There is still the problem of leaving Hae’s car somewhere, but apparently Jay must first drive Adnan back down the hill to get it. Jay says he then follows Adnan around (presumably Adnan is in Hae’s car and Jay is in Adnan’s car) for a “few minutes” and dumps the car behind some row houses.
Jay goes on to say that it took intense pressure for the police to get him to cooperate, and it was only after getting assurances that he wouldn’t be prosecuted for “procurement” of weed that he agreed to talk.
The next day, December 30, the second part of the interview was published. Again, my hackles and ire were raised sky-high, especially when Jay mentioned the grand jury hearing and testimony of a “spiritual advisor” whose name starts with a “B.” Bilal. He had to be talking about Bilal.
According to The Incercept article, “He spoke with the police during the investigation. But when he was called to the grand jury, he pled the fifth [the fifth amendment, that is, against self incrimination through testimony]. So that whatever he knew about Adnan, he knew that if he said it in court he could also be in trouble.”
The editors of the piece inserted this note: “The Intercept confirmed with two sources that ‘Mr. B.’ did plead the fifth during the grand jury testimony.” This is odd and not at all accurate. Bilal and Saad, thanks to the counsel and direction of Gutierrez, filed motions to quash the State’s subpoena calling them to testify, wherein they said they would “plead the fifth” if called. The motions didn’t fly and both of them testified; in other words, they did not plead the fifth.
So not only was Jay wrong about this but the editors of the piece somehow confirmed the incorrect information as accurate, leaving people to believe Bilal hadn’t testified. I was also struck by how Jay knew anything about who had testified at the grand jury—the proceedings were sealed, and there is no public access to the records. Someone from the State had to have told him, either sixteen years ago, or now.
I was a bit perplexed by all of this, and also by Jay’s antagonism toward Sarah in the piece. He believed she had damaged his reputation. But overall I was thrilled with the interview, because Jay had basically undone the entire State’s narrative, including his own testimony at trial. The interview was so damaging that Colin Miller was even quoted in a piece on Vox.com: “I said before that the prosecution’s case was dead. With this interview, Jay has now burned the corpse.”
I didn’t know the reporter or her angle, but I had tremendous respect for The Intercept, which was known for its exhaustive investigative reporting. I thought it was pushing the envelope to publish the exchange between Jay and Sarah, which they did in full, but the exchanges weren’t damaging to Sarah; if anything, they undermined Jay’s allegations.
After the second part of Jay’s interview, I got a message from Vargas-Cooper, who I like to refer to as “NVC,” through Twitter.
Apparently Jay was already having a similar reaction to NVC as he did to Sarah. I wished NVC would tell me more about how he was acting, but I didn’t ask. We exchanged a few pleasantries, but then she gave me, in retrospect, a warning when she said, “It’s going to get gnarly in the coming week, regardless of what I think, just know I think you’re an ass kicker.”
I had little reason to think that NVC was going to completely flip the script with what was to come: an interview with Kevin Urick.
Part one of the Urick interview was published on January 7, 2015. But it wasn’t just an interview with him. It began as an opinion piece, with NVC making it clear that she had no respect for Sarah and the work of Serial. I realized with a slow sense of dread why all of Sarah’s e-mails to Jay had been published.
In the prelude to the interview NVC writes:
“Serial” portrayed the case as a combination of overzealous prosecution and incompetent defense counsel. This viewpoint infused the entire podcast. While Koenig never proclaimed Syed to be innocent, she insisted the evidence didn’t support his conviction. “It’s not enough, to me, to send anyone to prison for life,” she said in the closing of the last episode.
When a jury of 12 people comes back with a guilty verdict in two hours, you’d think that rejecting their decision would require fresh evidence. Yet the show did not produce new evidence, and mostly repeated prior claims, such as an unconfirmed alibi, charges of incompetence against Adnan’s deceased lawyer, and allegations that information derived from cellphone records is unreliable.
None of these charges has survived scrutiny. That was the conclusion of a circuit court judge, who dismissed a defense motion that claimed such issues compromised the fairness of the trial. Nevertheless, the ‘Serial’ series largely mirrored the defense petition.
NVC goes on for a few more paragraphs attempting to prove Sarah’s bias by showing she made little effort to contact Urick for the series—a charge I knew was wrong because Sarah had told me how hard and how repeatedly she had tried to get Urick—as well as detectives Ritz and MacGillivary—to talk.
NVC goes further, stating with finality, “The justice system in America frequently doesn’t work. This is not one of those cases.”
I was gobsmacked, but not alone. Almost immediately I got a message from a source at The Intercept. It read: “I am so disgusted by the story today … it is a horrid malpractice justice wise and journalistically. Just awful pro-prosecution garbage. The story was awful.”
NVC and The Intercept were getting hit left and right in social media over her embarrassingly strong defense of the State and her obvious dislike (professional jealousy maybe?) of Sarah and her listeners, who in an earlier interview with The Observer NVC called “delightful white liberals who are creaming over This American Life.”
Not much was surprising in Urick’s interview; the prosecutor stood by his conviction.
Urick alleged that Gutierrez had initially submitted a witness list of eighty people to verify that Adnan was at the mosque on the night of the 13th, but “when the defense found out that the cellphone records showed that Adnan was nowhere near the mosque, it killed that alibi and those witnesses were never called to testify at the trial.” NVC fails to note that this statement is unsubstantiated.
Urick weds himself even more closely to the cell phone records, which may later come to haunt him, when he is quoted in the article as saying, “Jay’s testimony by itself, would that have been proof beyond a reasonable doubt? Probably not. Cellphone evidence by itself? Probably not,” but when put together “they corroborate and feed off each other—it’s a very strong evidentiary case.” He also says that “once you understood the cellphone records—that killed any alibi defense that Syed had. I think when you take that in conjunction with Jay’s testimony, it became a very strong case.”
I was squirming as I read this. How did NVC fail to ask Urick about Jay’s new, improved, and completely changed timeline?
When NVC asks about Asia’s potential as an alibi witness, Urick gives the same answer as before: Asia was being pressured by Adnan’s family.
Urick doesn’t know yet, no one in the public knows yet, that Asia heard him say all this on Serial and is ready to rebut under oath. He doesn’t know that she is now working with Justin Brown to get a new statement in court.
A couple of days after the Urick interview, I had a dream. I was sitting in a room, not sure where, but around the corner was the bathroom. I saw that the light was on in the bathroom and heard a noise. I went to explore and found a young boy, maybe around ten years old, in a tub full of water. The boy had been left there, forgotten. It was Adnan.
He sat there, shivering and just looking at me, unable to move without the permission of a grownup, waiting for someone to come get him. I grabbed a towel, pulled him out, and wrapped him up.
It was the third time I had dreamed about Adnan. It left me a bit shaken but hopeful. I felt like the dream was a sign that Adnan was no longer forgotten, that he was close to being rescued. The possibility of getting him home was closer than ever. And I felt that between Asia and the Innocence Project, 2015 was go
ing to be a very bad year for the State of Maryland.
* * *
Deirdre Enright at the Innocence Project was drafting a motion to request that the court order the case forensic evidence be submitted for DNA testing. The first time I spoke to Adnan about it, in late January of 2015, he sounded excited but weary.
“What’s wrong?” I asked.
“I’ve been waiting for an opportunity like this forever, but now I don’t know what to do. Deirdre wants to push forward with the motion. Justin is saying not to do it. Who do I listen to?”
I had no idea that Justin and Deirdre disagreed, but any time more than one attorney is on a case there is always the possibility of egos, agendas, and strategies clashing.
My communications with Deirdre were limited; I knew she had her own investigatory team and was pursuing leads independently, and I didn’t want to interfere. But Adnan was asking for my advice, so I had to figure out what was going on.
* * *
I gave Justin a call to sort things out, and he made his case: On January 20, 2015, Justin had filed a new affidavit by Asia as an addition to the existing request to the Court of Special Appeals. The affidavit affirmed everything she had stated in her letters and earlier affidavit, explained what happened when she contacted Urick, stated that she wasn’t pressured to make any of her statements, and asserted that if given the chance again, she would come to court to testify to all these things in person. On the same day, TheBlaze, Glenn Beck’s Web site, published an exclusive on the new development, including both the new affidavit and an interview with Asia and her attorney.
The interview, affidavit, and new filing filled the airwaves, hitting the public (and we hoped the State) like a ton of bricks. The overwhelming coverage was a good sign; it meant that it would be hard for the court to ignore. The State opposed the filing a week later, asking the court to strike the new affidavit, but then Justin responded to the State’s motion. We all knew it was a long shot, but Justin believed Asia’s statement was strong grounds to reopen the PCR proceedings, hoping the court would be as incensed as the rest of us with Urick’s behavior. Colin worked with Justin to get the legal research and language of the filing together.
Given these developments, Justin believed it was worth waiting to see what the court did before moving ahead with the DNA.
He explained that if the PCR didn’t fly, then we still had the forensic stuff, the possible DNA to test. The truth is, he said, we don’t even know if anything still exists in the police locker; all that physical evidence could be gone. Or, if it’s there, it might not yield anything. In fact, it was likely we wouldn’t get anything out of it. So if we moved forward with the DNA and it gave us nothing, the State would have an advantage and less incentive to negotiate. But if we held off on the DNA and focused on winning the PCR appeal, the DNA kind of hung like a sword over the State’s head and also gave us one more bite at the apple if we lost.
Deirdre was adamantly against this strategy. Her plan was to get the DNA tested, show that it either matched someone else or didn’t match Adnan, and file a writ of actual innocence immediately. She believed the PCR didn’t have a chance. And she said so publicly, which undermined Justin and left us a bit disconcerted. Tensions ran high as we waited for the court to rule on whether we could appeal the PCR denial, and there was little communication between the attorneys. Deirdre was already speaking to state officials about filing the motion, and it seemed like she was going to go ahead whether or not Justin agreed. She just needed Adnan to say yes.
I called Deirdre and tried to explain Justin’s perspective. He wasn’t saying we should ditch the DNA petition altogether; he was just being his usual extremely cautious self and asking that we wait to see how the PCR appeal went. Along with Justin’s strategy it was fair to say that Adnan, his family, Saad, and I all had slight misgivings, a touch of fear about the DNA testing. It wasn’t unheard of that DNA could be tainted or tampered with, and I didn’t trust the Baltimore City Police or the State’s Attorney’s office for a hot second.
Deirdre stood by her conviction that the PCR appeal was doomed and that we were wasting an incredible opportunity by not focusing on the DNA immediately.
I wrote to Justin to let him know she wasn’t on board with waiting the PCR appeal out.
Justin said it was up to Adnan.
Adnan was nearly in tears. He knew if he told Deirdre to put a hold on the DNA, she would likely back out of the case altogether and he would lose the Innocence Project.
I told Adnan that if I was in his position, I’d let his lead counsel make all the legal decisions, period.
It was a good thing too, because on February 6, 2015, two days after talking to Deirdre and three days after Justin’s response to the State, the Maryland Court of Special Appeals granted our application. We could appeal the denial of Adnan’s post-conviction petition.
Justin’s gamble paid off. Asia’s new statement hadn’t been thrown out; we were back in the game. The appeal was full steam ahead now.
CHAPTER 12
UNDISCLOSED
And you will obtain another blessing that you love:
help from God and a victory near at hand.
Holy Quran 61:13
Meanwhile, lawyers Susan Simpson and Colin Miller were busy trying to figure out what happened in 1999. After I gave them access to the case files, not a day went by that numerous e-mails didn’t fly between us as they discovered things that had been overlooked all these years.
One of the first big eyebrow-raising findings came from Susan who, meticulous as ever, caught something I never looked at twice—the fax cover sheet from AT&T that accompanied the cell phone records provided to Detective Ritz in 1999. She sent me a screenshot of the cover sheet with the message, “Okay, I promise I’ll stop doing this but what the whatty what: ‘Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.’”
She noticed this tiny line in the instructions on the fax cover sheet, a line no one had ever bothered to glance at before, because really, who reads fax cover sheets?
“Why was this never discussed?” Susan asked.
“Because you’re the first one who caught it,” I responded.
This was big. I mean, this was really, really big. The reliability of the cell tower pings as evidence of the location of the phone was one of the big questions in the case. And now here we were, with a document straight from the horse’s mouth—the phone company itself—disclaiming the use of incoming call information to pinpoint where a cell phone was at the time of the call.
A few days later Susan laid out in a blog post why, even if we were to accept that the cell site pings could identify the location of a phone, the State’s case couldn’t work—of the twenty-two calls made for which the State had identified cell site towers and locations, only four matched Jay’s story: the 10:45 a.m. call by Adnan himself to Jay’s house, the 6:07 p.m. call where Jay says he was with Adnan at Krista Vinson’s apartment, and the Leakin Park calls at 7:09 and 7:16 p.m. The other calls did not match Jay’s story. Of the four calls that did, three were incoming, and by AT&T’s fax cover sheet, unreliable for location anyway.
Susan concluded her spectacular destruction of the State’s case:
The prosecution’s entire case has gone into a fatal loop. Why are the cellphone records accurate? Because Jay says so. Why is Jay’s testimony accurate? Because the cellphone records say so. Why are the cellphone records accurate? Because … and so on, and so on. Except for one teeny little flaw in that premise: the cellphone records do not actually match Jay’s testimony, and Jay’s testimony does not actually match the cellphone records. So how can two things that do not match one another verify the accuracy of each other?
The question we should really be asking is, “What are the odds that the incriminating portions of the prosecution’s theory of the case conveniently match the cellphone records, when everything else does not?”
&n
bsp; It only took her a few days to figure out the answer to that last question. Her next post made me realize we were dealing with a real-life Sherlock Holmes.
Susan believed Jay was being coached by the police, and she could prove it. On January 13, 2015, she put up a post titled “Evidence That Jay’s Story Was Coached to Fit the Cell Phone Records” that set my head spinning.
Susan was all about the cell tower records. Knowing them inside out, she became stuck on a detail that changed between Jay’s first and second police interviews—in the first police interview Jay said that after dropping Adnan off at school in the morning, he returned home and waited for his call. But in the second interview he suddenly inserted a new detail, saying he didn’t return home; instead he went to Kristi Vinson’s home, aka not-her-real-name-Cathy as she was called in Serial, in the afternoon. But the story was easy to discredit because, according to Kristi, she wasn’t home at that time and Jay had only come over once, in the evening, with Adnan.
Jay stuck with the Kristi story in the first trial. But later, by the second trial, the afternoon trip to Kristi had disappeared again. Why?
Because the police had messed up.
At the time of Jay’s first interview, on February 27, 1999, the police had already obtained a list of calls made by Adnan’s cell on January 13, the cell towers they pinged, and the physical addresses of those towers. A cursory look at the cell sites would have shown them that there is only one cell tower in Leakin Park, and that tower was pinged only twice that day, at 7:09 p.m. and 7:16 p.m. It was an easy conclusion to draw that the burial had to have taken place then.
But the detectives wanted to chart the route visually, and so Ritz asked for a map to be created shortly after Jay’s first interview.
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