By Eli Hager for The Marshall Project, a non-profit news organization that covers the U.S. criminal justice system. For more information and to sign up for their daily newsletter, visit TheMarshallProject.org or follow them on Facebook and Twitter.
As the addictive “Serial” podcast heads into Episode 11, The Marshall Project asked a mixed panel of defenders and prosecutors to appraise the evidence so far. Did they endorse the conviction of Adnan Syed, who is serving a life sentence for the murder of his ex-girlfriend, Hae Min Lee, in 1999? What evidence presented in Sarah Koenig’s artful weekly installments swayed them? As a verdict on Adnan Syed, this exercise is, of course, meaningless. Syed’s fate is a matter for the courts, where the case is still on appeal.
But our sampling demonstrates that how lawyers see a case depends on whether they play defense or offense. The prosecutors were more inclined than the defenders to pronounce Syed guilty. Some of that, one career prosecutor conceded, was a tendency to root for the team you play on. Some of it is a difference of sympathies between lawyers who spend many hours with the accused and lawyers who do not – who, on the contrary, spend many hours with the grieving families of the victims. The greatest distinction between the two camps, though, is the nature of the challenge. Prosecutors are obliged to prove guilt. Defenders only have to produce reasonable doubt. One of our defense lawyers said he believed Syed was guilty – but, like all the rest of the defenders we surveyed, he believed a better defense could have won an acquittal.
Here are excerpts from our interviews, condensed and edited for clarity. Some would only speak if their names were withheld, and all emphasized that they were speaking only for themselves.
Erica Zunkel, clinical instructor, University of Chicago’s Federal Criminal Justice Clinic
Verdict: Not guilty
Reason: Defense attorney didn’t do her job.
Explanation: The first few episodes, I listened for fun, not thinking too much about the legal aspects of the case. But that changed pretty quickly, and my defense attorney instincts kicked in. I found myself texting and calling my public defender friends, overwrought that the defense attorney didn’t even bother to interview a possible alibi witness. There’s no excuse for that. I found myself cringing as I was listening to the defense attorney cross examine Jay during trial. I’ve thought of playing that snippet to my clinic students as an example of how not to conduct a successful cross-examination. She made Jay look reasonable and rational and beat-up on, which is exactly the opposite of how you want to portray him. Because if the jury believes Jay, Adnan loses. Simple as that.
Given how compelling I think Adnan is, I’m really surprised that he didn’t take the stand. There are, of course, huge risks to taking the stand as a defendant, one of which is that the jury will think that Adnan has the burden of proving he’s innocent, but the jurors thought that in this case anyway (as happens in courtrooms around the country each and every day). So why not give the jurors a counter narrative to Jay’s, from a 17-year old kid who is steadfast in his innocence?
Sarah Lustbader, a public defender who works in the Bronx
Verdict: Not guilty
Reason: Adnan isn’t a psychopath.
Explanation: Unless there's a side of him that no one has told Koenig about, the idea that he would become a psychopath for long enough to plot to strangle someone he cared about, carry out that plan, and deny it, but never show other signs of psychopathy before and never after is exceedingly unlikely. Further, Adnan is a smart guy, and this here is not a smart crime. None of that is dispositive, but to me it makes guilt unlikely.
Markus Kypreos, former prosecutor, Fort Worth, Texas
Reason: You don’t need to be a psychopath to commit murder.
Explanation: The more I listen to Adnan, the less I like him. This is absolutely someone who could have committed this crime. It’s very telling that the jury only took two hours. That means a lot. Fifteen years later, we don’t know how the evidence was presented — we can’t feel the witnesses out — but only taking two hours, I mean.
Here’s what else I know: There’s been no motive presented for anyone else but Adnan. You always look at motive. I want Adnan to be asked, if not you, who? Meanwhile, look at the WAY she was killed. She was strangled. Very personal. There was a relationship there. That’s why I don’t buy the whole “maybe a serial killer did it” angle. What people have to understand is that there are a lot of people who kill who are between “normal” and “psychopath.” A person can be capable of strangling someone in a moment of anger or whatever without being all the way at the level of a psychopath. People try to paint Adnan as this virtuous guy, but he could have done one bad thing. And I’ll say, if he’s so virtuous, why’s there such a lack of emotion on his part? In discussing the murder of someone you loved for which you’ve been unjustly imprisoned for decades, you’d get emotional.
I guess I’ve come to accept that [Koenig] is not a journalist; this is entertainment. She’s clearly on team Adnan, picking and choosing what went unfairly for him back in ’99… I mean, c’mon, we’ve got the Innocence Project on this thing.
Ryan Carlyle Kent, post-conviction attorney, Office of Capital Writs in Austin, Texas
Verdict: Not guilty
Reason: Lack of forensics.
Explanation: First, there’s a noticeable absence of inculpatory evidence — no DNA, no fingerprint or palm print of any significance, no video recording showing Mr. Syed in a compromising position. As the first episode suggests, events of minimal significance to us are not remembered well. Clearly, the strongest evidence against Mr. Syed is the testimony of his friend Jay. Jay is not, however, a disinterested party; in fact, given what he knows and admits to, he must have had some involvement with the murder or its cover-up. Without more — e.g., a confession, a clearer motive, forensic evidence — I would not be comfortable holding Mr. Syed criminally responsible.
Longtime New York prosecutor
Reason: That Nisha phone call, among other inconsistencies.
Explanation: It’s not a slam dunk, but so far I see a case for guilty. First, Adnan sounds to me like almost any other defendant I've heard. He has a convenient excuse for everything. One big lie — or accommodation — of Adnan: At first he said I don't know Jay that well. He gave Jay his phone, he gave Jay his car, he hung out and smoked pot with him…. If you think about these things, what is the statistical possibility of all these things happening and it not being Adnan? The ex-girlfriend, the distancing himself from Jay. "Maybe I butt-dialed Nisha" – c'mon. How do you get around some of this stuff? [Editor’s note: The so-called "Nisha call" is a call that was made to one of Adnan's friends, not Jay's, at a time when Adnan said he didn’t have his phone. The prosecution claimed that the call proved Adnan was with his phone, and with Jay, at 3:32 p.m., contradicting Adnan’s timeline of events.]
The whole break-up scenario — that's a dangerous point in time. That's when we see domestic-violence homicides. That's classic. There is some evidence that he was overly controlling of this girl — lots of phone calls, that's a huge red flag in domestic violence homicides. Another thing, it's very easy to kill somebody by strangling. It doesn't take long. If you put pressure on the carotid artery, it does not take long to severely affect their brain function. You can almost kill somebody by mistake. So it could easily be a tussle that got out of control.
Jay's credibility is all over the place, but he found the car. He obviously knew something. He gets some details mixed up, but these things are always Rashoman.
William Boggs, public defender, Louisiana
Verdict: Not guilty
Reason: The Nisha call is not a smoking gun.
Explanation: The state's case is thin, really thin. And the so-called corroborating evidence, the phone records, isn’t great either. I have a theory about the Nisha call that I think is fairly simple but that Sarah hasn't really offered (even though she's so obsessed with that call): Jay has Adnan's phone with him and gets a missed call on it. The missed call was from Nisha's home phone, not Nisha's cell — not enough people have pointed out that the “Nisha call” is to a home phone, not a cell. So Jay calls back Nisha's home, and has a quick conversation with either Nisha or her parents. "Well, tell Adnan I called." "Okay." Not a long conversation. Not a conversation she would remember.
Fast forward many months, when the police finally talk to Nisha. They don't get her outgoing call records. They simply ask: Do you remember having a conversation months ago in which Adnan talked to you? Maybe with another guy present? And Nisha remembers a phone call when Adnan and Jay had been together. But this is key: She distinctly remembers Adnan and Jay calling her from outside the porn video store, and Jay saying he was about to go to work. But Jay didn't work at the porn video store until weeks after the murder.
In those three hours of preparing his statement before turning on the recording (which is a police practice that's now totally out of bounds), they're going over the call logs with Jay. And they point to the outgoing call to Nisha, and they say, "Nisha says she remembers this call. Is that how it happened?" And Jay says yes. And they have the Nisha call. It's two different calls, but the prosecution, not necessarily intentionally, was able to conflate them.
Joseph Sieger, Brooklyn Defender Services
Verdict: Guilty, but not guilty beyond a reasonable doubt.
Reason: Not enough evidence linking Adnan to the crime.
Explanation: My gut is that Adnan probably did it, albeit with a hell of a lot more involvement on Jay’s part than Jay has admitted to. That being said, no fucking way would I say Adnan is guilty beyond a reasonable doubt. No way.
Jay led the cops to Hae’s car. That’s an objective fact. Therefore he was part of whatever it was that caused her death. We also know this: Of the 14 “pings” on the cell phone records, Jay got 10 of them wrong. He lied about everything before 6:00 that day. But he was not lying about where that cell phone was after 6:00. Those were the four that he got right. So maybe we can believe his story as to what happened after 6:00.
The only thing is that Adnan’s phone was inside Leakin Park. But they didn’t do any study of Hae’s body, so they don’t actually know when she was killed! So who cares if Adnan’s phone was in Leakin Park on that day? For all we know, Hae was still alive for days after.
Yet I still say that my gut feeling is Adnan did it. What reason would Jay have, really, to say Adnan was part of it? Why hasn’t Adnan even once exhibited incredible rage with being falsely accused of something so heinous? I don’t get that stuff. But beyond a reasonable doubt? No way.
A prosecutor in New York
Verdict: Guilty, but not guilty beyond a reasonable doubt.
Reason: Memories are unreliable.
Explanation: Sarah is absolutely right to point out how terrible people are at remembering. We see this all the time as prosecutors. I say, “How long were you at the scene?” and the witness says, “A few minutes.” When I hear “a few minutes,” I know it could mean anywhere between 30 seconds and a half hour. That’s how far off people can be about things they claim to remember. And particularly timelines. It’s one of the things human beings are the worst at, remembering timelines from six weeks ago. So that’s why there’s definitely doubt here. That’s also why I think Sarah would have made a good trial lawyer – because she’s so adept at turning obscure information into a timeline, a narrative. Trials are boring. Good lawyers make stories out of them.
Lisa Kang, L.A. County public defender, Los Angeles, California
Verdict: Not guilty
Reason: The prosecution withheld important information.
Explanation: I think the thing about the criminal justice system that most people don't understand is the awesome power that the prosecution wields. They can pick and choose which facts they want to present in order to fit the narrative that they've constructed. Detectives don't have to record any interviews, and if they choose to record, it's perfectly acceptable that they choose not to record certain portions (e.g. the beginning of both of Jay's interviews, during which we have no idea what he was shown or told by the detectives). Although the prosecution is supposed to turn over any exculpatory evidence to the defense, they regulate themselves. [Defense lawyer] Christina Gutierrez was understandably shocked when she found out that the prosecutor in Adnan's case provided a free attorney for Jay, because this information should have been turned over to the defense. The state was able to garner a first-degree murder conviction, a conviction of even the most egregious crime, based on the testimony of a single witness. It's scary how much power they have.
Zelalem Bogale, deputy district attorney, Washoe County District Attorney’s Office,
Explanation: As a prosecutor, I don’t think I would have brought up [Syed’s cultural and religious background] at all. He seemed to be an ordinary double-life American. I'm a first-generation American, as well.... Seven members of the jury were black. Did they really get him as a person? Living a double life — how he's actually American, but has obligations culturally, but he's not an old-world Muslim. I’m not sure they understood those cultural nuances of a first-generation American.
Asia McClean’s role in this is very significant and hasn't been explored; well, to the extent that it has been explored it presents a problem for the prosecution's case. She is a potentially strong alibi witness for him. On the other hand, one of the worst pieces of evidence for Adnan ... he just doesn’t remember that day very well, and I’m a little disappointed in that for him. On a day when you get called by the cops, when your ex-girlfriend goes missing — you don’t remember much? You don’t call her? I’m a little troubled by that, that his memory is kind of selective on a day like that.
Usually, when there is someone like Jay involved who's a potential co-defendant, the prosecutor will charge him first, then he’ll get a lawyer; a plea deal can be arranged. In this case, Jay hadn’t even been charged yet, and they set him up with a lawyer in advance. There’s a collusion that has a chance for impropriety: ‘you scratch my back, I’ll scratch yours.’ I would have tried to ferret out Jay a little more. I do feel like Jay knows who did it. I don’t know if Adnan knows. Maybe he truly doesn’t know who did it. But then there’s this little bit of me, maybe Adnan is the best liar of all time. As a colleague pointed out, Adnan is used to this [lying]. He was hiding from his parents. He always hides. He’s good at disguising and misdirecting, because he had to do this his whole life. Does that mean that he’s using these skills to hide a murder? That’s a big leap.