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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Serial Box

Adnan_Syed_1998I don’t want to labour a point I already made on Twitter, but I started listening to Serial before you did (just deal with it). I heard the first episode when it was on This American Life, and it was not the first episode of that long-running show that had me gripped from beginning to end. I remember standing in the kitchen, in the middle of cooking, paused in mid-move so as not to make a sound, lest I drown out the distorted telephone voice.

My first exposure to podcasts was via The Word magazine, and I occasionally enjoyed listening to several middle-aged blokes sitting around talking about music obsessively. I am a middle-aged bloke myself, an accident of birth, so I was very much the target demographic. Never in a million years did I think that one day I would abandon live radio altogether in favour of a subscription list of (at last count) 45 podcasts.

mb9jGYeI listen to a lot of tech, and a lot of ‘true stories’ podcasts, but also things like Philosophy Bites, Life of the Law, 99% Invisible, and so on. I am still loyal to the Radio 4 podcasts I have always listened to, but they’re not longer at the top of my things to love.

Serial has generated a lot of column inches over the past couple of weeks as slow-moving old media finally caught up with it. It was even on Radio 4’s Media Show. Yes, I am sneering at them. Has Serial’s adoption by mainstream media spoiled the pleasure a little bit? I think it has. It’s a bit like when you love a band and expend a lot of time trying to tell people about them, only to have your dreams come true, and, oh, now everyone is talking about them and you don’t feel special any more. I know I’ll feel a wrench if I ever see a Larkin Poe feature in the Graun.

As someone with impaired hearing (I can’t hear the full frequency range), I struggle sometimes to hear what people are saying on Serial. The first podcasts I listened to were just people (blokes, usually) sitting around a microphone, but the more sophisticated podcasts are proper radio soundscapes with music, sound effects, and clever editing of contributors. I think they’re brilliant, but background music and layered voices can be hard. Some of the recordings are of sub-optimal quality. In the case of Serial you are of course dealing with 15-year-old courtroom testimony, police interview tapes, and all those phone calls with Adnan Syed. Some of it is hard to make out, but it is all compelling, and it underscores the sense that this podcast is a serious piece of investigative journalism, with an evidence base. Hunting around online, you can find scans and photos of documents, letters, maps, tables, and so on.

What makes Serial different from other examples of investigative journalism? After all, the idea of a journalist using some media platform to expose a miscarriage of justice is not new. But when TV or radio has done it in the past, they usually condense the years-long research and legwork into an easy-to-digest hour or 45 minutes for broadcast. But the thing with a podcast, and the thing I started to get as soon as I started listening to The Word, is that your audience can be so niche that there can be no such thing as too much information. It was listening to middle-aged blokes sitting around talking about The Beatles that gave me this insight. How much is too much to an obsessive? No such thing.

So Serial is investigative journalism and narrative for obsessives. Once the first episode has you hooked, you just want more and more, never ending. And while mainstream media has occasionally made noises about how disappointing and Lost-like it will be if there’s no real conclusion, I don’t think that really matters. The thing about serial narratives is that you have to find ways to keep it going.

In reality, you don’t have to dig very deep to find potential spoilers. As we keep being reminded, this is a real case with real people, and you don’t get 5 million downloads without somebody paying attention.

You’ll be wanting to know what I think (Chorus: Nobody cares what you think!)

From the very first episode, I knew that there had not been a convincing case made, that there was reasonable doubt. By the time you heard recordings of two of the jurors, you realised that, somehow or other, they’d been bamboozled and confused into convicting in a ridiculously short time. One of them said that she believed Jay because “he was going to jail anyway, so why would he lie?” When in fact the whole point was that Jay’s sweet deal meant he wasn’t going to jail. That, there, should be enough to invalidate the verdict: the jury were not in possession of all the facts. Not because they hadn’t been told, but maybe because they were a bit thick. Then there was the juror who judged Adnan guilty for not defending himself after being specifically instructed not to take that into account. As for all those who claim that you can’t help making such a judgement and putting this down to legal niceties, I disagree. If you think about it at all, if Adnan was innocent (which he has already said by entering a plea), it was up to the State to prove him guilty. So, no, you don’t judge somebody for not trying to ‘prove’ their innocence. The point is that there’s supposed to be a presumption of innocence. That recording of that juror showed that for at least one of the jury – and probably more than one – there was no presumption of innocence. Again, I have to ask myself if they were a bit thick.

As we all know, the case always rested on shaky ground, viz:

  • Cell tower evidence, which doesn’t show what the police claimed that it showed in 1999.
  • Testimony from Jay, who was clearly coached to the eyeballs by the prosecution and police who did a deal with him to keep him out of jail.
  • A supposed time-line of the murder and a time of death that makes no sense.
  • A phone call supposedly from a payphone that clearly didn’t exist at a time when some witnesses claim that Hae was still alive.
  • Witnesses and evidence that was not followed up by either the police or the defence team.
  • An discredited (and irritating) defending lawyer whose style of questioning must have been so fucking hard to listen to for five weeks, was it not? Was it not? Was it not?

Mostly, however, I think the case rests on prejudice against Adnan because he was an American boy with a Pakistani background. A lot of the police narrative of the case rests on the (implied) idea that this was some kind of ‘honour’ killing, by a stereotypically angry Muslim. All of the stories about him being dragged out of dances, about the secrecy surrounding his relationship with Hae – all of that implies that this was somehow unusual. As his cousin has pointed out on her blog, this is actually just typical for just about any Asian-American teenager.

I’m not Asian, of course, but this also rang true to me. When I was in my early 20s, I dated a girl whose over-protective father would not let her go out with boys. I used to park and wait at the end of her road. She would leave home to ‘go round a (girl) friend’s house’, and jump in my car. We would go out, and I would drop her at the end of the road and watch her walk home. We did this for several months, before she finally plucked up the courage to tell her old man. Who used to let his yappy little dog loose whenever I came to the door after that.

So I’m fairly clear that there has been a miscarriage of justice, that there was tons of reasonable doubt. But I’m also more sold on podcasts than ever before. And the best app, for my (actual) money is Overcast.