Thursday, January 8, 2015

I've posted 28 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. Yesterday, Kevin Urick, one of the prosecutors at Adnan's trial, gave an Interview to The Intercept. For purposes of this post, here is the relevant portion of that interview:

[Kevin Urick]: I think the judge in the post-conviction trial does a very good job of pointing out that in the letters to Syed, she is very vague and indifferent about what she’s doing. The difficulty comes from Syed. In all his statements about his whereabouts the day of the case he says that he was at the school from 2:15pm to 3:30pm. He never once, in any statement, at any time, made any reference about being in the public library. His defense was that he was at the school from 2:30 to 3:30. So [Asia McClain’s] reporting seeing him at the pubic library contradicts what he says he was doing. The letters were also sent in March of 2000, two months after Syed was charged. Asia contacted me before the post-conviction hearing, she got my number and called me and expressed to me a great deal of concern about whether or not she would have to testify at the post-conviction hearing. She told me she was under a lot of pressure from Adnan’s family and to get them off her back she wrote him a couple letters. The implication was she was trying to appease them and she didn’t want to have to stick by it at that time. And I testified to that when I appeared in the post-conviction hearing.

My takeaway? If Urick's testimony at the post-conviction hearing was similar to this statement in his interview, Adnan has a great shot at a new trial.

Urick's Interview also contains Adnan's Petition for Post-Conviction Relief and the court's opinion denying that petition. As I've noted before, Adnan can move to reopen his postconviction proceeding pursuant to Section 7-104 of the Maryland Code of Criminal Procedure, which 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.

A court will find that reopening a postconviction proceeding is "in the interests of justice" when new information could produce a different result. So, as I said, let's assume that Urick's testimony at the post-conviction hearing was similar to this statement in his interview. There's at least some basis for this assumption. In the first episode of Serial, Sarah Koenig plays the following snippet of Urick's testimony:

[Asia] was concerned, because she was being asked questions about an affidavit she'd written back at the time of the trial. She told me that she'd only written it because she was getting pressure from the family, and she basically wrote it to please them and get them off her back.

The court denied Adnan's Petition for Post-Conviction Relief for three reasons. There is now information that might lead the court to conclude that all three of its reasons were wrong.

Finding #1: Asia's letters didn't specify a time, meaning she wasn't a concrete alibi

What the court held

The court held that

Firstly, the letters sent from Ms. McClain to Petitioner do not clearly show Ms. McClain's potential to provide a reliable alibi for Petitioner. In the first letter, sent on March 1, 1999, Ms. McClain recounted that she saw Petitioner in the public library on January 13, 1999, but did not state the exact time during which the encounter took place....The only indication of Ms. McClain's potential to be an alibi witness for Petitioner is in Ms. McClain's offer to "account for some of [Petitioner's] un-witness, unaccountable lost time (2:15-8:00; Jan 13th)."...In the letter sent on March 2, 1999, the following day, Ms. McClain again told Petitioner that she saw the Petitioner in the public library and conjectured, "maybe if I would have stayed with you or something this entire situation could have been avoided."...To require counsel to interpret such vague language as evidence of a concrete alibi would hold counsel to a much higher standard than is required by Strickland.

What the court knew at the time of its opinion

The court had both of Asia's letters (here and here). The court was correct that neither letter states a specific time when Asia saw Adnan on January 13th. We also know from Adnan's Petition for Post-Conviction Relief that the court was aware of a note written by one the law clerks for Cristina Gutierrez, Adnan's trial counsel. Sarah Koenig discussed this note in the first episode of Serial:

Then there's another note, dated July 13. It's more than four months after Adnan's arrest. This is written by one of Gutierrez's law clerks, who visited Adnan in jail. Quote, "Asia McClain saw him in the library at 3:00. Asia boyfriend saw him too. Library may have cameras."

Personally, I think this note was enough for the court to conclude that Asia was a concrete alibi witness or at least one who should have been contacted by Gutierrez. But I can understand why the court found that this wasn't good enough. After all, it wasn't Gutierrez who took the note; it was just her law clerk. Also, Adnan was arrested in February. Why did he wait until July to tell his his attorney's law clerk (and not even his actual attorney) about Asia's letters? As far as the court knew, Adnan only made one reference to Asia's letters, and it wasn't even to his attorney.

New Information

Through her crack reporting, Sarah Koenig uncovered a first note about these Asia letters, this one written by Gutierrez herself. Here's Koenig talking about the note in the first episode of Serial:

Deep inside Gutierrez's notes on the case-- I have boxes and boxes of such stuff-- there's this in her handwriting. "Asia plus boyfriend saw him in library 2:15 to 3:15."

This is huge. There is now new information indicating that Gutierrez had direct knowledge of the Asia McClain letters at an earlier point in time. There is also now new information that Adnan gave Gutierrez a specific time frame for seeing Asia at the library: between 2:15 and 3:15. This also happens to be the most important time frame for Adnan. The State contended that Adnan killed Hae between 2:15 and 2:36, which is when Adnan allegedly called Jay from Best Buy. The State contended at trial that Inez Butler-Hendrix was the last person to see Hae as she was leaving school between 2:15 and 2:30. Her testimony was so convincing that this was the first finding of fact the Court of Special Appeals of Maryland listed in its opinion denying Adnan's direct appeal: "[Hae] was last seen alive about 2:30 p.m. on January 13, 1999." Also, Hae was supposed to pick up her cousin at 3:15. When she didn't, this is when her family started to get worried.

So, 2:15-3:15 on January 13, 1999 is the relevant time frame for Adnan, and we now know that this is the window in which Adnan told his attorney that he saw Asia. This is highly relevant new information. The court previously was under the impression that Adnan merely told Gutierrez's clerk about the letter in July. Now, it's clear that Adnan first told Gutierrez about Asia and the 2:15-3:15 time frame and that he then followed up with Gutierrez's law clerk months later, giving an even more specific time when he saw Asia: 3:00.

Its even possible that Gutierrez specifically told her clerk to visit Adnan in jail to follow up on Asia. In its opinion denying Adnan's petition, the court notes that Gutierrez has passed away, meaning that we can only speculate about why she didn't contact Asia. But presumably this law clerk is still alive. If Adnan's legal team can track her down and get her to testify or complete an affidavit, there may be even more information (more on this later).

Finding #2: Gutierrez could have concluded Asia was offering to lie

What the court held

The court held that

trial counsel could have reasonably concluded that Ms. McClain was offering to lie in order to help Petitioner avoid conviction.

What the court knew at the time of its opinion

Again, the court had both of Asia's letters (here and here). The court did not have Asia's testimony because she did not testify at the hearing. What the court did have was Urick's testimony explaining why Asia was not testifying. My assumption is that Urick's testimony was similar to the statements he made in his Interview with The Intercept.

In the interview, Urick says that Asia told him she only wrote the letters because she was feeling a lot of pressure from Adnan's family and wanted to get them off her back. He describes the letters as "vague and indifferent about what she's doing." Urick also says that the letters were written two months after Adnan was charged.

Again, assuming these statements are consistent with Urick's testimony at the hearing, we have a pretty vivid picture of what the court likely believed: Adnan is arrested and charged. Adnan's family tracks down Asia McClain because she's told somebody about maybe seeing Adnan at the library on January 13th. They proceed to lay on her for two months, trying to get her to say that she saw Adnan during a specific time frame that is starting to emerge after two months of investigation. Finally, after two months of pressure, Asia writes Adnan "indifferent" letters which refuse to specify a time frame and which mention the fact that the library might have security cameras as a sort of veiled threat that the footage from those cameras won't show the two of them on January 13th.

New Information

First, we know that Asia's letters weren't written two months after Adnan was charged. The second letter was written two days after Adnan was arrested while the first one was written only a day after Adnan was arrested. We also have Asia's interview with Sarah Koenig from the first episode of Serial, in which she says that she wasn't pressured by Adnan's family into writing the letters; instead, she simply got scared when a private investigator came to her house years after Adnan was convicted.

What we have now is something akin to Ian McEwan's Atonement: Asia's letters taken on new meaning with additional context. Now, we have an entirely different picture of Asia as an alibi witness: She hears Adnan is arrested on February 28, 1999. The next day, she goes to Adnan's house because she thinks she saw him in the library on January 13th. At this point, no timeline for the crime has been established. Adnan's family simply knows two things: school ended at 2:15, and Adnan was at the mosque at around 8:00.

Rather than being pressured for two months, Asia immediately writes a letter to Adnan that same day and follows it up with a letter the next day. Urick is right that Asia appears "indifferent" in her letters, but that indifference now has a new meaning. When that indifference came after two months of pressure by the family, it seemed like Asia was being forced into writing the letters. Now, that indifference seems to reflect Asia's honest doubt about whether Adnan committed the crime. After all, at this point, she has no idea when Hae was murdered, so Adnan could very well have seen Asia before he killed Hae. Far from being someone willing to lie for Adnan, Asia now appears to be the best kind of alibi witness: an unbiased person who isn't a relative or close friend, offering to testify about what she saw but uncertain about the defendant's guilt.

This context also shines a new light on Asia's reference to the security cameras at the library. As I noted, if Asia were pressured for two months, this reference seems kind of like a veiled threat. Now, knowing when the letters were written, the reference to the cameras seems like Asia feeling pretty confident about seeing Adnan on January 13th. It seems like she's saying that the cameras will back up the story she's telling.

This is something that Urick himself might appreciate at this point. You'll recall that Urick's star witness said in his second recorded police interview that he initially didn't say Adnan showed him Hae's body at Best Buy because he was worried about there being security cameras. That's the kind of reference to security cameras that causes you to question the reliability of a statement. And, indeed, that same star witness has now said that Adnan did not show him Hae's body at Best Buy.

Conversely, someone saying that they saw you at the the library and that there might be security cameras there tends to support the notion that they're telling the truth because it means they think the footage will corroborate their claim. The court didn't have the benefit of Asia's testimony at the initial hearing. Now, however, Asia can testify about the timing of her letters, the lack of pressure from Adnan's family, etc. Meanwhile, if Urick's testimony matched his statement in his Interview, that testimony can be shown to be inaccurate. The court can now be given a very different picture about Asia's reliability and veracity.

I have one final point, which takes me back to Gutierrez's law clerk. In first episode of Serial, Sarah Koenig notes to Asia that she might be the technicality that gets Adnan out of prison. That's true, but Gutierrez's law clerk could also be that tecnhicality.

As noted, the court speculates that there could have been strategic reasons for Gutierrez not contacting Asia McClain about her letters. Again, Gutierrez has passed away, so we don't know exactly why she didn't pursue Asia McClain. We do, however, know the explanation that Adnan says he was given. He says "that he was told they didn’t check out (Asia had the wrong date or something)."

Imagine Adnan's legal team is able to locate Gutierrez's law clerk. Would she remember meeting Adnan in jail and talking about Asia? I think so. I was a law clerk in 1999. Like Peter Gibbons in "Office Space," my job primarily consisted of changing 99s to 1999s in computer code due to fear about Y2K. But I did meet a couple of clients suffering from asbestosis and mesothelioma. I still remember their stories today. I imagine that Gutierrez's law clerk would remember meeting a client charged with murder in jail and discussing an alibi witness.

If this clerk is able to remember, Adnan getting a new trial could be as easy as 1, 2, 3:00. Imagine a couple of scenarios as examples: Scenario 1: The law clerk remembers talking with Adnan about Asia, relaying this information to Gutierrez, and being told that the alibi didn't check out because she talked to Asia and she had the wrong day. We know from Asia's affidavit that she was not contacted by a lawyer, meaning that Gutierrez's statement was a lie by a lawyer who was soon thereafter disabrred. That's a new trial.

Scenario 2: The law clerk remembers talking with Adnan about Asia, relaying this information to Gutierrez, and being told that someone definitely needed to contact Asia because she would be a key alibi witness. In this case, the failure to contact Asia would clearly be a mistake as opposed to a strategic decision. That's a new trial.

Finding #3: Adnan said he remained on the school campus

What the court held

The court held that

the information in Ms. McClain's letters stating that Petitioner was present at the public library contradicted Petitioner's own version of events of January 13th, namely Petitioner's own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m. Based on this inconsistency, trial counsel had adequate reason to believe that pursuing Ms. McClain as a potential alibi witness would not have been helpful to Petitioner's defense and may have, in fact, harmed the defense's ultimate theory of the case.

What the court knew at the time of its opinion

My assumption is again that Urick's testimony was similar to the statements he made in his Interview with The Intercept. In his Interview, Urick says that Adnan "never made mention of the library before those letters." As noted, Urick also says those letters were written two months after Adnan was charged. The court had the law clerk's note about Asia from July but didn't have Gutierrez's earlier note about Asia.

Again, if my assumption is correct, the court had a distorted view of the timeline. In this timeline, Adnan is arrested and charged, receives Asia's letters two months later, waits another couple of months, and then finally shows the letters to Gutierrez's law clerk. Based on what the court knew, this is also the only times Adnan talked about Asia to the defense.

New information

We now know that Asia sent her letters one and two days after Adnan was arrested. This paints an entirely different picture. Adnan says he didn't think he was a suspect until he was arrested, so why would he bring up an alibi witness before his arrest on February 28th? And then, Asia's first letter is sent the very next day. In the version Urick might have told at the hearing, Adnan waits until he receives Asia's letters months later before bringing her up. In the real version, the first letter is sent the day after his arrest.

Also, with the court only seeing the law clerk's note from July, it seems like Adnan sits on Asia's letters for a while. It also seems like he brings Asia up only once (to the law clerk), which could lead the court to believe that he was merely passing her letters along and not claiming that he actually saw her on January 13th.

Again, we now have an entirely different picture. Adnan gets Asia's letters and promptly informs Gutierrez about Asia, saying that he probably saw her sometime between 2:15 and 3:15. Then, when nothing has been done about Asia months later, Adnan follows up with Gutierrez's law clerk. At this point, after thinking about January 13th some more, he can narrow the time frame and say that he thought he saw Asia at about 3:00.

Adnan saying he saw Asia at (about) 3:00 is significant. In her affidavit, Asia says she saw Adnan at the library from approximately 2:20-2:40. Adnan saying he saw Asia at about 3:00 is close enough to corroborate Asia's claim but also different enough to make it look like he's not just passing along information from Asia. It seems like Adnan is taking ownership of the alibi, saying that he remembers seeing Asia.

This is important because the court rejected Adnan's Petition on the ground that he said he remained on the school campus until track practice. Now, as Sarah Koenig notes, this is a bit of a trivial distinction because the library is directly adjacent to Woodlawn High School. The court, however, might have known this when it initially rejected Adnan's Petition (or maybe not).

But now, based on Gutierrez's prior note and Adnan following up with a specific time with her law clerk, it seems like Adnan actually claimed that he was at the library. This is important because we actually don't have a post-arrest statement by Adnan about where he was after school on January 13th. He didn't talk to police after his arrest, and he didn't testify at trial. Therefore, when the court says that Adnan's position was that he stayed on the school campus until track practice, it really means that this is what his lawyer said.

Maybe Gutierrez was confused about the high school/library distinction. Maybe she lied to Adnan and said that Asia had the wrong day, which is why she claimed Adnan remained on the school campus. All I know is that Adnan following up with the law clerk and saying Asia saw him at (about) 3:00 on January 13th is strong evidence that Adnan's position was that he was at the library.

Who could resolve the issue? Again, we're back to the law clerk. She presumably would be able to tell us the gist of what Adnan told her. And, if Adnan told her that he remembered seeing Asia, that's a pretty strong basis for a new trial, especially if the clerk can tell us that Gutierrez failing to contact Asia was not a strategic decision.

Is the clerk's name on the July note? Is her name in the prison's visitor's log for July 1999? Does Adnan remember her name? Any of his lawyers? Someone who worked for Gutierrez back in 1999? Asia is definitely important, but the clerk could be the key to a new trial.

[Update: I've been asked about the reliability of Asia as an alibi witness given this post on the Serial website. Let's start with what Rabia Chaudry, an attorney and the sister of Adnan's best friend, says that Asia told her when she signed her affidavit saying she saw Adnan on January 13, 1999:

And she remembered very specifically that that day she went to her boyfriend's house with him, and they got snowed in. And it snowed really heavily that night. And she remembered that for the following two days, school was closed.

Next, in the first episode of Serial, Sarah Koenig tracks down Asia, and she recalls that when she saw Adnan on January 13, 1999, he

told me that him and Hae had broke up. And I was like, oh, well, that's a bummer. And I was like, what happened? And he was like, oh, well, she is seeing this other guy, some white dude.

That "white dude" is Don, who we know started dating Hae on January 1, 1999 based on the final episode of Serial. Therefore, Asia had to see Adnan at the library after January 1st. The first week of school in 1999 was January 4-8. We know from the final episode of Serial that (1) Adnan was absent two days that first week; and (2) January 8th was a snow day. That leaves only 5 possible days for Asia to have seen Adnan: Whichever 2 days Adnan attended school from January 4-7; Monday, January 11th; Tuesday, January 12th; and Wednesday, January 13th, the day Hae disappeared.

The post on the Serial website calls into question Asia's recollection because it didn't snow on the night of January 13th; the ice/snow didn't start falling until 4:30 A.M. on January 14th. That's true, but there was no snow day in early 1999 when Asia could have seen Adnan after school because the same post notes that school was cancelled on January 8, 1999. Given that Asia's memory seems tied to snow falling, it thus seems like there are two viable candidates for the day she saw Adnan: (1) January 7, 1999 (the day before the January 8th snow); and (2) January 13, 1999 (the day before the January 14th ice/snow).

But recall what Asia told Rabia: school was closed the next two days. That works for January 13th because school was closed due to weather on January 14th and 15th. It doesn't work for January 7th because, while school was closed the next day, the following day was Saturday. Also, it's quite possible that Adnan was absent on January 7th because he was absent 2/4 days from January 4-7. A check of the attendance records Sarah Koenig used to determine Adnan was absent thus might put a stake in January 7th being a possibility.].

[Update #2: In a prior post, I wrote about Gutierrez's motion to have the jurors visit the Best Buy where Adnan allegedly killed Hae. In that motion, Gutierrez also asked to have jurors bussed to Leakin Park, where Adnan allegedly buried Hae. Here is the relevant part of that motion for purposes of this post (page 21):

Gutierrez's argument was that photographs of Leakin Park wouldn't give jurors a complete picture of the burial site. Instead, Gutierrez wanted jurors to visit the park to get a better sense of its layout and terrain. And what I think she's arguing is that the park should look about the same in January 2000 (when Adnan's second trial started) as it did on January 13, 1999, but with one key difference: there were 1.5 inches of snow on January 13, 1999.

Let's start with Gutierrez's three "errors" in her motion. I think two of them aren't really relevant. First, Gutierrez talks about city surveyor Philip Buddemayer taking measurements of the burial site on January 13, 1999, which we know can't be true because that was the date Hae was allegedly buried, not the date when she was found. This just seems like a misstatement. Second, Gutierrez says that Hae's body was buried 127 yards into Leakin Park when it was actually buried about 127 feet into Leakin Park. This just seems like Gutierrez transposing "yards" for "feet."

The third "error" is that Gutierrez talks about there being "snow shortly before January 13th of just an inch an a half...." I say that this was an "error" because it's my assumption that Gutierrez is talking about snow on January 13th, not snow before January 13th. Why? The only snow before January 13th in 1999 was on January 8th. But four inches of snow fell on January 8th. I thus don't see how Gutierrez can be talking about the snow on January 8th, especially because she's talking about the weather conditions during the January 13th burial. Is Gutierrez talking about "snow shortly before January [14th]," i.e., on the night of January 13th?

Or could Gutierrez simply be confused? It's definitely possible. After all, I've just pointed out three errors in the space of a few sentences. Let's start with the assumption that Gutierrez incorrectly thought that there were 1.5 inches of snow on January 13, 1999. This is still highly relevant. Why? The assumption made by the postconviction review court was that Gutierrez might not have contacted Asia McClain as an alibi witness because she could have assumed Asia was offering to lie for him. Many, myself included, have argued in response that this might explain not calling Asia, but it doesn't explain not contacting her. By contacting her, Gutierrez could have confirmed or dispelled her (hypothetical) suspicion.

Recall what Asia told Sarah Koenig in the first episode of Serial: even fifteen years later, she remembered seeing Adnan at the library because that was when she got snowed in at her boyfriend's house. Assume that Gutierrez did doubt Asia's credibility. If she had simply contacted her in 2000 and heard Asia say this, it might have pushed her into believing her. After all, Gutierrez ostensibly thought there was snow on January 13th. This is what's so frustrating to me. Why didn't Gutierrez at least contact Asia to check out her story?

Next, let's make the assumption that Gutierrez is actually correct. I think there's a solid reason to believe her statement. If Gutierrez simply made reference to "snow" or "some snow," I could write it off as her simply making a mistake about snow on January 13th. But Gutierrez makes reference to a very specific number: 1.5 inches of snow. She must be getting that 1.5 inches from somewhere, right? So, at this point, I'll activate the Oriole signal. Is there anyone who lived in the Baltimore area in 1999 who remembers a light snow on January 13, 1999? Maybe just a dusting. Maybe just enough snow for Asia to decide to stay at her boyfriends house rather than risk the drive home.

In my first update to this post, I noted that January 13th is the likeliest candidate for the day that Asia saw Adnan at the library, even if the ice/snow didn't start until early in the morning on January 14th. But if someone could find some evidence that there was a light snow on January 13th...that would really be something.].

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/01/ive-posted-28-entriessarah-koenigsserial-podcast-which-deals-withthe-1999-prosecution-of-17-year-old-adnan-syed-for-murderin.html