Thoughts on the Coming Resistance

Most of my free time these days goes to the podcast — or, at least, that’s my excuse for why I haven’t blogged regularly in over a year now, and I doubt I’ll be resuming regular blog posts again any time soon. But I felt the need to write something about what happened two weeks ago, about this future that has not yet happened but soon will be, compelled by a vague feeling that I did not want to let this moment of suspension pass without registering my dissent.

If you’re the kind of person that would be reading this blog, you probably already know about the Hamilton affair. To recap, on Friday the soon-to-be Vice President Pence decided to attend Hamilton, a musical about the American Revolution with an emphasis on parts of America that Pence’s stated policy positions would not appear to support. At the end of the show, as Pence was leaving, Vice President Burr’s actor read out a statement while the rest of the cast linked arms behind him:

We had a guest in the audience this evening. And vice president elect Pence, I see you’re walking out, but I hope you will hear us, just a few more moments… We have a message for you sir, and we hope that you will hear us out. Vice president elect Pence, we welcome you and we truly thank you for joining us here at Hamilton: An American Musical. We, sir — we are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights, sir. But we truly hope that this show has inspired you to uphold our American values, and work on behalf of ALL of us, all of us. We truly thank you for sharing this show, this wonderful American story told by a diverse group of men and women of different colors, creeds, and orientations.

In response, the president elect of these United States took to Twitter to denounce the Hamilton cast for “harass[ing]” the vice president elect, declaring that such public statements of dissent “should not happen.” He then demanded that the cast “apologize!” for voicing their concern that the new administration will not protect them.

You’re going to hear this a lot more over the next four years, but: this is not normal, this is not okay, and this is not going to be okay. Trump’s words are chilling, both figuratively and constitutionally, and although the fact those “words” took the form of a social media rant may add an extra air of dystopian parody to the whole mess, they are no less dangerous for that. But I think what leaves me the coldest, what amplifies those feelings of anxiety and alarm the most, is that Trump spent a few extra precious characters out of his 140 to decry that there were “cameras blazing” when this act of dissent occurred. The cast of a Broadway musical humiliated his proxy, and then that humiliation was broadcast to the world. In the president-to-be’s mind, “This should not happen!”

The Hamilton affair was not, of course, an isolated event. Among Trump’s very first acts as the President Elect of the United States was to announce that protests of his presidency were “very unfair” to him, and to inform the world that those protests were not genuine expressions of disagreement among the populace, but an artificial insurgency funded by shadowy forces, and (somehow also) incited by a corrupt media. In the days since, he has launched a barrage of attacks that have de-legitimized the media, both by directly describing a major media publication as “failing” and “dishonest,” and by making self-aggrandizing and fabricated claims of his achievements, which in turn were picked up and reported on by those in the media clinging to the antiquated belief that reality is a meaningful construct for this administration.

And yes, I agree that the Hamilton affair is only one of many serious and disturbing developments in recent days, most of which are being shamefully under-reported. That does not mean that it can or should be dismissed as a theatrical sideshow, though. A president elect’s expressions of outrage that the citizenry would use the First Amendment in a way he doesn’t like is a big deal. The message is clear: the president will be calling out and attacking individual citizens who expose him to public criticism. Unfortunately, based on the experiences of the past 12+ months, it’s a safe bet that this event’s significance will be mostly overlooked in favor of sensationalist headlines and false equivalencies, and the whole kerfuffle will be forgotten entirely by Monday. And all the other presidentially disqualifying events of the weekend will, somehow, be lost in the shuffle.

That’s where the hopelessness starts to find root. What can be done, when the president himself is understood to be so intrinsically corrupt that acts of his corruption cease to be newsworthy events? And why have so many Republican lawmakers capitulated to this pretense that Trump is an acceptable president, when I still believe, must believe, that they too know the emperor has no clothes?

That last question is mostly rhetorical. The opportunity for unchecked and unpopularly-elected power was too much to turn down, and they have convinced themselves things will go better for them than they did for Faust. They believe that they can channel Trump to serve their own ends; I think they are wrong about that. Either way, they have willingly gambled on this country’s future by supporting Trump in the hopes that, when it all shakes out, they will be able to use this opportunity to further their own agendas while minimizing Trump’s more “awkward” policy positions, even knowing that, should the dice land the wrong way, their support will enable Trump to carry out his unconstitutional goals.

The Hamilton affair is one more warning that our elected officials are wrong to make this wager. Trump’s ongoing series of tweets raging at this display defiance by private citizens — four tweets in total, at last count, with one deleted — is not a meaningless distraction, it is a warning. President elect Trump does not have the capability to tolerate dissent to his rule. Although there are many contenders to choose from, it is this failing, I think, that will be the greatest threat to our nation. The guiding stars of Trump’s life are an obsession with vengeance and an unquenchable need for affirmation by the external world; the danger ahead lies in that the office of the presidency will provide him with nearly unlimited resources to fulfill this first directive, while rendering the second permanently beyond his reach.

Starting on January 20th, Trump will attempt to use the power of his office to enforce a belief that he is a worthy leader. He will not succeed. When he realizes that he will never have the respect of the people, he will settle for having their fear instead. If need be (and it will probably need be), he would try to break the Constitution to protect his own ego.

There is no possibility that Trump might instead do well enough at the job to earn the validation he believes is his due, and therefore have no need to mandate it. Trump has no abilities that are desirable in a statesmen, and has displayed no aptitude for government administration. Although his “talents for low intrigue and the little arts of popularity” aided him as a campaigner, it is those same attributes that led some of the founding fathers, in an ill-conceived attempt to prevent a Trumpian figure from one day ascending to the presidency, to place the choice of the executive in the hands of a special group of electors rather than with the people. That it was this subversion of the democratic ideal that ultimately made a Trumpian presidency possible is an irony that has not gone unnoticed, but there may be some cold comfort to be drawn from knowing that it was not democracy itself that failed here.

If things go as well as could possibly be hoped, the next four years will be a painfully awkward moment in our nation’s history. Things will probably not go as well as could possibly be hoped. If things go bad — like, darkest timeline bad — we may end up learning the answer to Trump’s favorite campaign-trail question: what do we have to lose? Because there may have been periods in our history where four years of rule by an autocratically-inclined idiot would have caused minimal damage, but those times are long past. Our institutions and economies are too interconnected for us to miss a step and not cause the rest of the world to stumble, and we are now living on a planet that, day by day, is becoming less hospitable to human life.

My hope is that, four years from now, we’ll be able to look back at this post and mock it for being overwrought alarmism, and that our institutional mechanisms for self-correction will turn out to have been more robust than my fears. If that happens, I’ll laugh too, at myself, and in relief. I think, though, that denial of the threat Trump poses is more dangerous than any alarmism could ever be, and the American exceptionalism that tells us this can only get sorta bad, that this can’t actually get scary bad, will drag us down faster than Trump’s petty vindictiveness ever could.

Because it takes no special insight to predict that the coming administration is a threat to this country in a way no other administration has been. Trump’s threats to the First Amendment are only one facet of his manifest unsuitability, as he has spent all of 2016 and a good chunk of 2015 demonstrating. For a heavily abridged sampling,

  • Trump does not value the truth, either coming from himself or from others. He lies, constantly, for his own gain; not even his most ardent supporters would (or could) deny that, they just pretend this is a strategy. Which, okay yes, it is, but it is also a terrifying threat to our national security. Our allies cannot rely on America’s word, because the executive is our voice in the realm of foreign affairs, and beginning on January 20, 2017, our word will not be tied to any single objective meaning and will have no predictive value. If you doubt the danger, ask yourself this: what happens when other nations have no idea whether the president of the United States was telling the truth when he said he thought more countries should obtain nuclear weapons, or whether he was telling the truth when he said he thought they should not? What happens when they ask themselves how their neighbors will answer that same question?
  • Trump is corrupt. He is going to wield the office of the president for his maximum financial benefit, and is making only the barest efforts to pretend otherwise. I do not think he will continue with the pretending for much longer. He has already begun laying the groundwork for his newest theme: there is nothing improper or even undesirable for a president to increase his wealth through being president, because he’ll be increasing everyone else’s wealth at the same time, too. He is already profiting from being president, by having his financially untenable hotel propped up by foreign dignitaries that feel compelled to stay there in order to curry presidential favor. He has also had the family members that are running his business empire sit in on meetings with foreign heads of state, and is seeking to have his son-in-law get the top secret clearance necessary to be privy to his foreign affairs briefings; this information will necessarily be used by the Trump family to further the interests of their businesses, because it is impossible that they will not take that information into account when making business decisions.
  • Trump is supporting a white nationalist agenda. He claims to have been elected due to the economy, but his appointments so far have shared one overwhelming focus: white men obsessed with the national security threat posed by non-whites and non-Americans. Only one appointment so far (hi there, Mr. Priebus) breaks this mold, by being just the regular sort of Republican with no close ties to white supremacists, people that have proposed Muslim registration as a national security measure, and/or Russia. All the rest have openly espoused racism and xenophobia as desirable attributes in a government, or are openly on the payroll of foreign despots.

These are not the kinds of things that can happen to a country and then have everything somehow come out okay. These are the kinds of things that happen to a country just before something very dangerous and undemocratic occurs. I do not know what can be done to stop it, but I do know that no resistance can begin until Trump’s fascism is recognized for what it is.

To those who support Trump, I would encourage you to disagree with this assessment while remaining open to the possibility that there may be genuine cause for alarm. Maintain awareness of what the Trump administration is doing and how that compares to our ideals as a nation, and if, at a later date, you should see something his administration has done that undermines those ideals, then speak out against it, even if you maintain support for his presidency as a whole. And to those who are frightened about what the future holds, well, I am right there with you. All I’ve got is this: as a nation, we are really good at falling down and getting back up again. One of our greatest virtues has always been our ability to come back from disaster, even though as often as not we were the ones that invited it in. There is no reason to think it is impossible for us to do so once more.

For those of us who believe that this country has a promise it has not yet managed to fulfill, there is much to grieve, but America has never been close to perfect. The fact we’re even less close now is not an excuse to give up on efforts to strive in that direction. Our current president will likely come to regret, along with the rest of us, his dangerous expansion of the executive power, but Obama’s words to his daughters on what Trump’s election means are the best chance we have of making it through this intact: “[Y]our job as a decent human being is to constantly affirm and lift up and fight for treating people with kindness and respect and understanding.”


Exhibit 31 Was Not a Certified Business Record

In today’s episode of Undisclosed, Postconviction Relief Part 5: Closing Thoughts, we discussed in greater detail how the cellphone records at Adnan’s trial were not the authenticated copy of records that they were purported to be. Although Exhibit 31 — a.k.a. the Frankenzibit — had been presented by the prosecutors as an authenticated copy of AT&T’s business records, the documents that were authenticated by AT&T had been substituted for a different and unauthenticated copy of the records, from which all fax information had been removed.

You can see these differences four yourself by comparing Urick’s fax to AT&T requesting authentication of the State’s copies of the cellphone records, and Exhibit 31 as it was admitted at trial. To show the differences between the two documents, I’ve provided below a side-by-side comparison of each page. (Note that the substantive records begin at Page 2 of Exhibit 31; the first page is the affidavit from AT&T’s custodian.)

Pg 2

Page 2 Comparison

The second page of Exhibit 31 is the subscriber information sheet from AT&T’s 2/17 fax. In the document Urick sent to AT&T for authentication, the top line reads: “SENT BY: 2-17-99 ; 11:30am ; AT&T WIRELESS SVCS-  914103962257 ; #2.”

Page 2 header.png

In Exhibit 31, the top line has been chopped off, and the entire page has been shifted upwards — including the hole punches on the left-hand side, which are now noticeably higher than those on the authenticated copy.

Pg 3

Page 3 Comparison

The third page of Exhibit 31 is the last page AT&T’s 2/22 fax, containing part of the phone records for January 12, as well as blank entries for phone records from January 9 – 11 (prior to the phone’s activiation). On the left side of the document faxed by Urick to AT&T, the edge of the original fax header is visible, while it has been removed from the copy submitted as Exhibit 31.

Pg 4

Page 4 Comparison

The fourth page of Exhibit 31 is the second to last page of AT&T’s 2/22 fax, containing part of the January 14 records, all of the January 13 records, and the beginning of the January 12 records. In Urick’s fax to AT&T, the fax header information has already been almost entirely cut off (although it remains present in the prosecution’s other copy of the January 13 records from the 2/22 fax). However, because the original fax from AT&T was slightly askew, the border of the fax header information is not parallel with the page’s text, and runs off at a ~15° angle. In the corresponding page from Exhibit 31, this has been corrected with the help of a paper guillotine; however, because of the angle required to even up the page, the sheet of paper was no longer a rectangle, and copies made from the cut sheet show where fax header side was cut off (circled in blue, top right of image).

Page 4 - Cut Corner.png

The shadow from where the paper is lying on the copier glass is visible, demonstrating that the corner is not at a 90° angle.

Pg 5

Page 5 Comparison

The fifth page of Exhibit 31 is the third-to-last page of AT&T’s 2/22 fax, containing the beginning of the January 14th records and part of the January 15th records. In Urick’s fax to AT&T, a recognizable portion of the fax header information line is present:

Page 5 header.png

However, in the document submitted as Exhibit 31, the fax header has been removed, and the entire page has been repositioned so that the text is angled correctly.

To break down how this happened, and why this switch went unnoticed at trial, it helps to review a timeline of events resulting in the creation of Exhibit 31:

  • On February 17th and 22nd, during the investigation into Adnan, AT&T faxed copies of Adnan’s phone records to the BPD (the 2/17 and 2/22 faxes, respectively). These copies had fax header information prominently displayed on all pages. It looked like this:

Page 4 header

  • Copies of these phone records were provided to the prosecution in preparation for Adnan’s October 13th trial date.
  • On October 8, 1999, Urick faxed four pages of phone records (one from the 2/17 fax, three from the 2/22 fax) to AT&T’s custodian of records, with a letter stating, “Pursuant to your telephone conversation this date, I am faxing you four pages of AT&T Wireless billing records that we obtained per a subpoena. I would appreciate it if you could return the records to me as certified business records.”
  • The cellphone records faxed to AT&T had the fax header partially removed, although the header remained fully or partially visible on three of the four pages.
  • AT&T’s records custodian reviewed the cellphone records sent by the prosecution, and on October 12th the custodian provided a sworn affidavit stating that “The attached copies of billing records are maintained by AT&T in the ordinary course of business.” The affidavit and records were then sent back to the prosecution for use at trial.
  • The prosecution discarded the certified copies of the phone records that it received back from AT&T, but kept the custodian’s sworn affidavit.
  • Using its own copies of the phone records, the prosecution prepared a new set of the four-page phone records, from which all traces of fax header information had been excised.
  • The affidavit from AT&T’s custodian was then reattached to the prosecution-constructed version of the phone records, and the new records — which had not been reviewed or certified by AT&T — were submitted as certified business records at Adnan’s trial.

In switching an authenticated copy of the phone records for an unauthenticated copy, the prosecution may very well have been motivated by expediency rather than strategy. After all, by that point, the documents would have been a fax of a fax, and possibly a fax of a fax of a fax. He may have decided that the certified business records sent back by AT&T were too messy, and decided to substitute the authenticated records for a “cleaned up” version, one which had been snipped and rotated to make it more professional in appearance.

But the prosecution’s motives in making the switch are irrelevant. An inadvertent failure to disclose exculpatory information has the same constitutional effect as a deliberate failure. Here, regardless of motive, the result was the same: although the genuine certified business records had information which plainly identified them as copies of a faxed document, the counterfeit version did not. A reasonable attorney reviewing Exhibit 31 — such as, say, the Deputy Attorney General of Maryland — could very reasonably conclude that,

 “Indeed, the ‘Subscriber Activity’ reports [sent by AT&T] were neither identified as exhibits nor admitted into evidence. What was admitted into evidence were cellphone records accompanied by a certification of authenticity, signed by an AT&T security analyst, and relied upon by the State’s expert who himself was employed by AT&T as a radio frequency engineer.”

However, contrary to the State’s claims in its recent briefing before the trial court, what was admitted into evidence (1) was a subscriber activity report, and (2) was not a certified business record authenticated by AT&T, but instead a different copy of the phone records that was missing information present in the genuine copy. This isn’t just a case questionable corner cutting by the prosecution that has no practical significance, however. If the instruction sheet is determined to be material and exculpatory evidence by the court, this was a Brady violation. Even had Gutierrez known that AT&T sent the instruction sheet along with all of the billing records that it faxed over — which she didn’t, because the prosecution did not disclose those records to her — Gutierrez still had no reasonable way of knowing that Exhibit 31 was itself a document faxed to BPD by AT&T, to which the instruction sheet applied. The fax headers identifying the origins of Exhibit 31, and directly linking the records to the instruction sheet, had been eliminated, even though that information was present in the genuine copy of the records authenticated by AT&T.


The Absurdity of the State’s Self-Professed “Best Evidence”

As I assume anyone bothering to read this blog would already know, Adnan’s PCR hearing concluded last week after five days, eight witnesses, and approximately 3,000 donuts consumed by various members of the Undisclosed team. We published daily on-the-fly podcast updates of the hearing while it was ongoing, and in a week or two, we’ll be following up with a full-length episode recapping the entirety of the hearing in greater detail.

In the meantime, however, I’d like to take a moment to address some comments made by the prosecutor, Thiru Vignarajah, at a press conference held immediately after hearing ended. During this press conference, he outlined what he believed to be the State’s strongest evidence that Gutierrez was not ineffective in failing to investigate Asia McClain as an alibi witness, in a manner very similar to the claims he had made earlier that day during his closing argument:

Reporter: What’s the state’s best evidence, and why do you think the State is going to win the hearing?

Vignarajah: [. . .] Although there are victims of ineffective assistance of counsel, Mr. Syed is not one of them. And if you’re looking for the best piece of evidence for that, all you have to do is look at the record that defense counsel had in possession until very recently, and what you see is investigative step followed by investigative step, scrutiny after scrutiny, lines of cross examination that were pioneering at the time, and were conducted by one of the most seasoned, effective defense attorneys of her time.

And if you want to focus on two thing it would be this:

First, that the security officer at  the Woodlawn Public Library was interviewed within 3 days of Mr. Syed’s arrest along with the track coach, and so if anyone was wondering if the investigators and the attorneys were taking seriously a potential alibi, they certainly were, and the defense’s own file confirms that.

And secondly, again it’s not a conspiracy, it’s common sense, when you’re client is asking how mail is scrutinized, when you see notes that your best friend is telling detectives that a girl named Asia is being asked to type up a letter, and then you see that letter with lots and lots of facts that come from exactly one place, which is the defendant’s own search warrant, it’s pretty clear that a seasoned attorney like CG could see those warning signs a mile away.

These claims are varying degrees of misleading, irrelevant, and false. They are not based on evidence, but on the prosecutor’s misinterpretation of completely innocent materials found in the defense file. To show why, I will go through them line by line, and explain the actual basis of the State’s claims, and why the reality is radically different from what the State would have the public (and the court) believe.

Although there are victims of ineffective assistance of counsel, Mr. Syed is not one of them. And if you’re looking for the best piece of evidence for that, all you have to do is look at the record that defense counsel had in possession until very recently, and what you see is investigative step followed by investigative step, scrutiny after scrutiny.

If this were the case, the State would have shown this evidence during the hearing. Since he did not, we can safely assume that the defense file does not, in fact, contain evidence of a thorough investigation performed by Cristina Gutierrez.

Does the defense file, as Thiru claims, show “investigative step followed by investigative step”? Well, yes, it is in fact a defense file, so by definition it contains a record of an investigative step followed by another investigative step. But the fact that investigative steps were taken is not evidence in the State’s favor; it is an obvious fact that anyone would know, with or without looking at the defense file. That some form of investigation occurred says nothing about the quality or effectiveness of that investigation. For instance, sending multiple subpoenas to inaccurate addresses is an investigative step — it is just not a very good one. Likewise, obtaining copies of the photos in the prosecutor’s file is an investigative step — but failing to follow up with those photos with a medical expert was an investigative misstep with disastrous consequences for Adnan. Pulling a copy of the Woodlawn High School yearbook and calling the top 8 track athletes listed there is also an investigative step — but choosing to investigate alibi witnesses for the time Adnan was at track based on the track team’s relative athletic ability rather than by their relative likelihood of having seen Adnan on January 13th is so stupid it is tragic.

In short, the State’s evidence that Gutierrez performed a thorough investigation amounts to no more than unsupported claims during a press conferences, which were submitted in lieu of any evidence that existed in a form that permitted it to be presented to the court.

lines of cross examination that were pioneering at the time,

Here, I believe, the State is referring to Gutierrez’s cross of Waranowitz here. He mentioned at some point during the hearing that she was the first to make certain challenges to cellphone evidence, that defense attorneys to this day continue to use. Of course, he neglected to mention that those lines of cross-examination are based on a completely lack of understanding about the functioning of a cellular network.

If further proof is needed of Gutierrez’s complete dereliction of duty when it came to the cell evidence, let’s look at her own words on the subject:

Gutierrez - on the cell evidence

And yet, according to the State, the attorney who did not even look at the cellphone evidence, because she did not care about it, was incredibly effective — indeed, pioneering! — in the field of cell evidence defense.

and were conducted by one of the most seasoned, effective defense attorneys of her time.

The attorney that Thiru is calling “the most seasoned, effective defense attorney of her time” set a state record for most claims brought against her before the Attorney Grievance Commission. Her failures to take even the most basic steps in many of the cases she was involved in during the same period of time she represented Adnan (i.e., failing to brief issues, failing to communicate plea offers, falsely claiming to be consulting with experts she was not) have resulted in incredible amounts of damage to the clients she victimized, both those whose stories we know and many more still whose we do not.

And if you want to focus on two thing it would be this:

First, that the security officer at  the Woodlawn Public Library was interviewed within 3 days of Mr. Syed’s arrest along with the track coach,

On March 3rd, Drew Davis, the defense investigator hired by Adnan’s attorney, interviewed Officer Steve. He did not take any notes of this interview, and the only reference made to these notes in the defense file is from a billing invoice that Davis submitted:

Billing Summary - Drew Davis

Asserting that this document has any relevance to Adnan’s claims in the PCR hearing is so strained that it borders on meritless. On March 3rd, it is virtually certain that neither Adnan nor his defense attorneys had Asia’s letters, which were mailed no sooner than March 2nd and March 3rd. We do not know why Davis spoke to Officer Steve, or what he spoke to him about, but there was nothing significant enough about the conversation to be worth preserving. According to Thiru, though, this is the State’s best evidence against Adnan, because it is proof that shortly after Adnan’s arrest, his attorneys were looking into whether they could locate alibi witnesses for where Adnan was after school that day.1

But if Adnan’s first words to his attorneys were, “I think I was at the library and then I was at track,” that is evidence of innocence, not evidence of guilt! It is the same alibi he is advancing now at the PCR hearing, and his bail attorneys’ prompt initial steps to investigate that alibi shows that they took Adnan seriously.

The fact Officer Steve (presumably) had no useful information to provide the defense investigator is not evidence, in any respect, that Adnan’s alibi was no good. It just means the single witness Davis spoke to could not verify it. In no legal universe is that a basis to desist all further investigative efforts.

As was made clear from the testimony last week of both the Woodlawn librarian and the security guard, however, the security guard’s failure to specifically recall seeing Adnan on January 13th is yet another meaningless fact with no evidentiary relevance. Both the Woodlawn librarian (called by the defense) and the security guard (called by the State) testified that they might remember a student they spoke to that day, but hundreds of students came through the library between 2pm and 4pm, and they would not be able to say whether or not a student hadn’t been in the library based on whether or not they remembered seeing them.

To comment briefly on Officer Mills: his testimony is on my top 10 list of most bizarre witness testimonies I have ever seen in court. Officer Steve was contacted a week before the hearing, and interviewed twice. He was then subpoenaed to testify for the state for as to three facts:

  1. He does not recall being questioned by Davis, Adnan’s attorneys, or anyone else in connection with this case
  2. The library did not have cameras in January 1999 (and therefore Asia is lying)
  3. Adnan Syed was not in the library on January 13, 1999 (and therefore Adnan’s attorneys reasonably did not pursue the Asia alibi)

At trial, he then testified to the following:

1. He does not recall being interviewed by Davis, Adnan’s attorneys, or anyone else in connection with this case

Assuming that Davis really did speak to Officer Steve on March 6, 1999, Officer Steve’s lack of memory of that encounter doesn’t have much significance for Adnan’s case. If, for instance, Davis asked him, “Do you have any records of a disturbance on Jan. 13, 1999,” then Officer Steve would never have known in the first place that he’d been questioned in connection with Adnan’s arrest.

2. He did not remember any cameras on that side of the library building, but it was possible there were cameras he did not know of, because that was not his responsibility.

My notes from the hearing have two exchanges which should clarify how little light Officer Steve was able to shed on this. First, on direct,

Thiru: Is it possible there were cameras at the library that you did not know of?

Officer Steve: Yeah, it’s possible, possible.

And then on cross,

Chris: Could there have been cameras at the library you were not aware of?

Officer Steve: Yes.

Officer Steve has no idea if there were cameras. There could have been, he just did not know of them because they were not his responsibility.

3. He did not see Adnan Syed in the library on January 13th,  but he easily could have been there and Officer Steve either didn’t see him or didn’t remember seeing him.

During cross, Officer Steve frankly acknowledged that, despite what the detectives’ notes said, he could not say for certain whether or not Adnan had been at the library that day. Perhaps he misspoke when speaking to the detectives, or perhaps the detectives took liberties in what they wrote down. Either way, the following exchange tells you all you need to know about whether Officer Steve actually believes he could tell whether or not Adnan had been at the library that day:

Chris: They showed you yearbook photos of a number of students from 17 years ago?
Officer Steve: Yes.
Chris: And they asked you to determine if one of them had been in the library on January 13, 1999?
Officer Steve: Yes.
Chris: That’s kind of a ridiculous question, isn’t it?
Officer Steve, speaking in a knowing/amused tone: I’m not answering that one!

So Officer Steve’s testimony was a complete dud for the State. Nothing about his testimony supports the State’s position at the PCR hearing in any way. The bar for “best State’s evidence” must have been set very low indeed, if this makes the cut.2

and so if anyone was wondering if the investigators and the attorneys were taking seriously a potential alibi, they certainly were, and the defense’s own file confirms that.

Yes, Adnan’s initial attorneys were taking the investigation seriously, because that is what an attorney is supposed to do. Unfortunately, Flohr and Colbert only represented Adnan during the bail stage, and six weeks after his arrest, Gutierrez took over his case. It is Gutierrez’s failure that is the basis of Adnan’s IAC claim, and the fact that his bail attorneys were competent and diligent has no bearing on Adnan’s claim that Gutierrez was ineffective in her representation of him.

And secondly, again it’s not a conspiracy, it’s common sense, when your client is asking how mail is scrutinized,

What Thiru is alleging never happened, and there is no evidence to support it. And unless he is an idiot — which, without question, he is not — he had to have known that the notes that are the basis of his claim have nothing to do with any obstruction of justice scheme. In short, a prosecutor for the State of Maryland misrepresented evidence at Adnan’s PCR hearing, in support of his claim that another attorney — one who was in fact present in that very courtroom — had been and continued to be complicit in a scheme to fabricate the existence of an alibi witness.

Everyone, regardless of their position on Adnan’s guilt, should find this horrifying.

To explain what is going on, it helps to look at the document that is the “source” (scare quotes warranted) of the prosecutor’s claim. The defense file contains a page of notes written by Chris Flohr (Adnan’s attorney during the initial bail hearings) on March 6, 1999, the top of which looks like this:

Flohr notes

These notes contain short, jotted-down references to a number of issues related to Flohr’s representation of Adnan, such as administrative matters, information needed for investigative purposes, getting legal releases signed, and fixing the bail issue in which Adnan’s date of birth was incorrectly listed.

In short: this is an attorney’s to-do list. A list of things for Flohr to discuss with his client when he sees him in jail, things for him to pursue as lines of investigation, and paperwork issues to be taken care of. Items were checked off as he went along — like after Flohr told his client about how to have people send him self-addressed stamped envelope in their letters to him so that he would be able to write them back, and after Flohr gave a routine cautionary reminder that everything his client sent and received through the mail could and would be monitored by authorities.

While I do not know what regulations Baltimore City jails had in place in 1999, sending an inmate a self-addressed stamped envelope with a piece of paper is, in institutions where permitted, a standard way of giving the inmate you are writing the materials necessary to actually write back, and that is clearly what Flohr’s notes here are referencing. As shown from guides published by correctional institutions and other agencies about how to write to inmates:

  • Each week a prisoner is allowed to send one free letter. If they want to send more than this then they need to purchase stamps and envelopes from the prison shop/canteen. Alternatively you can post self addressed stamped envelopes to the prisoner so they can post letters back to you
  • Inmates will be permitted to receive only the following types of materials through routine mail: [. . .] Self-addressed stamped envelopes. These items do not count toward the 15 page limitation for additional materials, but cannot exceed the equivalent of 20 (1 ounce) first class stamps.
  • Further, inmates may possess only the personal property, materials, supplies, items, commodities and substances received or obtained from authorized sources, as permitted in the institution’s procedures. Even the possession of excessive stamps can become an economic bargaining tool. Sending a client only self-addressed pre-stamped envelopes avoids any problems.

But even setting aside all that, Thiru’s conspiracy claim has overlooked an obvious point that disproves his entire argument. Namely, WHY THE FREAKING HELL WOULD ASIA NEED A SELF-ADDRESSED STAMPED ENVELOPE FROM ADNAN?? Asia isn’t in jail! Asia can buy her own envelopes and stamps! And buy her own “one piece [of] paper”! Why, oh why, would this notation from Flohr ever be, in any universe, evidence of Adnan asking for materials that he could use to solicit a false alibi from an acquaintance?

Flohr’s notes are, as anyone with criminal law experience should be able to see, about people writing letters to Adnan, and have nothing do with a hypothetical request to enlist an attorney’s help to carry out a conspiracy to fake an alibi. Flohr’s notes are not, as anyone with common sense should be able to see, about how Adnan can obtain materials to write out to another person and request that they write back with a letter that sets forth a falsified alibi.

In the words of Justin Brown, “I have a problem when prosecutors present info in a manner that they know to be inaccurate.” Thiru is a very smart man, and I will not insult his intelligence by presuming he holds a genuine belief in such a stupid theory, but that raises a much more troubling concern. At the PCR hearing, Thiru accused another attorney of being, at best, silently complicit in a scheme to commit obstruction of justice, and at worst, an active participant in the scheme, despite the fact that Thiru knew or should have known that his supporting “evidence” for this claim was a sham.

This is not okay. This is so far from okay.

Moreover, Flohr was actually in the courtroom for most of Adnan’s five day hearing, available to testify at a moment’s notice. If Thiru believed that Adnan had solicited Flohr’s help in constructing a false alibi, then he should have called him to the stand and asked him about it, not used his imagination to conjure up a conspiracy out of a defense attorney’s routine checklist of things to discuss with his client.

As with the rest of its case at the PCR hearing, however, the State preferred to submit its own willful misinterpretations of innocuous notes in lieu of any actual evidence.

 when you see notes that your best friend is telling detectives that a girl named Asia is being asked to type up a letter,

The Ja’uan notes issue has already been addressed in detail in other places, so I will just add a couple notes to it here. First, if anyone doubts the way in which notes jotted down by the police during an interview can be misleading when read out of context, simply look at Officer Steve’s testimony for your proof. Second, for Thiru to be right about the Ja’uan notes, it would mean that Ritz and MacGillivary were such terrible detectives that a defendant’s friend told them about his scheme to falsify an alibi, and they didn’t take a damned step to follow up on it.

And then there’s one other point in response to Thiru’s claim that is critical: although Thiru says, “when you see notes that…,” implying that Adnan’s attorneys made strategic decisions based upon their interpretation of the Ja’uan notes, such a thing never could’ve happened. Why? Because those notes were not disclosed to the defense until 2010. At the time of Adnan’s trial, no one connected with the defense in any respect ever had a clue those notes existed. The defense could not have obtained this information from Ja’uan, either, because Gutierrez’s team did not make contact with him until February 20, 2000, at the very end of the second trial, and those notes reflect nothing about any possible knowledge he might have had of either Asia or Adnan’s alibi defense. In short, Thiru’s conspiracy reading of the Ja’uan notes had nothing to do with any decision, strategic or otherwise, ever made by the defense.

and then you see that letter with lots and lots of facts that come from exactly one place, which is the defendant’s own search warrant, it’s pretty clear that a seasoned attorney like CG could see those warning signs a mile away.

Thiru made this claim a half dozen times during the hearing, and questioned Asia about it on cross, aggressively and at length. But it is not true. There is exactly one fact that appears in both the search warrant affidavit and Asia’s letters: that Hae was buried in Leakin Park. That’s it. No other facts from Asia’s letters appear anywhere in the search warrant.

3-9 search warrant

Plus, the “facts that come from exactly one place” part of Thiru’s argument is even more bogus, given that not only are the “facts” from Asia’s letters self-evidently not in the search warrant affidavit, but that during the course of the PCR hearing Thiru had been shown numerous sources that did contain those facts, and that Asia would have had access to on March 2, 1999. I guess he must’ve forgotten about that by the time the press conference rolled around.

And this is what Thiru calls the State’s best evidence in opposition to Adnan’s petition for a new trial?

Damn, no wonder I feel so hopeful.

– Susan

1. We know that Adnan told his attorneys that he believed he had a conversation about Ramadan with his track coach, Coach Sye, on January 13th, because that’s what Coach Sye says the defense investigator asked him about. The same day that Davis interviewed Coach Sye (March 6th), he also went to speak to the library security guard. To the extent that any inference can be drawn from this, it is that Adnan may have also identified the library as another location he had visited after school on the day of Hae’s disappearance.

2. So, all that aside, what actually is the deal with Officer Steve? Why on earth did the State call him in the first place, and what exactly did Officer Steve think he was talking about?

Well, best I can figure, based on the exhibits and testimony from the hearing, Officer Steve was under the belief that Hae had been murdered before January 13, 1999, and that he was being questioned about whether he had seen her killer in the library after her death.

Take a look at what the detectives’ notes say from Officer Steve’s second interview:

When [Officer Steve] saw Syed’s picture, he can say for certain he was not in the library the day of Wed, Jan 13, 1999

If Syed was in the library [Officer Steve] states he would have brought it to the attention of police.

At trial, Officer Steve gave testimony that was almost identical to his previous comments to the detectives the week before:

Thiru: If you had recognized Mr. Syed [in the library on January 13th], what would you have done?

Officer Steve: Call 911.

A perfectly reasonable response — if you mistakenly believed that, as of January 13, 1999, Adnan had been a murderer that the police were trying to arrest. Officer Steve testified that he remember seeing Adnan’s picture in the news, so he knew what Adnan looked like, and — as Officer Steve reasonably testified  — if he had seen this murderer at the library where he was a security guard, he would have responded by calling 911. Therefore Officer Steve is confident he did not see Adnan Syed in the library on January 13, 1999, because if he had, he would have called the police to  alert them to the fact that he had found the murderer they were looking for.

So Officer Steve’s testimony was not ridiculous at all, although it appeared that way at first glance. His only mistake was in assuming that the detectives were asking him reasonable questions, and he responded accordingly. Because why on earth would detectives show up at a security guard’s workplace and ask him something as ridiculous as whether he could confirm whether or not a student of no particular note had been it the library on a specific (but uneventful) day 17 years ago? No detective would be useless enough to ask such a thing, surely.

A Follow-Up Post On Cellphone Borrowing, Track Practices, and Wednesdays

In yesterday’s bonus episode of Undisclosed, I mentioned that I agreed with Colin about how Jay’s borrowing of Adnan’s car and phone appeared to be directly tied to their involvement in weed dealing, and further that, based on the calling patterns from the cell records, it appeared that Jay had been regularly borrowing Adnan’s car/phone on Wednesdays during the time that Adnan should have been at track. Since I’ve gotten a few questions about it today from listeners curious about it, I figured I’d put up a quick summary of the records I’m referencing.

First off, though, I should note that any “drug dealing” at issue would be the type of “drug dealing” that necessitates the use of scare quotes — there is no suggestion that anything more serious was going on here than teenagers providing pot to other teenagers. Moreover, based on Jay’s statements in his first police interview, whatever he was involved in was clearly some small time stuff, based on the total dollar amounts involved:

Jay Int 1 - p 66 - 67

(Side note: I wish the police had actually gotten a copy of this check, but I guess they knew it looked really bad for their “Adnan blackmailed Jay into helping with a murder” story.)

So with that in mind, here’s what the phone records show:

Days on which (a) Adnan had a cellphone1; (b) Woodlawn had track practice2; and (3) Adnan was eligible to be at track practice3:

  • Jan. 13
  • Jan. 26
  • Jan. 27
  • Feb. 1
  • Feb. 2
  • Feb. 3
  • Feb. 4*
  • Feb. 5

Days on which Adnan should have been at track practice, but on which there was phone activity inconsistent with Adnan being at track practice4 from 3:30 to 5:00pm:

  • Jan. 13
  • Jan. 27
  • Feb. 1
  • Feb. 3

Days on which Adnan should have been at track practice, but between 3:30 and 5:00pm there were calls made from Adnan’s phone to Patrick, “a guy [Jay] bought marijuana from a whole lot” (2/04/00 Tr. 134):

  • Jan. 13
  • Jan. 27
  • Feb. 3

Days on which Adnan should have been at track practice, but between 3:30 and 5:00pm there were calls made to NHRN Cathy (who was Jay’s friend, and did not know who Adnan was):

  • Jan. 27
  • Feb. 3

Days on which Adnan’s phone made calls originating on either L689B (a.k.a. “the Leakin Park tower”) or L653C (tower on Edmonson Ave., south of Leakin Park):

  • Jan. 13
  • Jan. 27

Weed dealers (a) who sold weed to Jay; and (b) who, according to AT&T’s maps, Jay had to drive through L689B and L653C’s coverage areas in order to get to their houses:

  • Patrick.
Map - LP Area

Woodlawn HS depicted top left. Leakin Park is the grassy area to the center/right of image. Cell towers are marked by triangles. Blue line marks Cooks Avenue, which is mentioned repeatedly in Jay’s stories, and which both L653C and L689B could provide coverage for.

In sum, there is a correlation between (a) Wednesdays that Adnan should have been at track and (b) times when the phone activity shows calls to people only Jay would be calling. Similarly, there is also a correlation between (a) days that Adnan’s phone made calls to a weed dealer that lived near Leakin Park, and (b) days that Adnan’s phone made calls originating on L689B and L653C.

You can draw your own conclusions as to what else this pattern of activity may represent, but it does show that Jay being in possession of Adnan’s phone on a Wednesday afternoon during track practice would not have been an unusual event during this time frame.


1 Adnan got his cellphone on January 12th, and available cell records run through February 18th.

2 There were track meets — and therefore no track practices — on January 12th, 25th, and 28th, and Woodlawn High School was either on a break, had a snow day, or was on a half-day exam schedule on January 14th, 15th, 18th, 20th, 21st, 22nd, and 29th.

Additionally, I’ve only considered here the time period from January 12th – February 5th, due to the fact that Adnan does not appear to have regularly attended track practice following that date. The track meet on January 28th was the last regularly scheduled competition, and although the track season technically continued after, only the school’s top athletes would be competing in the remaining championship meets, Adnan not among them. So although Adnan continued to make sporadic appearances at practices following the last regular season meet, his attendance is reported to have significantly dropped off and it does not appear he went much or at all after the first week of February.

3 Per a track coach interviewed by the detectives, students who had missed school were not eligible to participate in athletics programs that afternoon. Adnan was out of school for a religious holiday on January 19th, and marked as absent on the 25th. He is also marked as absent on February 4th according to one record, but no absence is marked on another, so it’s not completely clear if he was eligible for track that day.

4 January 26th and February 4th also show some activity during these time periods, but not activity would be inconsistent with his attendance at track on those days, so I’ve not included them on this list. On January 26th, there was a call to check voicemail at 4pm, and on February 4th, there was a 10 second call to Adnan’s friend Peter at 4pm. Both calls were on towers that would be expected for a call made from Woodlawn High School.

What the Crime Scene Photographs Show

Previously, on both Undisclosed and our blogs, Colin, Rabia, and I have discussed the significance of the medical examiner’s findings concerning livor mortis. To recap, Dr. Korell’s autopsy report concluded that Hae’s body had fixed anterior (frontal) lividity, and that she had been buried on her right side. She testified to these same facts at trial:

CG: So that, that would tell you that the body was face down when the livor was fixed.
Dr. Korell: Right.
CG: Would it not?
Dr. Korell: Yes.
CG: Okay. Because that would mean the blood would pool on the front of the body .
Dr. Korell: Correct.
CG: And that wouldn’t happen if the body post-death were on its side.
Dr. Korell: Correct. (2/02/00 Tr. 79-80.)

Of course, there’s a problem here. If the body were buried on its right side sometime during the 7:00pm hour, this would preclude the anterior lividity described by Dr. Korell, which means that Jay’s story is dramatically and provably false with respect to the events of January 13, 1999.

Although the 7:00pm burial story would be disproven if looking solely at the autopsy report, two critical questions remained about the report’s validity.

First, was Dr. Korell correct about the anterior lividity? The autopsy photographs were in black and white, which is far from ideal, but multiple forensic pathologists were able to conclude,  after reviewing the photographs and autopsy report together, that Dr. Korell was correct in finding anterior lividity. All found that the lividity was anterior and even on both sides, meaning that the body was laid out flat, not leaned to one side or the other, at the time lividity fixed.

Second, was Dr. Korell correct that the body had been buried on its right side? The autopsy report concluded that it was, but because the State had never permitted the defense to obtain copies of the crime scene photos, we could not independently confirm this. However, there is no reason to think that this part of the report was in error. The autopsy was performed by two pathologists: Dr. Korell and Dr. Aquino.

1 - Aquino

And, although Dr. Korell had not been present at the crime scene, Dr. Aquino was:

2 - Crime Scene Report

(Progress Report, 6/10/99)

As one of the pathologists conducting the autopsy had personally observed the body at the Leakin Park crime scene, he was able to personally assess and report the positioning of the body. His conclusion that the “[t]he body was on her right side” was based on his own observations, not second-hand information from investigators. But did Dr. Aquino somehow make a huge blunder in his autopsy report, writing that Hae had been found on her right side, when really she had been laid out on her front?

In theory, this question should have been trivial to answer. In theory, there should have been crime scene photographs, body diagrams, and reports by crime scene technicians and the forensic anthropologists who performed the excavation, which would have described in detail the positioning of the body and other key facts about the crime scene. In theory, these basic facts should have been part of the record from Day One of the investigation.

In practice, however, there was nothing. No diagrams, no notes, no photos. Aside from the autopsy report, the position in which Hae’s body was found was a black hole as far as the case files for both the police and the defense were concerned. It was not until nine months after the incongruent findings in the lividity had first been noticed that the crime scene photographs were finally obtained by MSNBC, in connection with The Docket’s latest Serial special.

Before explaining what the photographs show, however, let’s review the failures that resulted in a situation in which the defense was denied access to any evidence concerning how Hae had been positioned at the burial site, and why it has taken so long to get conclusive answers to what should have been some of the most basic facts about the case.

The Investigatory Record

It is notable that not a single document in the police record describes the position in which Hae’s body was found. In fact, not one of the reports provided anything beyond the most generalized descriptions of the crime scene. The following is the entirety of available record that was produced to the defense before trial:

4 - 6-10 Report

(Progress Report, 6/10/99)

5 - 2-09 Report

(Crime Scene Narrative, 2/09/99)

(Progress Report, 2/16/99)

(Progress Report, 2/16/99)

(Police Report, 2/09/99)

(Police Report, 2/09/99)

(Surveyor's Map)

(Surveyor’s Map)

(Evidence Diagram)

(Evidence Diagram)

There’s not a single word in any of them which describes how the body was positioned in relation to the ground. Based on these reports, the only facts discernible at all as to how the body was found at the crime scene are that it was:

  1. Partially buried;
  2. Behind a 40′ log;
  3. Approximately 15′ from the west end of the log;
  4. With the head pointing towards the south, and feet pointing towards the north; and
  5. Located either 127′ or 114′ north of N. Franklintown Road (depending on which map you’re using).

Later, on August 2, 1999, the prosecution produced the following memo to the defense, which was described as the “oral report of Dr. Rodriguez,” the forensic anthropologist who disinterred the body:

Oral report of Dr. Rodriguez

Oral report of Dr. Rodriguez

This brief, triple-hearsay memo was the only report ever provided to the defense concerning the forensic findings at the crime scene. It is a prosecutor’s summary of another prosecutor’s notes of a conversation that she had with the forensic anthropologist five months previously. This document exists because in February 1999, prosecutor Vicki Wash spoke to Dr. Rodriguez, and she took notes of what he said. In July, prosecutor Kathleen Murphy wrote a summary of Wash’s notes, and then gave that to the defense.

So whatever Dr. Rodriguez found in his examination of the crime scene, his analysis was filtered through two different prosecutors before Adnan’s attorneys ever got a chance to see it. There is no way to know if Wash’s note were accurate and included everything of importance, and no way to know what Murphy’s “summary” of those notes left out. As a result, we have no idea if the oddities in this short report are truly things Dr. Rodriguez said, or if they are merely the result of a mistaken transcription by either Wash or Murphy in their various iterations of the report. Green plant material underneath — does plant material remain green if buried underground for a month? Orange fiber found on body, blue fiber found beneath body — but wait, why did the trace analysis unit conclude that there was a red fiber, a colorless fiber, and a pink-orange fiber found on the body? Is Rodriguez’s orange fiber near the shoulder Van Gelder’s red fiber near the head, or was it Van Gelder’s pink-orange fiber from a root? And what about the blue fiber, should we just assume it’s the colorless fiber that testing was done on?

Van Gelder's Trace Analysis Report

Van Gelder’s Trace Analysis Report

Prior to trial, the only other evidence of what the crime scene looked like that was handed over to the defense came from Mr. S’s police interviews. On the night of February 9, 1999, one of the detectives wrote down the following based on what Mr. S had said:

Mr. S's Police Statement

Mr. S’s Police Statement

Mr. S also provided the following sketch:

Mr. S's Sketch

Mr. S’s Sketch

And that’s it. Nothing whatsoever concerning whether the body was on its side, back, or front. Almost nothing concerning how it was buried. And inconsistent information concerning even the location of where the body was found.


From the beginning, the prosecution was playing games with what information it turned over concerning the burial site. Although initial discovery was (eventually) handed over by Urick on July 2nd, that discovery was decidedly lacking. Five days later, Gutierrez wrote to Judge Quarles outlining the numerous deficiencies in the State’s production:

  1. Any and all sketches, diagrams, and photographs of the crime scene, to include the victim as welI as any evidence collected.
  1. A legible crime scene log. The log provided was cut-off.

. . .

  1. All police reports, only incomplete reports were provided.
  1. A copy of Det. Bradshaw’s follow-up investigation report. The report in the materials provided is cut-off.

. . .

  1. A copy of any report or documents prepared by Dr. Rodriguez, the forensic scientist at the crime scene.

. . .

  1. Autopsy photographs. The photocopies provided are not legible.

. . .

16. The Medical Examiner’s log with any and all notes made by any personnel concerning the collection of the body.

In addition to the materials that were simply not produced at all, crime scene logs and reports were only partially produced, and the quality of the autopsy photos was so horrible that they showed nothing beyond a rough outline of the body.

The State’s response denied that any further records concerning the crime scene existed:

14 - Amended States Disclosure

In other words, information concerning the burial site had simply never been recorded by anyone. The prosecution’s position was that no one had, at any time, made any diagrams or took any notes of how the body was found at the burial site. Dr. Rodriguez and his team, who had been specially brought in from the Armed Forces Institute of Pathology in Washington, D.C., in order to assist the BPD with the recovery of the body, had failed to document any aspects of the crime scene.

It is worth noting that this is absolutely insane. No investigation should ever, under any circumstances, be conducted this way. There are two possibilities here: either the prosecution falsely represented to the defense (and to the court) that no such documents existed, or else Dr. Rodriguez and his team neglected the most basic aspects of a proper forensic investigation and failed to document any of their activities. See, e.g., Hutchins v. State, 339 Md. 466, 475, 663 A.2d 1281, 1286 (1995) (“The State [ ] ha[s] an obligation to disclose [ ] any written reports or statements and the substance of any oral reports and conclusions of [any ‘experts consulted by the State’] regardless of whether or not the State expected to call [those experts] to the stand to testify.”).

The only further information provided concerning Dr. Rodriguez’s (or Dr. Korell’s) findings consisted of the following disclosure on October 1st:

15 - Amended State's Disclosure

Nothing else was ever produced about the crime scene. No diagrams, no analysis, no notes, no reports. According to the prosecution, Dr. Rodriguez was brought in from Washington to conduct a forensic recovery that BPD was unequipped to handle, but failed to write down a single thing concerning his work.

Obtaining the Crime Scene Photographs

Without any documentation of the crime scene, the only remaining way to determine how the body was positioned is through the crime scene photographs. That catch was that the defense did not have any crime scene photos; Urick had refused to ever provide copies, and instead only permitted the defense to briefly view the photographs prior to trial.

Gutierrez, to her credit, relentlessly and repeatedly sought the photographs, such as in the following letters to Urick:

Defense Letter to the State, 8/5/99

Defense Letter to the State, 8/5/99

Defense Letter to the State, 9/7/99

Defense Letter to the State, 9/7/99

Defense Letter to the State, 1/6/00

Defense Letter to the State, 1/6/00

But it didn’t work. Other than the brief two-hour viewing that Urick permitted prior to trial, and during the trial itself, the defense never had access to these photos.

However, at trial, the prosecution introduced into evidence a series of eight photographs of the burial site, which Dr. Rodriguez described in his testimony. These photographs were acquired from the court last month, and, finally, we were able to definitively confirm what we have known for months: the lividity findings combined with the burial position preclude the possibility of a 7:00pm burial.

These photos were shown to Dr. Hlavaty, who was interviewed in Episode 5 of Undisclosed. After reviewing the newly obtained images, she was able to confirm that the body was positioned on its right side. Because the photos were in color, she was also able to confirm, once and for all, the presence of lividity on the anterior surface of the torso.

In addition to the lividity findings, though, it is worth noting that these findings are also highly significant in terms of what they show about the crime scene. In particular, the body was not at all concealed to the degree that I had expected, based on the trial testimony and police reports that I have been reviewing since Serial ended. The majority of the body is above the level of the forest floor, and is concealed primarily by a pile of loose soil and dead leaves that have been thrown into a pile on top of it. Much more of the body was exposed than I had expected, as well.

My reaction to the photographs was, in fact, much the same as Mr. S’s reaction was to the crime scene. The first thing you notice is that the earth has been disturbed; it is blatant and would be hard to miss. A pile of leaves and dirt have been thrown into a pile, and the forest floor surrounding the pile is bare dirt, as if someone had scooped up all the leaves in arms’ reach to add to the pile. After looking at the dirt and leaf pile, the most striking features are the glossy black hair, and below that the white of Hae’s jacket collar, as well as the completely exposed foot sticking out from the pile of leaves. Large portions of the left knee and hip are also exposed, although the color and texture of the taupe stockings allow those portions to blend in better with the surrounding brown and tan leaves.

The Pressure Marks

The photographs also provide confirmation that Hae’s body was laid out frontally after death because of what they show concerning the pressure marks. Lividity causes discoloration in the areas of the body where the blood has settled due to the effect of gravity, but in addition to the areas of discoloration this process also leaves pressure marks that appear as white patches on the skin. Pressure causes compression of the blood vessels, which results in blood being unable to settle in those areas, and therefore no discoloration occurs, even in a location that is otherwise the lowest area of the body.

In this case, the pressure marks found on Hae’s body provide further evidence that Hae had been buried after lividity had become fixed. First, there are the marks found on Hae’s shoulders: a series of three are similar-sized pressure marks, two on the right and one on the left, at roughly the same level of the body and roughly the same shape. I have made a diagram depicting theses marks’ approximate location:

The areas marked in white are pressure marks with unambiguous and distinct borders. The areas marked in beige are also pressure marks, but their shape is less clear from photos.

The areas marked in white are pressure marks with unambiguous and distinct borders. The areas marked in beige are approximate representations of the pressure marks, but their shape is less clear from photos; the beige should be interpreted to show location and general shape, rather than exact appearance.

The pressure mark on the farthest right of Hae’s shoulders was the most distinct, with clear, straight borders, and its shape is that of a distinct double-diamond pattern:

The dimensions are very precise. Based on the ruler provided for scale, the double diamond mark is:

  • 2 1/2″ inches from top to bottom
  • 1 1/8″ across at widest
  • 5/8″ across at narrowest

The two diamonds on the right shoulder are 2″ apart from point to point, and 1″ apart from the fattest part of the diamonds.

There is also a divot in the center of the rightmost diamond. Its placement makes it appear artificial, as if it were part of the construction of the item. This is especially so when combined with how symmetrical and straight the edges are; whatever it is, I do not think it’s organic.

There is no way to determine if this pressure mark was due to contact with an object in that shape, or if, for example, the object was bar-shaped and the double-diamond pattern is simply a result of greater pressure against the clavicle and shoulder and lesser pressure in-between. The other two marks (one other on the right shoulder, closer to the neck, and a third one on the far left shoulder) do appear roughly similar in shape and size, but their shape is not as distinct as is the one on the far right, as the borders are not as defined and they are not as clearly depicted in available photographs.

Dr. Hlavaty could not identify a possible source based on the marks, but she did confirm that they were pressure points that demonstrated anterior lividity. Although others have suggested that the marks may be caused by bra straps, the pressure marks do not line up with how the bra was on the body, and do not seem to be consistent with pressure marks that would have been caused by that. Whatever their source may be, there was nothing found at the Leakin Park crime scene that could account for the existence of these marks, and the body’s position did not cause these areas to be exposed to any greater pressure than the surrounding areas were subjected to.

The second significant pressure mark is the one found on the far left anterior surface of the torso, starting at a point slightly above the navel and ending at a point slightly below it. Tracing over the pressure mark gives the following zigzag shape:

19 - Pressure Mark

This pressure mark falls at the same level as the waist of Hae’s pantyhose, which had been twisted about; the pressure mark resulted from the constriction of the pantyhose where the waist had bunched due to twisting.

The location of this mark is significant in that it confirms that, when lividity fixed, the lower left side of the body’s abdomen was flat against whatever surface the body was resting on, causing blood to pool there. If lividity had fixed while the body was in the position in which it was found, no lividity could have developed in the lower left anterior of the torso.

What the Newly Obtained Crime Scene Photographs Show

For obvious reasons, we will not make copies of the photographs available to the public, and it is my very deep hope that no one else takes it upon themselves to publish them. Hae’s family doesn’t deserve that, and there is no excuse for such an action. However, the information contained in the photographs is important for Adnan’s case, and a subject of legitimate interest. In order to provide access to this information, while not making sensitive and potentially upsetting photographs available to the public, I have created a model to show the positioning of Hae’s body at the crime scene, as well as the portions of the body that were exposed when it was discovered by Mr. S.

I have taken every effort to make the model as faithful to the photographs as possible, so that when viewed from the same angle the model’s position matches the positioning shown in the photographs. A few caveats are in order, however: (1) In order to show the visible collar, the area of the neck has been obscured; (2) the positioning of the left hand is not shown in the photographs, and could either be palm up or palm down; it is depicted here as palm down; and (3) although all of the hair is depicted in the model, only the top portion of it was actually exposed as the crime scene was initially found; the lower portions were not visible until later stages of excavation. Also note that currently displayed images have been updated slightly from their original depiction when this was first posted.Model 2

Areas of the model marked in blue show the portions of the body that were exposed to the air, and which were visible in photographs prior to any recovery work had been done: the right foot, the left knee, the left hip, a portion of the right wrist and hand, the collar of Hae’s jacket, and the back of her hair.

Orange has been used to mark two of the more prominent pressure marks that would be visible based on the positioning of the model: one on the left shoulder, and one on the left lower torso. The marks on the right shoulder would have been obscured.

Model 5Model 6Model 14Model 4Model 10Model 9Model 13 Model 12 Model 11

Not all of the body was placed below ground; some portions of the body rested on soil at the same level as all of the surrounding forest floor. However, a portion of the body — primarily the torso — rested in a recessed area. In order to depict these conditions, I have used wires to hold the clay up, although in the photographs, these limbs are supported by the soil at the edges of the recessed areas, or by the forest floor itself.

According to Detective MacGillivary, there was a “natural depression” near the log, which is what the body had been placed in.  Although Dr. Rodriguez’s triple-hearsay oral report describes the area as being “dug out,” he never makes this claim in his trial testimony, and simply describes that where she was placed was “very shallow.”

This shallow depression was longer than it was wide, and only large enough to fit parts of the torso. The right knee is resting directly on the forest floor; the exposed areas, mark in blue, show where dirt and leaves had fallen off the sides of her leg, exposing all of it to air except for the lowest inch or so, which is obscured by leaf litter. The left hip is similarly exposed, with the sides uncovered by dirt and leaves due to the effects of gravity, although debris often remained directly on top of the body part. The right foot was entirely exposed and jutted at an angle into the air. The left arm was covered in leaves and not visible; although it was the highest part of the body, the leaves and soil were piled deepest over that area. The right elbow was the lowest part of the body, but is bent sharply so that the hand reaches upwards towards the surface. There was only a single rock placed on any part of the body, and that is the rock referenced in Dr. Rodriguez’s report that was placed on top of the hand. The positioning of the right hand, which indicates that it may have been in rigor at the time of the burial, makes me suspect that the rock was placed in order to hold the hand down, as otherwise rigor would have caused it to stick up well above the forest floor. With the rock on it, only a sliver of the back of the hand, where it meets the wrist, is exposed.

Additionally, it should be noted that the body was not “against” the log as it has sometimes been described. These photos show the model’s position with reference to the log and the rock:
Crime Scene - With Log - Rear View
Crime Scene - With Log - Westward View

Based on the crime scene photographs, there is no possibility that Hae was buried in Leakin Park prior to the fixation of lividity. This puts the earliest estimates of her burial at no sooner than 8-12 hours after death, and quite possibly longer. This means that, if Hae was killed shortly after leaving school, the burial could not have taken place before approximately 10pm.


Serial: Lies, Damned Lies, and Closing Arguments

Note: Rabia Chaudry (Split the Moon), Colin Miller (Evidence Prof Blog), and I started a podcast. It’s called Undisclosed, and it follows Adnan Syed’s case and current appeal. New episodes will be released every other week, on Mondays, and in case that is too long to wait, on the off-weeks we will be releasing short addendum episodes with updates and previews.


Before reading the post below, I recommend at least listening to Addendum 1, as some of the new information covered there is discussed in this post. And be sure to check us out next Monday, for Episode 2

In closing arguments, the prosecution “is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence.” United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991)). However, this latitude does not permit a prosecutor to make false and factually unsupported claims during closing arguments, as “[i]t is a fundamental tenet of the law that attorneys may not make material misstatements of fact in summation.” Davis v. Zant, 36 F.3d 1538, 1548 n. 15 (11th Cir. 1994). Accordingly, prosecutors have an “obligation [ ] to avoid making statements of fact to the jury not supported by proper evidence introduced during trial,” as “the interest of the Government in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’ and that ‘the average jury . . . has confidence that these obligations [of fairness and accuracy] will be faithfully observed.'”  Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969),  (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

In the case against Adnan Syed, this obligation was not respected. Prosecutors Kathleen Murphy and Kevin Urick displayed a reckless disregard for the truth in their closing arguments to the jury, both by making material misrepresentations about the physical evidence and by misstating witness testimony. For many of the misrepresentations made in closing, it is difficult to see how the prosecutors could have been unaware of the falsity of their arguments. Regardless of whether those misrepresentations were made intentionally or not, however, the prosecutors in Adnan’s case were “exceedingly reckless, and paid too short shrift to the prosecutors’ ‘obligation’ to seek a conviction only on the basis of facts in the record.” United States v. Mageno, 762 F. 3d 933 (9th Cir. 2014) (quoting Gaither, 413 F.2d at 1079).

Below, I have set forth (in blue) a selection of claims made in the State’s closing arguments, by Murphy, and rebuttal closing, by Urick, and provided an analysis of the accuracy of their representations to the jury.

Continue reading

Serial: The Above Average Investigations of Detectives Ritz and MacGillivary

Two big updates before today’s post:

First, Rabia Chaudry, Colin Miller, and I will be launching a new podcast to cover all the new developments in Adnan’s case. The first episode of Undisclosed will be released on April 13th, so check us out then.


Second, Rabia and I were back on The Docket this morning, this time for a special on the Science of Serial. Clint Van Zandt and Dr. William Manion joined us to discuss the crime scene analysis and the autopsy report:

The Science of ‘Serial’ Part I: Crime Scene
Physical evidence is missing from the 1999 murder of Hae Min Lee according to crime analyst Clint Van Zandt who states the murder, method of transportation and body disposal are not linked. Attorneys Seema Iyer, Rabia Chaudry, and Susan Simpson discuss.

The Science of ‘Serial’ Part II: Autopsy
Forensic Pathologist Dr. Bill Manion has problems with livor mortis when determining an approximate time of death of Hae Min Lee. Attorneys Seema Iyer, Rabia Chaudry, and Susan Simpson discuss.

The murder of Hae Min Lee was investigated by Detectives William Ritz and Gregory MacGillivary. To date, three defendants who were convicted of murder pursuant to investigations by either Ritz or MacGillivary have since been released from prison, after it was determined that they had been wrongfully convicted.

Those defendants are Ezra Mable, Sabein Burgess, and Rodney Addison. As the civil complaint filed last week by Burgess aptly summarizes, the convictions in all three cases were

the result of the Baltimore Police Department’s policies and practices of pursuing wrongful convictions through reliance on profoundly flawed investigations. In a race to clear murder cases, the Department cut corners and rushed to judgment.

The problems in the underlying investigations ranged from simple incompetence — such as failure to interview obvious witnesses or to properly preserve forensic evidence — to intentional distortions of the evidentiary record — such as the fabrication of witness reports. In each of these cases, the investigators’ tunnel vision led them to either ignore or avoid evidence that contradicted their chosen theory of the case, and to withhold any exculpatory evidence they accidentally stumbled upon. Moreover, in both the Mable and Burgess cases, allegations have been made of deliberate wrongdoing by police officers who prioritized clearing cases over identifying the actual perpetrators of the murders they were investigating. Improving the detectives’ numbers became a higher goal than identifying criminals and building solid cases against them.


The prioritization of good statistics over good investigations can be seen not just in the resulting false convictions, but also in the resulting murder charges that were so unsupportable that they never resulted in prosecution by the State. Even though these cases were voluntarily dismissed by prosecutors who determined there was an insufficient basis to try the defendant, each charge was nevertheless recorded as a “cleared” case for purposes of the detective’s track record. For example, from 1998 and 1999, Detective Ritz was involved in at least 42 investigations which resulted in charges of first- or second-degree murder. Of those 42  murder charges, however, 15 were nolled or otherwise dismissed voluntarily by the State after it was determined that the evidence was insufficient to permit the prosecution to proceed. This “charge them all and let the prosecutor sort them out” style of policing was a major cause of a schism that developed between the State’s Attorney’s Office and the BPD. It was also a major contributor to each of the false convictions discussed herein. Continue reading