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Previously On Serial…

iPhone playing episode 12 of Serial, with earbuds draped over the screen
photo by Casey Fiesler

Spoiler warning: This blog post discusses details from the entirety of the first season of the podcast “Serial.”

Has our justice system reached a point that even if you are innocent of a heinous crime with which you are charged, the rational thing to do is seek a plea deal rather than face a jury?

Maybe I would think so if I had the credentials - and the cynicism - to be a law professor at the University of Minnesota like JaneAnne Murray, who recently argued as much in a column for The New York Times. I will never have those credentials. I fervently hope I never have reason to be that cynical, either, but after listening to “Serial,” I am getting closer.

“Serial” is a podcast spin-off of the popular radio show “This American Life.” The now-complete first season focused on the 1999 murder of Baltimore teenager Hae Min Lee, and the subsequent investigation and prosecution of Lee’s ex-boyfriend, Adnan Syed. The podcast was an unexpected sensation, averaging more than 1.5 million listeners an episode. Many of those listeners took to the Internet to discuss their reactions to the program.

Perhaps one of the most-asked listener questions, now that the story has concluded, is whether Syed will receive a new trial. Alan Dershowitz, writing for The Guardian, observed that “current law is very much against him.”

We don’t know whether Syed killed Lee. But thanks to the fine journalism of “Serial” narrator Sarah Koenig and her co-producers, we know that the jury that convicted him did not get the whole story, even to the extent it could have been known at the time. Jurors never saw or heard the witness who came forward on her own to say she saw Syed at the library at the time the prosecution said he was committing the murder. They did not know that the pay phone outside a Best Buy, from which the prosecution’s main witness said Syed called him after murdering Lee, did not exist. They could not have known that in an interview published just weeks ago, the prosecution witness, Jay Wilds, would say that he did not first see Lee’s body at Best Buy, as he testified, but rather outside his grandmother’s house. They did not know that the sequence of events Wilds first gave, before he spent hours with investigators and eventually changed his timeline, was physically impossible, as Koenig and her producer determined by trying to retrace those steps.

Jurors were also told that cellphone records put Syed and Wilds together in the early afternoon hours, when prosecutors said Lee was killed, and in the early evening when Wilds testified she was buried. But the records do not support them being together until the hours just after 6 p.m. Wilds now claims that the burial, in a shallow grave in a wooded park, took place close to midnight.

There was no physical or forensic evidence tying Syed to the crime. DNA testing of the body and items found at the burial site was either nonexistent or missing from the record. (A Virginia Innocence Project team is currently trying to obtain such tests.) No witnesses saw Syed with Lee the afternoon she disappeared. No evidence conclusively established the time, or even the date, of her death. Prosecutors offered as a motive that the then 17-year-old Syed was distraught over his breakup with Lee, and invoked his family’s Muslim background in order to imply that his honor was at stake. At bail hearings, American-born Syed was described in strong terms as a flight risk who had unsavory contacts in Pakistan. But Syed, according to his own recollection and those of several of his peers, was on friendly terms with Lee and her new boyfriend, and he already had struck up new relationships with other girls in the weeks following the breakup.

None of this proves that Syed did not kill Lee. But none of it proves that he did, either, and certainly not beyond a reasonable doubt. With a good defense lawyer and a fair jury, Syed would almost certainly go free if he were retried. But as Dershowitz noted in his column, courts only rarely and grudgingly offer retrials, and the circumstances in this case do not cry out for one. Except for the fact that the millions of listeners of “Serial,” and the followers of the case around the world, are now watching.

It is a great argument for cameras in the courtroom. Granted, observation might not have made a difference in 1999 or 2000, when Syed was tried; his case would have seemed run-of-the-mill at the time, and might not have caught a TV outlet’s eye. But today, any trial can be streamed on the web, and people with knowledge of a case - someone like Asia McClain, the witness now willing to swear to Syed’s whereabouts the afternoon the prosecution claimed he murdered Lee - might be in a position to know when their information could be helpful. McClain says Syed’s defense attorney, Cristina Gutierrez, never contacted her, and that the lead prosecutor, Kevin Urick, led her to believe that the evidence against Syed was so overwhelming that her testimony wouldn’t matter.

Urick testified then, and maintains now, that McClain was pressured by Syed’s family, which McClain denies. Urick, like Wilds, has been willing to discuss the case recently - just not with Koenig and her colleagues, who are intimately familiar with the case details and who might ask questions he would rather not answer. Koenig said she attempted to reach out to Urick multiple times since early 2014, though Urick claims not to have heard from her until the week prior to the last podcast episode. Koenig did contact Wilds, but he declined to be interviewed at the time. Curiously, both Urick and Wilds chose the same obscure online outlet, The Intercept, in which to grant post-“Serial” interviews, in which they both basically said they did nothing wrong and that justice was served by Syed’s conviction and life-plus-30-years sentence.

McClain apparently begs to differ. In an affidavit, she said Urick not only misled her, but also misled the appeals court about what she saw and her willingness to testify. Urick also said he was just being civic-minded when he connected Wilds to an attorney - who first met with Wilds in Urick’s own office - who negotiated the plea bargain that allowed Wilds to walk if he provided the testimony Urick needed to convict Syed. Jurors never learned that Wilds’ plea deal would allow him to go free; one of the jurors expressed surprise on “Serial” when Koenig told her that he had.

On-screen crime dramas usually wrap up neatly. We find out whodunit and, typically, justice is served. Life does not always imitate art, and it certainly did not in this case. We don’t know whodunit; neither does Koenig, as she freely admitted in the final episode. Thanks to “Serial,” we do know that the jury in Syed’s case did not know whodunit either, certainly not beyond a reasonable doubt.

That is enough to make us consider whether the cynics are right about juries and the justice system. Even for an innocent defendant, it may be more idealistic than rational to trust them.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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