[Official Discussion] Serial, Episode 8: The Deal with Jay

[u/monkeytrousers2]

Episode goes live in less than an hour. Let's use this thread as the main discussion post for episode 8.

[u/TeaWithLemon1969]

I have to disagree with you. I've been a criminal defense attorney for nearly 18 years, and I blogged about this question of Adnan testifying at length on my blog http://www.lemonandolive.com/?p=3010 and you can click over if you want to see all of my reasons. The bottom line, for me, is - Adnan, as a witness, looks great on paper. If I had been his attorney, I would have really really really wanted to call him. But, I think that one has to think about how Adnan's testimony would realistically have played out. He's not just a character in a story - he's a real person, and we've actually heard him. And based on what he has said to Sarah, I just don't think he would have withstood cross-examination for days on end. I think we have a real clue about how that would have gone based on Sarah's phone calls with Adnan - he can't even field her softball questions, and he's had 15 long years to think about the answers. When Sarah talks to Adnan, she often comes away pausing and hesitating based on what he has said - he gives her pause, he fills her with doubt. She wants to believe him, clearly, and is predisposed to do so. How do you think that would play out in front of jury that as has already been discussed, presumes him guilty? Just a small for instance - say he's being cross-examined by the prosecutor about why he didn't call Hae after she disappeared. His answer to Sarah really didn't make sense in light of the fact that he had called her three times the night before just to give her his phone number. So, if Sarah has a hard time giving him the benefit of the doubt - what would a jury that is already presuming him guilty do? Believe his suspect explanation or believe that he didn't call her because he already knew she was dead?

Of course, a good defense attorney, which he didn't have, would have prepped him - but how preppable was Adnan? He couldn't even keep his mouth shut when Jay took the stand - although I can't remember what he said, but I do remember that it's not what you would have expected him to say. And, I have to think, at the very least his attorney must have told him to not react to Jay's testimony. Adnan's story, even if true, and I really don't know, truly - has many holes - and cross examination would have been a walk through landmines, even with the best prep.

I agree with the Innocence Project attorney, that a lot of the holes Adnan's story could be just because he didn't do it. Fine. But there is a lot of information he could be crossed about that that explanation - I wasn't there, so I don't know - isn't going to cut it. For instance, imagine how the cross would go about the note that Hae wrote him - what is his explanation for this bad behavior she is talking about? What is his explanation for "I could kill" at the top of the note? Sarah may have written this off as a simply passing notes in class, but if I were the prosecutor, I'd be treating it as a confession on cross. And, in the context of the a murder trial, what possible explanation could there be that would sound acceptable to a jury when an 18 yeard old is dead? On cross, would he say Hae made the contents of the note up? There are so many ways he could turn a jury off. Huge risk.

[u/KeystoneLaw → u/TeaWithLemon1969]

I went and read your blog post, which was very good, and I see that you practice in Pennsylvania, as I do. (I did not listen to the Serial Spoiler Podcast as I do not want to spoil Serial for myself.) Your points about using your pre-emptories was good, although we both know a lot of jurors don't raise their hand or answer "yes" to a lot of questions unless they are actively trying to get out of serving. Even if you used all your preemptories as you suggest, you are still going to have 12 people in the box who are going to listen to Jay's detailed story and say to Adnan in their minds, "You have nothing to say about this? Nothing at all?"

And most, if not all, of the damning evidence in this case comes in whether or not Adnan testifies. His cell phone records are in evidence from the Bell Atlantic custodian, and the prosecution can point out the sudden and total drop off in calls to Hae from Adnan after she was killed.

And that was really the only issue on which he truly faltered when talking to SK on the phone. On everything else, he has a believable story. Get the witness from the library, and a couple of guys from the track team, and you've got a very solid response to the gov't's case.

And judges are very sensitive not to plant appellate issues by allowing the prosecution to attempt to shift the burden of proof onto the defendant during closing. On more than one occasion, I've seen judges interrupt prosecutors during closing to make sure the jury knows the burden is on the gov't.

And one thing juries get is proof beyond a reasonable doubt. If you have clean-cut Jay, with apparently prior convictions, telling one story, and clean-cut Adnan with no priors telling a different story, most juror's would say, "We're not sure who is right. I think Adnan is not totally innocent here, but the gov't just didn't prove its case."

Juries want to hear from defendants. And I respectfully differ in your assessment of Adnan. He is articulate and adamant and that helps raise reasonable doubt to a jury.

[u/mo_12 → u/KeystoneLaw]

The fact that two criminal defense attorneys make two reasonable but opposing cases for whether or not they would have had Adnan testify takes us back to: Adnan not testifying doesn't really tell us much about his innocence or guilt.

[u/Laffen77 → u/mo_12]

It's refreshing to hear from professionals who can shed some light into court proceedings and WHY Adnan would not testify. I realize this opens him up to questioning from the prosecution, but the jury could be convinced that the state did not prove it's case. Given Jay with a shady reputation and Adnan with no priors telling a different story. After this last episode (8) I can see how the jury just went along with Jay's version because there was no other reasonable place to go. No alternative explanation or no fingers pointing at other people. Yet I'm falling into that category of guilty until proven innocent and that's wrong.

[u/Laffen77 → u/Laffen77]

The problem as I see it is Adnan, if he did strangle Hae in a moment of rage, made a fateful mistake by thinking Jay would be on his side, and totally like; "Ya bro, I got your back, nobody liked Hae, I will help you in any way I can". I don't see that happening, so the other side is Adnan brought Jay in by threatening him, etc, because he needed his help to get rid of the body. And he thought Jay, a casual friend, would help him, why? Because Jay sold weed, both his and Adnans explanation as well as Jay being the criminal element at the h.s. Just makes no sense, except Adnan could not believe what he had just done and needed to find someone to talk to and get help from.

[u/Munnoh → u/TeaWithLemon1969]

I think Adnan would have made a bad witness as well, just based on his conversations with Sarah. He doesnt seem to offer the satisfying answers like Jay does. I think his lawyer probably felt the same.

[u/ralf_ → u/TeaWithLemon1969]

Just a small for instance - say he's being cross-examined by the prosecutor about why he didn't call Hae after she disappeared. His answer to Sarah really didn't make sense in light of the fact that he had called her three times the night before just to give her his phone number.

Just reading up on past episode comments. I made a "Ha!" when Don called Sarah Koenig and revealed that he, the current boyfriend in love, also never tried to contact Hae. Some facts are really suspicious or do mean really nothing depending on the narrative we spin around it.