After speaking with the organization, Justin decided it wasn’t appropriate to file such a brief in the pending matter—after all, this wasn’t an issue in front of the court at all. As such, it might have to wait and perhaps could be raised in the future, if the current appeal didn’t work. I was disappointed but I understood his point.
SABA still went out of their way to publish a strongly worded OpEd in the Baltimore Sun on January 28, 2015, in which they stated:
Indeed, it appears that the prosecutor relied on ethnic and religious stereotypes in contending that Mr. Syed committed the murder because “his honor was besmirched,” claiming it was the defendant’s “religious beliefs” that motivated him to kill. We are not saying that arguments based on religion or ethnic background are categorically improper in criminal cases. But from our review of the record, we cannot identify any factual evidence introduced at trial to suggest that religion actually motivated the crime. While evidence was introduced that Mr. Syed’s parents did not approve of his dating habits—a dynamic familiar to many parents and teenagers—the notion that Mr. Syed killed because of an honor besmirched was supported only by the prosecutor’s reference to cultural stereotypes about Muslims.
Such references to the defendant’s background were persistent throughout the trial. In a recent interview with the online publication The Intercept, the prosecutor now suggests that domestic violence motivated the murder, but we identified no testimony about the defendant’s jealousy or anger against the victim in the trial transcripts. In contrast, the prosecutor repeatedly referred to the tenets of the Islamic faith and suggested that the defendant’s apparently disobeying them by dating the victim was itself proof of guilt.
As one example among many, the prosecutor sought to convey to the jury the notion that Islam endorses harsh penalties for those who violate its scriptures. To do this, he put a teenage friend of the defendant on the witness stand and asked him: “What is your understanding of the penalty within the Islamic religion for premarital sex?” The teenager replied (evidently to the best of his theological knowledge): “That is not allowed.” Many other religions have similar proscriptions that their adherents—teenagers and otherwise—routinely transgress. Would such a question be asked during the prosecution of a Catholic defendant? It seems inconceivable—at least in the absence of evidence that the defendant personally held hard-line religious beliefs that led to a murder. Yet that is precisely what took place in Mr. Syed’s trial.
It felt good to have the concerns of Muslims and South Asians legitimized and substantiated; it wasn’t all in our head. And if the prosecution could be so bigoted, why couldn’t the police?
The State made it seem as if they honed in on Adnan because of the anonymous tip that the Baltimore City Police received on February 12, 1999. They lied. The police were already circling Adnan long before that tip, even before Hae’s body was ever found.
The files we had at the start of 2015 were not the complete files that existed in the universe of Adnan’s case. What we had were the defense files, the trial transcripts from the court, and the files Gutierrez had obtained through discovery, which included police reports, forensic reports, witness statements, and whatever the State turned over to her.
What we didn’t have were the complete investigatory files of the Baltimore City or County Police, or a copy of the State Attorney’s files of the case. These had to be obtained through the Maryland Public Information Act (MPIA), through requests made directly to the agencies involved.
I had never made any but Sarah had, though she never supplied us with the files. But Justin had gotten them. He passed them along in February 2015, and finally Susan and Colin were able to take a look.
That was where evidence surfaced of the police focus on Adnan as early as February 3, 1999, the day they first pulled his criminal records from the Maryland Interagency Law Enforcement System. It was also where the cultural research memo was found, which (I finally discovered) was written by Mandy Johnson of the Enehey Group Investigating Services, along with evidence of Johnson taking a strong role early on in the investigation. In a communication with one of our researchers helping to investigate the case, Johnson admitted she was the active lead in the case right after Hae’s disappearance, since Baltimore County didn’t seem to take the matter as seriously as the family would have liked.
If Johnson was taking the lead, had come to the conclusion that Adnan did it, had eliminated Don as a suspect, was in daily contact with Detective O’Shea, and was literally the only movement on the case before police pulled Adnan’s records on February 3, then it seems likely that her opinion, coupled with O’Shea’s determination that Don was at work on the 13th, strongly informed the direction of the investigation.
We’ll never have proof that the police focused on Adnan because of his religion, but they did indisputably focus on him. They followed no other leads; barely checked out Don; didn’t investigate Hae’s mother’s ex-boyfriends, fiancés, and ex-husband, or Hae’s uncle; didn’t investigate any connection with the Jada Lambert murder—they just decided it had to be Adnan.
Now they had to make their case. They had to figure out what Adnan did that day. They knew he had a cell phone; after all, Officer Adcock called the number on the night Hae went missing. So that’s where they started—with the cell phone.
In a blog post on March 2, 2015, Susan makes the case that the police were focused on Adnan before the February 12 anonymous tip. She points out that they pulled his registration records on the 11th after the visit of the black male reporting suspicious activity by another black male at Leakin Park. She also shows something remarkable with the cell phone records.
Somehow, the police had already gone through “unofficial” channels to pull Adnan’s cell phone records. The first documented subpoena for Adnan’s cell records from the police to AT&T was on February 16, 1999, directing them “to furnish the name(s) address(s) for the following telephone number and (13) cell site locations, from January 1999 to present.”
The police already knew there were thirteen cell site locations, Susan points out, meaning that they already had some kind of records showing this information to begin with. How, we don’t know and may never find out, but it’s clear that they had them. They then had to get the cell tower locations, which is what they requested on February 16.
They were going to follow the cell tower pings like crumbs in a trail to figure out Adnan’s movements that day, but they probably had a rude awakening when they went to speak to the person first called on the morning of January 13, 1999—Jay.
“I think the cops had no idea that Adnan didn’t have this phone all day,” Susan says.
Well, this was new, something I hadn’t considered before. Because up until then I thought what everyone else did, that the cops started with the phone number that was called most times that day, Jenn’s, which led them to Jay.
Now that we had Sis’s statements, we knew the police were talking to Jay about a week before they got to Jenn.
Which made sense. If you were a cop with cell phone records trying to figure out where this phone was all day, you might start with the first number on record—a number attached to an address that would raise all kinds of red flags, given the frequent criminal charges of people living at that address.
“So the cops go to Jay to find out why Adnan called him,” Susan writes. “And that’s when the police realized, crap, Adnan didn’t have the phone all day, Jay did.”
Ok, I got it. I could see how that would happen. But what I also concluded was this: the cops must have been determined to make a case against Adnan, thinking he had his phone all day, then got completely screwed when Jay entered the scene and had to rewrite the script. Either way, I believe, Detectives Ritz and MacGillivary were going to get their man, and even, as it seems they had in other wrongful-conviction cases, produce evidence where there was none.
That’s why Jay had to be coached, because the police needed him to help make their case.
But it wasn’t until we embarked on a new project that we figured out how they appeared to have done it.
* * *
In mid-March Susan dropped another bombshell on her blog, this one having to do with what Hae’s plans were for the day she disappeared. Susan had carefully looked at Hae’s employment records and noted that she was marked “no call, no show” on January 13, 1999, because she was actually scheduled to work at LensCrafters in Owings Mills from six to ten o’clock that night. This correlates with what Don had said about Hae’s plans, that she was going to give him a call after work that night.
Note found in Hae’s car
But much of this fact got muddled because of the infamous wrestling match the State said Hae was supposed to go to that night. In Serial, Sarah likewise confirmed that she missed a wrestling match that evening through her interview with a former Woodlawn student named Summer, who went on the podcast and recounted waiting for Hae that night at the match. In 1999, Inez Butler had mentioned a wrestling match to police in initial interviews, a match that she testified at the trial was against Chesapeake. But the real evidence for the wrestling match came from the note found in Hae’s car.
The cops were certain the note was written the day she disappeared, and the State offered the note not just as evidence but as an emotional bullet meant to build rancor against Adnan. Sarah took the note as evidence that the match was the same day too, noting, “The local station had done a student athlete segment on [Hae]. So the note was written on the 13th, the day she went missing.”
Except they all had it wrong.
Susan dug deep, finding all the school wrestling match reports in the local media, and discovered that Woodlawn High had a wrestling meet against Randallstown, as stated in Hae’s note, not on January 13 but a week prior, on January 5.
From the Baltimore Sun local school sports coverage of the matches the day prior, January 5, 1999
The note wasn’t written on January 13, the match wasn’t on January 13, and even the taping of the student athlete interview wasn’t on January 13. It all happened a week prior.
A few days later Colin meticulously broke down Hae’s day, comparing contradictory witness statements and eliminating one after the other based on Susan’s findings and other inconsistencies. He boiled it down to a singular thing he was confident of: that Hae left the school having told others she “had something to do” and died when she went to do that something. In other words, Hae had somehow made plans that required her to do something or go somewhere before she picked up her cousin.
Colin told me he thought that when Hae left school she probably had her pager. But when she was found, it was gone. It seemed plausible that she may have gotten a page, which resulted in “something to do,” and the killer was the one who paged her, then got rid of the evidence.
Three days later, on March 19, 2015, Susan came swinging back with a post examining Don’s alibi, a post that opened the door to an entirely new set of possibilities for what happened on January 13, 1999.
Susan doesn’t necessarily make the case that Don was guilty, but she makes a compelling case that the police failed fantastically in investigating him. She cites the weird seven-hour conversation he had with Debbie, which may have been the root of the rumor that Hae was thinking of going to California. Susan was the one who found the undated note on Baltimore City letterhead with the following:
“None of Hae girlfriends like new boyfr. New Boyfriend Assaulted Debbie.”
It seems clear that this must refer to Don. It is not clear who wrote this note, or why Hae’s friends didn’t like Don. And when and why did Don supposedly assault Debbie? The police never even spoke to Don about the note found in Hae’s car, which he did not know about until Sarah showed it to him. Why such neglect of the man Hae may have been going to see that day?
Having spoken to Cathy Michel, Don’s manager at the LensCrafter store at the Owings Mills mall, Detective O’Shea was satisfied that Don had indeed been working on the 13th. What O’Shea didn’t realize at the time was that manager Anita Baird at the Hunt Valley store, where Don allegedly temporarily filled in the day Hae disappeared, was in fact his mother. Susan points out that Gutierrez didn’t know this either because the records she was sent from the store don’t mention it, while the records sent to the State do note the relationship.
Susan shows how Urick stepped in to help “procure” the missing employment records for January 13th when Gutierrez made the request for Don’s full employment records, even though the motion was filed under seal and ex parte with the court, meaning the other party isn’t supposed to know about it. The documents LensCrafters turned over to Gutierrez didn’t show that Don was working on January 13. Urick filed his own motion right after Gutierrez for the same documents, meaning he was probably somehow tipped off about the ex-parte motion. When LensCrafters produced records to both Gutierrez and Urick with no evidence of Don working on January 13, Urick gave them a call. Two days later a January 13 timecard was “discovered” and sent to Gutierrez, at which point she probably concluded that Don did indeed have an alibi. But Susan wasn’t so sure.
She compared the January 13 Hunt Valley store timecard with his regular timecards from the Owings Mills store. Something did not add up.
Don’s regular employee number at Owings Mills was 0162. The timecard from Hunt Valley showed his employee number as 0097. Don’s mother’s employee number was 0110. Beyond the oddity of his using two different employee numbers, these employee numbers are issued sequentially, and even if employees were issued a different number when filling in at other locations, Don should not have had an earlier number than his mother, who had worked there for a number of years. Don’s employee number at Hunt Valley should have been sequentially a greater number than his mother’s.
Susan also pointed out that while Don said he worked at Hunt Valley from 9:00 a.m. to 6:00 p.m. to fill in for another lab technician that day, there was no such shift for any other lab tech at the store. So who was Don filling in for?
Lastly, Susan notes that Don, though having worked 45.9 hours for the week when the additional Hunt Valley hours are counted, was not paid any overtime for the week—which seems to suggest that the extra hours noted on the timecard were never actually entered into the pay system.
The police’s investigation was so poor that it caught none of these things, Gutierrez’s representation of Adnan was so poor that she didn’t either, and Sarah never gave Don’s records even a cursory look.
Sarah’s analysis of the documents was not much different than mine or any lay person’s. The documents gave her a chronology of events and names of people associated with the events, but an investigative treatment wasn’t really done, which is not surprising; she wasn’t an investigator or even a crime writer, as she made clear in the very first episode of Serial.
Susan and Colin, on the other hand, were making connections in the case that took a keen eye and attention to every single detail. Nothing slipped past them, not even games the prosecution played as it succeeded in outwitting Gutierrez.
* * *
Though I heavily faulted Gutierrez for failing to conduct her own thorough investigation, the prosecution clearly did everything in its power to thwart discovery and withhold as much information as possible from her.
Adnan was indicted on April 13, 1999, and about a month later Gutierrez filed an omnibus request for discovery, demanding what was due to the defense from the State—all the documentation related to the crime that an attorney would reasonably need to prepare a defense for her client.
It is the State’s duty to comply within ten days, but in this case Urick filed for an extension in mid-June to respond. Being stonewalled by the State, Gutierrez contacted the medical examiner’s office herself, seeking the autopsy report, only to be told that they had been directed not to release it until the prosecutor gave permission.
On July 1, 1999, according to Susan, “The prosecution makes limited disclosures to the defense, consisting of
incomplete (and illegible) police reports, partial evidence lists, and poorly scanned black-and-white photos of the crime scene that do not reasonably allow a viewer to understand what is being seen.”
At this point Gutierrez hasn’t seen a single police statement given by the State’s witness and has no idea what the details are of the case against her client. Not only that, Urick files a Motion to Bar Discovery to prevent the defense from even knowing the identity of the State’s witness. Of course, Adnan already knew the identity, as he had been told the witness was Jay by the police themselves during his interrogation.
Having filed twenty discovery requests, Gutierrez finds herself battling for every piece of information to the extent that she raises, via motion, the fact that she can’t even prepare an alibi defense because of the deliberate withholding of the time the alleged crime occurred.
As the scheduled trial date of October 14, 1999, looms ahead, Gutierrez receives a single-page summary of the oral report by the State’s cell phone expert, Abe Waranowitz, on October 9—the first notice she has that the State is in fact using an expert to determine cell phone location. She has not been given any documentation by the State on the cell tower locations, so the summary (useless to begin with), is essentially meaningless. Two days later she files an urgent request with AT&T, asking for “any maps covering the cell sites discussed in his statement, any coverage maps which you have describing the different areas, and any information used by Mr. Waranowitz to distinguish the particular cell sites mentioned.”
Two days before trial, Gutierrez files a motion to postpone the case, because as of this time she still hasn’t gotten a single police statement made by Wilds, and has been unable to subpoena the State’s cell phone witness to try and figure out what information he will bring to bear on the case. She also argues that the State gave late and incomplete disclosure on the DNA testing of the T-shirt found in Hae’s car, and requests time for examination of the results by an expert.
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