One of the legal aspects of Adnan’s case that Serial gave little attention to (no attention to?) was the outcome of Adnan’s initial appeal, which was rejected by an unpublished opinion in 2003. The parties’ briefs in that appeal have been available online (see here for copies of appellant’s brief and appellee’s brief), but the actual decision handed down by the court was not. As a result, although we knew that the Maryland Court of Special Appeals (CoSA) had rejected Adnan’s arguments (several of which appeared to have a strong legal basis, although might not have necessarily warranted reversing his connection), we had no way of knowing the court’s reasoning for its decision.

After jumping through a few bureaucratic hurdles, I requested a copy of the opinion from the Maryland archives, and it finally arrived last week. Unfortunately, I was also out of town for all of last week, so the opinion got a little waterlogged while it was hanging out in my mailbox. It’s still legible, albeit slightly worse for the wear:

The Opinion’s Discussion of the Facts

In addition to the court’s legal analysis, the CoSA opinion also provides some further information on the evidence presented at Adnan’s trial. Although it would be far more useful to have the actual trial transcripts for review, there are a few facts discussed in the opinion that are worth highlighting:

Jay testified at trial that he had never been part of any premeditated plan to kill Hae. Adnan and Jay spoke on the phone on the night of January 12th, but their conversation consisted entirely of, “Whatcha doing?” “Nothing.” The following day, Adnan called Jay to talk, and Jay told Adnan that he needed to buy a gift for Stephanie. Adnan offered to take Jay shopping, and they spent an hour and a half shopping together (this time at Security Square Mall), before Adnan let Jay borrow his car, so long as Jay promised to pick Adnan up after school.

It does not appear that Jay’s testimony provided reliable evidence that Adnan’s plan to kidnap and murder Hae had been premeditated. According to Jay, during their shopping trip on January 12th, Adnan did make a comment about how Hae made him so mad that he was “going to kill that bitch,” but (1) that statement was not connected to Adnan allowing Jay to borrow the car, and (2) it does not appear that Jay testified that Adnan’s statement was said in seriousness, or that Adnan ever suggested he actually had a plan for accomplishing it.

Jay testified that he got into Hae’s car, the Sentra, when he had Adnan were at the Park’n’Ride to drop off Hae’s car. This is fascinating — because in all of his police interviews that we have seen, Jay adamantly insisted that he never once got into Hae’s car at any point. What changed? Were there forensics found linking Jay to Hae’s car, which he had to alter his testimony to explain?

Jay testified that he went to Cathy’s apartment to smoke weed with Cathy and her boyfriend after dropping Adnan off at track. This is partially consistent with his statement in the second police interview (in which he said he that after dropping Adnan off at track he went to a park to smoke a blunt, went to his house, and then went to Cathy’s). However, Jay’s testimony was false with respect to this claim, because (1) Cathy testified that she did not arrive home from work until 5pm that day, and that after she had arrived home, Adnan and Jay unexpectedly showed up at her apartment without advance notice; and (2) the cell tower records for that time period are completely inconsistent with the phone having been at Cathy’s.

Jay claimed that after he and Adnan went to Cathy’s after Adnan’s track practice, both he and Adnan passed out on the floor of Cathy’s apartment. This claim is not particularly significant, but interesting in that this contradicts both Cathy’s testimony (she claimed that Jay had been weirdly chatty and amped up that night) and Jay’s previous statements (which claimed that only Adnan had passed out).

Jay does not appear to have explained why Adnan decided that, after track practice, he and Jay should unexpectedly show up at Cathy’s apartment — someone who was a complete stranger to Adnan — rather than deal with the body hidden in the trunk of Hae’s car. This is never explained in any of Jay’s police statements, either, and I was hoping at trial someone would at least have asked Jay to explain why they decided to do this.

Jay testified that he had no knowledge that Adnan had intended to ask Jay for help in burying Hae’s body. Adnan only told Jay “you have got to help me get rid of Hae” after the police had called him while they were at Cathy’s house, and this is the first Jay had heard that he was going to be involved in burying the body. Jay testified that he had agreed to Adnan’s request “because he feared that appellant would use appellant’s knowledge of his drug dealing against him.” (While there is no direct evidence that could exist to disprove this claim, I would not that I have yet to encounter a single person who believes that Jay was telling the truth about why he agreed to help bury a body.)

Jay testified that he paged Jenn “from Leakin Park.” This is contradicted by the cell tower records, and, to my view, significantly undermines the prosecution’s case. Either Jay is lying about paging Jenn from Leakin Park (in which case his testimony should not be relied upon), or else the cell records do not provide even remotely accurate data on the cell phone’s location at the time of a call (in which case the cell records do not provide evidence of Adnan’s guilt, because they are demonstrably inaccurate).

Jenn knew that Hae’s death had been caused by strangulation when the police first spoke to her on February 26th, even though that information had not been made publicly available.

It is bizarrely unclear when Jay took the police to the location of Hae’s car. The court’s opinion notes (at 9) that “[Jay] eventually took the police to where the victim’s body was buried and to where the victim’s car was located,” but from context, it appears that this may have occurred after the April 13th interview. Jay testified at trial that on February 28th, during his first interview, “he lied to the police about the location of the victim’s car,” which would seem to be consistent with the opinion’s ambiguity as to when Jay lead the police to the car. We know, however, that evidence from Hae’s car was documented and itemized as of February 28th , which is consistent with Jay having shown the cops the location of her car immediately after his first interview. I am very curious to see if the trial transcripts clarify what is going on here.

It is also extremely interesting to note that, based on the discussion of facts from the CoSA opinion, all of Jay’s initial statements to the police were far, far more self-incriminating than was his testimony at trial. It is hard to reconcile the claim that “Jay only lied to disguise the full extent of his participation” when all the evidence shows that his lies went in the complete opposite direction — because in order to believe that his testimony at trial was even a tiny bit accurate, you also have to believe that when Jay first spoke to the police, he lied and falsely claimed to be far more involved in Hae’s murder than he actually was.

The Court’s Analysis of “the Plea that Doesn’t Exist”

The Court’s discussion of Jay’s pseudo-plea agreement, and the prosecution’s provision of Jay’s counsel for his plea agreement, raises more questions than it answers.

On September 6, 1999, Jay contacted the Public Defender’s Office to ask about obtaining an attorney, out of his concern that the state planned to charge him in connection with Hae’s death, but PDS “would not provide him with representation until he had been charged.” The next day, on September 7, 1999, the police picked up Jay. The police did not tell him where they were taking him, and Jay had no idea he was going to be entering a plea deal that day. He had not been charged with a crime or appeared before a judge prior to that point.

Jay was taken by the police to the prosecutor’s office, where he was shown charging documents that appeared to have charged him with one count of accessory after the fact to Hae’s murder. He was taken up to meet the prosecutor, Kevin Urick, who told Jay he was going to need an attorney. Urick said that there was “somebody that he want[ed] [Jay] to meet” (Opinion at 18). Urick then “introduced [Jay] to his attorney” (id. at 15), and

[a]fter meeting with his attorney for approximately one hour and thirty minutes, the prosecutor, [Jay’s] attorney and [Jay] discussed a plea agreement. This was the first time he was presented with a plea agreement and by the end of this meeting, the plea agreement had been totally negotiated. After the plea agreement was signed, the parties went to the courthouse. (Opinion at 19.)

From charging to pleading in 90 minutes. This is crazy fast. Unbelievably fast.

Of course, this “plea agreement” was not actually a plea agreement, because the deal that was worked out provided that “the ultimate disposition of [Jay’s] case would occur after the State determined whether he had kept his end of the bargain, i.e., to provide truthful testimony” (Opinion at 12). As it also included a mutual termination-for-convenience clause, it was not a plea agreement in the legal sense — it was more like an agreement to later reach a plea agreement, assuming both parties still wanted to actually have a plea agreement later. A sort of gentleman’s agreement, providing that if Jay made the prosecutor happy in testifying against Adnan, Urick would later return the favor at Jay’s sentencing.

Even the trial judge struggled with what to call this odd and nebulous non-plea arrangement:

[Jay’s] understanding of the plea, the plea that doesn’t exist, the plea that’s not really a guilty plea, the plea where the statement of the facts has not been entered, the one that really isn’t a guilty plea even if we want to call it a guilty plea, that thing, that hearing he believes it to be a guilty plea. (Opinion at 42.)

While Jay was not a lawyer and did not know how these things are supposed to work, even he knew something seemed very wrong about the arrangement. He testified that he believed that having a lawyer was something the prosecutor had provided him with (Opinion at 21). Jay thought that entire arrangement “smelled fishy,” because it seemed like “th[e] lawyer that [he] met in the prosecutor’s office . . . was just brought in to make [him] make the plea” (id. at 23-24).

Equally concerning is that after the speed plea arrangement, and after an ex parte chambers hearing the following day to discuss Jay’s reservations about the attorney arrangement before Judge McCurdy, Jay’s new attorney seems to have completely vanished from the picture, and Jay’s attempts to contact her failed. In attempts to contact his attorney, Jay even called the judge’s chambers and the prosecutor’s office:

[Jay] left a voice mail message on Judge McCurdy’s voicemail. He also testified that he contacted the State because he believed they would have [his attorney’s] telephone number. He testified that he spoke with the assistant prosecutor [ ] who informed him that she would try to get [his] attorney’s number for him.” (Opinion at 14, n.7.)

It is not clear if Jay ever spoke to his attorney again, following the ex parte hearing before judge McCurdy. (Although Jay testified that the ex parte hearing occurred to address his concerns about the counsel arrangement, and that his hearing had been on the record, no record of the hearing could be located.)

Despite these bizarre irregularities with Jay’s non-plea agreement, the trial court denied all of Adnan’s requests to introduce evidence about it, including Adnan’s requests to call Jay’s attorney to testify about the plea deal; his request to recall Jay to testify about whether he had known the “plea agreement” was non-binding; his request to call in a public defender to testify as to how unusual this arrangement was; and his request to call Urick to testify about the nature of the plea agreement. The trial court’s reasoning for these denials is somewhat unclear, but it appears that the court found that the issue about the non-plea was irrelevant because (1) Jay had believed that the plea was a “real” plea, and therefore the fact it was not a real plea agreement would needlessly confuse the jury, and (2) the prosecutor had not provided Jay with any sort of benefit by allowing him to enter into an optional “plea agreement” that he could withdraw from at will, because such a deal was not a real plea agreement, and therefore was not a benefit that the prosecutor actually had the ability to give.

With regards to the first point, the trial court concluded that Adnan should not be permitted to recall Jay to testify as to whether or not he knew he could withdraw the plea deal because “he’s not a lawyer, he doesn’t know what the Rules of Maryland provide, that even with a guilty plea and even if he signed something, that a judge could allow him to withdraw his plea” (Opinion at 44). But what Jay knew concerning the precise legal label for his agreement is irrelevant; what defense counsel wanted to ask Jay was whether he had known he had the ability to walk away from his “plea agreement” at any time, not whether Jay had actually known that his plea agreement was not a real plea agreement. As a result, the defense was denied any opportunity to question Jay about whether he had been aware of the non-binding nature of that plea deal.

As for the second point, the trial court concluded that the defense would not be permitted to question Jay’s attorney about the “side deal” — which permitted Jay to withdraw from the “plea agreement” at any time — because the deal itself was not a valid agreement in the first place:

that is not a side deal because as a matter of law, as a matter of law, it doesn’t matter what [the prosecutor ] and [Jay’s] attorney and [Jay] agreed to. The [c]ourt is not bound by his piece of paper. The [c]ourt is bound by law. And the law says that if it was a guilty plea, if it was a guilty – and I say “if,” – if it was a guilty plea, the law says he can withdraw it. And [the prosecutor ] can’t give a benefit that he doesn’t have to give. It’s not his benefit. (Opinion at 43.)

The trial court further found that the defense could not question Jay’s attorney about the “plea agreement,” because “even if it’s relevant that it does anything more than to confuse the jury” (id.).

The trial court’s reasoning created a Catch 22 situation for Adnan. The reason the plea agreement was important to Adnan’s defense was because of its striking irregularity and the confusing circumstances under which is was negotiated, but the those confusing irregularities were the very part of the plea agreement that the defense counsel was prohibited from questioning witnesses about, because the trial court concluded that the plea agreement was simultaneously (1) not relevant, because it was so confusing and irregular that it was actually not even a valid plea agreement, and therefore “doesn’t matter” for Adnan’s case; and (2) relevant, but not admissible, because it was so irregular and confusing that telling the jury about it would simply end up confusing the jury more.

While trial court was not wrong about the confusing nature of Jay’s bizarre “side deal” arrangement, it was indisputably relevant — and admissible — for many reasons, not the least of which is that the prosecutor may have made false representations to the trial court concerning its existence. During a bench conference early on in Adnan’s trial, Urick informed Judge Heard that “[i]t was made clear to [Jay] that he was entering a guilty plea, that it would be a binding plea… It was made clear to him that those procedures were binding, that they could be done without his presence, in his absence…” (Brief of Appellant at 20). The defense did not learn of the existence of the side deal arrangement — which flatly contradicted Urick’s representations to the court — until the very end of Adnan’s trial, nearly two and a half weeks later, and was unable to challenge these types of incorrect claims that were made throughout trial.

The appellate court further denied Adnan’s appeal of the trial court’s denial of his request to call the prosecutor at trial, to testify about Jay’s plea arrangement. The trial court concluded — and the appellate court affirmed — that the prosecutor’s testimony would have been “merely cumulative to [Jay’s] testimony,” and therefore within the trial court’s discretion to deny (Opinion at 36). But the court’s conclusion on this point was not supported by anything in the factual record concerning what the prosecutor would have testified to — the court merely assumed that Urick’s testimony would have been cumulative, and affirmed the denial of his testimony on the strength of its assumption! As the court already acknowledged that Jay, as a non-lawyer, lacked knowledge and understanding of the legal nature of his so-called plea agreement, how can it have been assumed that the testimony of the prosecutor who had arranged the confusing plea deal would merely be “cumulative” of Jay’s muddled and (understandably) incomplete testimony concerning the same?

Finally, the appellate court’s concluded that Adnan had not been prejudiced by any prosecutorial misconduct as a result of the prosecution’s failure to timely disclose information about the plea arrangement to Adnan. This finding was based on the court’s conclusion that Adnan had been “able to elicit all relevant information concerning [Jay’s] plea agreement and the manner in which he was introduced to [Jay’s] attorney” (Opinion at 48). It is difficult to understand how the appellate court could have reached this conclusion, however, when even now there is still so much confusion and unknown facts concerning the plea arrangement that it is impossible to piece together what actually occurred.

The Court’s Analysis of the Admission of Hearsay Statements in Hae’s Diary Entries and Letter

The appellate court also denied the portions of Adnan’s appeals concerning the admission at trial of the hearsay statements contained in Hae’s diary entries and in a letter Hae had written to Adnan. The appellate court concluded that the diary entries and letter were properly admitted “under Maryland Rule 5-803(b)(3) to show that the victim intended to terminate her romantic relationship with appellant” (Opinion at 57). Under that hearsay exception, a hearsay statement is nevertheless admissible to prove the truth of the matter asserted if it is a

[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or the declarant’s future action, but not including a statement of memory or belief to prove the fact remembered or believed.

The court’s rationale for why the diary entries and letter were admissible under this exception is indefensible. (Particularly with respect to the properly preserved objection to the hearsay in the note — defense counsel failed to object to the hearsay statements in the diary entries, although the appellate court went ahead and addressed the unpreserved error in its opinion.) To see why, it helps to first consider the actual contents of the diary entries that were admitted at trial:

From an entry dated May 14, 1998,

A I think I’ll try the one week recess Deb suggested. I hope forth and went out with Iesha [sic], Deb and Sean in Sean’s new car. It is so fly with those tinted windows …. I couldn’t be with my baby because he had to go to D.C. for his religious stuff. That’s what I need to figure out. Do I dare to pull him away from his religion? Ms. Savic [sic] was all up in my face about it. She said stuff like well Adnan used to be so religious and strict last year but this year he is so loose, like I changed him. Actually, I did and I don’t want to pull him away from who he is. I think I need time to organize these things but I do not know that — but I do know one thing. I love him and he loves me. Nothing will change that. I’ll try the recess week and see what happens. I’ll probably kill myself if I lose him but I’ll go crazy with things complicating. I wish he’ll [sic] call back soon.

From an entry dated May 15, 1998,

I did it. Me and Adnan are officially on recess week or time out. I don’t know what’s going to happen to us. Although I’m in love with him, I don’t know about him. He actually suggests that what we have is like, not love. I heard the doubt in his voice. Although he couldn’t pick up mine, I felt the same way. I like him. No, I love him. It’s just all the things that stand in the middle, his religion and Muslim customs all are in the way. It irks me to know that I am against his religion. He called me a devil a few times. I knew he was only joking, but it’s somewhat true. I hate that. It’s like making him choose between me and his religion.

In concluding that Md. Rule 5-803(b)(3) permitted the admission of these diary entries to show that Hae intended to break up with Adnan, the court relied on Gray v . State, 137 Md. App. 460 (2001), rev’d on other grounds, 368 Md. 529 (2002). But the diary entries were written in May of 1998 — a little over a month after Hae and Adnan had first begun dating one another, and nearly eight months before Hae’s death. Hae’s statements concerning ambivalence she felt in May (about what was then a month-old relationship) are simply not evidence of Hae’s future actions in December, and therefore do not qualify as admissible hearsay under 8-503(b)(3). As Gray itself noted, statements that are chronologically unconnected any ultimate plan they purport to demonstrate are not admissible under that exception:

it is now clear that out-of-court statements which tend to prove a plan, design, or intention of the declarant are admissible, subject to the usual limitations as to remoteness in time and perhaps apparent sincerity common to all statements of mental state, to prove that the plan, design, or intention of the declarant was carried out by the declarant. Gray, 137 Md. App. at 500 (emphasis added).

Moreover, even disregarding the extreme remoteness in time, the statements should were nonetheless inadmissible to show that Adnan and Hae had broken up before Hae’s death, because that fact had been fully established by Don’s testimony, which was not disputed by the defense. Therefore Gray does not provide a basis for introducing the diary or letters in Hae’s case, because the underlying doctrine upon which Gray was based “provides that when the performance of a particular act by an individual is an issue in the case, his intention (state of mind) to perform that act may be shown.” As whether or not Hae and Adnan had broken up in December of 1998 was simply not “in issue” in this case, the diary entries should not have been admitted for that purpose. See Gray, 137 Md. App. 460 (“The trial court ruled that [the victims] statements . . . were not admissible to show that [the victim] had told [the defendant] she wanted a divorce because, although the statements evidenced [the victim’s] present intention to seek a divorce, they did not evidence [the victim’s] present intention to tell [the defendant] that she wanted a divorce. The court indicated . . . that, if [the defendant] presented evidence that he and [the victim] had a happy marriage and that [the victim] would not have wanted a divorce, he would ‘open the door’ and the statements would come into evidence.”) (emphasis added).

In any event, the court’s entire premise for why the diary entries were admissible — that they showed evidence of Hae’s intention to break up with Adnan — is not supported by the actual content of those statements. The diary entries do not suggest that Hae intended to break up with Adnan; they suggest only that Hae was going to take a “recess,” and then resume their relationship. Although it seems as if a “recess” did in fact occur, it was short-lived, and clearly could not have been evidence that Adnan had a motive to kill her eight months later. Besides, only one or two lines from the diary entries are actually about Hae’s intention to go on a “recess” — the overwhelming majority of the statements (which were admitted in full!) were about Hae’s beliefs and concerns about what Adnan feels and believes, and no comprehensible argument can be made for their admission under Md. Rule 5-803(b)(3).

Hae’s November 1998 letter to Adnan should have similarly been deemed inadmissible. The note stated the following:

Okay. Here it goes. I’m really getting annoyed that this situation is going the way it is. At first I kind of wanted to make this easy for me and you. You know people break up all the time. Your life is not going to end. You’ll move on and I’ll move on. But apparently you don’t respect me enough to accept my decision. I really couldn’t give damn [sic] about whatever you want to say. With the way things have been since 7:45 am this morning, now I’m more certain that I’m making the right choice. The more fuss you make, the more I’m determined to do what I gotta do. I really don’t think I can be in a relationship like we had, not between us, but mostly about the stuff around us. I seriously did expect you to accept, although not understand. I’ll be busy today, tomorrow , and probably till Thursday. I got other things to do, better than give you any hope that we’ll get back together. I really don’t see that happening, especially now. I never wanted to end like this, so hostile and cold, but I really don’t know what to do. Hate me if you will, but you should remember that I could never hate you. Hae.

The appellate court concluded that this letter was properly admitted because “certain forward-looking statements of intent are admissible to prove that the declarant subsequently took a later action in accordance with [her] stated intent” (Opinion at 53) (citing Farah v. Stout, 112 Md. App. 106, 119 (1996), cert . denied, 344 Md. 567 (1997)). Hae’s letter was therefore properly admitted, according to the court, because the statements it contained

established circumstantially that the victim followed through with her statement and did end the relationship with appellant. Moreover, this information is relevant because it established circumstantially that appellant and the victim were in a romantic relationship that ended in a negative manner, and arguably was the motive for appellant to murder the victim. (Opinion at 53.)

Except even if we were to pretend for a moment that the court’s legal conclusions were valid, the court’s factual premise is simply incorrect. If the letter was admitted to prove that Hae and Adnan had broken up (which, according to the court, it was), then it was admitted to prove a false statements — because Adnan and Hae resumed their relationship after this letter was written. Hae demonstrably did not “follow through” with her expressed intention that she and Adnan would not get back together. The November letter from Hae therefore did not provide any relevant evidence that was admissible as a statement of then-existing state of mind, because it did not provide accurate evidence that Adnan and Hae were broken up before Hae’s death, and therefore could not have provided relevant evidence that Adnan had any motive to kill Hae.

-Susan