Monday, April 4, 2016

Tonight, we will drop the final Undisclosed episode about the reopened PCR proceedings in the Adnan Syed case. Tomorrow, I will do a post about two of the cases we discussed in the episode. After that, though, I will turn my attention to our Season 2 case and return to blogging about other topics until Judge Welch issues his opinion. At that point, I'm sure I'll have a number of posts about the opinion, and we'll be recording new episodes about it as well.

How do I expect Judge Welch to rule? As I've said during the PCR episodes, my understanding of the reopened PCR proceeding is that the defense presented a very strong case for both the alibi and cell tower claims. That said, it's tough to say anything definitively without being there to see the testimony and exhibits. By way of contrast, once Judge Welch issues his opinion, I will be in exactly the same position as the Court of Special Appeals of Maryland and be able to make a much more conclusive judgment about how that court will rule.

Other than new Undisclosed content related to Judge Welch's ruling, you can expect some new episodes on other criminal justice matters. For instance, later this week, I will be recording an interview with Bill Rankin, the host of the Breakdown Podcast, which just launched its second season. Now, none of this is to say that work isn't still being done on Adnan's case. It is, but none of that work is yet at the stage where it can be presented to the court or the public. In this post, though, I will share two last nuggets.

The Evolution of Jay's "Come and Get Me" Call Story

One reason that so few people trust Jay's accounting of the murder of Hae Min Lee is the fact that he is so off on the timing. Starting with his first interview, Jay consistently tells a story in which he received Adnan's "come and get me" call at or after 3:40 P.M., despite the fact that there were no incoming calls on Adnan's cell phone between 3:15 and 4:27 P.M on January 13th. Some try to write this error off as Jay being bad with time, but this is a tough argument to support, given that Jay initially made this statement right after a pre-interview in which he said he received a non-"come and get me" call from Adnan between 2:30 and 2:45 P.M.

The other explanatory theory consists of Jay consciously shifting the timing of the "come and get me" call to 3:45ish because he knows that Hae's murder occurred between about 3:00 and 3:30, with the fact that the police didn't get him to correct the timing of that call used as evidence of lack of police coaching. First, again, it's tough to reconcile this theory with Jay's pre-interview, in which he said that he met with Stephanie in the back parking lot of Woodlawn High School at 3:00 P.M.

Second, it turns out that Jay's description of the timing of the "come and get me call" is actually based on police coaching. Here's what Jay had to say about the timing of that call in his first police interview on February 28, 1999 (page six):

Dolly Dobrzycki finished her transcription of this interview on March 13, 1999, and the Progress Report for the interview was finalized on March 15, 1999, presumably in preparation for Jay's second recorded interview that same day. Here is that Progress Report (Download Progress Report), and here is the pertinent portion:





Of course, this isn't what Jay said in his first interview; he said that Adnan was supposed to call him at about 3:00 P.M., the same time that Jay initially said that he was seeing Stephanie in the parking lot at Woodlawn. That said, when Jay describes the "come and get me" call in the second recorded interview, the State's fiction became reality (page 11):

It's easy enough to see what happened here. During Jay's three hour pre-interview on March 15th, Detectives Ritz and MacGillivary got Jay to change the timing of the planned "come and get me" call from 3:00 to 3:30 P.M. This might have been accidental. Although her interview was all over the place, Jenn seemed to indicate that Jay was waiting for a call at 3:00 P.M., a claim that could have found its way into the Progress Report on Jay's first interview, leading the mistaken detectives to get Jay to go along with this narrative. Or it might have been intentional, with the detectives realizing that a pre-arranged 3:30 P.M. "come and get me" call made much more sense than a planned 3:00 P.M. call.

Why? Keep in mind that, as of March 15th, the detectives were still working off of the theory that Debbie was the last person to see Hae alive.* In her January 28th interview, Debbie claimed that she saw Hae at Woodlawn at 3:00 P.M. And, while the State "lost" the notes from Debbie's March 2nd interview, we know that Debbie said in her March 26th interview that she could have seen Hae as late as 3:15 P.M., with Hae typically leaving at the same time each day to pick up her cousin(s) but sometimes running late.

Given this timeline, it's easy to see why the detectives wouldn't discourage Jay's timeline and would even encourage a shift from a planned 3:00 P.M. call to a planned 3:30 P.M. call. After all, how could there have been a plan for the "come and get me" call to be at 3:00 P.M. if Hae didn't typically leave Woodlawn until 3:00 (or later) and likely didn't leave Woodlawn on January 13th until 3:00 (or later). Conversely, a planned 3:30 P.M. call would make complete sense.

So, did the detectives intentionally get Jay to shift the timeline from 3:00 to 3:30, or did they make a mistake that Jay ended up incorporating into his story? I don't know which version is worse for the State. The former version would establish pretty clear police misconduct while the latter version would support the narrative that the police unintentionally fed Jay key aspects of his narrative without even realizing what they were doing, similar to what Detective Ritz did in the Brian Cooper case. Either way, we now know that Jay's version of the "come and get me" call wasn't his own.

The only real way this wouldn't be true is if Jay talked to Jenn before his second interview and they got their stories straight. But it's pretty hard to imagine the two of them coordinating their stories of when Adnan was supposed to call Jay but not coordinating essentially every other key inconsistency between their stories, including whether Jenn was home when Jay arrived at the Pusateri residence.

Jenn's February 26th Talk With MacGillivary

This takes me to some more misconduct by the State. We all know that Jenn first talked to Detective MacGillivary on January 26th before returning the next day for her recorded interview. But guess who didn't know this? The defense, until January 18, 2000. This comes from an Amended State's Disclosure on that date:

The State, however, did not turn over Detective MacGillivary's notes from this January 26th conversation. So, does this disclosure accurately reflect this conversation? No.

First, the disclosure merely indicates that Jenn "knew Hae Lee had been killed and that she had been strangled." Here is the corresponding notation:

Now, in fairness, Jenn seems to mention something similar in her recorded interview the next day, but her word jumble is much less clear that the stark notation taken by MacGillivary. Would the defense have interviewed Nicole if it received these notes? Knowing the investigatory shortcomings of Gutierrez in Adnan's case, the answer is likely "no," but a competent defense attorney would have talked to Nicole and might have discovered something interesting

Second, the disclosure makes no mention of Jenn telling MacGillivary on February 26th about her whereabouts on January 13, 1999. And, indeed, MacGillivary testifies to the following at trial (page 311):







MacGillivary's notes, however, tell a different story:

These notes show (1) the workplaces of Jenn's father and mother; (2) the school attended by Jenn's brother, Mark; (3) Jenn's workplace (Heartlands); (4) Jenn getting off at noon; (5) a 4-4.5 hour gap between noon/12:30 and 4:30 P.M.; (6) Jenn picking up her mother at 4:30 P.M.; (7) Jenn picking up her father at 5:30 P.M.; and (7) nothing from 6:00-6:30 P.M. or the rest of the night.

In her recorded interview the next day, Jenn told a similar story about dropping off her father, mother, and brother, going to work, and picking up her mother and father in the evening. She also discussed the events of the night of January 13th that we all know so well and filled in the noon-4:30 gap by noting that she arrived home from work and played video games with Jay before he got the "come and get me" call:

Notably, Jenn makes no mention of picking up her brother from school or her brother being present when Jay and she played video games. At trial, though, Jenn did mention that it was her routine to pick up her brother up from school at about 1:00 P.M., (pg. 182-183):

but I'm not sure that Jenn ever actually testified to picking up her brother on January 13th. Meanwhile, Gutierrez confronted Jenn about the lack of reference to her brother in her recorded interview (pg. 81-82):

Gutierrez was trying to imply that Jenn never mentioned Mark's name because he wasn't home, which would very much contradict Jay's claim that only Mark was home when he arrived at the Pusateri residence. Jenn's response is that she "had no reason to" mention Mark's name.

You might agree or disagree with Jenn's assertion, but what seems crystal clear is that Jenn had every reason to mention Mark's name in her January 26th conversation with MacGillivary. Again, in the notes of that conversation, Jenn very clearly mentions picking up her mother and father at 4:30 and 5:30. Conversely, there is nothing next to 12:30-1:00, despite Jenn's claim at trial that she routinely picked her brother up from school in this general time frame.

I also think it's pretty significant that Jenn failed to fill in the noon/12:30-4:30 gap in her January 26th conversation with MacGillivary. I can see why Jenn wouldn't want to mention being with Jay, even though she did tell him Jay's name and workplaces:

But if Jenn really did play video games with Mark and Jay from 1:00ish to 4:30, why didn't she just give this correct version of events on February 26th and simply leave Jay out of the story?

The easy response is that this was not the correct version of events, which would explain why Jay's consistent claim is that Mark, and not Jenn, was home when he arrived at the Pusateri residence. Indeed, in his ride-along, Jay implied that Jenn was never home on the afternoon of January 13th:

So, which version of events is true? As far as I know, nobody believes that Jay was at the Puateri residence on January 13th until 3:40ish. But was he ever there? And was Jenn ever home on the afternoon of the 13th? If so, and if, as per usual, she picked up Mark at 1:00 P.M. and took him home, how could Jay have thought that only Mark was home when he arrived at the Pusateri residence? On the other hand, if Jenn didn't take Mark home on January 13th, how did he get home? Was it in fact Jenn's usual routine to drive him home after school, and, if so, why didn't Jenn mention this fact in either her January 26th conversation with MacGillivary or her recorded interview?

As usual, we have no answers. Moreover, because the State failed to turn over the January 26th notes back in 1999/2000, we don't even have the questions. What we do have is some serious doubts about what Jay, Jenn, and Mark were actually doing on the afternoon of January 13, 1999.

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*It wouldn't be until Inez Butler's second interview on March 23rd that the State might have shifted its timeline, and it's not even clear whether such a decision was much before trial.

-CM

https://lawprofessors.typepad.com/evidenceprof/2016/04/today-we-will-drop-the-final-undisclosed-episode-about-the-reopened-pcr-proceedings-in-the-adnan-case.html