Serial Episode 10 - The Best Defense is a Good Defense

As a relative late adapter, this 2-week layoff was the longest I have had to wait for an episode.  And while there wasn't much in terms of information about the case to dissect, it does a very nice job of providing insight to some of the things that happened.  The episode is focused on two parts: (1) the potential impact of prejudice in the prosecution of the case and the jury's verdict and (2) the performance of Christina Gutierrez as Adnan's defense attorney.  I think SK knocks it out of the park on the first issue.  But there were points in the discussion of Gutierrez where it felt a little, I don't know, unclean?  Perhaps it was justified, but it seemed a little weird kicking a dead woman.  

Anyway, onto the main points.

The Baltimore Jury Pool - Before getting into the main part, SK offers a quick point about the jury pool in Baltimore.  SK explains that in the jury selection process, the Court will ask a standard question asking the potential jurors if they or a close family member has been a victim of a serious crime, arrested for a crime, or served time for a crime.  SK notes that a large portion of the pool stands up (more than half, she estimates) and plays some clips from some of the jury pool.

I wasn't sure what to make of this segment.  Yes, we understand Baltimore can be a rough place.  But I don't think that necessarily played a role in the process.  Also, the selection of the sound clips was a bit odd.  There was a mix of jurors who said they were victims of crimes while other jurors said they had family members who were arrested or in prison for crimes.  Listen to the clips and you may notice that the people in the former group sound very different from the people in the latter group.  

Given that a focus of the first half of the episode is about how prejudice -- even inadvertent -- can factor into decisions, I found the collection of clips interesting.  Maybe it was just coincidence.  Maybe the selection was colored by some subconscious stereotyping.  Or maybe the selection was intentional to make a meta-level point about the theme of the episode.

Impact of Prejudice in the Case - SK uses the discussion of the jury pool as a segue to the main topic of anti-Muslim prejudice.  She starts with a statement by one of the jury pool who states that he could not be impartial because he has a Muslim "friend" and that he has seen this friend mistreat his wife and family.  

The discussion starts with Adnan's mother, who definitively states that the driving force behind the police's and prosecution's focus on Adnan was anti-Muslim prejudice.  SK voices her skepticism about this claim, but concedes that perhaps some prejudice did creep into the proceedings, whether intentionally or inadvertently.  

On my first pass through, I misinterpreted SK's skepticism.  I thought she was being naive that the police and prosecution would not be subject to such feelings of prejudice.  But I think she disagreed with the idea that such prejudice would have been the motivating force.  I think given the choice between an honors student of Pakistani heritage and a black drug dealer with a criminal record, I would expect any initial prejudice by the police would lead them to suspect Jay.  As for the prosecution, I wouldn't expect the prosecutor to actually believe the stereotypes; but instead, the State realized that this was a compelling theme that they could sell to the jury, so it became a focal point.  So while this may not have been a motivating force, it definitely became a theme and a powerful argument that resonated with the jury.

The first specific example SK discusses is from the bail hearing, which was an incident that Adnan's mother specifically points out.  At the hearing, the courtroom was full of Adnan's supporters from his mosque.  Adnan's attorney (different attorneys from Gutierrez) noted the crowd and made the case that these respected members of the community - doctors, teachers, lawyers, accountants, correctional officers, religious leaders - will watch over Adnan and supervise him if bail is set.  The prosecution paints the group as a bunch of aiders and abetters with limitless resources who will whisk Adnan away to Pakistan if bail is granted.  Prosecutor Vicki Wash (sp?) stated, "It is our position, your Honor, that if you issue a bail, uh, then you are issuing him a passport under these circumstances to flee the country."  Wash continues to note a conversation she had with a Harry Marshall, a senior legal advisor for international affairs with the Justice Department:

"He cited that there is a pattern in the United States of America, where young Pakistan males have been jilted, have committed murder, and have fled to Pakistan and we have been unable to extradict them back.  He gave me a specific instance that's occurring now that's pending in Chicago where the factual pattern is frighteningly similar.  Again it's a young Pakistan - Pakistan male who was jilted by his girlfriend, who fled the country and they have had no success.  And he indicated it would be a dim situation indeed if the defendant would flee to Pakistan.  We have information from our investigation that the defendant has an uncle in Pakistan and he has indicated that he can make people disappear."

SK speculates that the last bit about the uncle in Pakistan came from Adnan's science teacher, Mr. Nicholson.  Police notes state that Nicholson said suspect "had an uncle in Pakistan who could make people disappear."  The notes also stated "they drained blood from cow at mosque one day.  He was pumped."  This is the only mention of the uncle in Pakistan.

Adnan's attorney tried to fact check this assertion.  Three weeks later, Wash writes a letter to the judge apologizing if she misled the Court.  She said she "misconstrued" the information from Mr. Marshall.  She spoke with him again and he made it clear that there was not a pattern of young Pakistani men committing murder after they had been jilted and then running off to Pakistan.  And the "frighteningly similar" case from Chicago?  "That case parallels Syed's case only that it involves a Pakistani male charged with murder where the victim was known to the defendant."  

I love the apology.  "I'm sorry if I misled you by telling you these outright lies."  I can imagine the behind the scenes that led to the letter.  Adnan's attorney reaches Harry Marshall to ask him about this pattern of fleeing Pakistani murderers.  He hears what Wash says.  Probably an angry phone call with lots of obscenities.  And an apologetic letter to the judge before the defense can call her out on these lies.  I can't imagine the judge is happy about that.  Incidentally, this was the first and only time Vicki Wash was mentioned in the story, and I would be surprised if she had any further involvement in the case before this judge.

(As an aside, judges really don't like it when you lie to them.  In one of my earlier cases, our opposing counsel engaged in lots of motion practice.  Whether it was out of incompetence, carelessness, or it was willful, they would routinely overreach with their description of a case or two.  Without fail, there would be at least one case that they cite in their brief that did not state what they contended it did.  And of course, I took great joy in putting a big highlight on this.  Of course, they were my defendant so the responsibility of drafting the response to each of these briefs fell on me.  And considering they had a habit of dropped briefs late on Friday afternoons, ruining many a weekend, I did not like them very much.  Initially, I was more politic in describing this.  I'd say counsel was "mistaken" about this case and give the correct explanation.  That would later evolve to counsel "misconstrues" the holding of that case.  Towards the end, I'd come out and say that counsel "misrepresents" the case.  Not coincidentally, they lost every motion.)

In the end, this probably didn't make a difference.  Considering Adnan was being accused of 1st degree murder, he probably would not have been granted bail.  But it should have been clear that the prosecution was planning to play into the Muslim stereotype card as a major theme.  They resorted to major fear mongering at the bail hearing.  Consistently referring to Adnan as a "Pakistan male" was not coincidental.  So it's not a surprise that Gutierrez tries to tackle this head on in opening.

SK also (a bit mockingly) notes Jay's little "shout out" to Islam during his testimony at the second trial.  When testifying about a conversation with Adnan after meeting him at Best Buy, "This is when we started to talk a little bit.  I don't know he said to me it kinda hurt him but not really.  And when someone treats him like that they deserve to die.  How can you treat somebody like that who you're supposed to love?"  And then, "all knowing is Allah."  This is a detail that was never mentioned during interviews with police or at first trial.

So I was driving to work when I listened to this episode the first time.  I literally chortled out loud when I heard this.  This sounds like dialog from a bad television show, doesn't it?  Something the stereotypical terrorists would say while plotting their attack?  So, yeah, I don't buy this for a second.  It is highly unlikely that Jay would have all of a sudden remembered this new detail about a conversation that took place a year ago after neglecting to mention in during his numerous statements.  If you're going to embellish your story, make it believable.

And SK notes a couple of things from some of Adnan's teachers:

• One teacher said, "Think about what he would have been taught about women and women's rights."
• Another teacher told SK that she was terrified that Adnan's relatives were going to come after her for talking to the detectives.  She told SK that she assumed Adnan's parents were "evil."

And these are the people who are responsible for educating our children...

Comments from the Jurors - SK says the jurors she spoke with said that religion did not factor into their decision.  She notes Lisa Flynn (you may recall her from totally not holding it against Adnan that he didn't testify, nope, not one bit) said that the religion issue interested her at the beginning, but then she realized Adnan was just an American teenager doing normal teenager things.  Once they understood that, whatever stereotypes they had went right out the window.

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.

The problem with bias and stereotypes is that you don't necessarily realize you're doing it or what you're doing is wrong.  I'm sure Mr. Owens really felt that whoever "they" were "they" treat "their" women poorly and "those" women are second class citizens.  And hearing the State make those arguments reinforced his pre-conceived notions.  Ms. Armstrong parrots back the State's party line about how Adnan put his whole life on the line.  You may recall that her earlier quote parroted the State's description of Jay as the street-wise friend that Adnan could turn to in order to deal with this crisis.  So Ms. Flynn may naively thought that all these stereotypes went out the window.  And it seems that they did.  

Now, I have to admit that my commentary may be colored by my prejudice against juries.  As an attorney, I was trained to assume that the jury is incompetent and unable to comprehend any argument that is too complicated for a grade school child.  So when I hear these comments, they are feeding into my bias against jurors - that they are incapable of comprehending the evidence and making reasoned decisions based on evidence.  So make of this what you will.

But I think the Muslim angle was definitely a theme played up by the prosecution.  And that's not an accident.  They seized on a theme they knew would resonate with the jury and something that they could use to their advantage.  

Evaluation of Christina Gutierrez - The rest of the episode is focused on how Christina Gutierrez handled Adnan's defense and the erratic behavior she displayed towards the end of her career.  I don't really know what to say about the discussion of Gutierrez's deterioration.  It seems clear that she was affected by her health and that she was displaying erratic behavior.  And the improper money handling is clearly an issue that SK relates to since she reported on it originally.  But I think SK's assessment that Gutierrez didn't sabotage the case on purpose is reasonable.  While her health may have impaired her ability, this is information that adds to the story, but I don't know how much it changes things.  

On a lighter note, I was amused by SK's comment, "How could you even fit $10,000 in your pocket?"  $10K takes up very little space, especially in new $100 bills.  As this scene from Once Upon A Time In Mexico shows:



So I'd like to focus more on the substantive points of the defense.  First, SK starts by noting that Adnan's only gripe was that Gutierrez failed to contact Asia McClain.  He felt that Gutierrez was fighting for him and he trusted her completely.  Although, the later discussion with Adnan's mother suggests that his parents had a different experience with her. 

SK summarizes the defense strategy as "someone else did it."  The first trial ends in a mistrial after a heated conference with the Court over the cell phone records.  The judge admonishes Gutierrez for lying, Gutierrez indignantly and (apparently) loudly protests that she is not a liar and is offended by the implication.  Court grants motion for mistrial.  According to her law clerk, the jury was polled from the first trial and they indicated they were leaning towards acquittal.

I think SK is assuming to much here.  While anything is possible, it's by no means a done deal that the first jury was going to acquit him.  The prosecution had not rested their case.  Adnan would not have made his decision not to testify.  There would have been no closing argument.  So the record was not closed.  Also, the jurors probably knew who was conducting the polling.  Once relieved of their duty, it is quite possible the jurors would have just told the defense what they wanted to hear.  This inclination to try to please people is not uncommon.  So it is not fair to assume that the mistrial cost Adnan his freedom.

SK notes that in the second trial, Gutierrez did a lot of research trying to link Mr. S to Jay, but was unable to find anything.  Mr. S apparently testified at trial as a hostile witness, but there is no mention that his testimony turned up anything relevant.

Her focus, and rightly so, was on Jay.  She cross-examined Jay on 5 separate days.  SK notes that her examination seemed to be less effective.  Adnan is heard describing the prosecution as doing a "masterful job" of presenting the facts and that they had a "clear outline."  But the defense case was not as clear and her punches didn't always land.

For example, SK plays a lengthy clip form Gutierrez's cross on Jay's testimony regarding when Adnan told him the plan to murder Hae.  Jay initially said that Adnan didn't tell him until the day of.  But in the second interview, Jay claimed Adnan told him the plan 4 or 5 days in advance.  At trial, his testimony reverted to the original version.

CG:  On another occasion you told them well the conversations I had with Adnan Syed they occurred 4 or 5 days earlier, right?

Jay:  Yes ma'am.

CG:  And – let me make sure because now there are new interviews.  The first, your very first interview, occurred at a time when there was no tape recording, correct?

Jay:  Yes ma'am.

CG:  And on that occasion, did you tell them it occurred on the 13^th?

Jay:  No ma'am.

CG:  Then your second interview, after the tape recorder got turned on, did you tell them it occurred on the 13^th?

Jay:  No ma'am.

CG:  On the 15^th of March, did you tell them it occurred on the 13^th?

Jay:  I believe so.

CG:  Well, sir, do you recall that actually on the 15^th of March you told them that Adnan told you that he was going to kill that bitch.

Jay:  Yes, I remember.

CG:  So on the 15^th you actually told them, you knew a whole day ahead of time that Adnan was thinking of strangling her, right? 

Jay:  In the previ – the previous evening, yes.

CG:  Pardon?

Jay:  The previous evening, he spoke to me.

CG:  I can't hear you sir.

Jay:  No.

SK describes this exchange as "something just happened."  She's not sure what, though.  

This was not a good exchange.  If this clip is any indication of how the rest of the cross-examination went, that this was really, really bad.  First, I don't know what point she was trying to make.  If her point was that his testimony at trial is contradicted by a prior inconsistent statement that he made, there has to be a better way of making the point.  Second, dates are hard to keep track of.  She talks about the "13th" and the "15th of March" which is awfully confusing and hard to keep track of.  Third, if you hear the clip, her singsongy lilt is grating and I can't see a jury keeping their attention on this exchange to get any point out of this.  

One thing I will note from this exchange is that Jay comes off as an excellent witness.  He gives simple, clear yes or no answers for the most part.  He keeps his responses short.  He trails off a bit towards the end here, but if he maintained this tone throughout the five days and held up, I can see why the jury believed him.  

Also, SK notes that the reason Gutierrez left threads hanging is that you don't want to give the opposition the chance to fix any damaging testimony on re-direct.  So the goal of cross-examination is to get admissions on specific factual points.  Then you wrap all those threads up on summation.  The hard part is to (1) make the jury understand that you just won a point, and (2) pray the jury remembers the point when you get to summation when you tie your neat little bow.  This exchange spectacularly failed at part (1).  When a juror says you were talking, but not saying anything, that is not a good sign.

More troubling is SK's note that Gutierrez was less rigorous on other aspects.  She singles out the cell phone evidence.  Gutierrez's main attack of the state's cell phone expert was that he had used a different brand of phone to conduct his tests than the brand that Adnan had (which makes absolutely no difference).  And she did not attack the State's timeline and clearly explain how a significant swath of the cell phone records from the day do not match Jay's testimony.

This is more baffling.  Strategically, attacking Jay's credibility is a crucial point.  So while she may have been ineffective, she was on the right track.  But not focusing on the cell phone records is more troublesome.  First, you never want to make an attack that is facially wrong.  Here, this failed argument not only failed to weaken the expert's testimony, but it probably ended up bolstering it.  In relation to Episode 5, I noted the following about the cell phone testimony:

Rather, it would have been wise to have the defense's own expert mirror the tests the prosecution's expert conducted, and focus on the 10 sites that did not "pass" the test.  (Note: I think episode 7 touched a bit on the difficulty of an expert?  I forget and will have to look into that.)  Basically, create a battle of the experts and convince the jury that your expert is more credible.  Having an expert mirror the same test and discuss the 10 sites that are conspicuously absent from the prosecution's case should have been effective.   

Also, of the 4 other sites, the only one that really matters is the one at Leakin Park.  Once you establish the Leakin Park site as the only one that matters in the prosecution's case, attack it.  There, a defense expert would note that while the cell tower pinged, note that the cell tower has a wide range and testify that the cell phone did not necessarily originate from the burial site... and conduct tests from the area that would ping that tower.  And maybe introduce the caveat expressed by Dana - at best this proves the cell phone was in Leakin Park.  There are still a few logical steps that need to be taken to prove that Adnan killed Hae and that he was burying her body in Leakin Park at that precise time.  Especially considering the only thing supposedly establishing those links is Jay's unreliable testimony.     

The cell tower evidence was flimsy at best and should have been crushed at trial.  The idea that this evidence somehow corroborates Jay's story is utter nonsense and it boggles my mind how this trial resulted in a conviction.

 I found it baffling that the defense did not have their own expert.  And I don't think there was a mention of any difficulty in finding an expert.  So this is still puzzling.  A 5-minute conversation with an expert would have revealed that the brand of the handset used makes no difference.  Anyone with a modicum of understanding of cell phone technology would know that the communications protocols follow an adopted standard so that handsets know how to communicate with the towers.  

The troubling part is that later on, when SK discusses Gutierrez's money issues, she notes that Gutierrez used money in ways that she did not say she was.  So I wonder if there was supposed to be money allocated for an expert that got used elsewhere. 

SK notes that the defense's case was short.  It lasted 2.5 days.  The witnesses were the cops, a PI, and the surveyor of the burial site (the one who couldn't see the body when he was at the burial site).  And a bunch of character witnesses.  SK notes that Rabia criticized the defense, saying that it was laughably weak.

It does seem a bit flimsy.  But the burden of proof is on the prosecution to prove the case, so having few defense witnesses is not necessarily dispositive.  Asia McClain should have been investigated and put up as an alibi witness to attack the State's claim that Adnan killed Hae by 2:36pm.  SK was able to find people who said they saw Hae at school (Debbie and Becky and Summer).  They would have hurt the State's theory that Hae was dead by 2:36pm.  Even Ines Butler's testimony that Hae was alone when she left the concession stand could have potentially helped (to show Adnan wasn't with her), but this is not as strong.  And the defense should have had their own expert to rebut the State's expert.  Character witnesses are okay, but they weren't going to make a difference.  The case would turn on whether the jury believed Jay or not.  Character testimony is sketchy enough as it is and it probably didn't accomplish anything.  

Prosecutorial Impropriety - The last substantive issue recounts what should have been a big "gotcha" moment for Gutierrez.  During the second trial, cross-examination of Jay reveals that Jay's attorney was provided by Kevin Urick, the prosecutor.  According to Jay, there was a lengthy period of time after he gave his statements in which he was not contacted by the police.  He tried to find an attorney and spoke to a public defender, but he was told he needed to be charged with a crime first.  On September 6th, the police came to notify Jay that he would be charged with being an accessory after the fact.  The next day, the police pick him up, book him, then take him to Urick.  Jay said this was the first time meeting Urick.  Urick introduces Jay to the attorney and says she could represent him pro bono.  

Gutierrez justifiably raises a fit.  Basically, the idea is that providing a lawyer is a benefit, which is worth something.  This can look like the State is paying Jay for his testimony or that Jay may feel beholden to the prosecution and could color his testimony.  The judge seems displeased but notes that Jay did not think there was anything improper and that he didn't realize he was receiving a benefit.  So no harm, no foul. 

Ugh, this made me feel dirty.  In the end, perhaps providing an attorney did not influence Jay's testimony.  If he were lying, he was doing it already out of self-preservation and in exchange for his plea deal.  The attorney in and of itself probably did not change the equation for him.  And considering Jay was not likely to face jail time anyway, maybe the attorney didn't make much of a difference.  

But this just looks bad.  From the beginning, I had assumed that even though the case was flimsy, I gave the prosecution and police the benefit of the doubt.  That they were acting properly and there was a reason for pursuing this case.  But this combined with Ms. Wash's deceit during the bail hearing makes the prosecution look really dirty.  The prosecution is trying to build the strongest case and their job is to put Adnan in jail.  And arguing a theme based on religion and culture, while icky, can be considered in bounds.  But lying to the Court is not in bounds.  And essentially paying witnesses is not right either.  

So maybe this was a snow job after all.  At least now, I'm willing to strongly consider that possibility.

News of Appeal - Finally, SK addresses the recent news that Adnan is getting a new appeal.  She says that is not correct.  What was decided was that a court ordered the State to respond to Adnan's petition for relief on one specific issue - that Adnan was denied effective assistance of counsel for failing to seek a plea deal contrary to Adnan's request.  

The last bit is an interesting exchange.  SK plays dumb and finds it was surprising that Adnan would ask for a plea given how adamant he was about his innocence and how he originally seemed to trust that process would win out and he'd be home.  But Adnan discusses how he saw people get long sentences and he realized how hard it is to beat a murder charge.  

I'm presuming SK is playing dumb here.  I would assume an experienced journalist would be fully aware of the realities of the justice system and that just because someone accepts a plea deal does not mean he/she is guilty.  This is just a reality of the system and a by product of the flawed jury system.  As Gutierrez's law clerk says, "You never know with these juries."  

The interesting twist is that usually it would be the attorney telling the client to accept a plea deal.  The attorney should be more realistic and aware of the capriciousness of the jury.  And usually the client would be more naive and idealistic in trusting the system.  So it's interesting how the roles were supposedly reversed.  Also, it seems like after the first trial ended in a mistrial would have been an opportune time to discuss a plea deal.  I'd assume that the prosecution would have polled the jury as well.  So if the jury really were leaning towards acquittal, this could have made the State more amenable to a plea.  Who knows?

Not sure if anything will come of this development.  SK ends the episode on a pessimistic note, stating how Adnan is unlikely to receive parole.  And how his petition is hanging on by a thread.  A somber reminder that once this season ends, his story will continue.