Posted in bastards, documentary, Podcasts

The State vs. the State vs. Adnan Syed

fax_cover_disclaimerI have of course been following the Adnan Syed post-conviction relief hearing on the Twitter and via podcast updates. These hearings can only take place if the defence team has new evidence to present, which means their scope is very limited, and cannot, for example, continue arguments from the original trial, or include stuff like, hey, the internet thinks Jay was probably lying. It’s interesting to contrast the carefully impartial journalistic updates from the Serial team with the more partisan and personally involved updates from the Undisclosed podcast crew. Less professional, but with more of a stake in the outcome. And do I detect, in the studied way that Serial is ignoring all of the things that Undisclosed has uncovered, a certain chilling in the atmosphere between the two podcast organisations?

So this PCR hearing rests on two bits of ‘new evidence’. The first is an alibi witness who was not called in the original trial, being presented in support of the idea that Adnan’s original lawyer, Cristina Gutierrez, provided ineffective assistance of counsel by not including her testimony. The second is a complete rebuttal of the original trial’s cellphone location evidence, which sounds like it might not be ‘new evidence’, except it includes part of an exhibit (a fax cover sheet) that was perhaps deliberately excluded by the prosecution the first time around. This is – possibly – what is known as a Brady violation, which is when the prosecution doesn’t disclose evidence under the rules. What the cover sheet discloses is that the cellphone company, AT&T, included a disclaimer saying that the data was only reliable for outgoing calls. Obviously, if this had been introduced into evidence at the original trial, the whole cell tower narrative would have been called into question.

The alibi witness undermines the original prosecution narrative of the case, which argued that Adnan murdered Hae at a certain point in the afternoon after school. Asia says she saw him in the library opposite the school during the 20 minutes or so that he couldn’t account for previously.

Serial, of course, started with that question: can you remember what were you doing at a particular place/time six weeks ago? The podcast framed this as Adnan’s key problem: because he couldn’t account for about 20 minutes of his time, because he didn’t remember, or he had nobody to corroborate his memory, he was screwed. (My personal theory about why Adnan had such trouble remembering that day is because it’s possible his whole day revolved around either smoking or obtaining weed.) So Asia’s testimony is important because she’s accounting for that time in the afternoon, when Adnan said he was in the Library. Though apparently, he himself didn’t recollect speaking to Asia. (Why not? Weed? You see how it goes.)

So it really was a big fucking oversight that Gutierrez didn’t contact Asia.

But here’s the thing. If Asia’s testimony gives Adnan an alibi for the prosecution’s timeline of the murder, the cell tower evidence completely destroys the prosecution’s timeline, which they painstakingly constructed around their understanding of (selected highlights from) the cell tower data.

If the cell tower evidence is invalid, the timeline is invalid and Asia’s alibi isn’t relevant to it. So it’s not so much the alibi that matters as it is that the original defence counsel didn’t follow it up.

All of which means, in my mind, mistrial, and should certainly lead to a new trial.

But I called this post ‘The State vs. the State’ because, as we all know too well, the State hates to be wrong. The judge sits between Defence and Prosecution but is also a representative of the State, connected to all the other judges who have passed sentence and turned down appeals etc. over the year. The reluctance of a judge to overturn a verdict rendered by colleagues is inherent in the structure. So while the judge might not be personally biased against Adnan, they are going to be biased in favour of the System – because to admit that the System isn’t perfect is to dismantle the State.

In a larger sense, too, the defence is part of the State, because the (perfect) system cannot function perfectly when accused persons don’t have access to a defence. This system, by all accounts, is under extreme pressure both here and in the US, where public defenders, for example, get an average of a few minutes with their clients. As portrayed in a recent episode of the always-zeitgeisty The Good Wife, this means that detained people with no financial support get very little chance of a fair hearing.

This situation isn’t helped by people who sneer at the idea of defence lawyers trying to defend guilty people. The tenor of many of the Adnan Syed trolls on Twitter is that ‘he did it’ and therefore all these liberal campaigners are in the wrong. But the thing is, nobody can be that sure of anything in this case, other than the person or persons who actually murdered Hae Min Lee. If that’s Adnan, so be it, but I don’t know, and nor do any of the internet people who make such strong assertions. The kind of people who get angry when a person is released ‘on a technicality’ are similar to the people who try to justify torture. The State has to be held to account, has to prove the case, and cannot be allowed to conduct themselves dishonestly – even in the name of justice for victims.

The problem with the evidence in the original trial was that it was, on the one hand, constructed and presented by the prosecution in a way guaranteed to mislead the jury in certain ways. They didn’t point out that Jay was getting away with his supposed accessory role. No mention of the Crime-stoppers witness who received an oddly specific amount of money, for example. No mention of how the State’s star witness managed to change his story so many times to precisely match the eventual narrative of the cell tower pings.

The standard of evidence is supposed to be, as any fule kno, beyond reasonable doubt, but though the jury in the original trial were (reportedly) leaning towards not guilty, that at the second trial got an entirely different impression (perhaps because the star witness was more convincing second time around). Now, taking into account the Asia testimony, the doubt now clouding the cell tower data, without even mentioning the possible police and prosecution misconduct, I think we’ve got nothing but reasonable doubt here. Case not proven. No matter what you suspect, no matter your prejudices or theories, there isn’t enough evidence for the conviction to stand.

As to that misconduct, I think that Undisclosed have done a sterling job of uncovering Brady violations, blatant witness coaching (tap tap tap), junk science and a complete lack of effort in pursuing any other suspects, as well as a history (in Baltimore) of similar misconduct in other cases. Whereas Serial finished on a note of open-ended (but reasonable) doubt, I feel that if you followed the case through the incredible detail work of Undisclosed, you’d now be assured that (at the very least) a new trial is what this case needs. It’s a shame, I think, that the family of Hae have to go through this, but their anger should be directed at the police and prosecutors who did such a shitty job all those years ago.

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World famous writer labouring in obscurity. My other blog is a Porsche.