Serial, Shaky Evidence, and Why Adnan Syed Deserves Better

By Sajid A. Khan

I don’t listen to NPR or talk radio much. I mostly listen to sports radio but almost never watch or listen to the news or anything really substantive.

A few months back, my friend and fellow Public Defender, a Sikh Indian named Avi, texted me and told me I had to listen to Serial. I told him that I didn’t have the time to commit an hour or so a week to listen to some podcast. Nevertheless, he continued to urge me to listen, telling me it was about a Muslim teenager who was convicted of murder.

I listened to the first episode as I walked to and from court one morning and I was immediately hooked; in fact, I couldn’t stop thinking about the podcast, and more specifically, I couldn’t stop thinking about Adnan Syed.

“There, but for the grace of God, go I.”

Serial resonated with me as a South Asian and as an American Muslim. Adnan and I, both Desis, grew up at the same time, albeit on opposite sides of the country. I graduated high school in 1999, the same year he would’ve graduated but for his arrest. I, like Adnan, played football, was involved in my campus community, was academically driven, had aspirations for higher education and achieved, or tried to achieve, relative levels of high school popularity.

I, like Adnan, came from a religious, conservative, active Muslim family. I, like Adnan, lived a double life; indulging in many of the temptations and realities of high school life while trying to save face at home, at the mosque and in the Muslim community. I was trying to please my parents, and trying to maintain my religion and faith while also being tempted by everything around me, especially the girls.

Although weed was everywhere (people literally used to smoke in the middle of the school day in the middle of campus and many of my football and baseball teammates smoked all the time), it really didn’t tempt me. I never succumbed to smoking (or drinking for that matter). But I didn’t have the same strength when it came to girls and trying to be popular. I had my high school crushes and girlfriends which I of course had to hide from my parents which would spawn webs of lies and more lies.

I, like Adnan, went to homecoming dances (because I got elected to the royalty court twice), only to get caught by my parents both times after lots of lies. The first time, when I was a sophomore, I told my parents I was going to a sleepover at the gym for my football team. My parents wouldn’t even let me spend the night, so I told them to pick me up at 11.

I put on a suit that I covered up with a baggy sweatshirt and sweatpants and then got dropped off at school and then went off to the dance with my date. I got delayed at the dance and my dad ended up waiting for me, and eventually, after sifting through my web of lies, he coaxed it out of me that I was at a dance. He was upset and became even more upset a couple weeks later when he found a school newspaper that had a picture of me while at the dance with the rest of the homecoming court.

My senior year, I told my parents I was going to watch a basketball game where one of my Muslim friends was playing. Instead, I snuck off to the dance with my date, only to run late again. My parents started to call my friends and their parents and quickly found out that I wasn’t at anyone’s basketball game that night. Caught again!

Adnan, in many ways, is me. We’re both Muslim, the same age, went to high school at the same time and shared many common experiences. Adnan’s story, combined with my own experiences, remind me of the saying, “There, but for the grace of God, go I.”

Not guilty but not innocent

In my closing arguments at trial, I illustrate to the jury a spectrum: on one side, innocent, and on the other, guilty beyond a reasonable doubt. I describe to the jury that my clients, are, by law, to be presumed innocent. So they start off on the one side of that spectrum: innocent.

I tell the jury that it’s the prosecution’s burden to prove my client guilty beyond a reasonable doubt. I tell them that they can only convict my client if they’ve ended up on the complete other side of that spectrum: guilty beyond a reasonable doubt.

Then, I go on to tell them that if they fall anywhere in the middle of that spectrum, they’re to vote not guilty. If they think my client is likely innocent, they’re to vote not guilty. Even if they think my client most likely did it, but harbor any reasonable doubt, they are to vote not guilty.

In the last episode of the podcast, Sarah Koenig, Serial’s producer, described Adnan’s case as a mess. A mess equals reasonable doubt. Reasonable doubt equals not guilty. “Not guilty” and “innocent” are not the same.

I think Adnan is not guilty, but I harbor doubts about his innocence. Adnan’s answers, or lack thereof, and the fact that Jay had both Adnan’s car and cell phone on the incident date nag me and create hesitation about his absolute innocence. I don’t think he’s anywhere close to an 18 or 19 for guilt on that 20 scale; my thoughts on his culpability fall much closer to the “innocent” side of the spectrum I described, especially given Adnan’s good character, lack of violent history, Jay’s motives to lie and fabricate, and the lack of physical evidence.

Legalities aside, as a Muslim I was always taught to give people the benefit of the doubt; to think of every excuse why a person didn’t commit the crime or sin they’re accused of. And I give Adnan that. I give credit to his word.

I believe him.

Shaky Evidence

Despite all the flaws in our criminal justice system, I tend to trust juries to do the right thing. As I look back at trials I’ve been honored to participate in as a public defender, I generally believe that juries have gotten things right, even when the result was against me and my clients. I do not believe that I’ve had an innocent client convicted by a jury, with the exception of perhaps one or two, but even with those, I’m not entirely certain.

Juries, in my limited experience, will do the right thing and will apply the law, especially holding the prosecution to their burden of proving their cases beyond a reasonable doubt, as long as we as defense attorneys do our jobs. When defense lawyers, public defenders and private attorneys alike are detail oriented, thorough, smart, deliberate, respectful and passionate, juries listen and they apply the law. They will, more often than not, acquit, even in serious, difficult, challenging, emotional cases, provided the defense adequately and appropriately exposes the reasonable doubts in the prosecution’s case and evidence.

As such, the only explanation for a jury convicting Adnan, in just two hours no less, based on the limited, inconsistent and shaky evidence in his case is that his lawyer, Christina Gutierrez failed miserably to do her job. I can’t help but shake my head when I think of her performance that arguably has landed Adnan Syed in prison for the past 15 years.

Among her many failures:

1) She apparently didn’t walk the scene at Best Buy because it wasn’t presented or discussed at trial that the pay phone there potentially didn’t exist.
2) She failed to even interview Asia or her boyfriend to develop Adnan’s potential alibi.
3) She seemingly failed to master and respond to the cell phone evidence.
4) She failed to hammer home to the jury that Jay got a sweet deal that ended with no jail time; one of the jurors interviewed assumed Jay also went to jail and was surprised to learn he didn’t.
5) She berated and harshly handled Jay, a young black man, in front of a majority black jury in Baltimore, making him a sympathetic character rather than adequately painting him as an inconsistent, lying witness with tremendous motives to fabricate and implicate Adnan.

Serial also resonates deeply with me as a Public Defender. Sarah Koening has done a remarkable job of being detail oriented with Adnan’s case, uncovering the various flaws of the prosecution’s case and the problems with his defense and trial. The podcast reminds me to be just as detail oriented for my clients to ensure that they receive justice – something I believe Adnan was deprived of.

A competent, healthy, diligent defense attorney, without any question, would have convinced at least one, or perhaps all, of that jury panel to acquit Adnan Syed in a case with such unreliable and incomplete evidence. I don’t blame Jay, the police or the jury (as much) for Adnan’s conviction. I blame Christina Gutierrez.

A final word…

All in all, the podcast makes me sad. Hae Min Lee died a horrible, tragic death. Adnan Syed continues to serve a life sentence for a crime that he perhaps didn’t commit and after a trial where he was robbed of effective assistance of counsel.

Even though the podcast has ended, the story goes on. There was no real way to “end” it. In fact, in many ways, the story is just beginning. Adnan still sits in a Maryland correctional facility. His appeal process isn’t over. The Innocence Project is working up his case.

I pray for justice for Adnan, and Hae, even if that justice doesn’t come in this lifetime.

Editor’s Note: Sajid A. Khan is a deputy public defender for Santa Clara County in San Jose, CA. This commentary originally appeared on his blog, Closing Argument (http://thesajidakhan.tumblr.com) and is reprinted here with permission. The opinions expressed here are his own.