Now he’d have to do it all over again.
Adnan asked Gutierrez again to ask the State if they were offering a plea, and again she returned with a negative.
So he waited, trusting Gutierrez would be even better prepared for the next go.
The second trial was presided over by the Honorable Wanda Heard of the Baltimore Circuit Court. It began in earnest with opening statements on January 27, 2000.
This time Urick had learned his lesson. The jurors had told him his witness wasn’t credible. Urick was going to turn Jay’s lack of credibility on its head.
His opening struck an entirely new tone, but he didn’t forget to set up Adnan as the slighted young Muslim man.
“This relationship caused problems. The defendant is of Pakistani background, he’s a Muslim. In Islamic culture, people do not date before marriage and they definitely do not have premarital sex. Their family is a very structured event. They’re not supposed to date. They’re only supposed to marry and engage in activities after they marry. So he was breaking the cultural expectation of his family and religion to date Ms. Lee.”
He goes on to read passages from her diary that drive home the message that religion was the issue here, focusing on an entry Hae wrote when Adnan had accompanied his father to the Islamic conference in Dallas.
Then he went into the whole explanation of the purpose of the trip to Dallas. He told me that his religion means life to him and he hates it when he sees someone purposely going against it. He tried to remain a faithful Muslim all his life, but he fell in love with me which is a great sin. But he told me that there is no way he’ll ever leave me because he can’t imagine life without me. Then he said one day he would have to choose between me and his religion. […] He said that I shouldn’t feel like I’m pulling him away from his religion but hello, that’s exactly what I’m doing. I don’t know how we’ll live through all this. But this is bad.
But Urick still has to account for Jay, the star witness that the first jury didn’t believe.
Urick develops a masterful strategy to counter Jay’s inherent credibility problems. He tells the jury that Jay comes from an impoverished, broken home, that he deals weed, that he worked in a porn shop. “He doesn’t have a lot of money for clothes to dress well,” Urick says. “So you may not like Jay Wilds. There may be things about him that you do not like, but remember, ask yourself when you hear these things, what was it about this individual that made him susceptible to being used and manipulated by this defendant.” He repeats this again a few minutes later, “You may not like all of this, but every time you hear about this ask yourself, what is it about this individual that allowed this defendant to use him in such a crass and manipulative way.”
And poof, like magic, the very thing that makes Jay incredible, unbelievable, unlikeable, is what will endear him to the jury because the story now is this: Adnan picked Jay specifically because he KNEW no one would believe a weed dealer with poor character. Adnan picked Jay because he calculated that if Jay came forward, no one would believe him. Now all of Jay’s inconsistencies and lies will work for the prosecution, and the majority black urban Baltimore city jury will look at Jay and understand where he is coming from.
This is all new. It is a brilliant, manipulative stroke of genius.
While Urick’s opening is much longer and more dramatic than in the first trial, he’s still no match for Gutierrez.
She begins by setting the stage in a manner that could not have helped Adnan at all.
“Young, star-crossed lovers, of different races, from different countries, from different families, from different religions, from one side of the street to the other, from one set of answers straight to another, throughout history populated our collective human history. The younger they are the more tragic it is.”
The sad irony in all of this is that for both Adnan and Hae, it was a typical high school romance—passionate, lusty, dramatic, and short-lived. Like most teenagers, they were madly in love when they were madly in love, and almost just like that they were ready to be madly in love with someone else.
The framing of their very normal teen romance as a breathless Romeo-Juliet saga by both the State and defense turned it into a Shakespearean tragedy. In reality, it was no more serious than any other high school romance.
Gutierrez also does Adnan no favors by highlighting his religion and ethnicity again, alienating him from the jury. Instead of presenting him like a typical teen, she turns him into something unrecognizable to a panel of people who could never, having heard this, be a jury of his peers.
His ancestry on both his mother’s and father’s side, whom you will get to know and identify, is of Pakistan. They are Pakistani. And they came to this country before he was born or thought of in hope of a better life from their native land, like generation after generation of immigrants. […] Pakistan is, depending on your viewpoint, an Arab country, a Mideastern country, a Near Eastern country, a Far Eastern Asian country. Pakistan was a country that was formed out of the bloodbath that was India right after India gained its independence from Great Britian. It was a bloody revolution. And one of the distinctions between Pakistan and India were the deep divisions of culture. Pakistan is predominantly a Muslim country. Muslim is the common definition to term those who hold Islam as the core of their fundamental belief system.
Gutierrez’s opening stretches for nearly forty transcript pages, delving in and out of religion, tradition, witness accounts, crime scene information, high school anecdotes, until she concludes to the jury, “I give you Adnan Syed in your charge.”
Then begins an eighteen-day march of State witnesses, many of whom testified in the first trial: Forrester, Obot, Lee, Schab, Rodriguez, Tanna, Meyers, Adcock, O’Shea, Thomas, Talmadge, Bianca, Clinedinst, Long, Watts, Ali, Korrell, Woodley, Butler, Vinson, Warren, and of course, Wilds, who is much more polished both in his presentation and testimony, even though it stretches over the course of five long, grueling days.
But there are new State witnesses too: Aisha Pittman, Detective MacGillivary, Jennifer Pusateri, and Abraham Waranowitz
On January 28, 2000, Aisha provides much of the same kind of testimony Warren and Meyers did in the previous trial, about Hae and Adnan’s relationship,
Aisha is also asked to read the “I’m going to kill” note to the jury and testifies that she last saw Hae when school was dismissed at 2:15 p.m. talking to Adnan in psychology class.
Gutierrez does a long cross-examination, covering Aisha’s knowledge of Hae and Adnan’s relationship, the homecoming dance incident, and the religious issues, but ending with Aisha testifying to the fact that despite everything Hae and Adnan remained friends until the day she disappeared.
Perhaps the most vital witness for the State, second to Jay, is Abe Waranowitz, the AT&T RF engineer, who takes the stand on February 8, 2000, to explain how cell towers in different locations pick up cell signals—testimony the State uses to create an entire route on a map following the towers that had pinged from Adnan’s phone on January 13, 1999.
Much like the medical testimony, in which the prosecution asked the pathologist if the condition of Hae’s body was consistent with the theory that she was killed and buried the same day she disappeared, Urick gets Waranowitz to testify that the towers pinged are consistent with Jay’s testimony—that it is within the realm of possibility for the phone to have been where Jay says it was. What Gutierrez fails to do, though Waranowitz explains that each tower has a range and being pinged could mean being anywhere in that range, is plot an entirely new route that is still consistent with the tower pings. Hundreds of routes and locations could have been plotted that still would have been consistent with the pinged towers. Gutierrez does point out the difference in the type of phone used by Adnan and the type of phone used for Waranowitz’s drive test, and grills him on billing issues.
Despite the hours of circular, repetitive cross-examination of Waranowitz, the State’s theory sticks, loud and clear. Their witn
ess says Adnan was burying Hae in Leakin Park around 7:00 p.m., and two calls that come in at 7:09 and 7:16 ping the tower that covers the park. As far as the prosecution is concerned, they have corroborated Jay’s story scientifically.
Then the State presents another witness to support Jay’s story: Jenn Pusateri. She didn’t get a chance to testify in the first trial, but her testimony is now fairly consistent with her police statements. On January 13, 1999, she came home from work and saw Jay hanging out there; he left after getting a call around 3:30 or 3:45 p.m. (a point Jay also still maintains in his testimony while simultaneously asserting the “come and get me call” from Adnan is the one that appears on his bill at 2:36 p.m.); and that evening she returned a page from Adnan’s phone around 7:00, at which point someone picked up the phone and told her Jay was busy and he’d call her back. Jay paged her about an hour later to pick him up at the Westview Mall, and as noted in her police statements, she took him to the dumpster to wipe down the shovel (or shovels).
Gutierrez crosses Pusateri aggressively and for hours, questioning her repeatedly about every police interaction and about her relationship with Jay, implying they are more than just friends. Pusateri’s cross runs into the following day, again going over every movement since the moment the police first approached her on February 26, 1999.
Once in a while Gutierrez lands a punch, such as when she asks Jenn, “Another thing that Jay had told you was that he didn’t know where the body was?”
Jenn answers, “Right.”
“That he had been asked by Adnan to help bury the body, right?”
“Right.”
“But that he had adamantly refused to do so?”
“Right.”
“And according to him as to what he told you, he didn’t have any involvement, right?”
“Right.”
“Right, he just drove Adnan around and picked him up and dropped him off at different places but that he had nothing to do with killing her or burying her, right?”
“Right.”
“He didn’t assist Adnan other than to drive him around, right?”
“Right.”
“But that he had no knowledge of what happened to Hae before it happened, right?”
“Right.”
There are many, many inconsistencies between Jay’s and Jenn’s testimony, just as there were in their police statements. But hours and hours of testimony can dull anyone’s senses, especially a juror’s. Unless they are paying very close attention or taking notes, many times what is left with them is an overall impression. While this exchange is jarring, it is a small snippet of hours of testimony. It may be that by the time she ended, the jury simply lost sight of the significance of what Jenn was saying here.
Another witness who did not appear at the first trial, or rather didn’t get the chance to testify, is Detective MacGillivary, who took the stand on February 17, 2000. His direct examination covers the timeline of the investigation, focusing primarily on Pusateri’s initial statements and how that led the police to Jay. MacGillivary recounts Jay’s initial statement and his taking the police to Hae’s car in the early morning hours of February 28, 1999. The detective, cognizant that the multiple, contradictory Jay statements are now in the hands of the defense, attempts to bring some clarity as to why. He states that after the first interview, he received Adnan’s cell phone records and returned to question Jay because his initial statements weren’t consistent with the records. Together, armed with the records, they ironed out the wrinkles.
Of course this makes little sense because, according to the State’s narrative, the police initially approached Jenn because her number appeared multiple times on Adnan’s records for January 13. The police certainly had those records before Jay’s second interview, and even before his first one.
Gutierrez’s cross focuses on the crime scene, asking MacGillivary to describe the area where Hae was found.
The detective says, about the burial spot, “[I]t was a natural depression the tree was laying over … [I]t was a natural gully there and the tree was lying across the gully. So on the far right side you could actually walk right over the tree. However, on the section closest to the stream, you could not.”
This characterization of the body’s location—in a natural, shallow depression according to MacGillivary—seems to contradict Jay’s statements that he and Adnan had dug the shallow grave.
Gutierrez spends a considerable time examining him about the terrain, about the visibility of the body, about the viability of reaching the burial site easily—all in an effort to show that Sellers’ story was highly unlikely. Which leads her into exhaustive questioning about the police investigation of Sellers.
MacGillivary also testifies at length in response to questions about his interviews with Jay, Jenn, and Adnan, questions that are repeated so often that the court finally has to say, after yet another objection raised by Urick, “Sustained and please move on … I mean we’ve been over this fifteen different ways, counsel.”
This will not be the last time the court has to ask Gutierrez to keep moving. While Gutierrez was long-winded in the first trial, her questioning still moved forward. Now, a couple of months later, something has changed. She seems to get stuck in a vicious loop, repeating questions incessantly.
I wasn’t able to attend most of the second trial because of law school and work. But the few times I did I noticed this speech pattern, dismayed. More than once I saw jurors nodding off as Gutierrez droned on and on. I could barely follow what she was getting at; I could only imagine how the jurors, who had to sit there for days and weeks, were processing any of it.
It was only worse with Jay’s cross-examination, which went on for days and in which Gutierrez repeatedly got aggressive, sarcastic, and confrontational with him while Jay remained the image of coolness, not once responding rudely, and consistently calling Gutierrez “ma’am.” Gutierrez was losing points not just for failing to ask pointed, limited, purposeful, and clear questions, but also for her demeanor, something I had come to know a little bit about now.
Before the start of this second trial I had accompanied Aunty Shamim and Uncle to Gutierrez’s office to discuss the case and finances. They felt intimidated by her and asked me to come along, thinking she’d be less aggressive with a law student. They were wrong. If anything Gutierrez took my questions, which I had prepared together with Adnan’s parents and community members, as a challenge—a challenge from a stupid law student to a legal legend. The meeting was disastrous, with her informing us that she didn’t have to answer any of our questions, but we did have to pay her big legal bills.
We left more terrified than before.
At the second trial this extremely confrontational part of her emerges every so often, and it could not have made a good impression on the jury. It comes to a head when she explodes in the courtroom upon learning something she hadn’t known before: that Urick had arranged the meeting between Jay and Anne Benaroya, who then became his attorney.
Gutierrez gets loud, outraged, and animated over how Urick provided Jay with an attorney for the plea proceeding—the transcripts of which she is never given—without having disclosed this to the defense beforehand. She makes repeated, exasperated referrals to “the attorney that the prosecution provided” in her questions to Jay. The entire time he maintains his composure, until the judge finally excuses him so Gutierrez and Urick can battle out a Brady motion that Gutierrez heatedly raises.
Gutierrez says, “Judge, at this time I would make a number of motions. The first would be that I would ask at this time to be forwarded an opportunity to question Mr. Wilds concerning whatever assistance Mr. Urick made in him obtaining his lawyer and to do so questioning outside the presence of the jury and outside of Mr. Urick’s presence. […] I believe it would have been absolutely improper for all kinds of reasons for Mr. Urick who assist in getting a lawyer outside of going to a Court and asking for the appointment of a lawyer or going to the Public Defender’s office
and assisting in getting a person about to be charged with a crime a lawyer under normal circumstances. […] Ms. Benaroya was insistent on the Court knowing that Friday, six days ago, is a benefit to a witness connected to his plea bargain and as such is a benefit that we were clearly entitled to know. If that’s not Brady, there’s nothing that’s Brady. Judge, this is an absolute and complete surprise. I will confess to you I’ve thought this for a long time but never, ever once did I ever think that they would say it, that I would ever be able to prove it.”
Like nearly all the motions she raises, Gutierrez loses this one too, though she doggedly pursues the issue with Jay for days of testimony, exhausting him, onlookers, and the court.
After nearly five weeks, the State rests its case against Adnan.
* * *
On February 22, 2000, the defense introduces its first witness, private investigator Andrew Davis. Davis is questioned about a $1.71 charge on Hae’s ATM card at a Baltimore City Crown gas station on January 13, 1999. Gutierrez asks if he was able to track down records of what Hae purchased and he reports that he was unable to do so.
No one involved seems to realize, however, that the bank records show that the purchase in the amount of $1.71 was actually made two days prior, on the 11th, but showed up as a completed transaction on the 13th.
Gutierrez next calls the city surveyor Phillip Buddemeyer to the stand. Buddemeyer accompanied the police and crime lab team to the burial site on February 9, 1999. He testifies briefly, noting that the body was 127 feet from the road and he had difficulty seeing it because it was “95% buried” in what looked like a place that had been long undisturbed.
Gutierrez next calls Alonzo Sellers. Definitely a hostile witness, Sellers is belligerent and quite unhappy to be there because it meant taking time off of work.
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