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'Serial' Episode 9: Why the Podcast Ultimately Won't Change the Outcome for Adnan Syed

By Dustin Rowles | Serial | November 14, 2014 |

By Dustin Rowles | Serial | November 14, 2014 |

The Douche Bagginses over on The Daily Mail have a piece of scuttlebutt on Serial up on their website today, suggesting there is “new hope” for Adnan Syed, thanks to the Sarah Koenig podcast. They don’t really offer that many new details, although they do out Jay’s last name, specifically against the wishes of the people behind the Serial podcast. They also suggest that a sh*tty cop might have been behind the investigation, which they imply might lead to Adnan being set free.

But if there is anything that Serial has done so far, it’s that it has practically ensured that Adnan will never be released from prison for the murder of Hae Min Lee.

Let me explain: Most of the “law” an attorney practices comes before and after the trail. There are pretrial motions, and hearing to determine whether a piece of evidence will be able to be submitted in trial, but aside from a few procedural motions and a lot of objections, the job of an attorney during a trial is to spin a narrative (those objections are most often used to interrupt the flow of that narrative). It’s why trials make such good fodder for TV shows and movies: They’re basically just telling stories.

The thing about a trial, however, is that it’s where the “facts” are determined and the credibility of witnesses is weighed. Once the trial is over, those facts and the jury’s determinations of credibility are concretized. If the jury decided that Adnan was guilty based on those facts and based on the testimony of those witnesses, those “facts” and the “credibility” of those witnesses become a matter of record. They are indisputable.

In an appeal process, lawyers aren’t allowed to argue the facts. Neither can you introduce new evidence in an appeal, except under very limited circumstances, and Asia’s alibi letter — discussed in an earlier episode — probably wouldn’t have fit into those very limited circumstances.

There aren’t very many ways to overturn a conviction once a jury has made a decision, and to overturn a conviction, it must be rooted in the law and not the facts. There are other means, but in the case of Adnan’s conviction, the only way to get his conviction overturned would be to prove that 1) he had an incompetent attorney, 2) that there was an egregious mishandling of the case by investigators or exculpatory evidence was intentionally withheld, or 3) that there is a new piece of evidence that is so overwhelmingly exculpatory that a jury, without a doubt, would have made a different decision had it been introduced at trial (something like DNA evidence or an airtight confession from someone else).

The burden on Adnan is incredibly high, and Serial isn’t necessarily helping his case. Nothing that Koenig has introduced so far has given us any reason to believe that there is no way the jury should have found him guilty. Most of us are conflicted based on the facts, and “conflicted” will never lead to an overturned conviction. You have to have incredibly strong evidence that someone didn’t commit the crime to overturn a conviction, and that doesn’t exist here.

She isn’t really helping with the other two outs, either. There was a suggestion early on that Adnan’s attorney blew the case in order to make more money on appeal, but from what we have heard in the podcast so far, that doesn’t seem to be the case. His attorney made some strategic decisions that might not have been wise, particularly in hindsight, but there is nothing egregious enough to illustrate incompetence (it really is an incredibly high bar. Attorneys have fallen asleep during trials, and still, convictions are not overturned based on attorney incompetence).

The other “out” was essentially foreclosed in this week’s episode. Koenig paid a retired detective to come in and look at the evidence, and while he admitted there might have been something “off,” he gave no indication that there was anything egregiously wrong with the investigation. In fact, he stated that the detectives acted appropriately — they tailored their investigation to the narrative that they had conjured, and while we may think it’s unfair to cherry pick evidence that supports a particularly theory, it doesn’t represent the kind of miscarriage of justice likely to get a conviction overturned. In an appeal, a judge would hear evidence from experts just like that retired detective, and if he didn’t find anything horribly wrong, then there’s no way the appellate court would order a new trial.

Sarah Koenig and the Serial audience can retry the case over and over in our minds all they want, and we can draw conclusions that the jury did not. But unless an attorney can prove beyond the shadow of a doubt that the jury was unreasonable to conclude that Adnan was guilty based on the facts that they were given, then all the public sentiment in the world won’t change the outcome for Adnan Syed at the judicial level. The only hope that Adnan realistically might have is that the Governor of Maryland listens to Serial and is so convinced of Adnan’s innocence that he commutes his sentence.

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Dustin is the founder and co-owner of Pajiba. You may email him here, follow him on Twitter, or listen to his weekly TV podcast, Podjiba.