After what felt like an interminable break for Thanksgiving, “Serial” returned this morning with its tenth episode, “The Best Defense Is A Good Defense.”
Coming just a day after a grand jury in Staten Island, NY failed to indict a while police officer, Daniel Pantaleo, in the murder of unarmed black man Eric Garner (despite videotapes which showed him using a choke hold on the man), it’s hard to separate current events from the 1999 murder of Hae Min Lee and conviction of her ex-boyfriend, Adnan Sayed.
“Serial” creator Sarah Koenig has peripherally discussed racial biases and assumptions about the story’s primary (real life) characters: Sayed, who is a Muslim American of Pakistani heritage, Lee, a first-generation Korean-American and Jay, the prosecution’s main witness, who is African-American. But up until now, “Serial” hasn’t delved into the role that prejudice and biases played in Sayed’s conviction. In fact, over at The Awl, Koenig has been taken to task for her “white report privilege” and for viewing Sayed and Lee from an outsider’s perspective. But, perhaps in response to some of this criticism, this week’s episode tackles the issue head-on — at least in terms of a potential bias against Sayed because of his heritage or religion.
This Week’s Focus: Racial and Religious Prejudice
This week’s episode begins on December 8, 1999 with the jury selection for Adnan’s first trial, where the judge is clearly on the lookout for any prejudice — against cops, Koreans, Muslims, what have you.
Though there was no blatant prejudice against Muslims exhibited, Adnan’s mother, Shamim Rahman, said she feels certain he was targeted “because he was a Muslim child, that’s why they took him. Of course, I do believe it. It was easy to target, for them to come in and pick him up. I say discrimination because we are Muslim and minor in this country, so that’s why they took Adnan.”
Koenig outright dismissed Rahman’s suggestion that the cops were anti-Muslim, but acknowledged that perhaps anti-Muslim sentiment crept in inadvertently. She then presents some pretty damning examples of overt anti-Muslim sentiment from Adnan’s bail hearing, where all sorts of unsubstantiated accusations were loosely thrown around that basically suggested Adnan had access to a “badass uncle” in Pakistan who could reportedly “make people disappear,” and that his connection to the local mosque would help make it easy for him to flee the country. So clearly, his religion and his heritage came into play when it comes to the trial, where he was referred to as ‘Pakistani” even though he is an American of Pakistani heritage.
“It shows how easy it is to throw stereotypes into facts,” said Koenig, who referred to many examples of “casual prejudice” against Muslims.
Though, when Koenig interviewed jurors, while they said religion didn’t affect their views, she did find that “stereotypes about his culture were there, lurking in the background.” One juror, for instance, said “In the Arabic culture men rule, not women,” to explain Adnan’s supposed rage at being spurned by Hae.
The Newest Evidence: Did M. Cristina Gutierrez Blow It?
Koenig segues from discussing racial and religious bias into the question of whether Adnan’s lawyer, M. Cristina Gutierrez blew the case. In previous episodes, Koenig has questioned why Gutierrez never called Adnan’s classmate Asia McLean to follow up on the letter she had sent (saying she had seen him at the library the day he was accused of murdering Hae). McLean had no reason to lie to protect Adnan and she would have been the ideal alibi witness. So why did Gutierrez never follow up with her?
When Koenig talked to Adnan about Gutierrez, it was clear that he trusted his lawyer entirely. “I have a great deal of affection for her. She really had my back,” he said.
But not only did Gutierrez fail to call McLean, she also created a situation (via a bench conference in which the judge accused her of lying) which led to a mistrial in Adnan’s first trial, which according to reports had been going well. It’s maddening to consider that if the first trial hadn’t ended in a mistrial, Adnan might not have been convicted (the jurors were later polled and said they would have acquitted Adnan).
Since Gutierrez died of a heart attack in January 2004, there’s no way to question her, but this latest episode certainly raises serious doubts about her competency. Though she had a great reputation as a defense attorney and she probably didn’t throw the case on purpose (as Adnan’s family friend, attorney Rabia Chadry has suggested), her strategy for conjuring reasonable doubt was opaque, to say the least. Her main defense seemed to rest on the theory that someone else committed the crime — Jay, Hae’s new boyfriend Don, or “Mr. S.,” who discovered Hae’s body.
The attorney was dedicated and well-respected in her field, but by the second trial, her questions were often rambling and Koenig suggested that “her punches — and there were many punches — don’t always appear to land.”
Her “sing-songy aggression,” as Koenig put it, surely grated on the jurors, and her cross-examination questions seemed to go nowhere. She never attacked the state’s timeline or pointed out that the cell phone log didn’t match Jay’s testimony — and the jurors seemed to side with Jay, a confessed liar, over Gutierrez.
Even more disturbing, there are suggestions that Gutierrez was desperate for money and was too ill to properly do her job (she had diabetes and MS and chain-smoked). By the second trial, Adnan’s mother remembered, the attorney seemed nervous and agitated and often bullied the family for more money.
In another case Gutierrez was handling at the moment, Gutierez was late on filing for briefs and allegedly asked for thousands of dollars to pay experts, who were never paid. (As a reporter for the Baltimore Sun, Koenig actually covered the complaints against Gutierrez, as well as her disbarment, in 2001.)
Certainly, whether she purposely threw the case or not, something was seriously wrong with Gutierrez. In fact, according to colleagues, she went downhill fast after Adnan’s conviction. She was depressed and a year later, her career collapsed entirely. The state had to pay out nearly $300,000 on 28 claims against her for taking money and not doing the work she had promised. Perhaps, Koenig said, she was in denial about how sick she was.
Most Quotable Moment:
“She could be a giant pain in the ass, but also, she was a giant in the profession.” – Sarah Koenig, referring to Gutierrez
Jay had a plea agreement with the state: He plead guilty to the felony of accessory after the fact and in the end, he got no jail time. The prosecutor in the case helped provide him with an attorney who represented him pro bono. Gutierrez only found out about this fishy situation during the trial, a clear violation of the rules of discovery. Also, the deal raises questions about the unconventional set-up. Folks in the “Serial” Reddit thread have suggested that perhaps Jay was a police informant, which would explain a lot. Let’s hope that Koenig digs deeper into this theory in future episodes.
At the end of the broadcast, Koenig refers to recent reports of a new appeal for Adnan. “It is still alive by a thread,” she said of the case. The main argument is that he had ineffective assistance of counsel, with the brunt of the claim about the fact that Gutierrez didn’t look into Asia McLean’s alibi and also never pursued Adnan’s request for a plea deal.
But if Adnan is innocent, why would he want to take a plea deal? While at first he trusted that the system would sort things out and the truth would be revealed, he soon realized that the odds weren’t in his favor. Innocent until proven guilty may be a nice notion, but clearly, it’s dangerously skewed against minorities. Whether or not you think Adnan is guilty, it’s seeming shockingly clear that he didn’t have a fair day in court. Let’s hope that changes with the new appeal set to happen in January.