quick thoughts on the Serial podcast

I think Serial did an admirable job presenting this case to listeners, and the story came to Koenig so organically that I doubt it can be duplicated in season 2. I only have two gripes: 1) not enough time spent on Jay, and 2) Koenig’s conclusion that if she were on the jury, she would have acquitted Adnan. (I'll focus on the latter.)

I think she’s making her conclusion based on conversations with him, and her belief in the Asia McClain alibi testimony the jury never heard.

But if you put yourself on that jury, here’s essentially what you would have heard:

Prosecution’s case:

Adnan was a jaded ex-boyfriend. Hae’s journal and letters confirm this (not necessarily to a murderous extent, but certainly far more than the mutual-breakup story presented by the defense.) (And Adnan accidentally admits it in one of the early episodes and quickly corrects himself: “… when she broke up with me, or I mean, when we broke up.”)

The prosecution’s star witness (Jay) says Adnan told him he was going to kill Hae, loaned Jay his car on the day of the murder so he’d have an excuse to get a ride with Hae, gave Jay his cell phone so he could call him to pick him up after the murder, called Jay when he was finished, showed him Hae’s body in the trunk of her car, and talked Jay into helping him bury the body in a park.

(Cell phone records corroborate much of the testimony.)

The defense attacks Jay’s testimony by pointing out inconsistencies between the story he told on the witness stand and the story he first told police. And though there are several inconsistencies, the meat of the story doesn’t change. And when he first spoke to police he was an accomplice, so he was probably lying to minimize his involvement (and his involvement is probably A LOT more than he says, but Adnan can’t explain that they did it together because that'll require admitting he did it.)

The defense then sends a bunch of Adnan's friends and relatives to the witness stand to say he would never kill anyone and wasn’t a jaded ex-boyfriend. Of course they’re going to say that. They’re his friends and relatives.

And then the defense rests!

They never present an alibi. They never put Adnan on the stand to say, “I wouldn’t have killed Hae beause our breakup was mutual. I couldn’t have killed Hae because at the time I was ______. The reason Jay had my car that day was ______. The reason Jay had my cell phone that day was ________. The reason my phone was pinged in the park where the body was found during the time the body was buried was _______. And the reason I didn’t call her the next day was _______.”

(He called her three times the night before, so you’d think he’d call once after she went missing to check on her.)

His only defense was that Jay was lying.

But why would Jay lie? Maybe they did it together and he's blaming it all on Adnan knowing Adnan won't ever admit to it. Maybe he killed her alone and is framing Adnan  but he didn’t have a motive. And if he’s framing Adnan  Adnan walked right into it by letting him borrow his car and phone that day. Maybe someone else did it and Jay is lying to cover for them.

Yes, the prosecution has the burden of proving its case beyond a reasonable doubt. But the defense never argues that Adnan didn’t do it. They merely say the prosecutors didn’t have enough evidence to convict beyond a reasonable doubt. That sounds like the kind of defense presented by guilty defendants. And it’s not a jury of law professors, it’s a jury of ordinary people hearing a case in which a 17 year old girl was choked to death and the defendant is a jaded ex-boyfriend who’s not even bothering to present an alibi—even though the prosecution presents a witness who pins the entire murder on him!

I would have convicted him too.

So why didn’t Adnan take the stand?

I asked some defense attorney friends and read some articles and here are what seem to be the primary reasons for not putting a defendant on the stand.

1)   He is guilty. (And is going to get tripped up during cross examination.)

2)   He has a criminal record (which can only be introduced as evidence if the defendant testifies) (Adnan doesn’t have a record, in fact he was an honor student/athlete)

3)   He has a bad temper or is dumb and will be goaded into looking guilty on the stand by either getting angry or contradicting himself or just looking unsympathetic (he certainly didn’t seem this way on the show)

4)   He might unconsciously shift the burden of proof (a risk worth taking when the prosecutor has a witness who knows enough about the crime to prove he was involved and says he helped the defendant bury the fucking body!)

Back to reason #3 above:

I guarantee you the ONLY reason Serial became so popular is Adnan's charisma. If he wasn’t on the show, and they spent 12 episodes breaking down cell phone records and interviewing character witnesses, I’m not sitting here ending my blogging exodus to write about it. Adnan would have made an excellent witness.

So why didn’t Adnan testify?

Probably because when the prosecutor would have asked where he was at the time of the murder, his response would have been, “I don’t remember.”

Serial makes a big deal out of the difficulty of being asked to recall what you did for a given hour, six weeks ago. In fact I think the show opens with that question. And Adnan insists it was just an ordinary day, so he has no reason to remember what he did immediately after school.

But it wasn’t an ordinary day. That evening he got a call from police informing him that his ex-girlfriend had gone missing, and asking whether he had any information on where she might be. If you’re the ex-boyfriend, at that point this is no longer an ordinary day.

So in the end the jury has the testimony of a witness—who’s not exactly Mother Theresa, but also hasn’t waivered in the meat of his story—saying Adnan told him all about the murder and that he helped Adnan bury the body. You’ve got some evidence that Adnan was a disgruntled ex-boyfriend. And you don’t have an alibi from the defendant.

I’m not saying with 100% certainty that Adnan did it -- I wouldn't be surprised if Jay himself was the strangler and Adnan just paid him and set everything up. But based on the evidence presented to the jury, I don’t blame them for convicting.

…

A couple of other quick notes:

An important issue to which Serial draws attention is the overzealous prosecutor. A prosecutor’s job is to convict based on truth, not to win at all costs.

When the prosecutor yells at Don for not making Anand look creepy enough in his testimony – that’s terrible. He should be sanctioned, tarred, and feathered.

The biggest waste of time on the show was the ancillary investigation by the Innocence Project trying to pin the murder on a serial killer.

If Hae was killed by a third party serial killer, it means Jay is lying about Adnan to protect a fucking serial killer.

I think Jay can cash in by doing a TV interview.

This was essentially a more in-depth Dateline murder mystery (Koenig was a great radio host, but I'd prefer Keith Morrison if it were on tv.) 

Ok, that's all I've got. Connors, I'm ready for your thoughts.