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

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