I’ve listened to Serial, and after it, I came away thinking, “The justice system is unfair, and Adnan Syed may have been guilty, but he never should have been convicted,” which is the impression that most people came away with after listening to the podcast. I also watched HBO’s The Case Against Adnan Syed, and while the documentary is not very good, by the end of it, I’d finally begun to question Adnan’s guilt. The case, as presented by Serial and a clearly one-sided HBO documentary, had done a remarkable job of narrowing the case down to a few cherry-picked elements — Jay Wilds, the cell phone records — and credibly impeaching those elements.
If a jury had listened to Serial, and if that same jury had then watched A Case Against Adnan Syed, I’m convinced that no jury would have convicted Adnan Syed. Unfortunately for Adnan Syed, he did not have Sarah Koenig or Amy Berger at the defense table with him when he was being tried for murder back in 1999. He had Christina Gutierrez.
I hate to speak ill of the dead, but holy crap, she was a bad attorney.
After I came to the conclusion last week that Adnan Syed might actually be innocent, I received an email from someone who had a few personal insights into the case. It was a very reasoned and thoughtful email, and unlike most of the emails I get involving Adnan Syed (or Steven Avery), there was no yelling. The reader simply suggested that I go back and read the primary source material, and by that, I assume she meant the trial transcripts.
So, that’s what I did. Did it change my mind about whether Adnan Syed is guilty or innocent? Not really. But I understand why the jury convicted him. In fact, had I been on that jury, I probably would have convicted him, too. Why? Because the defense did a terrible job. As a trial attorney, Christina Gutierrez was thoroughly incompetent.
I went to a very good law school. I did fine, ended with a B+ average, and passed the bar. But I understood after I took a class in trial advocacy and a legal services clinic that I could never be a trial lawyer. I couldn’t speak in a courtroom. When a judge asked me my name in a divorce case, I could barely eke it out. In front of a courtroom audience, the things that made sense in my head came out of my mouth in a scattered and incoherent manner. In a trial setting, it would have been a huge disservice to any client to have me as their attorney.
Adnan Syed basically got a version of me as his attorney. In a murder trial. His entire life rested in the hands of someone who could not successfully string together three sentences in a row coherently, and yet, had to speak on Adnan’s behalf for three weeks. No jury could have followed her line of reasoning, because there was no line of reasoning. There was barely a defense.
I want to zero in on the closing arguments of the case here because that’s what any jury is going to remember the most. The prosecution gave a hell of a closing. The defense did not. Here’s a rough list of the arguments they made in their respective hour-long closing arguments (and if this does not interest you, please jump to the closing argument passages below).
Uncontested: It was a murder, in Hae Min Lee’s car.
— Adnan felt humiliated after being dumped by someone he had planned to spend his life with. That was his motive.
— Adnan was driving Hae’s car. He murdered Hae Min while she was in the passenger’s seat. She struggled, and in doing so, kicked the windshield wiper loose (evidence supports loose wiper switch). Bruises on the right side of her head were also consistent with struggling to get away, her head pushed against the passenger’s side door.
— A t-shirt in the car, belonging to Hae Min’s brother, contained Hae Min’s blood, consistent with Adnan wiping blood off her mouth after choking her.
— There was evidence supporting the fact that she was murdered on January 13th (the defense tried to argue that it may not have happened on that day): She was wearing the same clothes she was seen by others wearing that day; no credit card transactions after that day; diary entries ended on the 12th.
— She was seen by one witness with Adnan at 2:15. Hae Min didn’t pick up her cousins at 3:00, as she always did. She also failed to return to school as she had planned to that afternoon for a school trip.
— Even after they broke up, Adnan called Hae Min’s home frequently. Those calls abruptly stopped on the 13th.
— Prosecution could put Adnan in Hae’s car based on evidence of a schoolmate, who on the morning of January 13th, heard Adnan tell her that his car was in the shop and that he needed a ride from Hae Min (Adnan’s car was not in the shop).
— Adnan called Jay Wilds — a person with whom he didn’t have a close relationship — on the night before the murder, and again on the morning of the murder. He gave Jay his car and his phone on the day of the murder.
— Prosecution argues that Adnan picked Jay because if something went wrong, he could point the finger at Jay, a guy who sold marijuana, worked at a porn store, and wasn’t thought of as a good kid like Adnan, et. al.
— There is evidence reuniting Adnan with his phone (and therefore Jay) in the form of a phone all Adnan made to Niesha at 3:22, soon after the murder. Niesha is someone Jay did not know, and therefore, the call had to be made by Adnan. During the phone call, according to both Jay and Niesha, Adnan said to Niesha, “Say hi to my friend, Jay.”
— According to Kristy, Jay and Adnan came to her house around 5:30. Adnan looked troubled (Kristy had no previous connection to Adnan before that day, only with Jay)
— Jennifer Pussatari received a page to pick up Jay. When she arrived at the Westview Mall, she saw Jay and Adnan together.
— The cell phone records line up with Jay’s testimony. Moreover, an engineer also used the same brand of phone to recreate phone calls from the same places in Jay’s testimony and received cell-phone tower pings consistent with the records, and with Jay’s testimony.
— Cell phone records are consistent with Adnan receiving a call from the police while at Kristy’s house. Soon thereafter, Adnan disposed of the body. He called his friend Yassar Ali for advice. Soon thereafter, police received an anonymous tip from Yassar Ali’s phone number. Police record the name of the anonymous tip as from Vassar.
— Jennifer Pussateri called Jay at 7:16. According to cell phone records, the phone was answered in Leakin Park (Adnan answered, and told Jenn that Jay was busy).
— In his initial police interview, Adnan told the police officer that Hae Min was supposed to give him a ride that day, consistent with witness testimony (he later changed his story).
— Adnan’s French teacher asked questions around the school to help homicide detectives. Instead of showing concern for his missing friend, Adnan asked his teacher not to mention him during the questioning out of fear that his parents would find out he was dating Hae Min. A page containing questions to be asked of students was removed from a planner while in Adnan’s possession.
— Hae Min was very busy that afternoon. The person she agreed to give a ride had to be someone with whom she was close, otherwise, why would she give up her time? Moreover, Hae Min had given Adnan a ride just two days before, showing a pattern.
— Adnan’s fingerprints were on a map in the backseat of Hae Min’s car, with a page ripped out that led to Leakin Park.
— There were no other fingerprints in Hae Min’s car except for Adnan’s.
— Adnan claimed to be at the mosque from 8-10 during continuous prayer. He made two calls to Niesha around 9:01. Kristy Meyers received calls from Adnan at 9:03 and 9:10. He was in his car when those calls were made, according to Kristy. Calls made during that time frame were from the Leakin Park area, according to cell phone towers (and nowhere near the mosque, according to records).
— On a letter from Hae Min to Adnan telling him that their relationship was over, Adnan had written at the top of the page, “I’m going to kill.”
— Jay’s testimony is inconsistent. He lied, and a person who lies, always lies.
— The police didn’t investigate Hae Min’s boyfriend, Don, adequately.
— Alonzo Sellers was not investigated adequately, nor is there any explanation provided for why he went so deep into the woods to pee.
— From her vantage point, Jenn never could have seen Adnan when she picked up Jay.
— Adnan didn’t need a map to find Leakin Park, because everyone knows where it is. Also, the fingerprint is on the outside of the map, not on the page.
— The prosecution didn’t provide any evidence proving that Hae Min died or was buried on the 13th.
— Different phones and different quality of phones supposedly register cell phone pings differently, and besides, the prosecution can only prove that the phone was in those areas, and not who was holding the phone.
— Adnan was at track practice, according to inconsistent testimony, at the time that Hae Min was murdered, even though (according to the defense) the prosecution can’t prove when Hae Min was murdered.
— Adnan was cooperative in police interviews, and therefore, he’s a good kid who wouldn’t murder.
— Adnan and Hae Min had been broken up for a month, and there had been no problems during that month, ergo, why would he kill her?
— There were hairs found on Hae Min’s body. The prosecution couldn’t prove they belonged to Adnan (but the prosecution also couldn’t prove they didn’t belong to Adnan). Maybe they belonged to someone else, like Alonzo Sellers?
— It was Ramadan, and he wouldn’t have missed prayer at the mosque during Ramadan.
Most of the defense’s rebuttals I had to infer from context because Christina Gutierrez’s closing was garbage. I want to provide you with a sample of the prosecution’s closing argument, followed by a sample of the defense argument. Put everything else you know about this case aside, and you tell me, after listening to these two arguments, how would you have ruled?
You know that she trusted the person that killed her. She would not have gotten into the car, she wouldn’t have let someone drive her car if she suspected a thing. She trusted the person who killed her.
You know that this person was present at Woodlawn High School because there was only a small window of opportunity — and opportunity is the key word — for this person to get into her car. She had to leave Woodlawn High School and go immediately to the elementary school to pick up her cousins. That person had the opportunity at Woodlawn High School to stop and get her in the car.
And we know, too, that this person had access to her car. She was killed in her car. Ladies and gentlemen, you know from all the witnesses the Defendant clearly had access to the car. He drove it on a regular basis. All the witnesses told you that. More importantly, her car is covered with fingerprints, not just in common areas. In the trunk, in the glove box, in the back seat, in a map in the back seat that just happens to have a page ripped out that leads to Leakin Park. He clearly had access to her car, he clearly was in her car and he knew if he didn’t act quickly, he would be missed.
He knew she had to pick up her cousins. He knew she had to be places, so he knew to take her immediately to Best Buy and do what he set out to do, and that was to kill her.
Most importantly, ladies and gentlemen, the person who killed Hae Lee had reason to do it. He had motive.
Strangulation is an extremely personal crime. To put your bare hands around the neck of a person you know, let alone care about, and squeeze the living life out of them, to look at their face and watch them die is extremely personal. You have to want that person dead, you have a reason. It’s not the task of someone who can shoot a gun from 20 feet away, it’s extremely personal. And remember what he said? ‘How could she treat me like that?’ It’s what she did that made him want her dead.
Hae Lee wrote in her diary on May 11th, 1998, “When I look into his eyes, I know that he loves me. I really love him.” Again, on September 8th, 1999, Hae Lee writes in her diary, “I don’t know what I would do without him. He is the sweetest person I ever met. When life is hard, all I have to do is look into his eyes. Then it’ll all be better.” Imagine the disbelief and the terror when she looked into those eyes on January 13th, those same eyes she writes so politely about in her diary, with one purpose: To kill her.
And what was it that she tried to say at that point in time? The words she tried to get out? I’m sorry. How could she treat me that way?
Defense Closing Argument
There’s a principle in life most of us learn. That’s why our parents never — try to teach us — the principles that most of us act in accordance with what we’ve been taught. Simple little matters. Your parents raise you in a certain way, and I hope you notice the family’s in the courtroom. This has been consistent with everything — speak to the Judge out of your presence, without fanfare — and waits till I go, as I’m sure his mother and father have taught him every day of his life.
And when we’re up here at the bench and we have to step down, he steps down to let me go — treats with respect —
Every word about Adnan in this — she blames herself. There’s never any entry that’s just well, he’s strong you should just go away you’re making — he never does anything like that. Jay Wilds — suggests — such a surprise. How dare she treat me that way. What way? If you read the diary, it’s consistent with what her best friend says, that they broke up at about the first week of December. Everything you’ve heard from teachers and students says the same thing, which would mean on January 13th, they would have been broken up for a month and a week. Not a surprise. All of those who know him describe both — but particularly — remained good friends. You’ll see in her diary that she may have — everything you’ve been told establishes that this was — not the break up and not her being interested in someone, although according to her she didn’t — and according to — no date, no sex, no kissing, no —
Every word you heard, including about how — did he want his parents to know? No. Did he run right up and tell them? Did he make it a big conflict? No. But his parents did the remarkable thing of going to Halloween because his mother could smell it. His mother just knew and they went out to do what they consider — he left. And his father told you that. They asked him to go, he obeyed. And his father says exactly — but knowing that his parents came up in a public place, asked him to leave with them, he did so rather than subject them to —
We’re not here to decide if he’s a good Muslim. Islam is not the only religion in the world that forbids dating and is certainly not the only religion that says no sex before marriage. And it certainly — parents who exercise their right — I’m a Catholic not because I chose it. I was born into Catholicism. My parents chose it. If you’re a Methodist, that’s likely how you got there. They’re no different in many ways. They’re no different — so that —
Mr. Murphy made much of Inez Butler, a very dedicated teacher and molder of human lives — Mrs. Butler on the stand described in detail — except Mrs. Butler back then on the 24th — 25th of January, less than two weeks before she was asked by the Baltimore County Police Department involved in this — she said then that she knew Hae wasn’t. Now — correction this, but when asked about the closest point in time, she says — Hae wasn’t coming back, consistent with what Debbie Warren said at the time, what was her last conversation with Hae and Hae said — — my new soul mate. Inside of two weeks, first date to soul mate — fall in love and never felt such things and feel them deeper than any human being. There are lots of teenagers who love — names of some family for some lone — cultural financial — that has prevented young or can prevent.
But back then when she talked about — according to those who saw her that night, the first time they’re asked to remember is what she was on her way to see may you assume? No. The Judge told you that you can’t assume even though you want to, even though they tell you to. That’s not — that’s not what the law allows you to do.
I want to clarify that the above is verbatim from the transcript. It’s not edited. That is what she delivered to the jury, and the entire closing argument is just like that — sputtering, stuttering, and scattered.
I completely understand why a jury convicted now. What I don’t understand, however, is how an appeals court could reject the ineffective assistance of counsel argument, because Adnan’s attorney wasn’t just ineffective. She was downright detrimental.