* * *
On January 13, 1999, Hae Min Lee also arrived at school on time in the morning. She’d had a late night, having spoken to her new boyfriend, Don, for hours. She was quiet during the day, tired maybe. After school she was in a hurry. Hae left Woodlawn High School to meet someone she knew in a private place to where they’d summoned her, a place close enough to Campfield Early Learning Center that she thought she had enough time to pick up her cousin after the meeting. She was killed there in a heated moment, after being struck in the head a number of times and then strangled. She may have been unclothed or partially clothed at the time lividity set in. Her body was left facedown for the duration of livor mortis fixing, and then moved to Leakin Park in the middle of the night, hastily dumped, and barely covered. It may have taken two men to move her to the burial site. She was killed in a location that could have been traced to the murderer, so he grabbed the things Hae had brought with her, like her purse and her shoes, and threw them in the trunk of her car. Her car was abandoned somewhere in Baltimore County. The car may have been hotwired by the killer to move it, or hotwired by others who then moved it to where it was ultimately “discovered.” The killer dumped or took her pager, which could have led back to him.
When Hae’s family realized she was missing, they quickly pulled in Mandy Johnson and her Enehey Group, who would come to confirm (with anti-Muslim bias disguised as “expertise”) that Adnan was the likely suspect based on his religion and ethnicity. Hae’s mother and grandmother were already opposed to Hae’s relationship with Adnan and, having consulted with a psychic, Hae’s mother would be comfortable with Johnson’s theory.
Johnson took the investigative lead, working closely with Detective O’Shea. The detective did some due diligence by visiting Don’s workplace, and then quickly crossed him off the list as a possible suspect because Cathy Michel confirmed Don was at work at another location on the day Hae went missing.
The secret February 1, 1999, anonymous tip must have pointed to Hae’s romantic interests and, having dispensed with Don, the police narrowed their focus to Adnan to the exclusion of anyone else.
The police realized that Adnan had a cell phone, got the records, and saw that even while Adnan was in school that day the phone was being used, which led them to Jay. They may not have realized that Jay had Adnan’s car that day and that the two had hung out in the morning and then again in the evening, but once they did, they couldn’t let him off the hook. They needed Jay to get Adnan. They really believed Adnan did it but didn’t know how. Since they didn’t know that, they would have to decide how he did it, and Jay would play along in exchange for reward money and protection from the police for himself and his relatives. His grandmother’s home—which despite being heavily connected to drugs—was never, ever raided or searched. And Jay, despite having been charged in numerous crimes, never spent a day in jail. In an environment like Baltimore, Maryland, both then and now, these were some hard-to-come-by protections for a young black man.
Jay had no connection to the death of Hae and no knowledge of how she was killed. He was coerced into being a State’s witness in order to protect himself. But at the same time he was probably also convinced by the police that Adnan, as a Pakistani Muslim (remember his comments about “Tyad,” murder, Pakistanis, and Muslims?), had killed Hae out of hurt pride and religious honor.
The police began meeting with Jay long before his “first” official interview, before they ever spoke to Jenn. They had to work hard with Jay’s story to make it match the cell records, because he kept saying things that could hurt their case. One of the few details he and Jenn wouldn’t budge from was that the “come and get me call” happened around 3:45 p.m. I think the reason Jay insisted on this detail, and told Jenn to do so as well, was to protect himself. He realized that Hae was killed before then, so he wanted to place himself away from Adnan at that time. If the police tried to charge him with the murder, he could maintain that his statements and testimony never wavered from being at Jenn’s home until 3:45 p.m.
All news footage of Hae’s disappearance and murder reported she was last seen leaving school at 3:00 p.m. The police realized it too, because under the guise of the Grand Jury proceedings they subpoenaed all media coverage of the case from every single local TV station about a month after Adnan’s arrest and confirmed it. Unfortunately, the police were stuck; there were no incoming calls between 3:15 and 4:27 p.m., and they knew Adnan was at track that day by 3:30 p.m., so they had to stick with the 2:36 call even though their own witness repeatedly stated it was 3:45. They got lucky, though, because Gutierrez never caught this discrepancy. And neither did the jury.
In order to get the 3:32 p.m. call to Nisha Tanna to stick, they managed to get Coach Sye, who in 1999 had told them track practice began at 3:30, to move the start of track practice to 4 p.m by the time he testified at trial a year later. They managed to get Debbie to go from being sure she saw Adnan before track practice at the guidance counselor’s office on January 13th, to not being sure it was the same day. The police were frequent visitors to the school and spread information among the students and faculty that they had solid evidence, DNA evidence, proving Adnan was the killer.
* * *
Jenn had been called so many times that day that they decided she could provide corroboration for Jay’s story. When initially approached by police, she had no idea what was going on. That night, Jay filled her in and she returned with her statement to help implicate Adnan. Despite confessing to helping him destroy evidence, Jenn was not charged with anything, likely having been given an off-the-record deal that she wouldn’t be, and so didn’t even need an official plea deal like Jay. But she was angry at having been dragged into the case and stopped talking to Jay for a long time afterward.
The State managed to pull Vinson, who had been with Jenn during her initial visit to the police, into the case. Vinson recalled that Adnan visited her on January 13th with Jay. She tied this memory to a conference she remembered returning from that day. (Susan’s investigation showed there was no conference that day; the conference Vinson referred to happened on January 22, 1999.)
Because so many witnesses were asked to recall details months later, their memories were inaccurate. Phone records show that on January 22, a day with no school, Adnan did receive a number of phone calls in the evening, any of which Vinson may have been remembering if he was at her place then.
* * *
On February 24 Hae’s car was found in Baltimore County, and the police in Baltimore City were alerted. They moved the car to the 300 block of Edgewood Road, and the same day took Jay by to take a look at it. A few days later, in his first on-the-record interview, he pretended to lead them to it.
When Adnan was arrested, no one at school or in the community knew the evidence against him was only Jay’s word and not physical evidence as the police were suggesting. After the bail hearings, when Gutierrez took over the case, he was advised not to contact anyone and not respond to any correspondence. He didn’t, which included not writing back to Asia. Adnan’s silence, and the strong, continued presence of the police at the school, assuring students that they had solid evidence, made it seem to the students that Adnan must be culpable. None of his peers from Woodlawn attended his trial, further deepening the void of information on the case.
The police and prosecution avoided doing anything in their investigation that could lead to results that would harm their theory. They didn’t get incoming call records for Adnan’s cell phone (the very basis of their case), they didn’t retrieve call records for the Best Buy payphone (if it even existed), they didn’t search dumpsters for shovels for a month, they didn’t retrieve Hae’s pager records, they didn’t search Jay’s home or car, they didn’t interview Jenn’s brother Mark Pusateri with whom Jay said he spent the day, they didn’t interview most of Adnan’s peers and school friends until long after his arrest instead of before it, they didn’t secure any official records of Waranowitz’s drive test (indeed, they
didn’t even test the burial site itself), they didn’t ask for work records for Don, they didn’t test any evidence against Don or Alonzo Sellers, they put a hold on complete forensic testing and never tested the fingernail clippings for DNA, they didn’t test Hae’s trunk for evidence she had been there, they failed to test items from the crime scene (the brandy bottle, feather, and rope, which later disappeared from evidence), they didn’t test three hairs found in Hae’s car, they didn’t retrieve Hae’s online activity, they didn’t pull any video footage from school, library, and street cameras, they didn’t subject Jay or Adnan to a polygraph, they didn’t search Sellers’ residence, they didn’t investigate Hae’s stepfather, and the list goes on. They avoided “bad evidence,” evidence that could have hurt their case.
Instead, they focused exclusively on building a case against Adnan. So they fed Jay details as they gathered them, helping him to craft a story while ensuring enough ambiguity that they could continue to change the timeline until they were certain Adnan would have no alibi. And they kept all relevant documents, from witness statements to Adnan’s phone records, away from Gutierrez so neither she nor Adnan ever realized what the State’s case would be. Today the State argues that the many community witnesses Gutierrez lined up to show Adnan was at the mosque that night backed out of the case when they realized the phone records showed he was in Leakin Park; but no one other than the State ever had those records, because no one realized they had anything to do with the case. Regardless, Gutierrez failed to even contact, much less create alibis from, nearly all the community members on the “alibi notice” list, which was simply a list of potential character witnesses Adnan and his family had prepared for her.
* * *
I am convinced that due to the maneuverings of the State, Bilal Ahmed, a sex offender, was released and disappeared. By the time of the trial, Gutierrez had not given notice of any other potential alibi. And to make matters worse, Ahmed appears to have continued in his ways: In January 2016 he was arrested and charged with sexually assaulting his own dental patient while he was under anesthesia. The patient reported he woke to realize that Ahmed had forced his penis in his mouth. Ahmed is currently under investigation for this and other potential sex crimes.
On her end, Gutierrez failed to investigate and develop a defense for Adnan. Her strategy, based on the belief that it was the State’s burden to prove the charges, was to try and attack whatever the State presented in court, which she failed at by not calling any expert witnesses. She also failed to raise a counternarrative, and failed utterly at establishing with any clarity what Adnan’s day looked like on January 13, 1999. Her declining health and unmanageable caseload left her incapable of meeting the standard of duty every defendant is owed by their attorney. Because she was unable to defend Adnan, like many of her other clients, he was convicted and sentenced to spend his life in prison, charged with premeditation in a crime where the State’s witness stated on multiple occasions that he had no idea Adnan was planning the crime. Today that witness, Jay, says he heard the murder took place at Best Buy (from who?) but has no personal knowledge of where the crime happened or where Hae was buried because he says he was never at the site. The same witness today says they were never in Leakin Park around 7 p.m. on that day.
From witnesses who changed their testimony, to witnesses who contrived it out of whole cloth, to the cops who enabled it, to the prosecutors who withheld evidence, to the defense attorney who couldn’t do her job, to the community that quietly faded away: in this case, everyone failed Adnan. And they also failed Hae.
* * *
No one could have predicted what has happened over the past two years. But to be honest, no one can predict what will happen next in this case, either.
There is every reason to believe that Adnan will finally get some measure of justice for losing nearly two decades of his life. But like so many other times, things could still go wrong for him. And if I am going to be even more honest, I don’t trust the State to play fair. They haven’t so far, and there are too many cases, now made public, in which prosecutors have sunk to the point of securing false testimony from jailhouse snitches or the like in exchange for deals of leniency. I’m not imagining these things. They happen. The State of Maryland wants desperately to keep Adnan in prison until he dies. The attorney general of Maryland, Brian Frosh, recently told other attorneys at a social event that the State would fight every step of the way to keep Adnan in prison. I don’t know what they are willing to do to ensure that happens. We have to always keep that in the back of our minds, even as our hearts race with hope.
And we do have hope, lots of it. Because other than what has become public so far, other than what is documented in this book, and what is currently being fought in court, there are still many more revelations about the case to come. Since late 2015 a new team of crack investigators has been deep-diving into the case, speaking to witnesses who had never come forward before, and finding even more incriminating evidence of the State’s misconduct and what really happened to Hae. This evidence will be brought to light sometime in the next year, when it has been properly documented and corroborated. The story is far, far from over.
If there is one takeaway from Adnan’s story, it should be this—the criminal justice system is not just deeply flawed, it is broken. The law is riddled with myths and ideals that are too lofty for human attainment, from the “presumption of innocence”—a practical fiction when prosecutors are able to convict or get plea deals at alarmingly high rates (97 percent in federal cases)—to equal treatment before the law, when your likelihood of arrest and ability to secure a solid defense are completely dependent on racial-socioeconomic factors.
Criminal defense lawyers know this, which is why many of them weren’t surprised by the case. It’s also why Kevin Urick could so easily dismiss it as “run of the mill,” ironically confirming how broken the system is.
The famous Blackstone’s Formulation, that it is better that ten guilty persons escape than one innocent person suffers, has been turned on its head. We have turned into the society that supports overwhelming prosecutorial force out of fear that one guilty person will go free. The Innocence Project estimates up to 5 percent of all incarcerated people in the United States are wrongfully convicted. Given that we incarcerate more people than any nation in the world, over 2.25 million, this means up to well over a hundred thousand incarcerated people in this nation may be innocent. Studies have shown that in cases investigated by the FBI where DNA was available for testing, 25 percent of charged suspects have been cleared. A University of Texas report cites that in cases up until 1990 where DNA testing was available, 37 percent of charged suspects were excluded by the results—that means 37 percent of the time the police charged the wrong person. A more recent study by the Urban Institute shows that roughly 15 percent of convicted (not just charged) serious crime defendants can be cleared by DNA testing. But remember, DNA testing is only available in less than 10 percent of cases.
The system is made up of the humans who comprise it.
Every single part of the criminal justice mechanism, every cog in its wheel, is hindered by the cognitive biases of every single person who touches a case. From police officers to detectives, witnesses, prosecutors, juries, judges, and, believe it or not, even forensic and medical personnel and experts that may be involved in establishing the “scientific facts” of a case—all are prone to make dangerous mistakes based on their own preconceived prejudices.
Scientists have identified 179 different types of cognitive biases that impact and inform every decision we make. From the commonly known confirmation bias, which compels us to seek information that confirms our existing beliefs (the police seeking information only about Adnan because he was Muslim), to in-group bias in which we give people of “our group” preferential treatment (white lady Mandy Johnson quickly dispensing with the blond, blue-eyed Don), to the misinformation effect in which people suffer from less accurate memories because of post-event
information given to them (every person the police interviewed after Adnan’s arrest), Adnan’s case was riddled with biases. The very basis of the charges against him relied on a presumption, a bias, about Muslim men. The jury itself discussed how Arab men treated their women during deliberations.
Of course, it’s not just Adnan’s case. The entire system is impacted by these biases. Human bias even affects the outcomes of DNA analysis and the application of “scientific evidence” in a trial. DNA and fingerprint experts who were given different information about a case or investigation were noted to reach different conclusions—which means that even the results of a “scientific” test aren’t safe from human bias. A well-known study out of University College London by Itiel Dror shows that where “the human examiner is the main instrument of analysis”—including a wide range of testing and analysis, even including examinations of closed-circuit television (CCTV) images, and firearms and document investigation—human biases have a tremendous impact on outcomes because “the contextual influences are many and they come in many forms.”
These are the facts we are facing as a society. The law is not blind and never has been.
This may make it seem that we are doomed when it comes to having a truly just system, free of prejudice and our internal (many times unknown) bigotries. It is why a competent criminal defense attorney, who is able to challenge and reexamine everything offered by the State, including testing results, is truly a defendant’s only line of defense for now—an inordinately stressful situation for an attorney, and an ominously risky one for a defendant. And from a societal perspective, not enough, not by a long shot.
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