Tuesday, May 26, 2015

I could immediately relate to Adnan Syed when I learned he told his attorney that he recalled attending track practice on January 13, 1999 because he informed his coach on that day that he had to lead Ramadan prayers the next day. I still vividly remember four things about running cross-country in high school in Virginia Beach in the early 1990s: (1) we had our cross-country meets at Mount Trashmore; (2) a teammate got horribly lost when trying to take a shortcut during a practice at Seashore State Park; (3) the team once watched a marathon of all three (at the time) Child's Play movies; and (4) October 7, 1992.

That year, Yom Kippur ran from sundown on October 6th to sundown on October 7th. I'm not really religious,* but I used to fast on the Day of Atonement. So did my brother. The problem was that there was a cross-country meet on October 7th. Our coach didn't want us to fast and run. Being the most competitive person in the world at the time, I made the decision to eat and run on the 7th. Being the most stubborn person in the world at the time, my brother did three completely predictable things: (1) decided to fast; (2) convinced the coach to let him run anyway; and (3) posted the fastest time on the team.

October 7th is definitely one of those days I can access at will in my mental DVR. It was a brisk fall day, in the upper 50s to lower 60s, pretty much the perfect weather for a cross-country meet. I'm also guessing it was a pretty memorable day for the cross-country coach. Virginia Beach was a place where the token Jewish kid would relay to class the story of the plight of the Maccabees each December and not exactly a hotbed of Hebrewism.

Therefore, I also wasn't surprised that track coach Michael Sye had a clear memory of Adnan being on time for track practice and talking with him about leading prayers at his Mosque during the rare warm January day in Baltimore when the indoor track team could practice outside. Given that Ramadan is a month rather than a day, I'm unsurprised that Coach Sye couldn't pinpoint the day, but, given the uniqueness of the temperature, I agree with Susan Simpson that it would have been easy enough for defense counsel to pinpoint the day as January 13th (especially given that the recollections of Adnan and Coach Sye dovetailed).

Of course, if track practice started at 4:00 P.M., Adnan arriving on time would be important but not any type of case-cracking detail. On the other hand, if track practice started at 3:30 P.M., Adnan's arrival on time on January 13th would have been a huge deal. I know that Susan Simpson has argued on her blog and our podcast that practice indeed did start at 3:30 P.M., and I mostly agreed with her. That said, I was waiting for that last key piece of information to lock everything into place. Now, I've found it.

Susan's argument goes as follows: (1) Inez Butler testified that "[t]rack practice would start after study hall, and study hall started from 2:15 to 3:00, and they had to be at practice at least by 3:30" (2/04/00 Tr. 14-15); (2) Becky gave a statement in which she said that "track usually started before [ ] approximately 3:30;" (3) another track coach, Coach Graham, gave a statement indicating that study hall, which many athletes had to attend before practice, ran from 2:30-3:15 P.M.; and (4) Coach Sye said in a March 23rd statement to police that study hall ended at 3:15 and that he usually arrived for track practice at 3:30 P.M.

I always thought this last fact was pretty important. I know that Coach Sye didn't literally say that track practice started at 3:30 P.M., but I also know that I played a number of sports in high school: cross-country, tennis, and, yes, indoor track. My experience was always that the coach arrived with or after the students, not before.

That said, when Sye testified at trial, he stated that "[p]ractice was every day after school, after their study hall, from [a]pproximately 4:00 to 5:30, 6" (2/23/00 Tr. 101). Additionally, Adnan's track teammate Will told Sarah Koenig last fall during Serial that track practice started at 4:00 P.M. That's pretty strong evidence that track practice did start at 4:00 P.M.

On the other hand, I have always found it interesting that both Debbie and Becky said that Hae would frequently give Adnan rides to track practice after school (before and after they broke up) because he didn't like walking. Given that Hae usually left school at around 3:00 P.M. to pick up her cousin, that would make sense if track practice started at 3:30 P.M. This would make Adnan early for track practice, but not that early. On the other hand, if track practice didn't start until 4:00 P.M., Adnan would have been dropped off at the track at about 3:05 P.M. or so and done...what exactly for the next 55 minutes? Also, everyone seemed to agree that study hall ended at 3:00 or 3:15, so why would there be a 45-60 minute gap between the end of study hall and the start of practice?

Then again, we have Sye's testimony and Will's statement.

I've noted before that I always find first statements to be the most reliable, especially when they are given somewhat contemporaneously with the event in question. Here, the event in question was the start time for indoor track practice in 1998-1999, with indoor track reason running into late February. Therefore, the most reliable statement by Coach Sye would be a statement that he gave in February or early March. Luckily for us, he gave just such a statement.

Adnan's original attorney used a private investigator, who interviewed Sye on Wednesday, March 3, 1999.

Later, Adnan's trial attorney retained Davis and took notes based upon the interview Davis had conducted with Sye:

The key note is at the bottom: It pretty clearly indicates that indoor track practice ran from 3:30-4:30 or 5:00 (or 5:30). This is consistent with Sye's statement later that month that he typically arrived at track practice at 3:30.

So why, when he testified on February 23, 2000, did Coach Sye testify that track practice started at 4:00 P.M. The 23rd was a Wednesday, either during or right after the indoor track season ended in 2000. My best guess is that indoor track practice did start at 4:00 P.M....in 2000. We also know that Adnan's track teammate Will was not a senior in 1999:



Therefore, Will could be remembering that track practice started at 4:00 P.M. in 2000 but forgetting that it started half an hour earlier in 1999. It wouldn't be too surprising, given that he was recalling events that occurred 14-15 years earlier when talking to Sarah Koenig in 2014. All I know is that Coach Sye said on March 3, 1999 that practice started at 3:30 P.M.

The other interesting thing to note about the above roster is that there were only 8 members of the indoor track team at Woodlawn. I had expected a much larger team given my own experience, which would make absences somewhat less conspicuous. But that's clearly not the case with only 8 or so students on the team.

So, what's the importance of track practice starting at 3:30 P.M. and Adnan being on time on January 13, 1999? (1) It makes it highly unlikely that the 3:15 call could have been the Best Buy call; and (2) it means that Adnan didn't make The Nisha Call.

This latter point is really the key one for me. I'm highly skeptical that the 3:32 call to Nisha was the call described by Nisha and Jay at trial for all of the reasons described by Susan Simpson in this post. That said, there was still a 3:32 call made to Nisha on January 13, 1999. And sure, it could have been a butt dial or something else, but, as someone who leans toward Adnan being innocent, this call has always bothered me because you're arguing against the most logical scenario, which is Adnan having his cell phone and calling Nisha.

But if track started at 3:30 P.M. and Adnan was on time, Adnan wasn't the one who made that call.

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*It kind of comes with the territory when your parents come from different religions. In this sense, I can relate to Hae Min Lee (pages 272-273).

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/05/i-could-immediately-relate-to-adnan-syed-when-he-told-his-attorney-that-he-recalled-attending-track-practice-on-january-13-1.html