During this weekend’s NOLA roadtrip, my girlfriend and I decided to get addicted to a podcast called Serial.  The show was put out via podcast on a weekly basis for twelve weeks in late 2014, hosted by This American Life‘s more-than-impressive Sarah Koenig. We were late to the party and there is content all over the internet about the show.  Don’t research it.  Just jump right in. http://serialpodcast.org/

 

To sell Serial – a podcast spinoff of This American Life – to my attorney friends, I would ask them, “Do you want to feel like a juror?  Want to get engrossed in the evidence of a murder?  Want to tell yourself ‘Sure, I could give a defendant the presumption of innocence’ only to realize it is much easier said than done?  Want to hold the State to its burden of proving a case ‘beyond a reasonable doubt’ only to mentally convict a guy based on circumstantial evidence and what is obviously a contrived narrative?”

 

Here’s how I would sell Serial to everyone else:  “It’s a true-crime drama. Like on TV.”  (Every non-lawyer loves lawyer shows, right?)
I’m not one to get addicted to shows (never finished Sopranos, Mad Men, or Breaking Bad). By the time we returned to the Shreveport, picked up Lucky Palace and ate our dinner with TV off and iPad on, we had finished all 12 episodes of the show’s first season, which told one of the most interesting and confounding stories I’ve ever heard.
The show follows the story of a group of high school seniors in 1999 Baltimore (perhaps even more interesting to me because I was a high school senior in the same year).  Adnan Syed, an American son of Pakistani Muslim immigrants, attended the magnet program of a large high school.  Handsome.  Athletic.  Popular.  Intelligent.  He was convicted, after weeks of trial, of killing his classmate and ex-girlfriend Hae Min Lee, an American daughter of Korean immigrants.  Pretty.  Athletic.  Popular. Intelligent.

 

Syed was sentenced to life in prison and is still there.  He maintains his innocence.

 

Adnan Syed was arrested for the murder because of a flip-flopping story relayed to the police by his acquaintance, Jay.  Jay graduated the year before.  Jay was dating Syed’s best friend-girl, the pretty, popular, athletic, intelligent, Stephanie.
During the twelve episodes, Jay is described as a mere “acquaintance,” he is described as Syed’s “friend,” he is a small-time drug dealer, a big-time dealer, a shady guy, a nice guy . . . the contradictions are endless.  Jay and Adnan smoke weed together frequently and are evidently close enough for Adnan to lend Jay his car and cell phone for a few hours on January 13, 1999.  In case you missed that, this “drug dealer” has no car, no cell phone, he borrows these things from his high school friend, he dates a high-school girl . . . yeah.  And Adnan Syed would not have been convicted without Jay’s testimony to the jury.
And this is definitely not a case of an indigent defendant or a lawyer doing a terrible job.  Adnan’s parents, likely with the help of the Baltimore Muslim community, hired what was then considered to be one of Maryland’s best criminal defense attorneys to represent him.  The attorney may have made some mistakes (only one glaring) but no one disputes her reputation.
So what did I learn about the law from listening to Serial?
For one, it confirmed my long-held opinion that the system is inherently flawed.  One instance of this, specific to this case:  the police investigators do not seem to be seeking the truth.  Rather, they seem to be seeking a story that can hold enough water to convict the guy they already think is guilty (confirmation bias).
Secondly, it drove home what it means to be presumed innocent.  The presumption of innocence is a philosophical construct, and sadly, one that our brains cannot get on board with.  It is virtually impossible for an average individual, sitting in a jury box, to presume the guy in the defendant’s chair, on trial for the crime, is free from all wrong-doing in the crime.  This presumption is supposed to exist at the beginning of trial, and theoretically it is supposed to remain until all evidence is submitted.  Listen to Serial and see if you can do that.  I could not.

 

Thirdly, and along the same lines, our brains do not get on board with holding the government to its burden of proving a defendant guilty beyond a reasonable doubt.  Again, legal burdens of proof (they vary depending on the type of case) are philosophical constructs, even though law professors make them out to be tangible, material, and physically observable.  They are not.  “Beyond a reasonable doubt” is a legal fiction, and it is supposed to be the toughest hurdle to jump.  Throughout Serial, the synapses in my brain were trying to connect the dots in order to find the answer.  The government’s case mattered less to me than finding the right answer.  In this way, I was a juror with the wrong attitude and perspective.  Jurors want to arrive at the truth, and sometimes fill in far too many gaps that the prosecution is leaving wide open because they have no evidence to fill the holes.  Our brains and imaginations do fantastic jobs of filling in these holes to construct a rational narrative.  That narrative reflects our bias.  Adnan Syed was a very likeable teenager – we want him to be innocent.  I am a criminal defense attorney – I want him to be innocent.  I imagine that many prosecutors and law enforcement officers would listen to Serialand think exactly the opposite – the man is on trial because of police work and prosecutorial efforts – and they want him to be guilty.

 

More than these, though, I am a human being – I want to be right.  My brain spent most of these 12 episodes constructing a believable narrative.  I think jurors do this.  I think if that narrative makes your client look guilty, they find him guilty.  Even if there’s shaky evidence presented against him.  Even if a guy like Jay, with a flip-flopping story, is the State’s best witness.

 

Listening to Serial, I was forced to try to keep an open mind.  It is not our mind’s default position to remain open.  It wants to shut.  It wants to close the deal.  A brain, by design, wants to put together the pieces of the puzzle.
Serial was fantastic.  For the first time, I was a juror.  I know how I’m going to vote, and it gives me pause because I’m only voting this way because of the State’s burden (and because I’m a lawyer).  As for the other 11 men and women in the room with me, they don’t seem to care about the State’s burden.  A girl is dead, this is a murder trial, and a guy is charged with the crime. They just want to be right.