Serial - The Intercept speaks with Urick (part 1)

After some buzz that Natasha Vargas-Cooper of the Intercept would be interviewing more individuals associated with the case, part 1 of an interview with prosecutor Kevin Urick was released today.  As the introduction itself states, Urick "didn't have knew facts" to tell, so whether there is anything substantive here is questionable.  

First off, NVC and co-writer Ken Silverstein come out and state that their position is that Adnan's conviction was not wrongful and that this was not an extraordinary case:

The unprecedented popularity of the show can be explained, in part, by the appeal of its narrative to a progressively minded public radio audience. “Serial” presented an archetype of the wrongful conviction story: the accused is railroaded, the lawyers are corrupt, and the jurors are manipulated by racially charged rhetoric. All these problems, sadly, occur often in the criminal justice system but there’s no indication they impacted this case.

. . .

When a jury of 12 people comes back with a guilty verdict in two hours, you’d think that rejecting their decision would require fresh evidence. Yet the show did not produce new evidence, and mostly repeated prior claims, such as an unconfirmed alibi, charges of incompetence against Adnan’s deceased lawyer, and allegations that information derived from cell phone records is unreliable.

The problem I have with their assertion is that this series of interviews seem to have taken this as a premise, which is coloring the interviews that are being conducted.  Several sources have criticized the Intercept's interview of Jay and how NVC failed to challenge Jay's story and pick at the inconsistencies in his story.  And, at least thus far, NVC fails to challenge Urick's assertions that Jay's testimony was credible enough to sustain a conviction.  

Now the nature of information is that everyone is going to interpret information based on their own belief.  Here, the article takes the fact that "a jury of 12 people [came] back with a guilty verdict in two hours" as an affirmation of Adnan's guilt beyond a reasonable doubt.  I view that fact as a demonstration of the failure of a jury system that a jury could reach a verdict in 2 hours after a 6-week long trial.  I am confident in my interpretation after listening to interviews from jurors who were "blown away" that Adnan did not testify on his behalf and who parroted the prosecution's themes of racial/ethnic stereotypes of Muslim culture.  That's the thing about lawyering and in arguments in general -- arguments are nice, but you have to back up your points to make them worthwhile.  Otherwise, it becomes hollow rhetoric.

So let's look at the Intercept's claim that this was an ordinary case.  The article dismisses that "the accused is railroaded, the lawyers are corrupt, and that the jurors are manipulated by racially charged rhetoric."  So let's take a look at these in turn.  

The wonder twin powers of Jay's testimony and the cell phone records

First, was Adnan "railroaded"?  Aside from a brief look at Mr. S, it seems evident that Adnan was the only serious suspect.  An anonymous tip hinted that police should look to Adnan, which led them to Adnan's phone records, which led them to Jenn, which led them to Jay.  As Urick says in the interview:

TI: Was there ever a moment where you felt like there was an alternative suspect? Is there any scenario by which Adnan Syed is not the guilty party?

KU: No. The reason is that once you understood the cell phone records, in conjunction with Jay’s testimony, it became a very strong case. Even with Jay on the stand for five days, with the defense presenting Jay’s prior inconsistent statements–they presented all that. The problem was that the cell phone records corroborated so much of Jay’s testimony. He said, ‘We were in this place,’ and it checked out with the cell phone records. And he said that in the police interviews prior to obtaining the cell phone evidence. A lot of what he said was corroborated by the cell phone evidence, including that the two of them were at Leakin Park.

Urick admits that there really was not an alternate suspect.  The reason, the cell phone records, in conjunction with Jay's testimony.  But how much of Jay's testimony is actually corroborated by the cell phone records?  I think the thing the podcast did do was effectively eviscerate the State's timeline of events.  And it also killed Jay's story of what happened between 2:30pm until 6:00pm.  And the Intercept's interview with Jay killed the remaining story of what happened after they left Cathy's apartment.  So what part of Jay's testimony is still intact?  

This is even more troublesome in context of Urick's own words:

“Jay’s testimony by itself, would that have been proof beyond a reasonable doubt?” Urick asked rhetorically. “Probably not. Cell phone evidence by itself? Probably not.”

But, he said, when you put together cell phone records and Jay’s testimony, “they corroborate and feed off each other–it’s a very strong evidentiary case.”

So basically, Urick's position is that Jay's testimony on its own isn't enough, and the cell phone records on their own aren't enough.  But it's that they corroborate and feed off one another...  Problem is, Susan Simpson's latest post puts a big hole in this idea.  The police showed Jay the phone records before the recorded March 15th interview.  So from that point on, Jay had the phone records and could manipulate his story to correspond to those events.  Now magically there is a friend named Cathy who they visited.  There is magically a call to this girl in Silver Spring.  Jay's story -- which is full of holes in the first place -- was formed after he was walked through the phone records.  This is not independent corroboration!  

Urick tries to wave away the inconsistencies of Jay's story be casting them as not "material" but rather "collateral."  A few things are wrong with this attempt.  As an aside when anyone tries to wave away facts as not being important... well, chances are, they are pretty damn important.  

First, the time when Jay got the call from Adnan is a material fact.  It establishes the time of death, it is relevant for alibi purposes, and it is basically the most fundamental piece of information.  Urick specifically states:

 "Now the thing about the cellphone records [is that they] corroborate Jay, his statements that he got a call around 2:45 p.m. or around that time from Adnan to come pick him up. And the cell phone records show that there was an incoming call around that time. So there’s corroboration of Jay’s statements to the police and the cell records. Like I said, Syed never made mention of the library before those letters."

Problem is, Jay always maintained that he got a call from Adnan after 3:45pm.  When your witness testifies -- under oath -- that he got a call from the defendant at 3:45pm, that does not corroborate a timeline in which he received a call at 2:36pm.  So that is a key, material fact that where Jay's testimony and the cell phone records are in direct conflict.

Second, I would argue where Adnan showed Jay Hae's dead body is a material fact.  It further establishes the time of death, it corroborates Jay's credibility as a witness/accomplice, and it places Adnan with the body.  Especially since there are no witnesses who saw Adnan with Hae, the only two relevant points of time that establish Adnan is the murderer are (1) when Adnan showed Jay the body, and (2) when Adnan and Jay went to bury the body.  Both of these events are highly material.  The fact that Jay is lying about this event in terms of location and time through each iteration of his story greatly undermines the credibility of his testimony.

Urick's repsonse?  

TI: In our Interview with Jay, he said he saw Hae’s body for the first time at his grandmother’s house not in the Best Buy parking lot. He said the time of the burial took place several hours after the time he gave under oath. Again, do these inconsistencies alarm you?

KU: Like I said, people who are engaged in criminal activity, it’s like peeling an onion. The initial thing they is, ‘I don’t know a thing about this.’ And then ‘Well, I sort of saw this.’ You get different stories as you go along. This is the real world. We don’t pick our witnesses, we have to put them on as they are. There were a lot of inconsistencies throughout Jay’s prior statements. Almost all of them involve what we would call collateral facts.

A material fact is something directly related to the question of guilt or innocence. A material fact would have been, ‘I was with Adnan,’ and then you’ve got the cell phone corroborating that material fact. A collateral fact would be, We were at Joe’s Sub Shop,’ but then you find out actually they were at the auto repair store. That’s a collateral fact. It’s not necessarily material to the question of guilt or innocence. So, many of the material facts were corroborated through the cell phone records including being in Leakin Park.

So let's talk about the cell phone records being in Leakin Park, then.  In the Intercept interview, Jay says that Adnan did the trunk pop at around 6-7pm, then came back to his house close to midnight, at which point they went to bury the body.  Given that the calls pinging Leakin Park were sandwiched between pages to Jenn (suggesting Jay was with the phone), this is another direct contradiction between Jay's story and the cell phone records.  This is a third material fact that is in conflict.

This brings us to the greater issue of what can be dismissed as "collateral" as opposed to "material."  Urick seems quick to dismiss the portions of Jay's story that don't fit the cell phone timeline as being collateral.  But how does he know what is relevant and not when the only thing establishing the relevant time periods are Jay's own testimony?  Without Jay, there is no clear timeline for when the murder takes place (although indications are Hae is at least incapacitated by 3:15pm).  Without Jay, there is no evidence of when Hae's body was buried at Leakin Park (which Jay did reverse himself on).  So if Jay's story is establishing what is material vs. collateral, how can you dismiss inconsistencies in Jay's story as merely collateral?  That's just a basic logical fallacy.  

One of the things the Intercept's introduction fails to address are the gaping inconsistencies in Jay's story.  And I think that's one of the biggest things the podcast accomplished.  If you remove Jay as a credible witness, then the State's case simply falls apart.  So if that's the case, what supports the conviction?

Corrupt prosecutor?

While the Intercept dismisses the notion of corruption or misconduct by the prosecution, they fail to provide any support for this, aside from a parenthetical statement noting Urick denies yelling at Don for not making Adnan sound creepy.  So basically, the prosecutor being accused of being corrupt (or at least underhanded) denies it.  Is that really convincing?

Here's what I wrote about Urick in a previous post based on the information we received from the podcast:

For me, the worst part was the actions of the prosecutor, Kevin Urick, and his office.  To recap: 

       ·         He offered a pro bono attorney to his star witness to "defend" him in his sweet plea deal.  

       ·         He went out of his way to commend Jay for his cooperation to the court.  

       ·         He interrupted a witness on the stand to prevent her from saying something damaging to his case.   

       ·         He yelled at another witness for not lying to make the defendant sound creepy.  

       ·         He advanced a theory of the case that was contradicted by his own star witness's testimony.  

       ·         And he played up the spectre of religious fear mongering as the theme of his case to secure a conviction.  

       ·         Not to mention his colleague who made up lies about a pattern of young Pakistani men murdering their girlfriends and fleeing to Pakistan.  

I think there needs to be a little more work shown here to dismiss the claim of corruption or impropriety.

Religious rhetoric

And finally, the Intercept is quick to dismiss the possibility of racially charged rhetoric manipulating the jury.  But they put in absolutely zero effort to refute this claim. 

Rabia Chaudry noted:

Nearly 300 references to "Islam", "Muslim", or "Pakistani" during Adnan's trial. Disgusting. Help us #FreeAdnan http://t.co/WFHsfyZu9S
— rabia chaudry (@rabiasquared) January 6, 2015

Yet the Interecept failed to ask Urick about Adnan's religion as a theme.  Urick's opening statement is replete with references to Adnan's religion and ethnicity:

     This relationship caused problems.  The defendant is of Pakistani background, he's a Muslim.  In Islamic culture, people do not date before marriage and they definitely do not have premarital sex.  Their family is a very structured event.  They're not supposed to date.  They're only supposed to marry and engaged in activities after they marry.  

     So he was breaking the cultural expectations of his family and his religion to date Ms. Lee.  Ms. Lee understood this.  She was how it was causing problems for them.  (Jan. 27, 2000 Trial Tr. at 97.)

    "Then he went into the whole explanation of the purpose of the trip to Dallas.  He told me that his religion means life to him and he hates it when he sees someone purposely going against it.  He tried to remain a faithful Muslim all his life, but he fell in love with me which is a great sin.

    But he told me that there is no way he'll ever leave me because he can't imagine life without me.  Then he said that one day he would have to choose between me and his religion."  (Id. at 99 (reading from Hae's diary).)

    The defendant, however, had a different reaction.  In order to have this relationship, he had to live a lie.  He'd had to lie to his parents.  He'd had to lie to his religious friends.  He was living a lie, denying to them that he was engaging in the activities that was forbidden in their culture.

     This is a great sacrifice.  It was a double life for him.  He was leading a lie, and when it ended, that's all he had left, was the lie that he'd been leading.  He became enraged.  He felt betrayed that his honor had been besmirched.  And he became very angry.  And he set out to kill Hae Min Lee.  (Id/ at 101.)

And we know this theme resonated with at least some of the jurors.  From episode 10:

Of course, probing a bit further, it's clear that wasn't the case.  Rather than stereotyping on "religion," there were stereotypes based on "culture" instead.  

William Owens:  

"I don't feel religion was why he did what he did.  It may have been culture, but I don't think it was religion.  I'm not sure how the culture is over there, how they treat their women.  But I know some cultures where women are second class citizens and maybe that's what it was.  I don't know.  He just wanted control and she wouldn't give it to him." 

Stella Armstrong:  

Armstrong:  They were trying to talk about in his culture, Arabic culture, men rule, not women.  I remembered hearing that.

SK:  One of the jur – you mean when you were deliberating, one of the jurors said that?

Armstrong:  Yes, when we were – right, when we were deliberating.

SK:  Mm hmm.

Armstrong:  So um, he had put his whole life on the line for her, you know.  And she wanted to – she didn't want no involvement anymore.

As Stephen Colbert asked Sarah Koenig during her appearance on the Colbert Report:  "Why reopen this case now?  Did you think a guy named Adnan Syed would get a fairer trial after 9-11?"

So how can the Intercept so quickly dismiss the religious rhetoric as a contributing cause of the trial?  

If the interview was to have any value, the Intercept would actually press Urick on some of these questions.  But given what we've seen, this is probably going to be another limp puff piece trying to ride on the coattails of the podcast's popularity.  Talk to the Intercept if you feel you've been mistreated by Serial.  We won't ask you any hard questions, we promise.