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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Undisclosed episode 2

Screen Shot 2015-05-02 at 08.27.05First things first: I thought the audio quality of the second episode of Undisclosed was much improved, and I didn’t notice any of the presenters talking too fast this time, so thumbs up to that.

As the first was about Adnan’s day, this episode was about Hae’s day, and called into question many, many of the things we’d been assuming were true. If it’s about anything so far, Undisclosed is about the unreliability of memory and the ways in which witnesses can’t really be trusted to have remembered the facts.

None of this is terribly surprising, but when the legal system (and this case in particular) is so determined to keep relying on sworn witness statements, it’s good to be reminded of it. In fact, Serial itself might well have spent more time on this – made it more of a theme – because the very first episode began with the notion that Adnan Syed is in prison because he couldn’t remember what he was doing in one twenty minute period six weeks before he was asked about it.

The first episode of Serial began with that question: could you remember what you were doing six weeks ago, if asked? Obviously, it depends on whether you were doing something particularly memorable; or whether your life is pretty regular and has routines.

Say, for example, you remember the day vividly because you happened to be co-coaching the school wrestling team, and you wanted the more experienced coach to be at the match with you, but they didn’t turn up? You’d remember that, especially if it made you anxious, vividly. This was one of the key points in the original trials, and in Serial itself. Why did nobody check, then, whether there really had been a wrestling match on January 13? Turns out, there wasn’t. The match that Hae didn’t turn up to was the week before, on January 5th. That’s your ineffective assistance of counsel, right there.

What does this mean? It means that our ideas about the time-line of Hae’s last day are wrong. It means that a witness was mistaken. It means that there was a pattern to Hae’s behaviour, that this previously reliable and responsible girl suddenly let a friend/colleague down. Why? Maybe because of her intense involvement with her new boyfriend?

One thing that does interest me was that there was apparently a teacher who was the liaison between staff, students, and police. This teacher was close to Hae and was apparently planning a trip to France with her. This, I want to know more about. Was it a school trip? With a group of students who would by then have graduated? Or was it a private holiday? A teacher with a student? I think we need to know.

The famous local news clip, showing Hae posing for indoor hockey footage and being interviewed, was also supposed to have taken place on the 13th. Only nobody mentioned it, talked about it, or remembered it. Turns out, that was almost certainly the week before, too.

We still don’t know what happened. But we do apparently know that a lot of what we thought we knew is wrong. Which throw loads more reasonable doubt into the case, but doesn’t provide Adnan with anything convincingly exculpatory.

How about this Undisclosed podcast, then?

Screen Shot 2015-04-14 at 16.12.11Undisclosed: the State vs. Adnan Syed is a new (fortnightly?) podcast from a group of lawyers who have been blogging about the case since it was made a public obsession by the Serial podcast. Both parties are at pains to point out that this new thing has no connection with the old thing, except you have to have listened to the old thing in order to understand this new thing.

I hope that’s clear. I had read two of these lawyer-bloggers (Susan Simpson, who writes View from LL2, and Rabia Chaudry, who writes Split the Moon), but was not aware of the third (Colin Miller, who writes Evidence Prof), so I knew that they had much, much more to say about the case, in greater detail, than the Serial podcast had time for. Some of the detail, you should be warned, can get pretty gruesome. If you’re squeamish about CSI and stuff like that, do not read Evidence Prof., for example.

So who is this for? You have to be really interested in this case. I know a lot of people ran out of steam with Serial, and lots of people were a bit bummed that it didn’t really have a conclusion. If you are one of those people, I don’t think Undisclosed is for you. Because this is going back over old ground in granular detail, exposing flaws and contradictions in the case and the evidence. Some of this points to Adnan’s innocence, some of it might not. Some of it just muddies the waters. What it does definitely achieve is the complete undermining of the prosecution case, which (as Serial listeners already know) was a narrative constructed to point to Adnan’s guilt, and which deliberately ignored or tweaked facts to fit.

The first episode goes right back to Serial’s first episode, and considers Adnan’s schedule on the day Hae Min Lee disappeared. It interrogates the witness statements assembled by the police (playing samples from the original recordings) and exposes their inconsistencies. For example, the business about track practice and what day it was, and when it started and what time Adnan arrived, what he was doing between the end of school and the start of practice, and how he participated when he got there. Or the differences between what one witness said at the first trial, and what she said at the second trial. Or the famous phone call that Adnan received at another witness’ house, his supposedly paranoid reaction, and when exactly this event took place (spoiler: possibly not on the day of Hae’s disappearance at all).

These people have examined the call logs not just of the day of Hae’s disappearance, but of other days, too. They expose some statements as being completely mistaken or misremembered. Unsurprisingly, they remind us just how much and how often Jay changed his story to fit the police case, whereas what Adnan said in 1999 and what he said in 2010 remains pretty consistent. Calls that were supposed to have been from Hae’s brother turn out probably not to have been, and so on.

It’s fascinating – but only if you have an affinity for these kind of granular details.

But this is not Serial. Most especially, it doesn’t have anywhere near the same quality audio. The sound is uneven – and I’m not just talking about the old recordings of witness statements. I think one of the three talks way too fast. The presentation, in short, is nowhere near as slick as Serial’s, and none of these lawyers would claim otherwise. So if what you enjoyed about Serial the most was the NPR-style richly layered soundscape, steer clear.

I’m personally always ready to learn more about this case in particular, and I’m definitely interested in understanding how prosecution and defence cases get constructed and how juries can be bamboozled by misleading evidence. So I enjoyed it and have subscribed.

Recommended for die hards.