and said hello.
Detective: Where did you first see Adnan and Jay?
Jenn: In front of Westview Mall in the Value City parking lot.
Detective: In the parking lot. Were they walking?
Jenn: No, they were in the car. They pulled up after I was parked there.
Detective: Who was driving?
. . .
Detective: What happened next?
Jenn: Jay got in the car and we left the parking lot.
Detective: How was Jay behaving at that point in time?
. . .
Jenn: He didn’t act normal, no, not like normal, not yet. (2/15/00 Tr. 190-93.)
Notably, Jenn’s description of Adnan does not fit someone who has just killed his girlfriend in a jealous rage, buried her body, and then flipped through her wallet searching for cash before tossing it in a dumpster. In contrast with Jay’s odd behavior that evening, Jenn said that Adnan had “acted just normal,” during their short encounter at the mall, and that nothing about him or his appearance had stood out to her (2/16/00 Tr. 137). What Jenn is describing is someone casually dropping a friend off before going on his own way for the evening — because that’s exactly what the pick-up at Westview Mall was.
The detectives ignored numerous other indications from Jenn’s statement that should have alerted them to the fact that the burial in Leakin Park had not occurred minutes before Jenn picked Jay up at Westview Mall. For instance, Jenn told the police that she noticed nothing unusual about either Jay or Adnan at the time of this encounter:
Detective: Did you notice anything about his clothing, that ah, there were disheveled, soiled, or anything like that?
Jenn: No, they didn’t look dirty. They didn’t look any different than they normally looked, than they looked before, like when he got to my house at one or one-thirty, they didn’t look any different than then. (Jenn Int. at 15.)
That Adnan and Jay did not look disheveled or soiled is a serious mark against the prosecution’s 7 p.m. burial theory. If Adnan and Jay had — contrary to logic, reason, and medical science — actually buried Hae at 7 p.m. and covered her body with rocks, they would have been noticeably filthy.
Jay’s own statements confirm this. During all three of his recorded police interviews, Jay’s story was remarkably consistent as to one important detail: after burying the body and ditching the car, the first thing he did was to go to his mother’s house.
In Jay’s first statement, his description of how Hae was buried ends with him driving himself home, in Adnan’s car:
Detective: Okay, so he parks the car there, he gets all these articles belonging to Hae Lee, out of the vehicle?
Detective: Then what happened?
Jay: Um I said “fuck this” and drive myself home and on the way home he’s like “stop here, stop behind.”
Detective: He gets in the car with you?
Jay: And I drive myself home and on the way home he’s like “stop here.” We stopped at ah Westview and one of the dumpster’s behind Westview he threw all the stuff in. Um.
Detective: Where did you discard the clothing?
Jay: Um I put mine in the trash at my house, put it out in the trash?
Detective: Why did you do that?
Jay: I didn’t want to be roped up in anything, anyway, anyhow.
Detective: Since this happened back on January the 13th.
Jay: Yes. (Int.1 at 22.)
(Note that this is, in some respects, very similar to his trial testimony. At the second trial, Jay stated that he threw his clothes away because of concerns about the dirt, and when asked “what significance would dirt have had,” Jay stated that, “It would have tied me in. It could have placed me wherever. I didn’t want to have anything to do with it.” This seems to be exactly the same sentiment he was expressing in his first interview.)
In his second statement, Jay began to incorporate details from Jenn’s interview — which would have either been supplied by the investigators or by Jenn herself — but he continued to maintain that Adnan dropped him off at home, and Jenn then picked him up from his house:
Jay: We drive for a couple of dumpster down, he pulls them out of the back seat places them in the dumpster.
Detective: Then what do you do?
Jay: From there um, we leave, we go up Route 40. On the way up Route 40, I think I may have paged my friend Jen, back to, paged her from his phone to my house. Um, I get out of his car, I go in my house, Jenny calls me back, I tell her I need, I need to talk to her, um, its real important. And for her to come and get me. She comes right over, um, I take my clothes from that day, I put them in a plastic bag. Um, I go out to to the car with Jen.
. . .
Detective: Jenn had come over to your house to pick you up?
Jay: Yes, ah- huh.
. . .
Detective: And you got in the car with her.
Detective: And you were gonna dump your clothes?
Detective: And what dumpster did you go too?
Jay: F & M, the one behind the ah, F & M inaudible on Route 40.
Detective: And what did you throw in there?
Jay: All my clothes , it was ah, they were in a giant plastic bag. (Int.2 at 39, 41.)
In Jay’s third interview, he repeated the same story, as shown by the police notes taken during his statement:
Adnan thru [the shovels] in,
Adnan drives out to [Route] 40, then home. (Int.3 at 24.)
At trial, Jay changed his story and claimed he — and not Adnan — threw the shovels in the dumpster, but other than that, he gives the same story as he did in his statements:
Urick: What if anything did you do next?
Jay: I told him to pull over out back of Value City [at Westview Mall]. I took both of my shovels. They were mine but I just chucked them, threw them. What if anything did you do next? I believe I told him to take me around to the front of the mall. I think I might have paged Jenn from there again but I can’t quite remember. I believe he took me home. I may have paged Jenn from the front of the mall but I believe he took me home. I got to my house and I was in my house for maybe five minutes. I instantaneously changed all my clothes and put them all in a bag. (2/4/00 Tr. 157.)
Jay also confirmed that the reason he “instantaneously” changed all of his clothes after the burial was because of the dirt on him:
CG: Well Mr. Wilds, you’ve told before that you threw away your clothes because you were concerned what they might show, right?
Jay: Yes. ma’am.
CG: The dirt, right?
Jay: Yes, ma’am. (2/11/00 Tr. 89.)
Consistency is a scarce commodity when it comes to Jay’s statements; the few times he is consistent are therefore worth paying attention too. Again and again, Jay has said exactly the same thing — that after the burial, he immediately went home, changed out of his clothes, and put them all in a bag. I don’t say this often, but when it comes to his statements about what happened after finishing up with the burial and ditching Hae’s car, well, I believe Jay. He tells a logical and consistent story that is not contradicted by any physical evidence or reliable witnesses, and the list of Jay Statements for which that can be said is very short indeed. In fact, that may be the only statement on it.
Moreover, Jay’s claim about immediately going home after the burial is wholly consistent with Jenn’s statements — if it is understood that the burial happened late on the night of the 13th or early in the morning on the 14th. Because Jenn also says that she picked Jay up at his house, and then drove him to a dumpster. It is just that she claims this happened on January 14th, not January 13th:
Jenn: Um and at sometime during the 14th, on that day I went to see Jay again, at his house. I picked him up and ah he had his boots with him as well as his inaudible jacket that he had on the night before and he asked me if I would take him to F & M parking lot. I took him to F & M parking lot and we drove around the back until we saw a dumpster, which is actually I think maybe behind the baby store rather than F & M. I don’t, inaudible the parking lot and we parked pretty far to the end of the shopping center and Jay threw his clothes boots in the dumpster. Got back in the car. (Jenn Int. at 23.)
Jenn repeats this story at trial:
CG: What happened when you saw Jay the next day?
Jenn: He asked me about taking him to F & M.
CG: Did he say why?
Jenn: He wanted to go to F & M and he wanted to go I guess back to get rid of the clothes and boots that he had on. (2/15/00 Tr. 98.)
Also significant is what is omitted from Jenn’s stories — which is anything involving Jay changing his clothes after she picked him up from Westview. According to Jenn, after she gets Jay from the mall, Jay goes to visit Stephanie’s, goes to a sorority party at UMBC, and goes to Cathy’s house. If the burial took place at 7:00 p.m., then Jay did all of this while wearing the muddy clothes he wore while burying Hae in Leakin Park!
But if the burial took place in the early morning hours of January 14th, then Jenn’s and Jay’s statements fall into place one another: (1) Jay immediately went home after the burial; (2) Jay immediately took off his clothes, because of the dirt; (3) Jenn picked Jay up at Jay’s house after the burial; and (4) Jay asked Jenn to take him to the F&M dumpster so he could throw away his clothes.
And if all of this evidence disposal was taking place on the 14th, this means that the 8 p.m. pick-up at Westview Mall was nothing more than a mundane end to a mundane evening of hanging out and smoking weed. It was not the culmination of a frantic body burial and car disposal, which is why Jay did not change his clothes after. Similarly, the reason Jenn said that Adnan “seemed just like he normally seems” during this encounter was because Adnan was, in fact, just like he normally was.
e. Wiping Down the “Shovel or Shovels”
As discussed above, there are numerous reasons why Jenn’s February 27th police statement does not support the 7 p.m. burial theory. In contrast, the only portion of Jenn’s statement that provides even the barest support the detective’s claims about a 7 p.m. burial comes form her garbled and confused references to shovel(s) at Westview Mall:
Jenn: Jay said “I don’t know where he took the body um but he used my shovel” or shovels. I don’t know whether it was one or two . He’s like, “Well, I know where the shovel or shovels are,” and I said, “Okay, so what do you want me to do?” He says, “Will you take me to the shovels or shovel,” and I said “Sure. Where are the shovels or shovel,” and he said “they are at the mall parking lot.”
This could be read to imply that the burial had already occurred by the time of the 8 p.m. pick-up — and that’s exactly how the investigators choose to interpret it. The nonsensical nature of this portion of Jenn’s tale shows that something is amiss with what she was saying, however. Why would Jay have needed to pretend to leave Westview Mall, before he could go back and wipe down the shovels? When did Jay and Adnan have an opportunity to throw the shovels away in the Westview dumpsters, if Jenn arrived at the mall before they did? Why does Jenn keep forgetting when the shovel wipe-down happened, and changing the order of events in which it occurred?
The answer is that the pick-up at 8 p.m. and the wiping down of the shovels occurred at two separate times. Jay’s own testimony shows that Jenn took him to the dumpster where the shovels were at the same time that she took him to throw away his clothes at the F&M dumpster:
Jay: My mother kept trying to talk to me. I was real agitated. I just left real quick. I got into Jenn’s car and I told Jenn to drive back around to the shovels. I was getting real panicky like, paranoid. She drives back around to the shovels. I wipe both the shovels down with the sleeve of my coat. I take the coat that I wipe them down with and I put it in the bag. (2/4/00 Tr. 158.)
Jay is clear that Jenn picked him up at his house before taking him to the mall dumpsters to wipe down the shovels. So why, then, does Jenn’s police statement include the confused references to leaving the mall, before immediately turning around to wipe down the shovels? For the same reason that many of Jay’s statements are confused and garbled: the pre-interview. Much has been made of Jay’s pre-interviews — the portions of his police interviews that took place before the tape recorder was turned on — but what has been overlooked is that Jenn also had an unrecorded pre-interview session with the detectives, lasting approximately two hours and 45 minutes:
On 27 February 1999, at approximately 1300 hours, Detectives William F. Ritz and Gregory S. MacGillivary had the occasion to respond to the home of James Fowley, attorney, of the Law Offices of Fowley and Selkey.
Mr. Fowley indicated that he was representing one Jennifer Pusateri who had information concerning the death of Hae Min Lee.
An interview was conducted as to Ms. Pusateri’s knowledge of the homicide currently being investigated.
Subsequently, Ms. Pusateri along with her attorney responded to the Offices of Homicide where a taped interview was conducted.
Note that, at the beginning of Jenn’s recorded interview, the time given by Detective MacGillivary shows that nearly three hours has elapsed since the start of the pre-interview:
Detective: Today’s date is the 27th of February. It’s approximately quarter of four in the afternoon. We’re currently at 601 E. Fayette Street, ah the offices of Homicide, specifically ah the Colonel’s conference room. (Jenn Int. at 1.)
Whatever took place in the 2 hours and 45 minutes between the start of the pre-interview and the start of the recorded interview is, by design, largely unknown. We do know, however, that Jenn was shown at least some, and maybe all, of the call records from Adnan’s phone — and based on her confused statements about the shovels, it seems she was also exposed to the detectives’ erroneous 7 p.m. burial theory.
f. Jay’s Clothing
Jay’s story about changing his clothes immediately after the burial is one of the few stories he ever manages to tell twice (and one of the even fewer stories he manages to tell in at least the majority of his statements). It is also a detail the detectives would have had no motive to encourage Jay to include in his statement, and is not a statement that benefits Jay in any particular way. It should be taken seriously — or at least, if Jay’s story is to have even the tiniest shred of credibility, it should be taken seriously.
Because if Jay cannot be believed when he repeats the same chronology of events in every single statement he has ever given, when he has no reason whatsoever to lie about those events, then nothing of Jay’s story should be believed at all. Jay consistently stated that the clothes he was wearing during the burial — and that, afterwards, he threw into the dumpsters behind F&M — consisted of “tan jeans,” boots, and a “wool plaid coat”:
Detective: Which articles of clothing that you had on that you put in the bag?
Jay: Um, plaid coat, ah, tan jeans, and a pair of boots. (Int.2 at 41.)
Detective: Do you recall what type of clothing you had on?
Jay: Ah um I think I had on a pair of tan jeans, some work boots and a plaid coat, like a wool plaid coat. (Int.1 at 21.)
However, while Jay is uncharacteristically consistent about what he was wearing when he buried Hae in Leakin Park, it does not match the statements from other witnesses. Jenn, for example, stated that Jay had been wearing all black when she picked him up from Westview Mall:
Detective: Do you recall what Jay was wearing?
Jenn: I guess it’s like a black pair of pants . . . they’re khaki-type pants, [ ] but they’re black, and a black button-down shirt, short sleeves, all black I guess. (Jenn Int. at 11.)
Similarly, Cathy told the police that when Jay returned to her apartment later that night with Jenn, at around 10:00 or 10:30 p.m., he was wearing the same clothes that he had been wearing earlier that day, when he came to her place with Adnan:
Detective: When Jay came back [with Jenn] was he wearing . . . the same outfit he had worn when he first appeared in your apartment?
Cathy: I would have noticed if he had changed his clothes, so I am that no, it was the same outfit. (Cathy Int. at 16.)
All of these apparent inconsistencies evaporate, though, if it is understood that the burial took place after — not before — Jay’s visits with Jenn and Cathy on the night of January 13th.
g. Cellphone Records
As a result of the prosecution’s decision to use a limited form of the cellphone data, rather than to use the more comprehensive records that were available to them, whatever evidentiary value the location data might have had was significantly diminished. As I have previously discussed, the call records used by the prosecution were not the Call Detail Records (CDRs) typically used in criminal cases or produced pursuant to subpoenas, but a more limited form of billing record, of uncertain origin. This may be why AT&T prefaced those records with a fax sheet specifying that “[a]ny incoming calls will NOT be considered reliable information for location” — it could be the result of known problem with that particular dataset, or the way in which that type of billing record was recorded and reproduced. We just don’t know, because no one ever looked into it.
The records that AT&T could have produced — and what the prosecution should have had AT&T produce — were the more detailed CDRs providing data such as the numbers for incoming calls, and the cell tower that phone calls started and ended on. These records might also not have been subject to whatever data limitations were present in the records used by the prosecution, and which caused AT&T to include a disclaimer as to incoming call reliability.
But even aside from the question of incoming call reliability, the prosecution should have acquired the detailed CDRs data showing location data for both points: what tower the phone was using when the call started, and what tower the phone was using when the call ended. AT&T no longer has that information, and it is unavailable now, but it is clear that the data existed in 1999 — and was presented in some form to the investigators.
The problem is, the tower data on the detailed CDR records has been redacted in the copy that was handed over to the defense before trial:
Had it been produced in its entirety (rather than produced with half the page cut off), this document would have resembled the Subscriber Activity Report seen here, which was produced by AT&T in a different case. On these records, the ICell column identifies starting tower, and LCell column identifies ending tower; information for only the start or the end of each call (it is unclear which) is all that was provided on the records used by the prosecution.
I have no idea who redacted the tower data, but if AT&T did so, I’m not sure how to explain it — because this document was produced in response to a subpoena requesting AT&T to produce the addresses for “(13) cell site locations.” In other words, at the time this document was requested, the investigators already knew that there were 13 tower sectors that Adnan’s phone had pinged on January 13, 1999, which is something they could not have known without already having the tower names (if not the addresses) in their possession.
AT&T might still have redacted the tower names for unknown reasons, but even so, the investigators should have gone back to request that this detailed form of the location data be produced. Without knowing the starting or ending locations of calls, there is no way to determine whether the phone was stationary or in a moving car at the time of the call. This means that, whether it was through design or ignorance, the cellphone records used by the prosecution were of even more limited relevance than they should have been. Because for all we know, had the data in the ICell and LCell columns not been redacted, it would have shown that Adnan’s phone was connecting through a tower miles away from Leakin Park by the end of the 7:16 p.m. call. Or maybe not. The point is, that data would have been useful, and could even have been exonerating, and we will never know. But the detectives’ entire theory of the 7:00 p.m. burial was based upon the 7:09 and 7:16 p.m. calls, and that theory might have been conclusively refuted by the cell records, had an unredacted copy of the records been available.
h. Jay’s Testimony Concerning the 7:09 and 7:16 p.m. Calls
Jay told the police that after getting Hae’s car from the Park’n’Ride, Adnan told him to go wait for him at McDonald’s, while Adnan took care of some unspecified task. Jay, always obedient to Adnan, obliged his request, and headed back to the McDonald’s near the Best Buy, where he waited for 20 minutes before Adnan finally showed up again in Hae’s car. Jay then followed Adnan as they drove around for 45 minutes, aimlessly exploring west Baltimore. Jay even told the police that he and Adnan made a second Patapsco trip during this time period.
Everything Jay described was a complete lie, however, if Hae was buried at 7 p.m. Why? Because of the 6:59 and 7:00 p.m. calls to Yaser and Jenn respectively. Since the phone calls were only a minute apart, and since only Adnan would call Yaser and only Jay would call Jenn, Jay and Adnan must have been together at the time. This means that, according to Jay’s story, those two calls must have been made either while Adnan and Jay were driving up to the Park’n’Ride (or possibly while stopped at the McDonald’s) — after which Jay and Adnan spent 45 minutes driving around town, in separate cars. As Jay also claims that he had Adnan were busy digging Hae’s grave when the 7:09 and 7:16 calls were received, however; there is no way they could have driven around for 45 minutes after leaving the McDonald’s, and then nine minutes later been busy digging a hole in Leakin Park.
But if the burial took place late that night, Jay could easily be describing something that actually happened, when those involved in the murder drove all over west Baltimore at 2 or 3 a.m., trying to find somewhere to bury Hae’s body.
The phone records prove Jay’s story about the 7:00, 7:09, and 7:16 calls to be false in another respect, as well. At trial, Jay testified that the 7:00 p.m. call had been made after he and Adnan dug a hole, and while he was about a half-mile away from Adnan, parked up on Briarclift road:
KU, referring to the call log: Do you recognize th[is] number?
Jay: Yes . . . That’s [Jenn’s] old pager number.
KU: And please look across and tell us the time of the call?
Jay: Seven o’clock, seven and twenty-one seconds.
KU: And the length of the call?
Jay: Twenty-three seconds.
KU: With the court’s permission, I’m going to write “Pusateri pager” on line twelve. . . . Do you remember that page?
KU: What were you doing?
Jay: I was sitting, waiting for Adnan to come back up the hill when I placed that page. (2/04/99 Tr. 149-150.)
In testifying that he was on Briarclift at the time of the 7:00 p.m. call, Jay either committed perjury, or provided proof that the prosecution’s cellphone evidence was meaningless data that cannot be used to prove anything about the cellphone’s location — because the 7:00 p.m. call originated on L651A, the Woodlawn tower, and according to the expert witness’s test results, it would have been impossible for a call from Briarclift to originate on L651A.
Then again, we don’t even need the cellphone data to show that Jay is lying about this call. If Jay had the phone with him on Briarclift while Adnan was a half mile away at the gravesite, moving Hae’s body into the grave, how did Adnan make the 6:59 p.m. phone call to Yaser?
i. Other Evidence
Jay’s, Jenn’s, and Cathy’s statements and testimonies are littered with details that suggest or are consistent with a burial that occurred much later than 8 p.m. on January 13th. None of these details, on their own, disprove the detectives’ 7 p.m. burial theory. For instance, Jay described, in multiple statements, how he paused to take smoke breaks while burying Hae:
Detective: And during the digging process do you assist him at all?
Jay: No, not at all. I sat there and smoked a cigarette on a log. It’s kind of like I don’t believe what happened. (Int.1 at 18.)
The problem is, according to Cathy, Jay left his smokes at her place:
Detective: When did [Jenn and Jay] come back [to your apartment]?
Cathy: It was no later than 11:00, um I’m thinking like around 10 or 10:30, but I can’t be really sure. It was a while after um, Jay and Adnan had left, but Jay had left his cigarettes and his hat there, so I was assuming that Jay was going to come back for them at some point. (Cathy Int. at 14.)
Sure, maybe Jay happened to have two packages of cigarettes on him that day — or maybe the cigarettes he was smoking were the ones he recovered from Cathy’s house, after returning there with Jenn.
I could go on with these kinds of examples all day, but here are a few more:
- Jay is consistent that the digging tools came from his house (although whether the digging tools are two shovels, or one shovel and one pick, changes depending on the story), but Jay alternates between saying that he picked up the shovels and puts them in the car, and saying that Adnan picked up the shovels and put them in the car. This could suggest different people involved in the shovel pick-up scenario, as Jay as difficulty keeping who did what straight.
- Jay repeatedly mixes up the order in which he and Adnan pick up the shovels and pick up Hae’s car from the Park’n’Ride, suggesting that his memory of the order of these events may have been fabricated.
- In Jay’s first interview he never specifies what time the burial in Leakin Park occurs. Although he gives a rough chronology of events, he avoids stating when events in the park took place.
- Jenn remembers that it was raining when Jay asked her to drive him to the dumpsters to throw away his clothes, which is consistent with the clothes being thrown away on the 14th.
j. The Intercept Interview
Lastly, Jay’s most recent statement, in his December 2014 interview with the Intercept, provides even further support that the burial took place sometime much later than 7 p.m. on January 13th. Prior to Serial, Jay had given six statements about his involvement in Hae’s murder and the subsequent cover up. Four of these statements were in police interviews (February 28th, March 15th, March 18th, and April 13th), and two were in his testimonies at Adnan’s trials. During all of these statements, Jay was faced with significant pressure and direction from the detectives and the prosecution, and his story adapted like a mimic octopus to fit whatever narrative was desired by the authority figure he was dealing with.
Consequently, despite the multitude of Jay statements that already existed, Jay’s interview with the Intercept was the very first time that Jay had ever told his story while free of any external pressures or influences. As a result, Jay’s statements to the Intercept deviated significantly from his earlier testimony — and in many respects appear to have been the most truthful account that he has given yet.
Jay told Natasha Vargas-Cooper that, after leaving Cathy’s place that evening, he “d[idn’t] remember if he dropped me off at my house or if I got a ride from somebody else,” but that he and Adnan then went their separate ways. This part is wholly consistent with Jenn’s story about Westview Mall; after leaving Cathy’s, Adnan dropped Jay off at Westview, where he got a ride with Jenn. Jay also said, in the Intercept interview, that after that he and Adnan went their separate ways, Adnan did not show up again until hours later, when he showed up to ask Jay for help with burying the body:
NVC: Did you go to Leakin Park immediately after agreeing to help?
Jay: No. Adnan left and then returned to my house several hours later, closer to midnight in his own car. He came back with no tools or anything. He asked me if I had shovels, so I went inside my house and got some gardening tools. . . . So, as I’m riding with him to [Leakin] park and it starts raining and I’m thinking to myself as he pulls over—and I’m thinking this is the spot he’s chosen [to bury the body].”
Jay’s new statements fits the available physical evidence in a way none of his previous statements ever did, and is far more coherent besides. First, we know that it was not raining on the afternoon of the 13th, but that it did begin to rain a little after 4am on the morning of the 14th — consistent with the story Jay told the Intercept. Second, a burial at around 4 a.m. is also perfectly consistent with the medical examiner’s findings concerning lividity. And, third, if you’re going to bury a body off of a busy road, 4 a.m. is a pretty good time to do it, especially when an ice storm is on the way in.