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.

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