Month: May 2015

Adnan with little brother Yusuf, back before an entire team of adults railroaded him into a life sentence

Today is Adnan’s birthday. Today he turns 34.*

I wrote before about how, in the early years of his incarceration, my mother dreamt that Adnan would be released from prison in his 30’s, specifically after the age of 35. My husband says my mother told him it would be at 35.

Fifteen years ago that was a hard pill to swallow, the idea that he would stay in prison for so long, lose his 20’s entirely, half his 30’s, it stuck like a lump in my chest. Even now, as I type, the lump moves to my throat.  You want to be happy for someone on their birthday, but with Adnan a birthday is another year lost for him and his family. I want to be happy, but I can’t. I just feel angry.

35 is around the corner though – and things are looking bright.  My mother knows whats up.

Happy birthday little brother. Next year, God willing, you’ll celebrate with your loved ones.

IN THE INTEREST OF JUSTICE

Adnan’s post-conviction effort -to get a new trial based on ineffective assistance of counsel, to get Asia’s testimony heard – began five years ago. A lot of folks don’t realize that. Justin Brown, who is still lead counsel, filed for post-conviction relief in 2010.

It was denied just over a year ago, in January 2014, and we immediately applied for leave to appeal the denial. The State moved to request the Court to deny our application. We responded and three days later, this past February, the MD Court of Special Appeals (COSA) granted the application, something that happens in less than 2% of cases in Maryland. Oral arguments were scheduled for June 9th, and then, just four days ago, a most astonishing thing happened.

While a grassroots team of volunteers was preparing to organize the many supporters who wanted to be present at the hearing, and Justin was getting his response to the State’s brief (which I shall shortly gag er comment upon) ready, poof, it all went away.

COSA issued an order essentially remanding the case back down to the Circuit Court in order to include Asia’s new affidavit into the official record.  There are no two ways about this – this is the relief we were asking of COSA.  And it was granted without even getting to oral arguments. It’s like they just thought, “ah who are we kidding, don’t need a hearing to figure this out.”

Does this ever happen? No, in the name of all that is good and holy, it doesn’t. Justin, when he told me the news, said that with this case, it doesn’t seem like there are any rules.

Thanks to Serial, because without Serial, Asia would’ve been forever lost to us. If she hadn’t heard the podcast, and heard Urick lie on the stand about their interaction, no one would have been the wiser. And thanks to the work of Susan and Colin, who keep busting the State’s case open further and further, stripping away all the lies and misrepresentations.

I’m not saying the COSA judges are listening to Undisclosed. But I’m saying, prove to me they’re not 😉

BAD FICTION

I had a bit of a meltdown when I read the State’s brief that was filed with COSA last week. Not because there was anything new or damaging, it was the same old losing arguments we’ve seen before. My melodramatic reaction mirrored the harlequin-cheap-crime-novel feel of their brief  – and my rage was at the outright lies/misrepresentations.

In fact, let’s start with the lies (of course its pretty much all a lie technically since Adnan had nothing to do with Hae’s death, but let’s just pretend the State is working in good faith and actually believes he did – that still leaves us with the stuff even they know is bullshit):

• “The week of the murder…Lee’s affection for Syed visibly flickered”: No, a lie. Adnan and Hae had broken up in December, at least a month earlier, and by New Years they were both seeing someone else. The very first person Adnan called when he got his new cell was his new girl, Nisha.

• “Syed lent Wilds his vehicle and his new cell phone”: Lie. Jay testified on the stand that Adnan had left his phone in the car glove compartment, not actually lent or given it to Jay. Just fucking left it in the car. Of course the cops FORCED Jay to lie that Adnan planned giving it to him in advance (Episode 3, Undisclosed), and the State used that to get a maximum sentence for premeditated murder against Adnan.

From Jay’s Intercept Interview in December. What’s that Jay? Are you saying it wasn’t planned?  WASN’T THAT THE WHOLE FUCKING POINT OF HIM GIVING YOU THE CAR? Oh my bad, that’s what the cops made you say.

More from the State’s star witness, back in December.

• “Syed’s possessive behavior toward Lee”: Lie, unless you think taking a coffee cake to a friends house is possessive. Every single mutual friend repeatedly told the police that Adnan was only ever gentle and kind with Hae and her diary, which the State has, confirms it. There isn’t a shred of evidence of intimidation, anger, violence, or any behavior suggesting the relationship was abusive in any way, and the State knows it.
  

  Becky, a mutual friend, recalls their relationship

Debbie’s trial testimony

From Becky’s notes when asked to recall Adnan

• “Syed’s peculiar conduct after the murder”: Lie. Unless by peculiar conduct the State means Adnan was acting totally normally, which is what every witness they asked told them. God, the lies.

A statement given by Stephanie to the PI

• “Lee felt compelled to keep her growing interest in Cliendinst a secret from Syed”: Lie. Unless by “keep a secret” the State means introduce them to each other, which is what Don testified to.
• “feigning that he had no memory at all of the day his ex-girlfriend vanished”: Lie.  Adnan told the detectives the same damn thing he’s been saying for 16 years. After giving the car to Jay, he was at school, did not leave the campus, went to track, and next saw Jay after track.
• “Nisha Tanna, a friend of Syed’s, claimed she remembered receiving a call from Syed”: Lie. Nisha specifically recalled talking to Jay only ever ONCE and that was when he was at the porn shop – which he didn’t start working at until a couple of weeks after Hae disappeared. Even Serial told us how Urick manipulated Nisha on trial to cut that fact out, and Gutierrez never made the point.
• “Kristi Vincent also observed Syed and Wilds together the evening of the murder”: Lie. Ok maybe an inaccuracy, it could be the State still believes the “facts” produced by the shoddy investigation, but in Episode 1 of Undisclosed we proved that Kristi’s recollection was not from Jan 13th. It was from Jan 22nd.
• “both men were acting ‘real shady,’ and she noticed that Syed seemed to be hiding his face”: Lie. Putting aside the fact that none of this happened on the 13th, what’s hilarious is the State cites to TWO PAGES of the Kristi’s testimony to make this declaration. In other words, they’re making it up. All Kristi ever said was Adnan was stoned out of his mind, slumped over. And the shady part?  In reference to Jay, not Adnan. What the State forgets is that other folks also have these two pages.

These are the pages the State cites to. Even I’m embarrassed for them.

Good try Urick.

• “they went to an area a distance off the road and started digging Lee’s grave…(W)ilds estimated it was around 7 p.m”: Lie. For fucks sake, did you not read Jay’s Intercept interview? Yeah you actually did but now have to stick to the record, but guess what, you know the burial couldn’t have happened then (Undisclosed Episode 5 will explain why, dear readers)…which is why Jay changed his story in the Intercept. I’m on to you on this one, but I’ll get to that in a bit.

Jay’s Intercept interview. Midnight you say dear chap? Well so much for the “Leakin Park pings”. Unfuckingbelievable.

More on Jay’s recollection of getting picked up at his nana’s house around midnight. Of course, there is no record of any call to Jay’s house from Adnan’s phone that night. In fact there was only one single call made to Jay that day, the one in the morning before Adnan gave him the car, and there are no calls made at all after 10:30pm.  So why did Jay change his story? I think I know. Keep reading.

• “the expert actually visited locations where a call was supposedly made and initiated a test call to determine what tower the call engaged”: Lie. The expert never stepped a foot into Leakin park. Wait for that Undisclosed episode.
• “Syed also elected not to attend the memorial service for Lee, telling Inez Hendricks, another teacher at Woodlawn, that he skipped the service because he and Lee practiced different religions.”: Lie. God my stomach turns at the absolute evil of this fabrication.  There were two events after Hae’s death, a private funeral held at her family’s Korean church, and a school memorial. Not a single student attended the private funeral because NO ONE WAS INVITED. As for the memorial, Adnan helped to actually organize and develop it but WAS ARRESTED before it took place. “Elected not to attend”. Elected from the inside of a jail cell right.
• “Fashioning an alibi for Syed’s whereabouts that supported Syed’s statements to police was a clear priority for Gutierrez”: It was such a priority that the ONE SINGLE WITNESS Adnan offered to her, complete with contact information, she never even attempted to contact. Stop lying, MD.
• “Kevin Urick, one of the original prosecutors, testified that McClain called him after the post-conviction was filed to say she had written the affidavit only because of pressure from the defendant’s family and hoped that, by doing so, they would leave her alone.”: Urick lied under oath and now you’re repeating his lies State of Maryland. And you know it. Guess what, COSA knows it too. That’s why we won the remand.

From Asia’s recent affidavit. The one that the Circuit Court will now, most probably, enter into the record.

• “the State presented overwhelming evidence of Syed’s guilt”: yeah I just have to laugh at that one, nothing further to be said

There are lies, and then there are lies of omission. Here’s the facts that the State omitted from the brief:

• “When police executed a search warrant at Syed’s residence, they found a November 1998 letter from Lee tucked into a textbook, in which Lee sought to reassure Syed that they would both survive a breakup”. A note, written months before she disappeared, and written during a breakup after which THEY ACTUALLY GOT BACK TOGETHER.  Guess what else? The search warrant didn’t turn up another damn thing. More on that in a future Undisclosed episode.
• “When Syed learned Lee was missing and when her body was discovered in Leakin Park, Syed never attempted to contact her”: Let’s not forget that the man who was currently dating and slept with Hae less than 24 hours before she disappeared, and who was supposed to see her on 1/13, never attempted to contact her again.
• “Syed wrote a long letter to the court, pleading with the judge to permit him to keep Gutierrez because of the strong personal and professional bond between them”: Yeah, this happened months BEFORE HIS FIRST TRIAL, before Gutierrez had failed to give him in competent counsel. Before she neglected to contact an alibi witness and anyone realized it, before she failed to pull his email records, before she failed to subpoena phone records for Jay, Jenn, Patrick, Phil, before she failed to investigate Mark Pusteri, before she failed to retain a medical expert or cell expert, before she took money to bus the jury to the burial site and then didn’t, before she essentially dropped every ball in the case. Here is what the State is arguing: Adnan hired her and really wanted her so it means she gave him effective assistance. Like Adnan could see into the future. Like anyone can know if their lawyer will fail them at the time they hire them.  Go home, State of Maryland, you are drunk.
• Gutierrez “provided to the State a list of 80 potential alibi witnesses on October 5, 1999”: except she didn’t interview a single one or present a single one as a witness at trial, which is why SHE WAS INEFFECTIVE and also, she never included Asia on that list, which is ALSO WHY SHE WAS INEFFECTIVE.
• They totally mischaracterize all of Asia’s documents and written testimony, why not, she’s much LESS reliable than their star witness, but anyway I’m not getting into the details here. We all know it’s bullshit, so does COSA, which is why her testimony will now be part of the record. The State can try what it wants when Asia is on the stand, but from the one time I met/spoke to her, I remember she can and will hold her own. Urick may not hold up as well once we get him on the stand to answer for his perjury. Oh yes, he will be subpoenaed.

Now i have to talk about the drama in the brief.  I’ve never seen a legal brief written so…descriptively.

Here are some of the words and phrases they used to illustrate their “statement of facts”:

• shallow grave
• turbulent ten-month relationship
• affection for Syed visibly flickered
• kill that bitch
• killed Lee with his bare hands
• tried to apologize to Syed with her last breath
• Lee’s crumpled body
• Syed lured Lee away
• Emboldened after speaking with jurors
• ploy to get a ride from Lee after school
• imploring Syed
• ominous words
• decomposing body
• ensconced in a relationship (ensconced? really? snort)
• Syed and Lee were nevertheless consumed with one another (am I reading a bodice-ripper?)
• the course of that fateful night
• both men seemed disturbed and disoriented by the gravity of the moment (code for “this is why Jay can’t tell a coherent, consistent story in which he either is at the burial or is not at the burial and can communicate with Adnan even though they’re in two different cars with one phone between them)

I could go on with the cheesy language, but you get the drift. I’ve written countless briefs in my years of practice. I know what a brief sounds like, what a blog sounds like, what an OpEd sounds like, what a policy paper sounds like. The statement of fact in the State’s brief reads like a lurid novella , and initially I couldn’t figure out why they wrote it like that.

Then I realized what was going on. That brief wasn’t written for COSA. It was written for the public. Because that’s where the State is getting slammed and humiliated. While I can blog and tweet and emote, the State must pack all of its emoting to briefs (and maybe to the bowels Reddit as well, because dollars to donuts their team is represented in the dark sub).

I’m guessing COSA also figured out the brief wasn’t written for them and was as unimpressed as I was, since they issued their order less than a week later. A fine and swift smack in the rear to their brief. In the immortal words of Jay the Deceiver, “aw, snap”.

THE DEAL WITH JAY, PART 85

Photo credit: firstlook.org . We’re getting closer…..

In episode 3 of Undisclosed, we dropped the bombshell that Jay had been coached by the police and showed how exactly they did it. Tapping. Not only did they have the phone records, cell tower maps, a chronology all laid for him, they had to tap to continuously remind him to correct himself, and he would -apologizing often, changing course, even totally changing the story. We heard him get bullied into accepting that he was an accessory to murder.

In this week’s Addendum we showed you that Jay had been meeting with the cops a number of times before the official record reflected it, and before they met with Jen. So they had plenty of times to work out the story, rather, the cops had plenty of time to tell Jay what the story would be.  Now, you can either believe the cops in good faith thought Adnan really had killed Hae and were just trying to get a conviction one way or the other, or that they knew this was not their guy but they didn’t care – there was a tremendous amount of pressure on them from the Korean community and local media to close this case, and they needed it done.

I want to think the cops were acting in good faith, but I can’t get around the fact that they elected not to test the DNA that was collected from the site, and other lapses in the investigation that make it clear they were afraid they’d find something proving it wasn’t Adnan.

They had nothing connecting Jay to the crime, but they made him think they did. They actually didn’t have anything connecting anyone to the crime, but they found that with enough pressure and threat of arrest, Jay would turn against Adnan to save himself.

Its not like this doesn’t happen. A significant portion of wrongful convictions happen because a witness, having gotten a deal, lies to help the prosecution secure a conviction.

So what’s the deal with Jay? Was he completely railroaded, then roped Jen in to back him up? Other than his own statements, which are near useless, is there any evidence tying him to the crime? Not really.

The State knows it doesn’t have anything – it never did but Gutierrez didn’t do her job properly. It certainly doesn’t now because Jay changed much of his story with the Intercept interview. I always wondered about that interview, it never made sense to me.

Why would Jay’s attorney Benaroya, the SAME attorney that Urick got for him in 1999, advise him to do an interview and then actually find the reporter to do it? The same reporter that then interviewed Urick?  That’s no coincidence. I can guarantee that was coordinated between Urick and Benaroya, if not others.

At this point I don’t think Jay says anything he isn’t told to say. He was told what to say back in 1999 and 2000. I think it is entirely probable he was told what to say in the Intercept interview. If Benaroya actually arranged the interview, there is every reason to believe she’d tell him what to say – I refuse to believe someone with a lawyer who is so deeply involved would say anything that lawyer did not approve.

So why would his lawyer (and by extension Urick if they coordinated) want Jay to change the timeline? Probably because they realize that 1) the cell tower records are useless and will be thrown out in any future trial so using them to corroborate anything doesn’t matter anymore but 2) there is medical evidence proving Hae could not be buried at 7pm, and that evidence, which Gutierrez didn’t catch, has now been caught (Undisclosed, episode 5).

They figure Jay got away with dozens of lies before, if they have to go to trial again, maybe he can get away with yet another change in story. Just like when Jay was forced to change his story to fit an inaccurate cell tower place on a map near Krista/Cathy’s house, he will again be forced to change his story to fit the medical evidence they know would bury the existing timeline in a new trial.

…and closer to the truth. Photo credit: firstlook.org

They keep setting Jay up, and he keeps complying. But we’re on to it now.

*The case records with the MD case search engine incorrectly show Adnan’s year of birth as 1980. He was actually born in 1981, and he turns 34 today, not 35.