Tuesday, December 30, 2014

I've posted 25 entries Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. The key witness in the prosecution's case, the only witness who really incriminated Adnan, was Jay Wilds. By the proscutor's own admission, Jay gave wildy inconsistent versions of the events that occurred on January 13th during his police interviews (here and here) and his trial testimony. But the prosecutor asked jurors at Adnan's trial to "look at the big picture" and told them that the main plot points in Jay's story had been consistent.

I took the prosecutor at his word until Rabia Chaudry posted some excerpts of Jay's testimony at trial, which showed that even Jay's testimony on key events varied over the course of his various accountings. This was troubling and led me to conclude that the prosecution's case was dead and that I would not use Jay's story or the prosecution's theory of the case as any type of starting point for determining Adnan's guilt or innocence. As I noted in that post, Jay's inconsistencies tore out the heart and ripped out the brain of the prosecution's case.

Yesterday, The Intercept posted Part 1 of its exclusive interview with Jay Wilds. I said before that the prrosecution's case was dead. With this interview, Jay has now burned the corpse. So, what are the legal consequences of this interview for Jay and Adnan? I will address these issues in succession in this post.

As always I will start this post with the caveat that I have limited information about this case. As such, I'm relying on an incomplete record and forced to make certain suppositions and assumptions. That said, let's jump in.

Jay: Maryland Perjury Law

In relevant part, Section 9-101 of the Maryland Code of Criminal Law states that

(a) A person may not willfully and falsely make an oath or affirmation as to a material fact:

(1) if the false swearing is perjury at common law....

(b) A person who violates this section is guilty of the misdemeanor of perjury and on conviction is subject to imprisonment not exceeding 10 years....

(d) A person who violates this section is subject to § 5­106(b) of the Courts Article.

In turn, Section 5-106(b) of the Courts Article reads as follows:

(b) Notwithstanding § 9-103(a)(3) of the Correctional Services Article or any other provision of the Code, if a statute provides that a misdemeanor is punishable by imprisonment in the penitentiary or that a person is subject to this subsection:

(1) The State may institute a prosecution for the misdemeanor at any time; and

(2) For purposes of the Maryland Constitution, the person:

(i) Shall be deemed to have committed a misdemeanor whose punishment is confinement in the penitentiary; and

(ii) May reserve a point or question for in banc review as provided under Article IV, § 22 of the Maryland Constitution.

Put simply, a person who commits the offense of "perjury at common law," he is guilty of misdemeanor perjury, which is punishable by up to 10 years imprisonment and which may lead to a perjury prosecution at any time.

So, what is common law perjury in Maryland? As the Court of Appeals of Maryland noted in Brown v. State, 171 A.2d 456, 458 (Md. 1961):

Perjury is generally described as set forth in Wharton, Criminal Law, § 1511 (12th ed. 1932), p. 1782, as follows:

"The offense consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, according to belief. The false oath, if taken from inadvertence or mistake, cannot amount to voluntary or corrupt perjury. * * * That the oath is wilful and corrupt must not only be charged in the indictment, but must be supported on trial. An oath is wilful when taken with deliberation, and not through surprise or confusion, or a bona fide mistake as to the facts, in which latter cases perjury does not lie."

In essense, "the gravamen of the offense is intentional lying."Attorney Grievance Com'n of Maryland v. Goldsborough, 624 A.2d 503, 517 (Md. 1993).

So, did Jay commit perjury by intentionally lying about a material fact at Adnan's trial? Again, I don't have the trial transcripts for Adnan's trial, so I don't know exactly what Jay said. But let's take what the Serial Podcast said about Jay's testimony and compare it with some of what Jay said in Part 1 of his interview:

Trial

Adnan suggested the idea of Jay borrowing his car so that he could buy a gift for his girlfriend Stephanie.

Interview

Adnan agreed to let Jay borrow his car after Jay said, "Hey, I need to run to the mall ’cause I need to get a gift for Stephanie."

Trial

When he is loaning Jay his car, Adnan tells Jay he is going to kill Hae.

Interview

When asked about whether Adnan said he was going to kill Hae when he was loaning him his car, Jay responds, "No. I didn’t know that he planned to murder her that day. I didn’t think he was going to go kill her."

Trial

Jay was waiting on Adnan to call him at about 3:30 after Adnan killed Hae.

Interview

Adnan told him he would call Jay after track practice. According to Jay, Adnan said, "I’m going to be late for practice, so just drop me off. Take my car, take my cellphone. I'll call you from someone else’s phone when I’m done."

Trial

Adnan showed him Hae's body by popping the trunk of Hae's car at the Best Buy parking lot.

Interview

When asked whether Adnan showed him Hae's body at Best Buy, Jay responds, "No. I saw her body later, in front of of my grandmother’s house where I was living. I didn’t tell the cops it was in front of my house because I didn’t want to involve my grandmother." Jay also says that Adnan didn't "have any car with him" when they met in the Best Buy parking lot.

Trial

Jay isn't entirely clear about when Adnan and he bury Hae's body in Leakin Park, but he testified that he got home for the night by 11:00 P.M. Jay either testifies that an incoming call to Adnan's cell phone at 7:09 that pings the Leakin Park cell tower is from his friend Jenn, or the prosecution is able to make this assertion based upon the general timeline established by Jay.

Interview

Adnan calls Jay at his house, asking for his help in burying Hae. After Jay agrees, Adnan arrives at Jay's house "closer to midnight in his own car. He came back with no tools or anything. He asked me if I had shovels, so I went inside my house and got some gardening tools. We got in his car and start driving." Eventually, they make their way to Leakin Park, where Jay helps Adnan dig a hole, allowing Adnan to bury Hae's body.

So, is any of this perjury? Again, the question is whether Jay intentionally lied about any material fact at Adnan's trial. I'll let readers draw their own conclusions about whether Jay's trial testimony consisted of lies or mere mistakes. Do I think that Jay will actually be prosecuted for perjury? It's exceedingly unlikely that the prosecution would have any interest in prosecuting its own witness from a case 15 years later, especially when the proof is an internet article. The reason I mention Maryland perjury law is primarily because of the effect a finding of perjury could have on Adnan's appeal.

I should also mention that Jay could also be in trouble because his plea agreement states in relevant part that

The Defendant represents that he/she has fully and truthfully responded to all questions put to Defendant by law enforcement authorities during all prior interviews. If at any point it becomes evident the Defendant has not been truthful concerning his involvement in this incident, the State is immediately released from any obligation under this agreement, the agreement becomes null and void, and the State is free to bring any charge against the Defendant supported by the evidence. The Defendant shall continue to cooperate fully with the State by providing full, complete and candid information concerning the murder of Hae Min Lee of which Defendant has knowledge.

Do I think that Jay actually will be in trouble? Again, it's highly doubtful. I've never seen a case in which the prosecution has alleged breach of a plea agreement more than a decade later. Moreover, it seems to me that the prosecution knew what it was getting into with Jay as a witness, based upon his inconsistent police statements. And again, I'm using the prosecution's knowledge about Jay's shifting story more to show how it could help Adnan on appeal than to show that Jay will face any actual legal consequences. So, what could be those legal consequences for Adnan?

Reopening Adnan's Postconviction Proceeding

I previously posted a timeline of Adnan's case, including his current appeal. Adnan's current appeal, claiming that he received the ineffective assistance of counsel, was rejected by the Baltimore City Circuit Court. Adnan responded by filing an Application for Leave to Appeal with the Court of Special Appeals of Maryland, and the State is supposed to respond to this application in January.

Jay's interview, however, has now possibly opened up another way for Adnan to seek relief. Section 7-104 of the Maryland Code of Criminal Procedure states that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

Section 7-104 would allow the Baltimore City Circuit Court to reopen Adnan's postconviction proceeding if its finds that the "interests of justice" compel reconsideration based on Jay's interview. This is by no means an easy case for Adnan to make, but let me lay out the theory.

The key case here is Gray v. State, 879 A.2d 1064 (Md. 2005). In Gray, Julian Gray was convicted of second-degree murder and use of a handgun in the commission of a violent crime. Gray's convictions were in large part based on the testimony given by Shauna Hantz and Erika McCray. Just like Adnan, Gray subsequently brought a petition for postconviction relief, claiming that he received the ineffective assistance of counsel. The circuit court denied Gray relief, just as the circuit court denied Adnan relief. Like Adnan, Gray then filed an Application for Leave to Appeal with the Court of Special Appeals of Maryland. The court denied Gray leave to appeal, which hopefully is not the case for Adnan.

But this is where things get interesting. After the Court of Special Appeals of Maryland denied Gray leave to appeal, McCray gave a statement in which she said that "the only actual knowledge she had of the shooting was provided to her by her friend Shauna, who is now deceased." Gray thereafter used this statement to move to reopen his postconviction proceeding under Section 7-104. The circuit court, however, summarily denied Gray's motion to reopen without a hearing. On appeal, the Court of Appeals of Maryland agreed with the circuit court's decision to deny the motion without a hearing.

At this point, you might be wondering why I'm citing to Gray and claiming that it gives Adnan hope. The answer lies in the reason the Court of Appeals of Maryland reached its conclusion. Here it is:

As for McCray's recantation itself, we note that it occurred after the death of McCray's friend Shauna, the person who allegedly told McCray that she had seen Gray with a gun. In addition, there is no indication that the officer who obtained McCray's testimony believed it to be false or that the State knowingly used false testimony at trial. The allegation that perjured testimony was offered at trial, "absent a showing that the State knowingly used perjured testimony," is not a ground for postconviction relief....As a result, it was not an abuse of discretion for the court to conclude that McCray's new statement did not present a reason, "in the interests of justice," to reopen the postconviction proceedings.

So, a few key points guided the court's decision:

1. McCray didn't recant until after Shauna had died. This means that Shauna couldn't refute the allegation that McCray's knowledge came solely from what Shauna told her. It also meant that Shauna, of course, couldn't recant her testimony about what she had seen. This meant that, even if McCray's testimony was worthless, Shauna's testimony still stood as strong evidence of Gray's guilt. 2. There was "no indication that the officer who obtained McCray's testimony believed it to be false." Here, we have every indication that the officers who obtained Jay's statements believed at least some of them to be false. Here's one example. Jay initially said that Adnan showed him Hae's body at a strip off of Edmondson Avenue. Jay later told the cops that Adnan actually showed him Hae's body in the Best Buy parking lot and that he lied because he was worried there were security cameras there (now, of course, Jay has told us that he lied again). 3. There was "no indication...that the State knowingly used false testimony at trial." I have no idea whether this was the case at Adnan's trial because I have no idea what Jay told the prosecutor in private. That said, let's look at maybe the most incriminating argument at trial: The prosecutor is able to claim at trial that Jay's testimony places Adnan and him in Leakin Park at 7:16, when an incoming call from Jenn pings the Leakin Park cell tower. When I told people I had reasonable doubt about Jay's guilt, the biggest question I got was how I could explain this Leakin Park ping. Now, my biggest question is how Jay comes to testify that he was in Leakin Park for this 7:16 ping when he now claims that the trip to Leakin Park happened after midnight. Was this something Jay told the prosecutor? Again, there's no way to know this, but I think this and other questions should be asked to the prosecutor at a reopened hearing.

The long and short of this is that the Court of Appeals of Maryland found that it was proper not to hold a hearing on a motion to reopen in Gray because (1) a finding that McCray's testimony was perjured still left Shauna's testimony; (2) the officer taking McCray's statement had no reason to believe she was lying; and (3) the prosecutor calling McCray at trial had no reason to believe McCray was perjuring herself. Conversely, in Adnan's case, (1) a finding that Jay's testimony was perjury leaves no testimony incriminating Adnan; (2) the officers taking Jay's statements had every reason to believe Jay was lying; and (3) the prosecutor at least had reason to believe that Jay could be perjuring himself. Therefore, I think the Adnan has a decent argument that a hearing should be held to determine whether his postconviction proceeding should be reopened, regardless of whether he is granted leave to appeal by the Court of Special Appeals of Maryland.

[Edited to add: Regarding the materiality of Jay's possible lies on the witness stand, keep in mind that Adnan was convicted of kidnapping by fraud. As I've noted, this required the prosecution to prove that Adnan lied to Hae to get her to drive him to a location (likely Best Buy) where he intended to harm her and ended up killing her. At a minimum, Jay's statements about (1) him asking for Adnan's car; and (2) Adnan not mentioning a plan to kill Hae on January 13th certainly seem material in this regard.].

-CM

https://lawprofessors.typepad.com/evidenceprof/2014/12/ive-posted-25-entriessarah-koenigsserial-podcast-which-deals-withthe-1999-prosecution-of-17-year-old-adnan-syed-for-murderin.html