Serial Podcast

Going Not So Deep, the Finale of Serial

Ok, so I was wrong – Sarah wasn’t going with the long ball, the why of it all.  It really was just a Who Done It all along.

So, I guess Adnan was just the unluckiest guy ever.

i guess that’s that Big Picture?

It’s interesting that Diedre Enright tells her to focus on the Big Picture – because isn’t that what the cops did?  They picked Adnan as their suspect, and the holes in Jay’s story?  Eh – Big Picture – we know they were both involved, so Jay’s story doesn’t really make sense, nor can we really corroborate a lot of it, but let the jury sort it out.  We got the Big Picture right.

I think what Diedre was really, saying, I think, is Big Picture – let’s get this thing back in court, and we’ll worry about it later.

Strange that she and the cops really had the same idea – let’s get back in a forum, and sort it out later.

More later after I’ve had time to stew.

 

The Why of Serial, And Why Tomorrow’s Last Episode is Probably Going to Be a Bummer

Yeah!  Tiffany commented on my post!  Sorry I took so long to answer your question, Tiffany, but I was actually prepping one of my own cases for trial.  But, that’s resolved so, with my real work out of the way, here’s the question:

“And also – can you talk more about “bad evidence”. Isn’t that a SERIOUS miscarriage of justice? Aren’t you suppose to follow the evidence where it leads…they started out that way, they pulled his phone records its led to Jenn Pusateri, who led them to Jay, who led them to Adnan…to me thats three potential suspects just from the phone records. Investigate all 3…why only talk to/search Adnan…especially when Jay led them to car..isn’t that red flags and huge alarms going off? As in “yes he said he got rid of the shovels weeks ago, but if he’s been holding on to knowledge of where her car is all this time, whats to say he’s not holding on to shovels, and red gloves, etc etc etc…” It was just such a LEAP to Adnan when they had to much rich material to cull through simply with Jenn and Jay..”

It’s hard for me to get in the minds of the police.  So my answer can only be guesswork based on my experience with how police investigations unfold.  And, here’s what I know.  Yes, we want detectives to solve crimes, and get the right guy, no question.  And, the detective wants that too.  They don’t set out to get the wrong guy, or just any guy.  But, once they become enamored with a suspect, it’s hard for them to say maybe I got it wrong, and that firm entrenchment comes from their years of experience, and seeing things from their side of the adversarial perch.  And sometimes, they become so blind to anything but their theory, all kinds of evidence manipulation occurs – suggestive photo arrays, coerced confessions, ignored alibis, etc.  But, I don’t think that happened in this case.  I think, comparatively, based on real world standards, the investigation as it lead to Jay was pretty thorough.  That’s not to say that they hadn’t zeroed in on Adnan from the very beginning, but they seemed to be following up on everything before they got to Jay.  Investigating Jay’s actual story, not so much – and that’s where the “we don’t look for bad evidence” comes in.  But, I’ll get to that.

So, how does the detective get the right guy?  As a defense attorney, I really only get part of the picture.  So much will go into an investigation that I never see – rumours the detective hears, anonymous tips, tips from snitches, information that is not quite discoverable.  Obviously, this is problematic because this kind of information that can’t be challenged in court, but its exactly the information that compels a detective to believe his own narrative.   For instance, the rumour that Sarah referred to in the last episode, the one that would have ended her story if it had panned out.  Sounded like a confession to me, some kind of confession at a party.  I would not be at all surprised if the detectives had heard that same rumour at the actual time of the incident, and like Sarah, couldn’t get anyone on paper to  confirm it.  Did they become wedded to the Adnan theory based on rumors and suspicions while she was missing, or did they only come to the inevitable conclusion he was their guy after Jay confessed.  Without knowing when Adnan became their prime, it’s hard to evaluate their investigation.

Am I defending the police?  I’m just suggesting that since the police did not cooperate with Sarah, we just can’t know what they knew. and it’s a hole in Sarah’s story.  But it’s only a hole in Sarah’s story if you believe her narrative is really about solving this crime.  And, I think that her narrative has never been about solving it, but rather about asking fundamental questions about humanity, the justice system, and people’s knowable character, rather than about who done it.

But, Tiffany’s question really goes to the philosophy behind a police investigaiton, not just this case. And I can tell you that in my experience that once the police have their suspect, based on factors that we may never know, they build their case.  In this case, they didn’t delve deeper into Jay’s story because they didn’t want to unprove their theory.  The justice system is an adversarial system.  And, when it works, we like it, and when it doesn’t, we don’t.  Let’s look at the Brown case for just a second – it was up to the police and the DA to present evidence to the jury to get an indictment – that’s what their job was – to get an indictment.  It wasn’t to present evidence of the officer’s possible justification – that’s a defense, and has no place in the indictment process.  Yet, Tiffany’s gut reaction, and other’s who reacted to Sarah’s own bafflement with the police’s focus on only evidence that leads to conviction, would suggest that of course this is how the investigation should have been presented to the indicting body, right?  Maybe not.  Everyone in the system has their job – to build cases, to prosecute cases, to defend cases, to decide cases.  Sometimes it works, sometimes it doesn’t.

And in this case, while there probably were failures in the system, I don’t think much of the blame falls on the police.  As Tiffany pointed out, they followed the evidence to Jay, and when they got to Jay they came to the inescapable conclusion that Jay was involved.  Jay knew where her car was – that’s really powerful, impossible to explain in any other way, evidence.  So, if you’re the police – you know Adnan and Jay were together, you know for certain Jay is involved – so they feel like they’ve got their guy.  And, I don’t think it’s “a huge leap,” as Tiffany characterizes it, to get to Adnan.  Frankly, I don’t think they got to Jay, and lept to Adnan.  I think they started with Adnan, and got a break with Jay. And, even without knowing what rumors they had heard, it’s not a “leap” to get to Adnan, especially in light of Hae’s post break up note to Adnan which refers to behavior on his part that she wants to stop, on which he wrote “I’ll kill,” the three phone calls the night before she went missing, the Nysha call, the strange behavior described by his friends on the day she went missing, his inability to account for his time, his complete failure to call Hae after she disappeared, his original statement to the police that he has since recanted, that he did ask Hae for a ride after school.  Did they serve Search Warrants to recover receipts, or shovels or gloves, or anything?  I don’t know.  Did they drive by the Best Buy, and confirm in their own minds that there was a phone there?  I don’t know.  Did they analyze the flipside of the above evidence – his behavior, the Nysha call, etc. Probably not.  That’s not their job.  Their job is to establish probable cause.  They have Jay with the car, and Adnan with Jay, and handed it over to the DA.  And from there, it’s about how the DA presented the evidence to the jury.  The jury accepted the DA’s spin on the time line and the cellphone records, and that’s because the defense attorney didn’t challenge it.  If the cross-examination of Jay had been conducted in reference to the time line, and destroying the state’s theory of the case instead of just going around in circles, liar liar pants on fire, things may have turned out differently for Adnan.

In any event, in of course playing Monday Morning Detective, I think things would have turned out differently had the police questioned these kids differently.  Here’s what I think would have happened in Philadelphia – the kids would have been rounded up, and brought down to the station.  They would have been placed in separate rooms, and left to stew.  Stew for a long while.  Then, the quesitoning would have begun, and it would have been back and forth from room to room – well, Jay said this, what to you have to say about that – Jenn says this – what about that?  Stephanie says this? Anything?  And, I think, Stephanie would have cracked, and we would know what happened – because I’m pretty certain she knows.  I see similarities to this case – obviously, the facts are very different – but I really think that if all of these kids had been at the police station at the same time, the confessions would have started flowing just like they did in that case.

But it’s not going to happen now, and I think that tomorrow’s episode is probably going to be totally unsatisfying.  Reportage is all about the who,what, when, where, why of a story, right?  And, I think the focus of Sarah’s story hasn’t been about the who, it’s always been about the why.  Either why was an innocent man convicted of a crime he didn’t commit or why did he do this? and why don’t we know – really know, with certainty?  The last couple of episodes, to me at least, have focused on these questions – the first questioned highlighted by bad lawyering, racial biases, and a flawed adversarial system that leads to one sided investigations. I didn’t write anything about these episodes because a. I was busy with my own upcoming trial, and b.  I’m not interested in writing about bad lawyering.  It’s too sad, depressing, and factual.  On any given day, in any given courtroom I can walk in and see bad lawyering.  Bad lawyering happens, and that’s one of the many reasons why I believe that there can’t be a death penalty.  I could go on and on and on about the Christina Guitierrez episode, but I won’t unless someone asks me too.  And as far as anti-Muslim bias goes – again, that’s a systemic flaw.  On any given jury panel, you are going to find people that hate everyone – anti-Muslim, anti-Black, anti-Jews, anti-women, anti-gay.  But, it’s the system we’ve chosen, and when it works, we like it, and when it doesn’t, we don’t.  And, some of it could have been minimized at jury selection, and certainly not set on fire with a match as Ms. Guitierrez seemed to do in her opening.

And as to the second question – why did this happen?  Sarah has been flayling a bit.  Is Adnan a pyschopath? Most of the last episode to me was kind of bullshit. If you think he did it, you don’t have to explain it away with he doesn’t remember doing, you just believe Jay.  And, if you believe Jay, Adnan absolutely remembers doing it. And he doesn’t have to be a pyschopath – just a liar and a murderer, and people can be both of those things without there being anything clinically wrong with them.  So, if he did it, why’d he do it?  Because he was scorned? Because he was filled with hate after being dumped?  Because he was disrespected?  Or maybe he just did it because he could.

And, that’s the thing of it – in any case – any case – you’re never going to get a satisfacatory why answer.  Because why is more than motive – why is so complicated.  For instance, one of the most famous murders in Philadelpia, Lex Street – ten people shot, seven of whom were killed, all huddled around a space heater.  At the end of the day, after four young men were wrongfully accused, and four others were arrested and inventually pled or were found guilty, the motive was revealed to be a dispute over a deal over a car.  Seven dead, seven families without their loved ones, four individuals wrongfully accused and jailed for two years, because of a broken clutch? Unsatisfactory, right?

People who have nothing to do with the justice system expect the system to provide them with closure – who, what, when, where, why, how all wrapped up in a nice neat little package,  But, that’s not generally what happens.  Because you can’t answer the why of it.  Why would this guy do this?  Why was this family member taken? why are both families -victim and defendant – left to suffer?  No answers, no closure.

Just life, that’s it.

 

The Blog Post About the Podcast About The Podcast, or Why Adnan Didn’t Testify

So, I spent my Friday morning in my new Friday afternoon quarterbacking ritual, and listened to the Slate Serial Spoiler Podcast.  As a guest, the podcast hosted Jami Floyd, a very experienced legal talking head.  I agreed with her about some things, as is obvious from my last post, but I disagreed with her on one major major point.

Adnan should not have testified.

Why?  Because he would have sucked.

But, before I go any further, let me just say that I’m going to talk about my thoughts on his ability to testify based soley on the facts of the case.  What I mean by this is Jami Floyd suggested that the only thing normally preventing a defendant from taking the stand is his prior record.  I disagree, obviously.  First, a defendant’s prior record only comes in if the conviction relates to crimen falsi – crimes of deception.  Because at that point, that’s the only character trait at issue – do you have a history of criminal deception?  Crimes involving violence, etc. only come in if the defendant puts on character testimony.  They can’t be used during cross of the defendant because that’s propensity evidence, and it isn’t allowed.  Adnan didn’t have these problems anyway, but maybe he did have other issues.  I don’t know whether there were any pretrial motions in this case, and whether the defense attorney was able to keep some bad stuff out.  So law aside, onward.

So, how do I know he would suck?  Because we have heard him in his prison phone calls with Sarah, and the only time Sarah pauses and hesitates when she thinks about whether he did it or not is when confronted with bad evidence, he has no explanation, or unsatisfactory explanations.  And that’s after thinking about this evidence for 15 years.  And, that’s to an audience who is predisposed to believe him.

So, if a predisposed listener who wants to believe him finds herself pausing, hesitating and refraining from acting after hashing out his unsatisfactory responses to reasonable questions, how is a jury going to preceive his testimony, when as already discussed, and universally agreed upon, they are already poised to convict, and presume him to be guilty?

Testifying would not simply have been a matter of Adnan getting in front of the jury to tell his story.  It would be nice if we could just put our clients up there, and let them sit back down after direct.  But, a defendant is subject to cross-examination, and the determinative factor of whether or not a defendant can testify is really not how well they can tell their story on direct, but how well they can withstand cross-examination.

And, it is clear that Adnan would have failed miserably at cross.  As Diedre Whatshername from the Innocence Project Pointed out, if Adnan were innocent he would understandably be unhelpful, and know very little information about the crime itself.  So, he’d be taking the stand to say, “I don’t know,” “I don’t remember” and “I couldn’t tell you,” for five days – because don’t think for a second he’d be on the stand for less amount of time than Jay (well, if the prosecutor was skilled he would be, but it seems like this case lasted an incredibly long time due to both sides).

So, what can he say? We’ve heard him try to explain where he was that day – well, I was at practice, I was the library, I was getting stoned, I was blah blah blah.  As I’ve mentioned before, once he testifies, the burden is going to shift to the defense to prove innocence, because that’s just the way it is, and the jury is then going to be thinking – ok, you were at the library – where are your witnesses that saw you?  Where are those alibi witnesses?  And, just maybe, it depends how the the rest of the case would go, but normally, a prosecutor in closing cannot comment on the defense’s failure to call witnesses – that’s burden shifting.  However, there is fair response – if Adnan were to open the door – talk about why he didn’t call witnesses without prompting by the D.A., he may very well open the door to the DA being able to do just that.

Then, Adnan’s going to have to answer questions about the Nysha call.  The Nysha call is totally explainable in closing.  Remember what I said in my last post – if you can say it better than your client, you should because it’s your job?  I assure you a good defense attorney would be able to turn that fact into a plus in closing because Nysha is clearly remembering the wrong phonecall.  But it’s a deep dark pit of cross examination fodder – because his butt dialing explanation immediately following her assertion that she doesn’t have an answer machine is going to end up sounding like Elmer Fudd b’dee b’dee once the prosecutor got done with him.

What else is he going to say.  That he was with Jay.

Game over.

Even after 15 years, he has zero explanation as to why Jay would lie.

What else?  Hae’s note to him about the bad break up, his bad behavior, and his writing – I’ll kill at the top of the page.  This cross-examination screams DANGER DANGER DANGER.  On cross, when confronted with allegations of mistreating Hae, and Hae’s own words suggesting that truth of that – the jury could possibly, for the first time, see the face of the guy that killed her.

And, really – we’ve heard his answers about why he didn’t call or try to page Hae after she went missing.  But, his answer was really unbelievable.  He called her three times the night before she went missing, admits that he was trying to get a ride from her the day she disappeared, and then, snap, just like that, he’s not calling her because she has a new boyfriend, their relationship wasn’t like that, blah blah blah.   Just as his explanations fell flat to Sarah – they would fall like a lead balloon on a jury.  So, does the jury give him the presumption of innocence, give him the benefit of the doubt that he didn’t call because he was relying on friends who were calling? or do they do what juries really do, apply the presumption of guilt, and conclude that he didn’t call because he knew she was dead because he killed her.  Game over.

Adnan’s testimony would have shifted the burden of proof to the defense, it would have been fraught with landmines everywhere for three days, four days, five days, who knows? and he wouldn’t have added anything other than to say “I didn’t do it.”  His lawyer is supposed to be saying that.

No, the failure of this case wasn’t in him not testifying, again, it was in his attorney failing to pick a jury that would not hold that against him.  Some might say that that was out of her control – that the questioning of the jury is limited, that it’s near impossible to really get into the heads of the 12 people who are in the box to hear your case.  But, you know what – at least in Pennsylvania you have seven preemptory challenges and an unlimited challenges for cause.  Many people are going to flat out admit that they are going to want to hear from the defendant, gone – you don’t even have to waste a preemptory.  Others will be rehabilited – meaning the Judge will say, if I instruct you not to do that – hold it against him – you can follow my instruction.  And they agree.  Don’t be fooled – use your preemptory.  Really – who cares if they are related to lawyers, fi they believe cops more, if they know someone who has been convicted of a crime – that’s life.   What you care about in a case where you’re not calling your client is whether or not a juror is going to hold it against him.  And, the best you can do is try – and I seriously doubt this attorney did.

So yeah, as a defense attorney – you’d really really want to use your nice, charming client as a witness.  But, through his conversations with Sarah, he can’t even answer soft ball questions, and that’s as an adult.  How do you think he’d deal with the hard questions as a know-it-all teenager, who had the balls to say something to Jay as he took the stand, right in front of the jury.  A kid who is going to do that, is going to be very hard to prep to withstand cross-examination, considering he couldn’t even follow his attorney’s instructions to not react to Jay’s testimony.

Because she had to have told him that, right?

At some point in the podcast, the question was raised about whether Sarah’s going to do an episode about the elephant in the room, the bad lawyer.  And, I just don’t think so.  As I’ve said in every post, writing all of the problems with case off as due simply to bad lawyering is not a good story.  For instance, if you simply conclude that the jury believed Jay because Adnan had a crappy lawyer, what’s the point in having any of these discussions? So, if the show is audience driven, I guess she will do a show on the the attorney, because people want to know.  But, bad lawyering is the sad case of many many many convicted clients, and  I don’t think that’s the ulimate ending that Sarah wanted to have for this show.

But, stay tuned.

Serial Podcast, Episode 8, In Which Sarah States the Obvious

The jury believed the state’s one witness, Jay.

Shocker.

If I were a three year old, I’d probably say duh.  Of course the jury believed Jay, or Adnan wouldn’t be sitting in jail in Maryland, chit chatting on the phone about his innocence.  And why did they believe Jay – again, a no-brainer, because he was believable.

And sometimes, that’s just it – the heart of a criminal case.  The witness says something that rings true, resonates with the jury, and that’s it.

And, I think I alluded to it in my first post- although I didn’t totally spell it out.  I think I had totally spelled it out in a first draft – that moment when you know the case has turned, one way or another, but I did so in a way that I related it to a case that I had, and decided that I didn’t want to do that.  I don’t tell war stories on my blog – it’s just not fair to old clients, future clients, whatever, to turn them into blog fodder, and even when names are changed, and the case becomes somewhat unrecognizable, it’s still a violation, not necessarily of attorney client privilege, because “just the facts” could easily be all in the public record – no, it’s more a matter of trust.  I’m a lawyer, I follow the law in that I keep up with current trends, current cases, etc., and I have my opinions about the law, that’s who I am, but I can leave it at that.  So, without any examples or analogies or real life stories, you’ll have to take more word for it, that the truth is this, a witness can be a liar, and stil be believed, and even when you lose when you should have won, you can put your finger on that moment when everything turned.

So, I didn’t have much take away from this episode, except other than to question the order of episodes, and how Sarah is unfolding this story.  I think it’s pretty clear that she must have contacted Jay during that year she was researching the show, and maybe held off publishing this particular episode, hoping that maybe he’d change his mind about giving a recorded interview.  I think she also spoke to the juror’s fairly early on too – especially when she was perhaps framing the story as why did they believe Jay?  how can someone, like Adnan, have two very different faces?  Why did the jury see the Adnan that could strangle his girlfriend?  I’m not sure what it does for the story to place this episode in the story arc here.  Is it just a week to week roller coaster?  One week he looks guilty, one week he looks innocent, the next we’re back to guilty?  Or is it because she really is back to her original questions, about public and private faces, and this week she tried to unmask Jay, and next week, she will reveal who she has come to believe Adnan is.  And that’s important – who she thinks he is – because it’s her story. And that couldn’t have been clearer as when she played her favorite favorite piece of tape she’s played so far – that of a witness who’s conclusion is basically an incomprehensible, Elmer Fuddish, “what the fuck?” But, I’m still hooked, so I’ll be back.

And, a few things as a side note – first, Sarah says that much of Adnan’s trial was boring.  Ok, well, trial’s aren’t supposed to be entertainment. But, on the other hand, she mentioned something about having consulted experts about the idea that being boring could be a trial strategy, and they agreed.  Huh?  Wrong wrong wrong.  To be boring is to be unlikeable, and that is never a good idea.  And, it won’t work – you will never wear a witness down until they yell uncle.  Cross-examination, when done correctly is not an endurance contest.

Here’s the way a trial is supposed to go, from a defense perspective.  You have a story to support your theory of your client’s innocence – and everything flows from there.  You pick your jury based on your theory, you open with your theory, and every question you ask a witness pertains to your theory, and makes your theory the truth of the case.  Jay being a liar is not a theory.  Jay being a liar is a fact.  There was no reason to keep the guy on the stand for five days proving what everyone already agreed upon – Jay lied in his first statement, and was inconsistent in his second.  She could have opened her case with “we can all agree Jay is a liar, and by the end of this trial you will too.”  The question is why is he lying – and if you don’t have a theory for that, you had better have a theory for why it doesn’t matter that he’s lying, he just is.  If not, if you’re just screaming in his face that he lied to the police in his first statement – again – I say, duh, everyone agrees about that.  What it really means, if you’re thrashing around trying to get him to yell uncle, is that you have zero theory of the case.  You have zero story of innocence for the jury.  Because all of your questions should go to your theory of the case.

Jurors are instructed that lawyers’ questions are not evidence.  But, the jury hears the defense attorney’s questions, and they can’t unhear them, and your questions should tell a story.  And, if your story makes sense, and rings true, you win.  If  however, the witness turns to the judge and politely asks the judge to please ask the defense attorney to stop yelling in his face, and he does it in such a way that the jury thinks “what a nice young man, yeah, tell her to stop yelling,” dude, you’ve lost.  Cross examination is an art, and the real skill of it is in listening, not in talking.   I take very few notes while a witness is testifying on direct – I’m listening for my “in” – and what I mean by that is the little nugget the witness gives me that was foreshadowed in my opening, and completely fits into my theory of defense.  And that’s where I start my cross.  And the rest of the cross falls into chapters, or topics – and yeah, it’s animated, contentious, sometimes there’s yelling, sometimes you have to repoint out inconsistencies – or remind them that they’re liars, but for the most part, the cross is story driven, not hear yourself talk and yell driven.  And, remember that moment when Adnan’s attorney directly asks Jay if he killed Hae, and he says, “No M’am.”  Well, if she had been crossing him with a theory and her theory made more sense than his answer – than his answer wouldn’t have rung true, like it clearly did in just that short piece of tape that we heard on the program.

What’s my point?  Again, it’s about Sarah’s storytelling.  She seems to really not want this case to boil down to bad lawyering.  Because really, bad lawyering leads to no answers.  The best case scenario for the quesitons she’s asking, about why they believed Jay, why they convicted on his testimony alone – shouldn’t come down to bad lawyering, or the question becomes meaningless. So, instead Sarah writes off what was clearly a bad cross-examination – just hearing he was on the stand for five days is proof that it had to be meandering and pointless – as a stratgey of being boring.  Yeah, no.

And the second thing – about Adnan’s failure to testify.

Jurors are obviously instructed that they can’t hold the defendant’s failure to testfy against him.  And, this topic is part of the voire dire – the jury selection process.  Jurors are asked if they can follow that instruction.  This is very important – it all goes back to starting your case with your theory – and picking a jury based on your theory.  If you, as a defense attorney, can tell your client’s story better than your client, then you should – that’s your job, and you know from the get go that he won’t be testifying.  There are a gazillion reasons why your client can’t testify – he has a stutter when he gets nervous, he has an abrasive personality, when he gets nervous, he just can’t speak, if he testifies maybe it will open the door to evidence that you don’t want the jury to hear, your client is gigantic and scary looking and you don’t want him that close to the jury. Testifying is such a difficult thing, and while a jury will forgive another witness, not the defendant. If a defendant testifies, everything that preceded the defendant’s testimony becomes irrelevant, except for the analysis as to how it relates to what the defendant says. It’s all on the defendant’s shoulders. And if a juror feels that’s the way it should be, they need to go. So, you have to weed out those jurors who are going to hold his silence against him.  And that’s different from wanting to hear from him.  All jurors want to hear two sides of a story, it’s human nature.  A good juror is going to say, darn, he didn’t testify.  Ok, let’s look at the evidence.  A bad juror is going to say, he didn’t testify – he must be guilty, what innocent man wouldn’t get up there to defend himself?  So, when you do voire dire, you need to strike the people who want to hear from your client.  Alot of defense attorneys get wrapped up in questioning jurors about believing police more than lay people, because supposedly that question reveals good defense jurors. That’s ridiculous. If your theory of the case does not involve police credibility then this question shouldn’t be your starting point for using your strikes. I could go on and on about this, but I’ll get to my point.

The point is this – Sarah believes that if Adnan had testified he would have been acquitted – when he talks to her, even when he has no alibi, no explanation for certain things (and I’d suggest he hasn’t even been asked very hard questions – like why did you write I will kill on top of the note). So did she bring it up to explain the conviction, or did she bring it up because it allows her to flip the burden – it’s not that the jury necessarily believed Jay, they just didn’t get a chance to hear Adnan.

It’s all about Sarah.

But, obviously, I’m still going with it.

Serial, Episode 7, In Which Sarah Reads My Mind, Since She Didn’t Read My Blog

Presumption of innocence – what did I tell you?  That’s what this podcast turns on – and it’s so interesting that Sarah Koenig thinks that the first time this happened – this recloaking Adnan with the presumption of innocence – was when she went down to the Maryland Innocence Project, and it hasn’t occurred to her that this why this show is on fire – because the audience has done this since episode one.

Which leads me to the question, what has Sarah Koenig been doing for a year?  I have to admit I’m a little befuddled.  Has she really been stressing Adnan’s lack of an alibi for a year?  Why did it take her until Episode 7 to actually look at the physical evidence, or the lack thereof.   Just as she wants Adnan to be innocent, I want to believe her, that we are all on this journey together.  But, I’m becoming very suspect about her comments that she’s kind of making this up as she’s going along.  I think there’s a part of storytelling that is necessarily fiction – and that’s the fiction of this podcast.  Sarah is the main character, and she knows exactly where this is going.  Or, she’s really just been spinning her wheels about the lack of alibi?  Or has she known from day 1 of recording this podcast that the Maryland Innocence Project was going to turn up new DNA evidence from the untested physical evidence at the scene.

So, let’s get this out of the way first.  I, like the Innocence Project, am not shocked at all that Adnan can’t remember that day, and for the most part, cases can be tried and won without alibis.  Alibi defenses are in reality really rare defenses.  In my 18 years as a lawyer, I’ve never put on alibi.  In a homicide, I’ve never actually seen one of my colleagues put on alibi.    And the reason for that is simple – because alibi defenses inevitably tank, because the bottom line is that people, even when they are telling the truth, are going to get something wrong about an ordinary day that occurred years before.  And, if you put up a witness who the jury perceives as lying, when you’re the defendant, you’re done.  It all goes back to that shifted burden of proof that I talked about in the last post.  The prosecution can usually get away with putting up a witness that gets some things wrong, because the jury is naturally inclined to give them the benefit of the doubt.  The benefit of the doubt should always go to the defense, that’s the heart of reasonabled doubt, but that’s not how it actually plays out in court. – that presumption of guilt at work.

So, to me, no alibi, no big deal.  A winning alibi is really a rarity.  Because if your alibi were that good, you’d probably be written off as a suspect anyway.  That’s not to say that I haven’t heard about fantastic alibis that the police have disregarded because they’ve dug their heals in so far in their belief that they’ve got their man – but it’s the exception, not the rule.  What is not the exception, and what the Maryland Innocence Project nailed, is that police do get so entrenched in a theory that they will disregard all evidence that doesn’t prove their case – we’ve got our man, game over.  Why do I need to test those fibers?  Why do I need to get DNA on that hair? Why do I need to DNA test that stain on her shirt? That’s not how you build a case against somebody, that’s how you question it – and police don’t generally do that when they are so so sure they’ve got their guy.  Police are not looking to prove their main suspect innocent – there’s that presumption of guilt again.

Sarah’s main sticking point seems to be that Adnan should remember that day because he was called by the police.  Ok, so a stoned kid gets a call from the police about a girl he’s no longer seeing, who ignored two of his calls the night before, because she was with her new boyfriend.  He hangs up the phone, probably thinks, fuck her, eats munchies, and continues to watch Wayne’s World, or whatever.  I’d be more suspect about his innocence if he did then begin to reconstruct his day (that’s not to say I’m not suspect about his innocence – I really don’t know, I’m just saying I’m not suspect about his innocence for the same reasons as Sarah).  Why would an innocent guy think that this call is a trigger for him to get his ducks in order about where he was.  If he had nothing to do with it, why should he?  But, let’s just say that getting a call from the police was a big deal.  Why would that call necessarily lead to the construction of a provable timeline, why would it illuminate the entire day?  Think about your own lives.  Here’s a for instance – Joe’s grandfather died two weeks ago.  Just two weeks ago.  I remember getting the text from Joe’s stepmother.  This was a big deal text, much like the call from the police.  I remember the conversation immediately preceeding the text, the text I sent, the conversation that followed.  But, I cannot reconstruct my entire day.  I don’t remember if I went out at lunch to do errands that day, or not.  Off the top of my head, I can’t remember who I talked to, or my movements once I got to work.  It would not be odd for me to run over to the post office, but I don’t know if I did that day or not.  Just because something memorable happens in a day, doesn’t bring the entire day into focus.

So, screw the alibi, move on.  He doesn’t have one.  Big deal.  Yesterday, I mentioned that i wanted to hear from the medical examiner, because we hadn’t heard much about the strangulation.  Phyiscal evidence doesnt lie.  Bodies don’t lie.  And, sometimes, they tell us who killed them.  And the nuggets for that are usually in the Medical Examiners report and the Crime Scene Unit’s report.  I find it hard to believe in this day and age of CSI and all of the other crime procedurals out there, that Sarah didn’t start there as well.  Fifteen years ago, it would be rare to have DNA evidence in a case.  The only really big thing that I disagreed with that the Innocence Project lawyer said is that a negative rape kit would be turned over for DNA testing.  I have never seen a rape kit that came back negative for sperm to ever be turned over for DNA testing.  But, I do agree, that when you want to get someone back into court, you look at everything that was tested, or not tested, and start again.  I want to know about the scrapings under her finger nails.  I want to know what the back of her hands looked like – whether she has defensive wounds – whether the perpetrator should be injured.  I want to know whether this was a manual strangulation or a ligature strangulation.  I want to know where this rope came from.  I want to know why Jay doesn’t actually know any details about the actual strangulation itself.  I feel like the police never actually found the crime scene, because in truth, strangulations are not neat like you see on t.v., but very messy, and there’s generally blood and body fluids.  I want to know what they found or didn’t find, fluidwise in the trunk of the Sentra.

And, here’s the thing that really got me by the end of the episode – I really want to see all of this for myself.

Thunderstruck – I don’t trust Sarah Koenig.

I think she’s playing us.

And, honestly, I’m ok with that from a listener persepective – I’m happy with the storytelling.  It’s suspenseful. That’s what writer’s do – construct a timeline, feed us nuggets, tell a compelling story.  She’s definitely getting that done.

From a lawyer’s perspective, I’m also happy that at some point – when exactly is unclear, although I suspect it was during the year that she was researching this project, not halfway through the course of the show  – she put Adnan’s case in the hands of the experts at the Maryland’s Innocence Project.  I’m sure that they will treat Adnan like the person that he is, not a character in Sarah’s story.  I am more confident about the direction of Adnan’s case (as opposed to the “ending” of the show), because he’s now in the hands of people who know how to actually do something with their information – not simply end a serialized show.  It makes wanting him to be innocent not such an astounding position – because Maryland Innocence Project is trying to turn up new evidence to get him back into court – not just to satisfy an audience of podcast listeners.  And, kudos to the Maryand Innocence Project, the good work that they do – fight the good fight and thank you!

And, I can’t wait to hear about Jay next week. He’s always been the key.

Because no matter how many inconsistent ways he said what he had to say, the jury believed him.

How many days until Thursday?

More Thoughts on Serial the Podcast

Ok, so I’m so obsessed with Serial that I actually listened to a podcast that is about a podcast – The Slate’s Serial Spoilers, which dissects each weekly episode of Serial.  After listening to that podcast, as well as perusing the massive subreddit over at reddit.com, here are a few things that struck me.

1.  People want Adnan to be innocent.  This amazes me.  People want there to have been a huge, undoable miscarriage of justice.  I say undoable because as I mentioned in my last post, there is nothing that’s going to get Adnan a new trial short of new evidence, a smoking gun, something that hasn’t already been litigated before, and even that might not be enough, if say the court were to find that that new evidence was cumulative, or wouldn’t have changed the outcome of the trial.  If, at the end of the show, listeners conclude “well, this case definitely has reasonable doubt”  it’s really just one big who cares?  The appellate courts have already passed on that issue.  And that begs the question – why do people want this guy to be innocent?  Because it makes a better story?

Does it?

An undoable miscarriage of justice that ends with an innocent man doing life for a crime he didn’t commit is a better story than a killer getting his due? A victim’s family’s sense of closure, justice unraveled, and the reliving of all of that pain is a good ending?

I can tell you, based on years of experience, the jury that convicted Adnan did not want Adnan to be innocent. Our system of justice tells those 12 people charged with his fate to presume him innocent, and I think jurors try very hard to do that – but they certainly aren’t looking to find someone innocent.  Citizens generally want to believe that the police got it right, and rather than presume someone is innocent, a defendant is more likely presumed guilty, and the burden of proof is shifted, at least emotionally.  And, I say at least emotionally, because I think in a homicide trial, jurors take their jobs very seriously, and I think they do hold the Commonwealth or the State or the Government to it’s burden, to prove the accused guilty beyond a reasonable doubt.  However, there is no measure of evidence, no scale you can use, to actually quantitatively assess how a jury reaches its verdict – there’s always a subjective component.  And that’s why appellate courts are not going to disturb jury verdicts.  But make no mistake, when those 12 jurors line up in the box, and look at the defendant for the first time, without knowing anything about the case, their first thought is “what did that guy do?”  And when jurors acquit, it’s my experience that they’re angry at the prosecutor for not bringing them a better case, rather than being so relieved that they spared an innocent man from going to jail.

And I suppose the irony is, the Serial audience has decided to give Adnan back is presumption of innocence – because that presumption was gone once those 12 people spoke.  Not only is he presumed guilty in the eyes of the law, he is guilty.  He no longer enjoys the presumption of innocence – but his character does on podcast radio.

And that’s why I guess that people want him to be innocent – because “him” is not a guy doing life.  “Him” is a likeable character on Serial, who makes reality show-like phone calls to the reporter covering his story.  Innocence makes for a better radio story – a better story for a ficitonal character who can be satisifed simply by a listening public believing in his innocence.   Applause, roll the credits.  Because to the real Adnan, that’s a hollow prize for sure.  The real Adnan makes the audience irrelevant because in the eyes of the law, they are, irrelevant that is.  And, that doesn’t make for a good story – a good story necessarily needs an audience.

I could go on and on about this, because I really do find it fascinating.  But, I’ll come to the next thing that struck me.  2.  People seem genuinely surprised that Adnan could have been convicted on such “slim” evidence.  These people have clearly never been to a real trial, because this case actually has a lot of evidence, and there are people who are convicted on much less every day.  I’ll give you an example – a gunpoint robbery.  Most gunpoint robberies are prosecuted based on eye witness identification.  Often, proceeds aren’t found, guns are not recovered, and there’s no convenient videotape on the corner.  One witness gets on the stand, points to the guy in the defendant’s chair, and says he did it.  And that’s enough for many juries.  Presumption of innocence gone, we believe that one witness and that’s it.  But, everyone knows that eye witness identification is not great evidence, people misid all the time, and certainty does not equate with accuracy.  Another example, in a sexual assault case, in Pennsylvania at least, the jury is given an instruction that testimony of the victim standing alone is enough to convict, whether corroborated or not.  Jurors are actually instructed that they can convict on one witness alone – if you believe them, game over.   Jurors are also given an instruction, at least in Pennsylvania, called False In One, False In All, which means that if they believe the witness is lying about one thing, they can believe he’s lying about everything.  Or, they don’t have to – they can believe the witness lied about that one thing, or two things or three things, and still believe whatever part of his/her testimony they want to.  And that’s because inconsistencies in testimony are commonplace.  And so is lying.  But so is truth telling.  And the reality of a real crime scene, is that sometimes there just isn’t a lot of evidence.  And we, as a society, have told jurors to just sort it out.  And, in Adnan’s case, they actually did have a lot to talk about, a lot to sort out, and now, we’re just second guessing them.  But make no mistake, there are people doing time based on the testimony of one witness, and that’s it.

And that brings me to my third point and final point for this post at least, people seem to think that because Adnan was convicted on this slim evidence, which as I said above, isn’t really all that thin (come on, the guy wrote “I’ll kill” on the top of the note the victim wrote him about how badly he was taking the break up – in these parts, the prosecutor would certainly be arguing that was nothing less than a confession), he must have had a bad lawyer.  Maybe he did, maybe he didn’t.  It’s hard to say, especially in light of the fact that the first trial ended in a mistrial and Adnan decided to keep her around for the next trial.  The truth is, this lawyer seems to be pretty sketchy – she was disbarred, or gave up her license, I’m not sure.  But, another truth is this – good lawyers lose cases.   Every guy or girl who’s sitting in jail based on the testimony of one witness, didn’t necessarily have a bad lawyer.  And I assure you, a good lawyer could have lost this case, too.  And on the flip side, there’s a lot of bad lawyering going on out there – and I’ll just leave it at that.

And, the next time someone decides to ask me why I do what I do for a living – think about these things that have struck me about this show.  The truth for me is, I don’t want the radio story to turn out ok, I want the real story to work out before it gets to this.

So, what will tomorrow’s episode bring?  Honestly – I can’t wait!  Sarah’s little nugget was about bringing in experts – and I’m hoping she’ll have the medical examiner.  Not much time has been spent on the actual strangulation, and I’d like to know more from the autopsy report.  I hope she doesn’t bring in the cell phone tower expert – she isn’t wrong when she says that testimony is boring.  And, inaccurate.  Nowadays prosecutors generally have cell tower evidence, and GPS evidence.  What other experts could she have?  Lying experts? Behavioralists? Lawyers?  Tune in tomorrow!  I will.

And, in the meantime, while you’re waiting, check out Benched on USA.  The premise of Benched set me on fire – fired corporate attorney forced to take a job at the lowly public defender’s office.   My eyeballs were popping out of my head.  I watched it just so I could write a blog post and trash it.  But, you know what – it’s funny, and what’s more, it’s closer to accurate than How to Get Away with Murder and the Divide put together.  Of course, it’s exaggerated, but I’m going with it – and you should too!

Edit – I just listened to this truly moving interview with Bryan Stevenson, author of Just Mercy. This interview, in which he discusses the case of Walter MacMillan, among other things, perfectly, and more eloquently, says all of the things I was trying to say in the context of a real case. http://www.npr.org/2014/10/20/356964925/one-lawyers-fight-for-young-blacks-and-just-mercy