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?