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.


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