I got hooked on the Serial podcast not long after it started last year. I have a deep interest in criminal law and an even deeper interest in a case where a young man may have been wrongfully convicted. Given how much DNA has done for wrongful convictions, I was curious to see how this played out.
In case you didn’t know, Serial was delivered by Sarah Koenig, a reporter who was turned on to the case by a woman named Rabia Chaudry. The case involves a Baltimore-area high school senior named Adnan Syed who was convicted of kidnapping and strangling his ex-girlfriend, Hae Min Lee. Syed was the best friend of Chaudry’s younger brother.
Koenig and her Serial crew were podcasting as they were investigating. Koenig said at the outset that she had no idea how things were going to turn out. And, in fact, at the end, she wasn’t really any closer to working out the truth. Serial did uncover things that made pretty much everyone wonder how it was that Syed managed to get convicted. The State’s star witness – Jay Wilds – was a disaster. He claimed that Syed had told him in advance he was going to kill his ex-girlfriend, showed him the body in the trunk afterwards, and then made him help bury her body in Leakin Park.
The problem with Wilds was that his stories were wildly inconsistent. Every time. In several statements to the police, at the two different trials, and even during interviews recently. Serial made it clear that the State’s version of the case, due in part to Wilds’ tales, and just that it was physically impossible for it to have happened the way it did. A lot of people, myself included, started wondering how it was that Syed ever got convicted. (Note that I am not saying that I do not think he did it, just that I don’t know how a jury didn’t have reasonable doubt.)
Serial generated a lot of attention to the case and support for Syed. So much so that his case was being investigated by The Innocence Project (responsible for freeing hundreds from death rows all over the United States), including one of the founders of The Innocence Project, Barry Scheck. As a result of the interest, his appeal has been somewhat successful and a Baltimore Circuit Court will be considering his post-conviction evidence again.
The appeal focuses on two things: His attorney’s failure to investigate and maybe call an alibi witness, Asia McClain, and the State’s failure to produce documents regarding the cell tower evidence that may indicate that the data from incoming calls could not be used to determine where he was at the time the calls were received by his phone.
To the first point, the question is whether his counsel was ineffective. Ineffective assistance of counsel is a legal term and it is a very high standard. There is case law where even an attorney who sleeps during the trial is not providing ineffective assistance. If an attorney decides not to pursue a particular witness or line of investigation, it can be considered a strategic decision, and is not considered ineffective assistance of counsel.
Syed is currently claiming that his attorney failed to speak to Asia McClain who can testify to Syed’s whereabouts until about 2:40pm on the day Hae Min Lee went missing. The State presented that she was murdered prior to 2:36pm.
Syed’s attorney, Christina Gutierrez, was gravely ill during his trials. Her staff has stated that her behavior was erratic and unreliable. They question her competence. Unfortunately, she passed away, and cannot explain why she chose not to contact Asia McClain and verify the alibi.
The question, of course, is whether McClain is really an alibi witness. A classmate of Syed’s stated that she saw Hae that day around 3:00pm as she was leaving school. Given that, McClain’s statement of seeing Syed in the library doesn’t make much of a difference. If Hae Min Lee was still alive at 3:00pm, then Adnan needs an alibi for after 3:00pm, not before.
The cell phone tower issue is a lot more complicated and maybe not as big an issue as Syed’s current attorneys are making it out to be. The State’s expert believed he was looking at one type of data, when he was maybe looking at another. AT&T says that the incoming calls cannot be reliably be used to determine location, but cell experts say that the call has to hit off a close tower, regardless if it’s an incoming or outgoing call.
Now, what does all of this have to do with Rabia Chaudry telling me to fuck off?
Serial ended without a conclusion. Others have taken up the mantel and there are now two more podcasts – Serial Dynasty (which is being renamed Truth & Justice) and Undisclosed. Rabia Chaudry is the driving force behind Undisclosed and she has two other attorneys working with her on the podcast. Chaudry admits right away that she’s biased. What they don’t bring up quite so clearly is that the other two attorneys are as well, in Adnan’s favor.
Colin Miller is an Associate Dean and Professor at the University of South Carolina School of Law and Susan Simpson is an attorney who focuses on white collar crime and blogs at View from LL2. Both are firmly in the #FreeAdnan camp.
A friend of mine asked me if I was still following the Syed case and pointed me in the direction of Undisclosed. I figured I would give it a listen and see if they could shed more light on the case. Serial was obviously only presenting what it found interesting and while that’s great for driving subscriptions, it’s not enough for me. I wanted more information.
Well, I get it. The problem with Undisclosed is that it’s not particularly well done. It jumps all over the place and their bias really shines through. They seem to be presenting things logically, but they jump from place to place and it’s hard to follow. None of them seems to have any experience with street crime criminal law, which impacts how they’re looking at the case.*
In trying to figure out how Syed was convicted, you can only focus on what happened at trial, which is what the juror’s saw. They focus mostly on the parts they feel look good for them, but that they jury wouldn’t have had access to. Wilds was questioned by defense counsel about his wildly inconsistent statements, but the jury didn’t find that convincing apparently.
Anyway, I followed the #Undisclosed hashtag and ended up clicking on Chadry’s twitter account. She retweeted something from the Serial twitter account, where they highlight the new affidavit regarding the cell phone evidence.
I clicked through to see what Koenig had written about the evidence. It turns out, Serial wasn’t saying that they’d gotten it wrong, but rather that this *may* make a difference in the evidence. They weren’t sure whether it would really have an impact since they’d asked experts who said that it didn’t matter whether the call was incoming or outgoing.
So I tweeted back to Chaudry.
So I responded:
And she responded, so maturely:
I have since been blocked from seeing anything related to her account.
I assume there are tons of trolls who inundate her account with bullshit all day long. I’m guessing a lot of it isn’t particularly intelligent and that a lot of it is rude. What I said to her was neither of those things. It probably has more to do with the fact that I was in any way defending Serial. Apparently Chaudry is pretty pissed at them for how they handled the case. I’m sure she wanted them to come out with a definitely response that Syed didn’t do it.
Koenig just couldn’t do that and I think she wanted to, very badly. The problem is that she’s a reporter with some ethics. And to me, it was very telling that she did not ultimately decide that she felt that Syed didn’t do it. She’d probably spent hundreds of hours with him on the phone, talking to witnesses, and examining documents. After all that, she just couldn’t get there. That was the risk she ran when she started the whole thing.
Chaudry’s belief in Syed’s innocence is not proof of it. I’d gotten through about 4 episodes and addenda on Undisclosed before this Twitter exchange and I didn’t see anything earth-shattering from them. At this point I’m not sure if I’m willing to participate in that crap any further.
There are a lot of things that happen before a trial that keeps evidence out. No one seems to have looked back to any of the pre-trial hearings to see what some of that information may have been. It could point the finger directly at Syed. One of Syed’s other points in his appeal is that he asked his attorney to explore a plea deal and he claims she didn’t do so. While it does happen that people who didn’t commit a crime ask for a plea deal, I don’t see that happening with Syed. There was no physical evidence that tied him to the murder. It was just Wilds’ testimony and as I discussed above, that was all over the place. I wonder what happened at trial that made Wilds look credible enough for a jury to convict him.
Something else that people don’t seem to be considering is that he may have confessed to his attorney. Some defense attorneys don’t ever want to hear the truth from their clients. If they know that the client did it, they cannot then put them on the stand to testify that they didn’t do it. Some defense attorneys want to know everything. Obviously if his attorney knew he did it, she would want to be very careful when selecting witnesses because one wrong word and Syed’s entire case goes to shit.
What I don’t understand is why Chaudry would tell me to fuck off and then block me. It’s immature. It also doesn’t help her cause at all. They are actively trying to raise money for Syed’s defense fund. they have over $150,000 so far. Regardless of whether Serial ended up on the #FreeAdnan team, it drove a lot of support and money his way. Why be bitter about that? Why spew nastiness over Twitter to someone she doesn’t know? She’s opened herself up by embroiling herself in something that has become so public. If you can’t take the heat, get your ass out the kitchen.
How she’s responded tells me a lot about her and how she’s probably handling her “investigation.” She’s been looking at the material for years. And this is the best she can do?
If you haven’t already listened to Serial, I encourage you to do so (even if I’ve spoiled the ending for you with this post). It is a fascinating story. Undisclosed does raise some good points about how the cops handled the investigation. But what it doesn’t seem to me that they’re trying to do is get to the truth.
*When I graduated from law school, my first stop was a prosecutor’s office where I was assigned to work with a senior prosecutor on a quadruple murder with arson. During my time there I also worked on several other homicide cases, including a no-body homicide.