The thing about Serial
Like law students everywhere, I spent the exam period outlining like an automaton and testing myself on the application of a bouquet of legal tests. That, and I listened to Serial — the dramatic true crime series at the forefront of the so-called “podcast revolution.”
For those not among the show’s existing five million addicts, here’s a brief, spoiler-free synopsis:
In 1999, a popular Baltimore high school student, Hae Min Lee, went missing. A month later, her body was found buried in a nearby park. Two weeks after that, Hae’s classmate and ex-boyfriend, Adnan Syed was arrested for her murder. Adnan was convicted a year later and has remained in prison ever since. To this day, he claims his innocence.
Fast forward to 2013. Sarah Koenig, a producer with the Chicago Public Media’s weekly radio show This American Life, was approached by Rabia Chaudry, a family friend of the Syeds, and a lawyer herself.
Some years earlier, Koenig had been a reporter with the Baltimore Sun, and Chaudry recalled a story she had written on the disbarring of a local criminal defence lawyer — the same lawyer, it turns out, who represented Adnan at trial. Chaudry asked Koenig to take a look at Adnan’s case, and the rest is history. Week by week, Sarah takes us along as she works to uncover the story of what really happened to Hae. If it wasn’t Adnan, then who did it? And how was Adnan so readily convicted?
The result is a compelling narrative, heightened by the suspense of real life mystery. The thing about Serial, though, is that when the series ends, the case does not. The show has cast doubt on Adnan’s guilt, and we as listeners are left with far more questions than answers. As future lawyers, many of these questions are particularly relevant.
Last week I sat down with Queen’s Law’s very own specialist in sentencing and prison law – Professor Allan Manson – to talk about some of the legal questions emerging from the show.
The State’s Advantage
Even before he is charged, Adnan is faced with an obstacle that will later work against him at trial: he says he doesn’t know what happened to Hae, but he can’t exactly remember where he was the afternoon of the murder. This opens the door for the state to create a timeline of his whereabouts, based largely on cell phone records that Adnan can’t easily contest.
Manson says this is an advantage the state almost always has. In most cases, the accused simply can’t match the state’s resources when it comes to compiling evidence and securing expert witnesses.
“It’s not uncommon that a prosecution has access to what appears to be high quality technology or expert opinion evidence in a situation where the defence doesn’t,” he explains.
Manson says this is exactly what happened in the Ontario case of Guy Paul Morin, who was convicted of the murder of his 9-year-old neighbour, Christine Jessop. At trial, hair and fiber samples were presented as evidence linking Morin to the crime.
In 1995, Morin’s conviction was overturned when improved methods of DNA testing proved his innocence. A judicial inquiry later confirmed that the original fiber samples had been improperly analyzed and potentially contaminated.
The problem for Morin was that he lacked the ability to contest the State’s version of events, especially in light of the scientific evidence. “At trial,” explains Manson, “there was no opportunity to bring up the best in the world to say ‘we don’t use that technology anymore, it’s 10 years out of date and if you use modern technology you would have a different result.’”
If you’ve listened to the show, you know that the prosecution’s key witness in the case is Adnan’s former classmate, Jay Wilds. Jay testifies that Adnan called him the night of the murder asking for help in getting rid of Hae’s body. Jay obliged. He pleaded guilty to accessory after the fact, and served no time in jail.
Despite a number of noted inconsistencies in Jay’s testimony, the jury at trial found him credible and composed. They reached Adnan’s verdict of guilt in just two hours.
One factor that may have influenced the jury was Adnan’s decision not to testify. Was it the right call? According to Manson, it’s hard to say. On the one hand, not testifying may leave the jury wondering what the accused has to hide. On the other hand, Manson can think of murder trials that were won solely on defence counsel’s decision not to call the accused to the stand.
In this case, Manson leans towards putting Adnan on the stand. “He’s a young kid with no record. Unless there is something really vulnerable about his narrative or about him, I think it’s pretty easy to put him in the witness stand.”
Whether or not testifying would have helped or hurt Adnan’s case, we know the decision not to testify didn’t sit well with members of the jury. Koenig interviewed six of the jurors from trial and a number of them found it unsettling that Adnan would not use the opportunity to express his innocence.
This is an important consideration, according to Manson. “You always have to worry that when you look at those 12 jurors, that they’re sitting there saying, ‘If it was me and I was innocent, I’d be jumping up and down screaming.’”
In Canada, it’s hard to tell exactly which factors end up most strongly swaying a jury. Here, the Criminal Code prohibits jurors from discussing their deliberations. Whether or not this is a good thing is up for debate. It provides a degree of insulation that protects jurors from potential intimidation, but as Manson puts it, “It means that certain things that went on in the jury room are a mystery.”
In speaking with the jurors, it also became clear to Koenig that they weren’t aware of Jay’s plea deal with the state. The omission of this fact is crucial, because it casts Jay’s testimony in an entirely different light. Manson says that something like this simply wouldn’t happen in Canada. A judge would need to flag the issue of witness reliability through a Vetrovec warning. “The jury would be told that since he was an accomplice, they have to be very careful about convicting solely based on his testimony.”
Despite all the complexities involved, it still seems that jury trials are the best option. Juries work very well, according to Manson, if the proper procedural safeguards are in place. He points to the infamous Canadian example of Dr. Henry Morgentaler, who was charged under the Criminal Code for performing abortions outside the hospital setting. “Three times Doctor Morgentaler was prosecuted, and three times juries in Canada refused to convict him,” says Manson. “That’s one of the virtues of the jury system.”
It’s also precisely why we need to be concerned with ensuring a fair and transparent process for jury selection. Looking south of the border, the problems are glaring. The recent grand jury decision coming out of Ferguson, Missouri serves as but one example of a questionable decision made by a predominantly white jury in a racially-charged case.
Things aren’t perfect in Canada either. At home, finding adequate minority and Aboriginal representation on juries is a big problem. In 2013, former Supreme Court Justice Frank Iacobucci led an investigation into the issue and found that Aboriginal people were severely overrepresented in prison and underrepresented on juries. Clearly, we need to be doing more to ensure the integrity of the system for all Canadians.
Listeners will know that Adnan has an appeal coming up this month, in which he intends to claim ineffective prior counsel. Just last week, Adnan’s lawyer submitted a supplement to that appeal, including a new affidavit from a former classmate who says she saw Adnan at the local library at the time the murder supposedly occurred. In her statement, she says she was pressured by the original prosecutor to keep quiet.
At the same time, students at the University of Virginia School of Law are working with the Innocence Project to draft and file a request for forensic testing that might shed new light on the case. Multiple sources of forensic evidence were found at the original crime scene, but were never tested and were not used as evidence in court.
What does all this mean in the context of a crime that happened 15 years ago? At this point, it’s not entirely clear. Manson says that in the United States, the test for incompetence of counsel is fairly low. A bigger challenge, however, might stem from the procedural bar doctrine, which can severely limit the Federal Court’s review of state prosecution. Basically, explains Manson, “If something happened and it wasn’t raised as an issue lower down in the process, you can be barred from raising it.”
More than procedure, though, the biggest challenge seems to be time. While technology has improved to the point where even 40 year-old DNA materials can be testable, people’s memories fade. People die; they become incapacitated. “It’s just hard to resurrect events, it’s just natural,” says Manson.
But Manson is not convinced that all hope is lost when it comes to reconsidering old cases. “Now with social media it’s much easier to hype up interest in a case,” he says. We also know enough about wrongful convictions to know that the possibility for error is out there. “At least in 2015 we are at the point in Canada where we do recognize there have been wrongful convictions and they ought to be remedied.”
Serial wrapped up after 12 episodes in December, but many of the legal issues it uncovered are continuing to unfold. For a show that’s highly entertaining, it also raises some important food for legal thought.
And it’s basically like studying for Crim, right?
Editor’s Note: The Maryland Court of Special Appeals has agreed to reopen the appeal of Adnan Syed’s murder conviction. Arguments are scheduled to be heard in June.
Jess Spindler (2L) is a contributor to Juris Diction.
You can listen to Serial for free online at www.serialpodcast.org