The Serial Podcast, Episode 9: How the Defense Could Have & Should Have Destroyed the Prosecution During Closing

I've done fifteen posts

(here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the ninth episode of the Serial Podcast: "To Be Suspected." This episode deals with "[n]ew information...about what maybe didn't happen on January 13, 1999." From that description, you might think that the episode tells us little about errors that defense counsel might have made at Adnan's trial. But, as I will note in this post, the episode might have led me to defense counsel's biggest blunder.

Early in the first episode of the Serial Podcast, Sarah Koenig notes that

According to Jay's story and the cellphone records, [Hae] was dead by 2:36 PM. So sometime in those 21 minutes, between 2:15 and 2:36, she was strangled. So that's obviously the same window Adnan needed to account for. To quote Adnan, "My case lived and died in those 21 minutes." 

In the ninth episode, we learn that this isn't really true. In the episode, Sarah Koenig notes that "no one actually testifies to the 2:36 timing at trial. This comes from the prosecutor’s narrative alone." Jay does testify at trial that Adnan called him from Best Buy and told him he'd killed Hae. But he doesn't testify that this call took place at 2:36. Instead, Jay testifies that this call was made at 3:45. This is pretty much consistent with Jay's second police interview, in which he stated that this call took place at "[a]bout 3:40." Timing-wise, it's also consistent with Jay's first police interview, in which he said that the "I killed Hae" call was made at "about three-forty something." (although, in this interview, Jay says Adnan and he meet at a strip off of Edmonson Avenue, not at Best Buy).

And what about Jenn? Jay is supposedly at Jenn's house when Jay gets the call from Adnan. At trial, Jenn testifies that Jay got Adnan's call and left her house somewhere between 3:00 and 3:30. This is a bit different from Jenn's police interview, in which she said that Adnan's call to Jay was "probably around three-thirty, four, four-fifteen, well after three forty-five, between three forty-five and four-fifteen."

This means that we have five accountings of the "I killed Hae" call, and none of them are at all consistent with that call being placed at 2:36. In fact, all of Jay's statements place the call as more than an hour later. And that's because...the "I killed Hae" call, if it happened, almost certainly didn't happen at 2:36. After talking with a couple of witnesses, including a reliable witness named Summer who saw Hae at school after 2:36 on January 13th, this is Sarah Koenig's conclusion in the episode: "I’m done considering that it’s true, this 2:36 thing." 

So, why does the prosecution make the argument that Adnan's call is the 2:36 call? As Sarah Koenig notes, if Adnan's call is the next call on his call log, "the 3:15 call, that really messes with Jay’s testimony about where they were and what they were doing that afternoon."

That's all well and good except...the prosecution CAN'T do that! The law is clear in this regard. As the Court of Appeals of Maryland noted in Wilson v. State, 803 A.2d 1034, 1048 (Md. 2002):

In general, counsel are permitted wide latitude in closing arguments. Counsel may comment on matters in evidence and any reasonable inferences to be drawn therefrom. Arguments that diminish the presumption of innocence, however, are not permitted. It is self-evident that an attorney may not argue inferences that are improper or are not warranted by the evidence.

In Wilson, the prosecutor drew inferences not warranted from statistical evidence during closing argument in a first-degree murder case, defense counsel moved for a mistrial, the judge denied the motion and instead gave a curative instruction, the defendant was convicted, and Mayland's highest court reversed, finding that a mistrial should have been granted. 

As Wilson makes clear, when the prosecution makes improper comment during closing argument, the judge can grant a mistrial. As the United States District Court for the Eastern District of California noted in Garcia v. Hedgpeth, 2014 WL 5797077 (E.D. Cal. 2014), "[a] motion for mistrial should be granted when a defendant's chances of receiving a fair trial have been irreparably damaged."

This takes us to Adnan's case. The first question is: Was the prosecution's claim that the "I killed Hae" call was the 2:36 call a comment on matters in evidence any any reasonable inferences to be drawn therefrom? No. Again, Koenig notes that "no one actually testifies to the 2:36 timing at trial," so this was not "a comment on matters in evidence...." Moreover, as I noted above, the people present when Adnan allegedly made the call -- Jay and Jenn -- both testified and made prior statements inconsistent with the call being made anywhere close to 2:36. This means that the prosecutor's comment was not based on any reasonable inference to be drawn from the evidence/testimony. 

The most on point case I could find was Twardzicka v. Nissan, 2011 IL App (1st) 110174-U (2011). Consider the following excerpt from it:

Twardzicka testified that on an unspecified date in early 2004, she telephoned the defendant headache clinic, but "didn't want to leave messages with the receptionist,” so she stated she was calling about “a serious matter," asked if she could have the doctor's "beeper or any private number," and the receptionist would not give her the information. Instead, because her son's treating physician was on vacation, a different doctor called her back. At that point, Twardzicka was "screaming," "frustrated," and "panicking" when she asked for an evaluation by the most senior doctor at the clinic, and the caller hung up on her. Twardzicka gave conflicting testimony as to whether these phone calls were exchanged before or after her son tried to kill himself. Depending on which time line was correct, the phone calls occurred either a couple of weeks or six weeks before he committed suicide. It is undisputed, however, that Twardzicka never told either doctor that her son had attempted suicide. She only asked the receptionist to divulge the physician's private contact information and then had a fruitless conversation in which she was "hysterical" and "furious." Nonetheless, her attorney argued in closing that these phone calls were indications that Artur was not "properly monitored" and that it was "reasonably foreseeable that he would commit suicide." When Twardzick's attorney argued, "there's some evidence that she called the clinic after this [unsuccessful] suicide attempt," the doctors' attorney objected and stated, "This is completely mischaracterizing [the mother's] testimony." Comments on the evidence during closing arguments are proper only if supported by direct evidence or consist of reasonable inferences from the established facts. Copeland v. Stebco Products Corp., 316 Ill.App.3d 932, 947, 738 N.E.2d 199, 212 (2000). The trial judge sustained the objection and stated, "Ladies and gentlemen [of the jury], you are to consider the evidence that you heard."

The same applies in Adnan's case. The prosecutor couldn't try to wedge Adnan's call into his preferred timeline by mischaracterizing the testimony of Jenn and Jay. They testified that Adnan's call was made sometime between 3:00 and 3:45, and there was no testimony to the contrary. Therefore, if defense counsel objected to the prosecution's claim that Adnan's call was the 2:36 call, at a minimum, the judge should have sustained the objection.

What about if defense counsel also moved for a mistrial? As I noted above, "[a] motion for mistrial should be granted when a defendant's chances of receiving a fair trial have been irreparably damaged." In Patterson v. Commonwealth, 429 S.E.2d 896 (Va.App. 1993), the defendant was charged with distribution of cocaine. During closing argument, the prosecutor said of the defendant's customers, "Do you think they go to work every day stoked up on crack, earn a living, or does it come out of the malls and shoplifting, or does it come out of other illegal activity." In finding that the trial court should have granted a mistrial, the Court of Appeals of Virginia noted that

This record contains no evidence that persons who may have bought cocaine from appellant went "to work every day stoked up on cocaine" or that the purchasers obtained money to make the purchase "out of the malls and shoplifting, or...out of other illegal activity." Likewise, these allegations could not reasonably be inferred from the evidence. 

Did the prosecutor's comment in Adnan's case cause similar irreparable damage? I think so. The prosecutor clearly knew that he had no evidence that the Adnan call took place at 2:36, but he had a problem: If Jay's timeline was correct, Adnan's call (3:40-3:45) came after The Nisha Call (3:32). Evidence also tended to show that Adnan's track practice started at either 3:30 or 4:00, which would also make Jay's timeline impossible. So, what does the prosecutor do? He suggests to the jury that the Adnan call was at 2:36, which solves the timing issue. Of course, the fact that this suggestion solves the timing issue also means that it irreparably harms Adnan's case, and I don't think that a curative instruction could fix that harm. The prosecutor has already planted the seed in the jurors' heads that Adnan's call could be the 2:36 call, and an instruction to ignore his comment would likely fall on deaf ears.

So, at a minimum, the court should sustain an objection to the prosecutor's comment about Adnan's call being the 2:36 call, and, at a maximum, the court should declare a mistrial. Of course, this assumes that defense counsel makes an objection or motion for a mistrial, and I'm guessing that Koenig would have mentioned if either of these occurred.

Obviously, a mistrial means that Adnan isn't convicted. What if defense counsel had made an objection that the judge sustained? I have to think that this would have been devastating to the prosecution's case. I'm assuming that, like any good prosecutor, the prosecutor in Adnan's case had a timeline/narrative that he was weaving for the jurors during closing: "This is when X occurred, and then this is when Y occurred, and then..." That certainly seems to be the case based upon the prosecutor trying to claim that the 2:36 call was the "I killed Hae" call. It's establishing the key starting point for his narrative.

If the judge sustains defense counsel's objection regarding the 2:36 call, the prosecution's timeline is blown to smithereens. In fact, at this point, THERE IS NO TIMELINE. Can you imagine the judge sustaining defense counsel's objection and the prosecutor then saying, "Okay, forget the timeline I was trying to establish a second ago. Adnan's call was actually the 3:15 call, and then the 3:21 call was actually...." He'd be laughed out of the courtroom. All the prosecutor could really say if the judge sustained an objecton is, "Listen, I can't give you any coherent timeline for what happened. But I think there's enough evidence for you to conclude that Adnan killed Hae with premeditation." I don't see that going over very well, either.

But wait, it gets worse for the prosecution. If I'm defense counsel and the prosecutor has made the improper comment about the 2:36 call, there's one last thing I can do: Move to reopen the defense case. This takes us full circle back to the first episode and Asia McClain, who wrote Adnan letters saying she saw him at Woodlawn Library after school on the day of Hae's death. Perversely, some have argued that defense counsel acted properly in failing to contact Asia before trial because no rational person would have thought the prosecution would claim that the 2:36 call was the "I killed Hae" call until the prosecution actually made it during closing.

I don't agree with this argument, but, assuming it's true, defense counsel surely should have remembered the existence of Asia during the prosecution's closing argument. As Sarah Koenig has noted, she found (1) a note by defense counsel stating, "Asia plus boyfriend saw him in library 2:15 to 3:15;" and (2) another note written by one of defense counsel's law clerks stating, "Asia McClain saw him in the library at 3:00. Asia boyfriend saw him too. Library may have cameras." When the prosecutor makes the argument about the 2:36 call during closing, someone on the defense team needs to remember Asia and say something like, "Your honor. The prosecution has just for the first time claimed that the 2:36 call is Adnan's call. This is new information, and we had no prior awareness that they would make this argument. We have a witness who saw Adnan at the library at around 2:36, but we didn't use her because everything that Jenn and Jay have said led us to believe that the prosecution would claim the murder took place after 3:00. We move to reopen the defense case, and we move for a continuance so that we can subpoena her to testify about seeing Adnan."

And...the motion is going to be granted. Why? In People v. Newton, 87 Cal.Rptr. 394 (1970), a case in which the Court of Appeal of California found that the trial court erred in not allowing the defendant to reopen his case during jury deliberations, the court stated that the following factors should be considered in deciding whether to grant such a motion:

Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made..., the diligence shown by the moving party in discovering the new evidence..., the prospect that the jury would accord it undue emphasis..., and the significance of the evidence.

Considering these factors: First, in Adnan's case, defense counsel would have made its motion to reopen during the prosecution's closing argument, which comes right after the defense rests its case. This isn't a case like Newton, in which the jury has already started deliberating, a fact which still didn't prevent the Newton court from allowing the defense to reopen its case.

Under the second factor, I still maintain that defense counsel should have contacted Asia before trial. That said, you can see why she didn't. The two other parties to the alleged "I killed Hae" call made at least five statements in which they placed that call between 3:00 and 3:45. Given this, defense counsel could make a convincing argument that she didn't lack diligence in failing to contact Asia.

Under the third factor, here would be a case with too high a risk of undue emphasis: Jay and Jenn have consistently said that the "I killed Hae" call came between 32:30 and 32:45. During closing arguments, defense counsel asks to reopen the defense case and call Asia. In THAT case, the prosecution would have created a coherent framework throughout trial, and Asia's testimony, a punctuated island at the end of trial, would cut sharply against that framework. THAT would be unfair and create the risk of undue emphasis. Allowing the defense to call Asia right after the prosecution claims for the first time that the 2:36 call was the "I killed Hae call;" that's simply a matter of fairness.

Under the fourth factor, the evidence is very significant. Usually, courts find lack of significance under this factor when evidence is cumulative or collateral. An example of cumulative evidence would be the defense seeking to call a fourth alibi witness who claims he was watching a football game with the defendant at the time of the murder after already calling three other people at trial who testified that they were watching the game with the defendant. An example of collateral evidence would be the defense seeking to call one more character witness after already having several character witnesses testify to the defendant's good character at trial.

By way of contrast, in Adnan's case, the prosecution has planted the seed in the jurors' heads that the 2:36 call could be the "I killed Hae" call. And that's because this timing is the only way that Jay's narrative could work given the bookends of the school day and track practice. Given this, having Asia testify that she saw Adnan at the library at 2:36 would be hugely significant to Adnan's defense.

So, if Adnan's counsel made a motion to reopen, the court would have granted it. And...this would have been even more devastating to the prosecution's case. Now, defense counsel can stand up and tell the jurors: (1) the prosecution tried to tell them that the 2:36 call was the "I killed Hae" call because it's the only timing that allows for the prosecution's timeline to make any sense; (2) the judge has now instructed them there is no evidence or rational inference from the evidence that the call was made at 2:36; and (3) I have a witness who has now just testified that she saw Adnan at the library at 2:36. Trial over.

Summarizing all of the above, here's my strategy as Adnan's defense counsel during closing once the prosecution claims that the 2:36 call was the "I killed Hae" call: (1) object and ask for a curative instruction informing jurors that the prosecution's claim is not supported by any evidence or rational inference from the evidence; (2) move to reopen the defense case and for a continuance so that I can subpoena Asia McClain, with the argument being that this remedial measure is the only way to repair the damage done to the defense case; and (3) if the judge refuses to allow me to reopen the defense case, move for a mistrial.

There's no indication that Adnan's defense counsel  did any of this, which may lead you to wonder whether this inaction could have supported a claim of ineffective assistance of counsel. The answer is: "Yes." There have been many cases in which courts have found ineffective assistance based on the failure to object or move for a mistrial in response to the prosecutor's improper comment during closing argument. See, e.g., Simmons v. State, 503 S.E.2d 164 (S.C. 1998). So, why wasn't this part of Adnan's IAC claim? At this point, I again have to emphasize that I haven't seen the transcripts from Adnan's trial. Perhaps they can provide some clarification.

-CM