As a preface, I want to be very clear: this post is not about Don. Rather, it is about the the State’s investigation of Don, and the failure thereof. Nothing herein is evidence that Don was involved in Hae’s murder, because the fact that an alibi went unverified does not mean that that the alibi was untrue. As a result, while there is no reason to believe Don was not at the Hunt Valley store on January 13, 1999, the flipside is that the police did not have reliable evidence from which they could conclude Don was at the store that day, either.
Don was not involved in Hae’s murder. Although there was evidence that, at the time of the original investigation, should have caused the police to take a special interest in Don — e.g., Debbie’s statements to the police about Hae’s plans, and the note found in Hae’s car — it appears now that the evidence did not actually suggest that Hae was on her way to see Don at the time of her disappearance. Back in 1999, however, the police did think that — and their failure to investigate Don as they should have is probably a big part of the reason why all the uncertainty about the wrestling match never got sorted out at the time of trial.
In investigating Hae’s murder, the police ignored any line of inquiry that did not directly lead towards building a case against Adnan. Their investigation of Don was a perfect example of this; they made the minimum possible effort to have him “ruled out” as a person of interest, and did little or nothing to investigate whether he might have relevant information concerning Hae’s disappearance. (A similar tactic was used with Mr. S. Although Mr. S failed a polygraph when asked if he was trying to withhold information from investigators, he was re-tested a few days later, and “passed” the polygraph once it was reduced to a single question, which was whether he knew the method in which Hae had been killed.)
Don and Adnan should have been of equal interest to investigators. Both had recently been in romantic relationships with Hae, and both should have had their alibis vetted.
Don and Adnan were not treated similarly by investigators, however. While Adnan was the focus of extensive investigation by both the Baltimore County and the Baltimore City Police, the investigation into Don was at best cursory (and, in the case of the Baltimore City Police, nonexistent). Although the police alleged that Don had been excluded as a suspect due to a confirmed alibi, this can only be said to have been “confirmed” under the loosest possible interpretation of that word.
Don’s alibi was that he had been at work on the day of Hae’s murder. Although he usually worked at the LensCrafters in Owings Mills, Don said that on January 13, 1999 he was working at a different store, in Hunt Valley. However, the police did not speak to a single person from the Hunt Valley store, nor did they obtain any employment records that could confirm his alibi. Instead, the police asked a single employee from the Owings Mills Mall location whether Don had worked at Hunt Valley that day, and although she stated that he had, her source for that information may have been Don himself.
Nothing more was done to investigate Don’s alibi until September 1999, when Adnan’s defense attorney filed a subpoena under seal requesting that LensCrafters produce all employment records for Don from the relevant time period. On October 4, 1999, LensCrafters produced records that showed Don had not worked on January 13, 1999.
Thereafter, Prosecutor Kevin Urick had a phone conversation with the LensCrafters legal department. Although the defense’s ex parte subpoena had been filed under seal, he somehow learned of it and obtained his own copies of the documents that LensCrafters had produced to the defense. Two days later, following Urick’s phone conversation with the LensCrafters legal department, LensCrafters suddenly found an “additional time keeping record” that showed Don had, in fact, worked on January 13th. However, in a separate cover letter issued directly to Urick (and which LensCrafters did not include in its production to Gutierrez), LensCrafters went out of its way to notify Urick that the “General Manager on 1/13/99” was “also Donald’s mother” (emphasis in original). Moreover, a review of the newly-discovered timecard shows that there are several oddities that call its authenticity into question.
The Cursory Investigation of Don
On the night that Hae’s family filed a missing persons report, Officer Adcock had a phone conversation with Don at around 1:30 a.m. His report, written at the end of his shift on January 14th, provided the following:
I spoke to victim Lee’s boyfriend [Don]. [Don] advised he does not know the whereabouts of Ms. Lee. [Don] advised that he talked to Ms. Lee last on 1/12/99.
It should be noted that I spoke to [Don] on 1/14/99.
Another Baltimore County officer spoke to Don on January 14th, presumably later in the day, and reported the following:
The victim’s boyfriend [Don] [ ]advised he has not seen the victim since 1/12/99. Harford County sheriff was requested to check the area surrounding [Don’s street] for the victim and or her vehicle. At this time, with negative results.
Don did not mention to either officer that he had been at work that day, nor did he mention that he and Hae had made plans to meet up after Hae’s shift at LensCrafters. The first mention of any alibi for Don came a little over a week later, when Detective O’Shea spoke to him over the phone:
On 01/22/99 the assigned interviewed Don[ ]. Don said the last time he saw Hae Lee was on 01/12/99. Hae was at Donald’s residence in Bel Air. Donald said Hae was in a good mood and she was happy about their new relationship. Hae did mention to Donald that she argued with her mother about breaking curfew and phone privileges. Hae did not indicate to Donald that she was planning to go anywhere.
Hae left Don’s residence at 2230 hours and paged him when she arrived home at 2330 hours. Donald called Hae and they spoke on the phone until approximately 0300 hours. Hae told Donald that she would call him after she left work on 01/13/99. Hae was scheduled to work the 1800-2200 shift. On 01/13/99 Donald went to work at the Hunt Valley LensCrafters store. Donald did not speak with Hae while he was at work. Don worked until approximately 1800 hours. Don arrived home at 1900 hours and he was advised by his father to call the Owings Mills store. Donald called the store and he was told that Hae Lee was missing.
Don has known Hae Lee since 10/98. Hae and Don started to date on 01/01/99. Donald said Hae broke up with Adnan in mid-December of 1998. Adnan came to the store after he broke up with Hae. Donald met Adnan and Donald said Adnan was polite and cordial.
Hae told Donald that she spent the summer of 1997 or 1998 in California with her father. Hae also said she would like to live in California.
O’Shea submitted his report on February 11, 1999, only two days after Hae’s body was found. To judge from the tone of the report, as well as the investigators’ conduct at that time, the police had already dismissed Don as a possible suspect by the time the report was written.
Six days later, on January 28th, O’Shea spoke to Debbie about Hae. She told him the following:
Debbie said she saw Hae at approximately 1500 hours on 01/13/99. Hae was by herself and she was inside the school near the gym. Hae told Debbie that she was going to see Don[ ] at the mall. Debbie did not see Hae leave the school.
Debbie said Hae was excited about her relationship with Don[ ]. Hae would fight with her mother, but it was nothing serious enough to make her leave.
A little over a week after first interviewing Don, O’Shea interviewed “CM,” a manager at the Owings Mills LensCrafters. Although the manner of interview was not specified, it is worth noting that on the day the manager was interviewed, Don was working at the Owings Mill store all day — and thus, if the interview was in person, Don would have been there when O’Shea spoke to CM.
On February 14, 1999, O’Shea submitted the following report of his interview with the manager:
On 2/01/99 [O’Shea] interviewed [CM, a manager at LensCrafters in Owings Mills]. [CM] said Hae Lee was scheduled to work at 1800 hours on 01/13/99. Hae did not show up for work nor did she contact anyone.
[CM] said Don[ ] was working at the Hunt Valley LensCrafters on 01/13/99. [CM] said Don[ ] arrived for work at 0902 hours. He took a lunch break from 1310 to 1342 hours. [He] left work at 1800.
As O’Shea’s reports typically indicate when his interviews occurred in person, his conversation with CM most likely occurred over the phone, not at the LensCrafters store. Don worked at LensCrafters all day on February 1st, and had O’Shea gone to the store in person, Don would presumably have been interviewed at the same time. As a result, the source of CM’s information about Don’s work schedule at the Hunt Valley store was not disclosed in O’Shea’s report. The source may very well have been Don himself, as it does not appear that different stores had access to each other’s employee records (or, if they did have shared access to employee time keeping records, then, as discussed infra, that itself raises additional concerns about the authenticity of those records).
Three days later, O’Shea went to the LensCrafters store and interviewed Don again, this time in person. O’Shea’s report merely noted that Don gave “the same” information he had previously provided:
The assigned met with Don[ ] in person on 02/04/99 at Owings Mills LensCrafters store. The information obtained was the same as provided in this correspondence.
After Don’s first interview, O’Shea was informed by Debbie — who was believed to be the last person known to have seen Hae — that Hae had been on her way to “see Don at the mall” when she left Woodlawn High School. Despite this, O’Shea did not question Don about whether he and Hae had made plans to see each other that day, or even whether Hae knew at which mall he would be working.
In addition to the interviews with O’Shea, a consultant assisting with the missing persons investigation spoke to Don sometime in January and had the following to say about him:
Don: Co-worker and new boyfriend. Contacted both by police and by [consultant]. [Don] appeared mature, articulate but not overly concerned. Although helpful and polite he did not sound in any way emotionally concerned with Hae Lee’s disappearance. He felt she had gone to California to be with her father. But he did state that he hoped she would contact him. He did say that she had a girlfriend whose parents were away on vacation for the week (ending 1/16). He did not know who it was but offered the information “just in case”.
A missing persons report was taken by Officer Adcock at 5:15 PM. Mandy Johnson, Director of the Enehey Group, spoke with Hae Lee’s colleague at LensCrafters, Don[ ]. Hae Lee had recently begun dating [Don], and she seemed very enthusiastic about the their relationship. He stated that they had gone out together the night before her disappearance January 12, 1999. He confirmed that this was the last time he saw her. He said that he called her later to assure she had arrived home safely. During the date, he claims she told him that she’d had an argument with her mother earlier that day and that she had expressed the desire to live with her father in California. When asked how she would accomplish this, [Don] seemed to think she would either drive there or leave her car in the Satellite Parking Facility at BWI Airport and fly by commercial airline to California. He did not appear as enthused about their relationship as Hae Lee’s diary indicates that she was.
The consultant’s conversation with Don was the last time that Don was contacted by anyone from the State, in connection with either the missing person or the murder investigations. Following the discovery of Hae’s body, Don was never contacted by the Baltimore City Police, nor did Ritz or MacGillivary make any attempt to verify Don’s alibi beyond the summary report provided by O’Shea on February 14th. They never obtained his timecards for January 13th, never spoke to anyone who had actually seen Don on that day, and never discovered that Don’s manager at the Hunt Valley store was his mother.
During the murder investigation, Don’s name did get mentioned numerous times, however. All of Hae’s friends told the police that, at least initially, they had believed Hae had run off with her new boyfriend:
Although Don succeeded in convincing Debbie that Hae was not with him, it appears that Don may have been one of the sources of the subsequent rumor that emerged to explain Hae’s whereabouts: that she had gone to California to live with her father. Debbie told the police that she “d[id]n’t know for sure” who started the California rumor, and that it may have been she and Aisha. However, the California rumor may have been passed on to Debbie by “Donnie” during their seven hour phone conversation, as Debbie did not mention anything involving California during her own interview with O’Shea on February 1st. Per the police files, Don was the earliest known source of the California claim: he had told the consultant some time in late January that during his date with Hae on January 12th, she expressed a desire to run off to California. He also stated that he thought she might have flown or driven there. Although Inez stated during a February 1st interview that Hae “wanted to contact her father in California,” Becky told police that Inez had told her and Adnan that “she thought Hae went to California”.
Other than the statements from Becky and Debbie indicating that they initially believed Hae was with Don, Don’s name comes up only two other times in the Baltimore Police Department’s files. The first comes from an undated, unsigned page of notes taken on a sheet of paper with BPD letterhead:
None of Hae girlfriends like
New boyfriend assaulted Debbie.
There is no indication where this information came from, and as a result, I do not consider it to be a credible report. However, it does indicate that the police were being fed information by someone who claimed that Don had “assaulted Debbie,” and yet the police did absolutely nothing to follow up on it.
The final time that Don’s name appears in the police files is in the “Don Note,” which was discovered in Hae’s car on February 28th. The police never questioned Don about the note, despite their belief that it was written on the day of Hae’s murder, and despite the note’s corroboration of Debbie’s statement that Hae was on her way to “see Don at the mall” when she left WHS (ostensibly to deliver this note).
Moreover, although Don testified at trial that the police had questioned him about his plans to see Hae on January 13th, there is no indication in the police file as to what Don’s response may have been. Don testified that he did “not recall” what he had told the police, and as a result, there was no evidence at trial concerning Hae and Don’s plans for that day:
CG: And, sir, you were made aware, were you not, that in fact someone from Woodlawn had told the police that Hae Min Lee had said she was going to hook up with you after she left school?
Don: (No response.)
CG: Were you not told that?
CG: And were you asked about any plans you may have had to be with her then?
Don: Yes, I was asked that.
CG: All right. And you told them you had no plans to see her that day, correct?
Don: I do not recall what I told them.
CG: You don’t recall what you told the police who contacted you about the disappearance of your then girlfriend?
Don: No, ma’am. (2/01/00 Tr. 76.)
The only other pre-trial record of Don’s alibi comes from the defense files. In March 1999, defense investigator Drew Davis visited the Owings Mills LensCrafters in an attempt to verify that Don was there on 1.13. The manager on duty (who was not the same manager that O’Shea had spoken to) turned Davis away and told him she could not give him any information about Don’s alibi:
Private Detective Andrew Davis responded to LensCrafters located in Owings Mills Mall in Owings Mills. PD Davis spoke to manager, [DA]. PD Davis was advised that any information that was obtained from Lens Crafters would have to be obtained through their general manager. PD Davis was also instructed to speak to Detective Joe O’Shea from Baltimore County Police Homicide. No further information could be provided.
. . .
PD Davis was able to speak to a police official who was involved in this investigation. PD Davis was advised by the subject that all alibi’s provided by Don, Hae’s current boyfriend, were confirmed and he had been completely ruled out as a possible suspect. PD Davis was also assured that the police had an “air tight” case against Adnan Syed in this case. The police official was confident that they had in fact arrested the correct person.
The police officer that Davis spoke to (presumably O’Shea) neglected to mention that Don’s alibi had been “confirmed” by a manager at a store where Don had not worked on the day of the murder and that no store records or eye witnesses could confirm that Don had actually been at Hunt Valley that day.
Summary of the Investigation into Don
The investigators’ complete disinterest in Don is baffling. The Harford County sheriff did conduct a search for Hae’s car in Don’s neighborhood on the night of January 13, 1999, but that was the most extensive investigation into Don that was ever performed. In investigating Hae’s disappearance, and later her murder, the police:
- Never spoke to anyone at the Hunt Valley LensCrafters store.
- Never obtained Don’s timecards for January 13, 1999. Although manager at the Owings Mills store informed Detective O’Shea (likely over the phone) that Don had worked at Hunt Valley that day, the source of that information was not identified.
- Never discovered that Don’s mother was the manager of the store where he said he had worked.
- Never questioned Don about Debbie’s statement that Hae was on her way to see him when she disappeared.
- Never questioned Don about the note found in Hae’s car that indicated she had been on her way to see him when she disappeared.
- Never questioned Don about the police notes indicating Hae’s “new boyfriend assaulted Debbie.”
In addition, following the discovery of Hae’s body, the Baltimore City Police (who were handling the murder investigation) spoke neither to Don nor to anyone at either LensCrafters store. The Homicide Unit’s only sources of information about Don were Detective O’Shea’s reports of his interviews with Don and the Owings Mills Mall manager, which were written 2+ weeks after those interviews took place.
The Prosecutor’s Procurement of Don’s Alibi
On September 24, 1999, Gutierrez filed an ex parte motion for issuance of a subpoena to LensCrafters requesting Don’s employment records. By filing the motion ex parte, the existence of the subpoena could not be disclosed to the prosecution, because:
Investigation into the background and whereabouts of Hae Min lee and Don and the credibility of chronicle of the events surrounding January 13th are essential to the defense investigation and is attorney-client protected and privileged work product. The material sought in this request is specifically related to its investigation. More important, the confidentiality of the investigation results should be maintained and can be maintained only if the requested subpoena is issued ex parte.
The subpoena requested that LensCrafters produce:
1. [Don’s] work schedule(s) for the period of his employment with LensCrafters
2. any and all disciplinary records or incidents reports concerning or involving [Don]
3. any and all records of customer complaints concerning or involving [Don]
4. any performance evaluations of Don
The subpoena was not limited to Don’s employment records with the Owings Mills location. In fact, Gutierrez’s motion identified Don as an “employee of the Hunt Valley Lenscrafters store.” All records concerning Don’s employment at LensCrafters should have been produced, but the Hunt Valley location was the only store that the defense identified by name.
The court granted the defense’s request, and the LensCrafters subpoena remained under seal, undisclosed to the prosecution:
Undisclosed to the prosecution in theory, anyway. On October 4, 1999, LensCrafters produced certified copies of Don’s employment records to the defense, including copies of Don’s timecards for the relevant period. On the same date, however, LensCrafters also produced copies of those same documents to Urick. Somehow, Urick discovered that the defense had issued a subpoena to LensCrafters, and responded by filing one of his own.
There is no indication as to how Urick learned of the defense’s subpoena, filed ex parte and under seal. It could easily have been a mistake, with someone accidentally serving papers they should not have served; that happens often enough. What happened next is harder to explain, however.
In the October 4, 1999 production from LensCrafters, only a single timecard was produced for Don for the week of Jan. 9 – Jan. 16th for work done at the Owings Mills Mall store (as indicated by the store number). That timecard showed that Don did not work on either Tuesday, January 12th, or Wednesday, January 13th:
Two days later, on October 6th, LensCrafters sent a second package to Gutierrez in response to the subpoena, this time providing a single additional document that was not contained in the earlier round of production. Unlike the previous round of production, this time LensCrafters included an explanatory cover letter, which informed Gutierrez that, “In response to your subpoena requesting Don[‘s] time keeping records, please find enclosed, an additional time keeping record.” This time, pursuant to a “thorough search of LensCrafters’ records pertaining to Don[ ],” LensCrafters was able to discover a record that was not found when LensCrafters made its previous production on October 4th:
This timecard, from the Hunt Valley store, showed that Don did work from 9:02 a.m. to 6:00 p.m. on January 13th, with a lunch break from 1:10 p.m. to 1:42 p.m. He also worked on Saturday, January 16th, from 9:18 a.m. to 1:06 p.m. (Intriguingly, and in contrast to every other timecard produced by LensCrafters, Don was credited for working 4 hours on Saturday, despite time entries showing he had only clocked in for 3 hours and 48 minutes.) Other than this single timecard, no further records concerning the Hunt Valley location were produced.
Or at least no further records were produced to the defense. Additional records were produced to the prosecution, however. On October 7, 1999, LensCrafters sent a second production package to Urick, accompanied by the following cover letter:
The October 7, 1999 letter has two primary points of interest. First, Sandra the paralegal noted that, at some point, she and Urick communicated directly by telephone and discussed the existence of additional timecards from the Hunt Valley store. This phone call presumably occurred some time in the preceding three days, as no such conversation was referenced in LensCrafters’ October 4th production to Urick. Because no similar call was also made to the defense, it appears that Urick took the initiative of contacting LensCrafters, rather than vice versa. Following Urick’s call to LensCrafters, they seem to have ‘found’ an “additional time keeping record” they had previously overlooked. This newly discovered timecard was then sent to the defense, without comment, on October 6th.
Second, Sandra went out of the way in her letter to Urick to stress that the general manager of the Hunt Valley store was, in Sandra’s words, “Donald’s mother.” There was no reason for her to do so, other than that she apparently found this fact relevant — relevant enough to receive extra emphasis in her cover letter to Urick.
Urick apparently did not share this view. That Don’s mother was the general manager was never introduced at trial.
In addition to the concerns raised by the cover letter accompanying the “additional” timecard, I also have concerns about the timecard itself. For the following reasons, its origins seem questionable:
(1) The Employee Numbers. Don’s employment number on the Hunt Valley timecard was #0097. The employment number for Don’s mother was #0110. Since employee numbers were assigned sequentially by employment date, this would indicate that Don was hired before his mother. This is certainly possible, but given that Don was an 18-year-old new-hire on 7/12/97, it seems unlikely that he would have been hired (at a minimum) several months ahead of his mother, who was the store’s general manager.
(2) Who was the “friend [Don] arranged . . . to fill in for at the store in Hunt Valley”? Don worked as a Lab Tech for LensCrafters, usually at the Owings Mills Mall location. In Episode 12 of Serial, Don said that on January 13, 1999 he was not at the Owings Mills Mall store, because he had “arranged to fill in for a friend at the store in Hunt Valley.”
However, the weekly schedule for the Hunt Valley store showed that no lab techs were scheduled to work at 9am on January 13, 1999. The only three lab employees on the schedule were Charles (the Lab Supervisor) and Kevin and Mark (Lab Techs). Although Charles began work at 9 a.m., his timecards show that he worked his full shift that day, which means Don could only have been filling in for either Kevin, who was scheduled to work from 1 p.m. to 9 p.m., or Mark, who was scheduled to work from 11 a.m. to 9 p.m.
Why, then, would Don have needed to be loaned to the Hunt Valley store to work from 9 a.m. to 6 p.m when no lab tech was scheduled to work that shift? It does not appear that Hunt Valley had any need for lab techs to start work at 9 a.m. on January 13th — in fact, from Monday through Thursday, no lab tech began work at the Hunt Valley store before 11 a.m.
(3) Why did Don work the same shift he usually worked at the Owings Mills Mall store? Although 9 a.m. to 6 p.m. was not a shift that any lab tech worked at the Hunt Valley store during the week that Don worked there, it was a shift that Don frequently worked at the Owings Mills Mall store:
So if Don was filling in for a tech at Hunt Valley, none of whom worked a 9-to-6 shift, why did Don work that shift at Hunt Valley on January 13th?
(4) Where is Don’s overtime pay? Don’s timecard shows he received no overtime pay for the week of 1/16/99. However, with his shifts at Owings Mills and Hunt Valley combined, he worked 45.9 hours that week.. Why was he not credited for the extra time? If Don’s manager at Owings Mills, CM, could instantly review Don’s work records at the Hunt Valley store — as her interview with O’Shea implies — and if Don was “on loan” to the Hunt Valley store, then it is difficult to see how federal overtime laws would not have applied to his situation.
(5) How did Don manage the shifts at both stores on January 16th? According to the timecards, on Saturday, January 16, 1999, Don worked at Hunt Valley from 9:18 a.m. to 1:06 p.m., and then at Owings Mills Mall from 1:29 p.m. to 9:57 p.m. This means that twenty-three minutes after physically clocking out at the Hunt Valley store, Don had driven to Owings Mills, parked his car, gotten into the store, and clocked in again. This timeline is within the realm of physical possibility, but just barely – as Hunt Valley and Owings Mills are 23 minutes apart, going at the speed limit.
(6) Don’s employment records suggest cause for additional scrutiny of his timecards. A review of Don’s employee records should have suggested to both the defense and the prosecution that the oddities in Don’s timecards warranted closer consideration. For instance, an employee review from June 1999 noted that Don “need[ed] to understand the possible consequences of falsifying company documents”:
Other employee reviews, such as one from February 1999, referenced undisclosed ‘integrity issues’ that had undermined the trust of his coworkers:
Don does not like to admit mistakes, making it difficult to learn from them. This also undermines the confidence and trust the associates have in him because of possible integrity issues.
Don’s quality of interactions with others is not always positive. . . Don is quick to place blame, & does not wish to take personal responsibility. Don needs to calmly communicate to the associates what [?] they should be concerned with. Don must also realize that when he is agitated he will not be able to communicate positively to the associates. Body language is very important. One must remain calm and appear unflappable even in the most difficult situations.
Don needs to begin building trust with fellow associates. Don needs to understand that this can be accomplished by supporting associates instead of pointing out negatives. One way is to remain calm and show control when things are difficult in the lab.
What Don’s Unverified Alibi Shows
First, I want to stress again that I do not believe Don had any involvement whatsoever in Hae’s death, not is there evidence to suggest that he did. The only difference between Don and Adnan was Jay; without Jay’s (inconsistent and often incoherent) statements, Don and Adnan had exactly the same evidence stacked against them. Both had witnesses who gave statements indicating that they may have had access to Hae at the time of her disappearance (although the only witness who saw Adnan and Hae together uniformly said that Adnan had not gotten a ride with Hae; both Debbie and the note in Hae’s car were believed by investigators to show that Hae had been on her way to see Don when she went missing). And both had alibis that were suggestive but not 100% confirmed by the police investigation.
An unverified alibi is not evidence that an alibi is false, however. Although Don’s timecards do have unexplained oddities, even if it were shown that this documentation had been created after the fact to confirm his alibi for Hae’s murder, that would not mean Don was not actually at work that day (or, even if he hadn’t been at work, that he had been involved in the murder). What it does mean is that the investigators’ focus on Adnan as their sole suspect caused them to overlook even the most basic investigatory steps, such as verifying the victim’s boyfriend’s alibi. The investigators did not undertake any efforts that were not aimed squarely at proving Adnan’s guilt, and aside from taking the minimum effort necessary to exclude both Don and Mr. S as suspects, no one else was ever investigated as a suspect in Hae’s murder.