Monday, December 28, 2015

We are now just a little over a month away from Adnan's reopened PCR proceeding. At the hearing, Adnan will present evidence and testimony on two claims: (1) he received the ineffective assistance of counsel based upon his trial attorney failing to contact a prospective alibi witness; and (2) the State violated Brady by failing to disclose to the defense (and its own expert) that Exhibit #31 was a Subscriber Activity Report governed by the disclaimer indicating that "[a]ny incoming calls will NOT be considered reliable information for location."

I've seen some label these issues as "legal technicalities" that don't go toward the issues of actual innocence and even the jury's finding of guilt beyond a reasonable doubt. In this post, I will counter these assertions.

Alibi Argument

The argument that Asia McClain is a "legal technicality" actually does hold some water...if you believe the timeline laid out by Serial. The problem is that basically nobody believes that timeline any more. In that timeline, Summer, Hae's co-manager on the wrestling team, talked with Hae about going to the Randallstown wrestling match until about 2:50 P.M. (or later) on January 13th, meaning that Hae wouldn't have left the Woodlawn campus until after 2:50 P.M. Under this timeline, an alibi witness who saw Adnan until 2:40 P.M. would indeed be a legal technicality. She would directly rebut the State's claim at trial that Adnan had killed Hae at Best Buy by 2:36 P.M., but she would not preclude the possibility that Adnan intercepted Hae before she left the Woodlawn campus.

As we now know, however, the Randallstown wrestling match was on January 5th, and Woodlawn had no wrestling match on January 13th. In other words, we can safely remove Summer from the January 13th timeline because her memory (over a decade later) is solely tied to the Randallstown wrestling match. We can likely do the same for Debbie, who seems to recall Hae telling her that she was going to a wrestling match* on January 13th:

We can also likely do the same for Inez Butler, whose memory of January 13th was also tied to a wrestling match. That said, if we think that Inez Butler did have the right day, her recollection of Hae leaving school in a hurry between 2:20 and 2:30 P.M. would make Adnan's library alibi hugely relevant in terms of proving his actual innocence.

Taking these wrestling witnesses out of the equation, that leaves Becky, who recalls seeing Hae heading toward her car after saying she had somewhere else to be immediately after school (between 2:15 and 2:20 P.M.). As with Inez Butler's version of events, Becky's version has Hae leaving the Woodlawn campus well before 2:40 P.M. on January 13th, which means that Adnan's library alibi tends to establish his actual innocence.

Put simply, if you believe that Becky or Inez was the last innocent person who saw Hae alive, Adnan's alibi claim at his PCR hearing is not a legal technicality but instead points strongly toward his actual innocence. The only real questions are whether the library alibi is reliable and whether either Summer (doubtful) or Debbie (slightly less doubtful) did in fact see Hae on January 13th, with the Debbie timeline possibly being even more favorable for Adnan.**

Cell Tower/Brady Argument

This one's much simpler. An example of a legal technicality in connection with cell phone evidence can be found in Ware v. State, 702 A.2d 699 (Md. 1997), which I've discussed on this blog and an Addendum episode of the Undisclosed Podcast. It's the case in which a man was convicted of sexually assaulted a prostitute in large part based upon cell phone records that were improperly authenticated. As we noted on the podcast, this was a technical error that the State should easily be able to remedy on retrial. All the State needs to do is call a witness from the cell phone provider to identify and authenticate the defendant's cell phone records, and the jury should be able to return another "guilty" verdict.

By way of contrast, there is no fixable error that occurred at Adnan's trial. If you believe the plain language of the disclaimer, incoming calls were not reliable for determining location, meaning that pings such as the "Leakin Park pings" don't tell us anything about the location of Adnan's cell phone. As a result, if there ever is a retrial, there is nothing that the State can do to fix its error. The incoming pings would be legally inadmissible and factually irrelevant to anything connected to the case.

Now, unlike the library alibi, this conclusion doesn't directly prove innocence, but it does remove one of the few pillars supporting the proposition that Adnan might be guilty. It also very much undermines the jury's determination of guilt beyond a reasonable doubt. As I've noted before, the jurors at Adnan's first trial were leaning toward a "not guilty" verdict before they had heard Jenn, the cell tower evidence, and the defense case. If you assume that Jenn (who mostly contradicted Jay) and the defense case cancel each other out, it was the cell tower evidence that made the difference. If that evidence was unreliable, then so was the jury's guilty verdict at the second trial, a conclusion that Kevin Urick himself would seem to support.

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*I'm guessing that "rustling" means "wrestling," but the State has still failed to turn over the audio recording of Debbie's police statement. Beyond this, though, we have several other reasons to doubt Debbie's recollection, including her confusion over "A" days and "B" days.

**This is another thing that Serial seemingly got wrong. In episode 2, Sarah says, "Then their friend Debbie remembers seeing Hae on her way to her car. She told Debbie she had to get her cousin from school, and then was going see Don at the mall."

But Debbie never said that. In her first statement, Debbie says Hae said she was going to see Don; there's no mention of picking up her cousin. In her second statement, Debbie says that Hae told Takera she couldn't give her a ride because she had to pick up her cousin. There's no mention of Hae going to see Don, although Hae and Takera apparently did talk about their boyfriends. So Sarah, seems to be combining elements from two different statements, creating a version of events that is less helpful to Adnan than either of the statements standing alone.

Frankly, I think that Sarah was kind of confused about all things Debbie. Here's the Debbie entry from the Serial People Map:

DEBBIE Classmate and friend of Hae. Told police she saw Adnan after school on Jan. 13 around 3:30 p.m. Says Hae told her she was going to see Don after school.

I still have no idea where 3:30 P.M. comes from, and this entry also combines elements from Debbie's two statements. In her first statement, Debbie says Hae said she was going to see Don, and there's no mention of seeing Adnan. In her second statement, there's no mention of Hae going to see Don, but Debbie does mention seeing Adnan, but at 2:45 P.M., not 3:30 P.M.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/12/we-are-now-just-a-little-over-a-month-away-from-adnans-reopened-pcr-proceeding-at-the-hearing-adnan-will-present-evidence-a.html