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:
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.