Episode Notes

If you listen to podcasts, you’ve probably heard of the hit series called Serial. Centering around the trail of Adnan Syed, a Baltimore teenager convicted of murdering ex-girlfriend Hae Min Lee, the show offers a deep look into Adnan’s trial and the criminal justice system. To date, the podcast has been downloaded over 68 million times, reached #1 on iTunes, and is now regarded as one of the most popular podcasts in history. From the investigation to the trial and ultimately the conviction, host and executive producer Sarah Koenig carefully guides listeners through events leading up to the conviction of Adnan Syed, who has been serving a life sentence since 1999. With investigative reporting, superb storytelling, and interviews with the people involved in the trial and Adnan’s life, Koenig delivers granular details and analysis that call into question the court’s decision, leaving listeners baffled as they tried to decide whether or not he actually did it. On this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams discuss Serial and the case it made famous with three attorneys: Director of Investigation for University of Virginia School of Law’s Innocence Project Clinic Deirdre Enright, featured on episodes 7 and 12 of Serial and currently working on Adnan’s appeal, Erica Zunkel from the Federal Criminal Justice Clinic at the University of Chicago Law School, and Markus Kypreos from the Fort Worth civil litigation firm Pennington Hill. Together, they analyze the case against Adnan from both sides, offering expert insight on criminal defense and prosecution, the testimony of Jay Wilds, and the portrayal of this case on Serial, all while tackling some of the tougher questions raised regarding DNA evidence, potential alibis, shaky timelines, and the overall defense strategy. If Serial left you with unanswered questions about whether Adnan really did kill Hae Min Lee, why Jay’s inconsistent testimony was still considered credible, or how anyone could even question his guilt, tune in for a unique perspective on the legal elements involved in this case. Hear what legal experts have to say about these questions and whether this type of in-depth look at a murder case is good for the criminal justice system on this very exciting episode of Lawyer 2 Lawyer. Where do you stand? Do you think Adnan Syed is guilty of murder? Professor Deirdre Enright was featured on episodes 7 and 12 of the Serial Podcast series when her Innocence Project Clinic from the University of Virginia School of Law helped investigate Adnan’s case (She is the Director). Prior to her time at the university, Deirdre worked at the Virginia Capital Representation Resource Center, where she represented clients and consulted on cases in all stages of capital litigation, with primary focus on federal and state post-conviction proceedings and Supreme Court certiorari. Erica Zunkel is a clinical instructor in the Federal Criminal Justice Clinic at the University of Chicago Law School. Prior to that, she was a trial attorney at the Federal Defenders of San Diego, Inc. for over six years where she represented indigent defendants accused of federal felony offenses to the Ninth Circuit Court of Appeals and the United States Supreme Court. Recently, and germane to this episode, she was featured in a Marshall Project article weighing in on Adnan’s guilt or innocence based on what she heard on Serial. Markus Kypreos is currently partner for Pennington Hill, a civil litigation firm in Fort Worth, Texas. Prior to that he worked for the Texas Prosecutors Association in Austin, Texas, where he assisted prosecutors with complex criminal procedure issues. Mr. Kypreos was also featured in the Marshall Project article and weighed in on Adnan’s guilt or innocence. Special thanks to our sponsor, Clio.

Transcript

Advertiser: Wrongful convictions are real and this podcast eliminates a lot of the reasons why they happen. In a lot of cases all you have is circumstantial evidence, so when you look at the other evidence that’ll be of circumstantial that corroborates that testimony. I think that’s enough to convict beyond a reasonable doubt. And they don’t test the physical evidence recovery kit and they don’t test the ropes near her body and they don’t test the DNA that’s on the liquor bottle.

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from just outside a blizzard-ridden Boston, Massachusetts, where I write a blog called LawSites and another blog called Media Law.

Craig. Williams: And this is Craig Williams, coming to you from a very sunny and warm 83 degrees Southern California and formerly of Boston, Massachusetts. And I write a legal blog called May it Please the Court.

Bob Ambrogi: And this is why we get paired on this show, Craig, just so you can torture me on a regular basis.

Craig. Williams: Well I moved here, Bob.

Bob Ambrogi: Before we introduce today’s topic, I just want to take a moment to thank our show sponsor, Clio. Clio is an online management system for lawyers. You could find out more about Clio at www.GoClio.com.

Craig. Williams: And recently the Maryland Court of Special Appeals granted Adnan Syed’s request for review of his murder conviction of some 15 years. And then in his case was the subject of a wildly popular podcast series called Serial, which was hosted by Sarah Koenig and it boasted an average of 1.5 million listeners per episode.

Bob Ambrogi: Season 1 of Serial told the story of Adnan’s case centering around the 1999 Baltimore area murder of his ex-girlfriend Hae Min lee. Syed who was then 17 years old soon became a person of interest and in this 12-part podcast series, host and executive producer Sarah Koenig walks us through the events and accounts that eventually led to the murder conviction of Adnan Syed. The central theme of each episode is really whether or not Adnan actually did it. In addition, there’s some controversy raised about his legal defense leading many to question the validity of his conviction.

Craig. Williams: Well here to talk about the case, Bob, first I’d like to welcome Professor Deirdre Enright. For those who have listened to Serial, you might recognize her from episodes 7 and 12. She is the Director of Investigation for the University of Virginia School of Law’s Innocence Project Clinic, which helped investigate Adnan’s case. Prior to her work at the university, Deirdre worked at the Virginia Capital Representation Resource Center, where she represented clients and consulted on cases in all stages of capital litigation, with primary focus on federal and state post-conviction proceedings and Supreme Court certs. Welcome, Professor Enright.

Deirdre Enright: Thank you for having me.

Bob Ambrogi: And in addition today, joining us is Erica Zunkel. Erica Zunkel is a clinical instructor in the Federal Criminal Justice Clinic at the University of Chicago Law School. Previously, she was a trial attorney at the Federal Defenders of San Diego for over six years where she represented indigent defendants accused of federal felony offenses in the Ninth Circuit Court of Appeals and the U.S. Supreme Court. Recently, and germane today’s discussion, she was among those featured in a Marshall Project article that weighed in on Adnan’s guilt or innocence based on what we heard in the Serial podcast series. So welcome to Lawyer 2 Lawyer, Erica Zunkel.

Erica Zunkel: Thank you so much for having me.

Bob Ambrogi: And last but not least we have joining us Markus Kypreos. He is currently a partner for Pennington Hill, a civil litigation firm in Fort Worth, Texas. Prior to that he worked for the Texas Prosecutors Association in Austin, Texas, where he assisted prosecutors with complex criminal procedure issues. Mr. Kypreos was also featured in the Marshall Project article and weighed in on Adnan’s guilt or innocence. Welcome to the show Mr. Kypreos.

Markus Kypreos: Thank you, glad to be here.

Bob Ambrogi: Well, as our listeners are going to be well aware and our guests are going to be well aware, a public reaction to a crime based on news coverage and other media events can be quite different from what the jury hears in the courtroom and what happens in the courtroom. But we want to start with a question first to Ms. Zunkel and Mr. Kypreos based on this Marshal Project article. And in that article both of you kind of weighed in on your ultimate conclusion based on the evidence as it was discussed through the podcast Serial. So I just want to ask you to talk here a little bit about how you came down on Adnan Syed’s guilt or innocence based on what you heard. So Erica Zunkel, let’s start with you.

Erica Zunkel: Well I think it’s an interesting question and I think of it in two ways. There’s thinking about it in terms of whether Adnan Syed was factually innocent, which is something that professor Enright and her clinic are looking into and then there’s really the question of what we’re testing in a criminal justice system. And that is not whether Adnana is factually innocent but whether the government proved it beyond a reasonable doubt. And in that respect I certainly come down on Adnan Syed is not guilty. Serial raised so many reasonable doubts about what happened after the fact and it was certainly interesting to hear about cell phone records that weren’t challenged. Evidence that went back to a failure on the part of the defense attorney to vigorously investigate and have a defense theory for why Adnan was not guilty.

Bob Ambrogi: And Markus, what about you? Let’s hear from you on that.

Markus Kypreos: I agree with a lot of what Ms. Zunkel said and really I approached it a little bit differently in that Mr. Syed had been convicted beyond a reasonable doubt and I was giving great reference to the jury. Because they were able to hear all the evidence and assess the credibility from the witnesses and it was great storytelling from Sarah. But I didn’t ever hear anything to me that exonerated or was exculpatory to the point where I thought that he definitely didn’t do it. And I sort of shifted the birding back because based on the podcast, I certainly understand where people don’t think that based on the evidence presented by Sarah that Adnana is guilty beyond a reasonable doubt. But I don’t know that we necessarily have the same taste presented to us as the prosecution did at trial. And that’s why my initial leaning there was I’ll trust the jury. They were able to hear it all and until I hear more, for me, he was guilty.

Craig. Williams: Well Deirdre, your Innocence Project volunteered to research Adnan’s case, so where do you come out on it?

Deirdre Enright: I feel like I have a reaction that sort of encompasses both of what Markus and Erica said and I don’t take a position at this point because we have only done a quarter of what we will do in the end, hopefully. What I’ve tried to do is see that I return the presumption of innocence to our clients when we begin, and Sarah get me there relatively easily with the number of things that she has uncovered. And I agree too that some of them may well turn out to be red herrings but are neither are interesting but not relevant. But it concerned me enormously when I found the physical evidence that existed and had never been tested. So when you have a woman who has been murdered and maybe even other crimes we don’t know, and they don’t test the physical evidence recovery kit and they don’t test the ropes near her body and they don’t test the DNA that’s on the lip of a liquor bottle next to her and they have a hair on their body and it belongs to neither her or Adnan. That, to me, concerns me enormously. And until I have those results – which will then sort of thrive our investigation plan after that – I certainly put him in the category of people who were wrongfully convicted.

Bob Ambrogi: Adnan’s defense council, Christina Gutierrez, died since the trial in this case and was not interviewed as part of the Serial podcast. But the podcast paints a troubling picture of the defense presented. We talk about evidence not looked at, witnesses not interviewed. There were long snippets in the podcast of her cross-examination of witnesses who sounded like droning and was put into the context of perhaps boring the jury to death. I wonder if from the three of your perspectives who have been in the courtroom, tried these kinds of cases, watched these kinds of cases, how you feel the council was portrayed in this podcast and whether Adnan did get a good defense.

Deirdre Enright: Subsequent to the trial, it was learned that the defense council was very sick and died not that long after the trial. And I don’t know if that is relevant yet – and that’s another area that we want to go down – but it seems that ignoring an alibi or not pursuing an alibi and not looking closely at the physical evidence and talking to the client about whether or not it should be tested. And one person actually mentioned to me that they thought that the first trial that ended in a mistrial was going much better than the second trial. And I have to imagine that the stress and strain, particularly when you’re ill, and to have one trial like that have end in a mistrial and then quickly start in the second one; that she was under considerable straining. Certainly, her tone during the cross examinations that we heard, were not helpful to her client. And I think that just listening to them was difficult, much less being subjected to them in person. And up front I think that her cross examination of Jay Wild ultimately made you feel sympathetic to him. So I think that the defense was definitely compromised and I can’t decide yet where to lay that blame. I know that people who knew her in her better days said she was fantastic. So it seems something was horribly wrong during this trial.

Bob Ambrogi: Erica, Markus, any thoughts on that?

Erica Zunkel: I feel pretty strongly that Adnan did not get a good defense in this case. And of course, listening to it as a criminal defense attorney, I zeroed in on all the things that sort of made me really uncomfortable with what happened. And as professor Enright said, there were certainly things going on in her personal life, with her health; this was an incredibly stressful trial. Nonetheless, if that’s what you’re dealing with and that’s what you’re going through, you owe it to your client to not continue the representation if you don’t think you can do what needs to be done. And it sounds like at one point she did approach cases with a tenacity and a thoroughness of knowing what needed to be done. But here, one of the most funny things to me was that Adnan was being interviewed about Ms. Gutierrez’s representation and he obviously has a lot of fondness for her. But he said something to me that was so telling, and that was that she never told me what her strategy was. She never told me what her plan was. And that, in this type of a case, is inexcusable. You need to be talking to your client about, for example, does he want to testify? You need to go over that with him, that’s his right to testify if he wants to. Certainly in that seeing an alibi witness, but also hiring expert witnesses that can review the cell tower records. Failing to analyze or hire someone to review the physical evidence. Those add up to somebody not getting the vigorous embellished defense that they were owed under the Constitution.

Craig. Williams: Markus, what’s your sense of the timelines that were reported by Jay Wild’s and the alibi that was supposedly to be provided by Asia McClain? There has been some discussion of that so far, but what’s your sense of those things. How do they fit into whether Adnan got a fair trial?

Markus Kypreos: I don’t think you can listen to this and not think that Jay had contradictory statements, you could call lies, if you will. The timeline, I think, is off when you’re really trying to go back and put it all together. But that being said, when you have someone like a witness like Jay who is involved in the crime, these people or all of these co defendants who are involved tend to distance themselves. And they want to distance themselves and they know what they’ve done here. It’s a crime, in this case, Jay helped bury a body, and so he’s trying to minimize his involvement. But ultimately, for me, that is a credibility issue in what the jury gets to hear and decide. And I just think that’s important to point out because Jay – what we know of him – is not really a likeable person, in the limited time that we’ve gotten to know him. But I think when we’re prosecuting a case and you’ve got someone like Jay, who is not likeable and who is a co defendant and is obviously involved in this crime in some way; it’s difficult to convince the jury of what they’re saying and that the testimony they’re giving is accurate. It’s an uphill battle and in this case the jury heard that. They looked him in the eye, they assessed his credibility, and they believed him. And so that’s why I often just defer to them if the timeline’s off, probably, or some of his statements off, probably, but that’s just the nature of who Jay is here. And ultimately, again, the jury heard that and made their decision.

Bob Ambrogi: Before we continue our discussion we’re going to take a short break. We’re going to be back in just a few moments to hear more from our legal experts discussing the podcast, Serial.

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Craig. Williams: Welcome back to Lawyer 2 Lawyer, I’m Craig Williams. With us today is my co host Bob Ambrogi and professor Deirdre Enright, Erica Zunkel and Markus Kypreos. Before the break we were discussing some of the testimony that was offered by Jay Wild and the jury’s evaluation of his credibility. Markus, let me turn back to you about what role do you think the lack of an alibi played in this case.

Markus Kypreos: I think it was big, if you really look at it. Probably 75-80% – that’s just a random number I’m assigning – of this case came down to the testimony of Jay Wild. And you don’t always have an alibi. You don’t always have video of the crime scene, and a lot of juries these days – due to the CSI effect – they want that. It makes it more difficult to prosecute these cases. But in a lot of cases all you have is circumstantial evidence. And so yes, most of it is Jay Wild’s testimony, but then I think when you look at the other evidence that’ll be of circumstantial that corroborates that testimony. I think that’s enough to convict beyond a reasonable doubt and I think that’s where the jury ended up.

Bob Ambrogi: It was interesting because so much of the show kind of focused, the show’s open in the first episode, kind of talking about Adnan’s inability to really account well for where he was during this critical time period. Deirdre I’m wondering what you make of that? How common is that in a case like this? On the other side it was presented during the podcast was that sometimes the events that surround something like this do cause memories to gel; the fact that a murder was committed, that somebody went missing, that police were calling, do help to solidify memories. So what’s your take on the recall issue with this case?

Deirdre Enright: A lot of our cases have this issue that you have young people who do not live their lives by a clock and who sometimes, at certain hours of the day, a lot of people don’t have alibis – other than “I was asleep,” which never works. And the difficult part in this, for me, is that they very quickly realized she was missing and not much time had gone by before they found her. So a lot of people were probably focusing on where they were when this happened. That said – and I’m just going to turn back to Jay a little bit. He concerns me, not just because of what Markus was saying about so much of the case rested on him, but we’ve had many, many cases where the person who sort of red-handed, and a co defendant, is being pushed to give up someone else. And in one particular capital case in Virginia, a co defendant was pushed not just to give up someone else, but to give up a specific someone else. And when he tried to volunteer the correct co defendant, he was redirected to no, no, we’ve got you redhanded, and what we’re looking at is this person, X. And that’s who you need to give us in order to escape jail or prison time,. So to me, Jay might in fact be in that situation where the time we don’t know about the first interviews and the first hours of interviews. And it concerns me that that might have happened in this case; that Jay was allowed to avoid responsibility by saying, how about the old boyfriend?

Craig. Williams: What do you think, generally, of Adnan’s appearance as a Muslim of Pakistani descent. It was mentioned frequently during the podcast; we have a racist issue or some xenophobia that you think played any role in his conviction?

Deirdre Enright: One thing that troubled me a lot was that because motive was a problem, that the law enforcement obtained a report from a person who said, “Let me explain how his religion drives this.” And his girlfriend broke up with him and his honor was being challenged and he couldn’t live in a world where he had been rejected in this way and therefore he had to kill her. Which the report was saying that this was common for people who believed his religion. And of course, he was no more subscribing to the religion at that point in time. He was a high school kid, he was raised in this country, he was smoking pot, playing sports, drinking. The idea that his religious beliefs drove him, strikes me as hugely problematic and a substitute for evidence.

Bob Ambrogi: Erica, I wonder if I could ask you something the podcast brought home again and again, is that nobody really had any alternative theory for what might have happened in this case or who might have done it in this case. As a criminal defense lawyer, how important is it that you have something like that? Is that something you need in order to stage a defense?

Craig. Williams: Well, Bob, that’s typically called the Saudi defense, some other dude did it.

Erica Zunkel: It seems like that’s what Christina Gutierrez was trying to do with some success in the first trial, and more or less just throw stuff out there and say Jay is not credible. There was the guy that they interviewed who had been found in Lincoln Park near the body –

Bob Ambrogi: Mr. S, I think they call him, right?

Erica Zunkel: Yeah, Mr. S, and sometimes that can work where the defense is the government has the burden. They haven’t overcome the burden, we don’t have the burden of proving that Adnan is innocent, and therefore you should find him not guilty. I do think that based on what the jurors said, in this case, afterwards, was we were waiting for him to take stand, we wanted to hear his side of the story, that type of thing. It certainly is common to have that kind of reaction in spite of how jurors are instructed that they have to presume innocent and that the defendant doesn’t have a burden. I think that many people do think that, and that’s why it’s so important if you are the defense attorney to really think through what is the defense theory in this case. Are we putting it all on reasonable doubt, are we going with the narrative of was it another person. That goes back to testing physical evidence. It could have been that the physical evidence was tested back then and some of the people that are in the clinic are investigating now. It could have been that CHristina Gutierrez could have said, it’s this person who did it. And in that case, it probably wouldn’t have even made it to a trial because Adnan would have been exonerated by DNA. But I do think that jurors are wanting stories and narratives that are clear and understandable, and that really didn’t happen in this case.

Craig. Williams: Well, there was a mention earlier in our discussion about DNA evidence and there’s nothing, so far, linking Adnan to the crime that he was convicted for. And you, yourself talked about the CSI effect. How did that play out in the role with the jury to not have any DNA evidence, especially when there is presumably DNA that exists in some of the evidence that wasn’t introduced? Did it confuse the jurors? Did they have any post-conviction interviews?

Deirdre Enright: All I remember is that Sarah had a couple of jurors on Serial who clearly were speculating about issues that they’ve been instructed not to speculate about. But the DNA and the physical evidence was so far removed from everyone, I don’t think it was on anyone’s radar. And it remained off of people’s radar even when we came in, which was only last year. And I asked Sarah, what about physical evidence, and she said no, there’s not any. And the state post conviction lawyer said I don’t think there’s any physical evidence. And I think that everyone assumed, that had there been any, it would have been presented or at least tested.

Markus Kypreos: Yeah, I agree with most of that; there really was a minimal DNA testing done. They did blood on Hae Min Lee’s shirt, which turned out to be her blood. And I have no doubt that Deirdre is going to file the motion later on, probably I would think after the appeal now has been exhausted, to test some of that DNA. And that’s probably the most interesting thing after the fact, but we have an open crime scene here, which is in a park where people were traversing from the time that she was buried. Six weeks, people, and animals, and there were bottles near the body that I’m sure they’re going to have to request to test. And ultimately that other question is what is exculpatory. I agree with Deirdre in the sense that I think the hairs found on Hae Min Lee should be tested as well as the rope. But I also wonder about some of the other stuff around there. The DNA will be conclusive at the end of the day once they’ve taken that, but I just wanted to point out those other issues.

Bob Ambrogi: Before we wrap up and get to the end of the show, I just wanted to ask all of you real quick, if you’d thought at all about perhaps the larger implications of this podcast. As I listen to it, one of the things that struck me is that Sarah Koenig is obviously a very experienced journalist and producer and I was struck listening to the show. A lot of the questions that she asked struck me as almost naive about the legal system and then the more I thought about them I thought, really, maybe a lot of lawyers are just not asking the right questions. This show has had something like 68 million downloads as of this week from what I’ve heard. What do you think the implications of this might be in a broader context. Apart from Adnan’s case, are we going to start to see more of this kind of digging? Is this a good thing for the criminal justice system? Any thoughts on that?

Erica Zunkel: I certainly hope that we do. I think one of the things that’s most interesting about this podcast is hearing non-lawyers delving into a legal case and with all the naivety about it. It gave me some ideas about what kinds of creative things can we do in our own cases and also reflect on what are some of the reasons that people are wrongfully convicted. And the takeaway for me with this case and Adnan’s appeal and the Serial podcast in general is that wrongful convictions are real and this podcast eliminates a lot of the reasons why they happen, whether it’s an overzealous prosecution, ineffective assistance of counsel, lack of investigation. Those things happen in so many cases. Adnan’s is one of so many cases that should be taken a closer look at, and I’m sure that we’d find a lot of the things that we found in Adnan’s case.

Bob Ambrogi: Thanks; Markus or Deirdre, any thoughts on that?

Markus Kypreos: I would just quickly end with I love the show and I love the format, but as Sarah established, it’s very difficult to remember what happened six weeks ago. Much or less years ago, and that’s why it’s a little bit of an issue with recreating the case based on interviews and memories and perceptions now. Because it’s inevitable that people will remember things differently as it comes out in these interviews.

Craig. Williams: And Deirdre?

Deirdre Enright: I really enjoyed how much everyone enjoyed it. I was stunned at how much everyone enjoyed it. Because Adnan’s case looks to me – now, and a year and a half ago – like many our our cases. And many of our cases where we’ve proven a wrongful conviction. And I’m not suggesting that everyone has been wrongfully convicted, but I also realize that a lot of what Sarah did should have been done the first time. Because then it wouldn’t have this twelve-year lapse with people forgetting and people dying and people being gone. In a lot of our cases, all we do is what should have been done the first time. And undoing a wrongful conviction is nearly impossible whereas creating one is often because not enough was done. So I want everyone in the world to know that Adnan may not be as shocking and infrequent as we’d like to think.

Bob Ambrogi: Fascinating.

Craig. Williams: Great, and thank you very much. Since we’ve just about reached the end of our program, we should wrap up and get your contact information; we’ll treat that as the conclusion for this show. So, Markus, how can our listeners reach out to you if they’d like to get in touch with you.

Markus Kypreos: Oh, I’m very scared of the public when they want to contact me, but you can always go to my firm website. Is has all of my information at phblaw.com and email me and I’m an easy Google. There are not many Markus Kypreos’ in the United States.

Bob Ambrogi: Wonderful; Erica?

Erica Zunkel: I’m probably a very easy Google as well, not a lot of Erica Zunkels out there. I have all my contact information at the University of Chicago law school website. My email is [email protected]

Bob Ambrogi: Great, and thank you; and Deirdre.

Deirdre Enright: I’m much like Erica, it’s at the University of Virginia school of law website, and even easier, I’m [email protected]

Craig. Williams: Great, and thank you very much. That brings us to the end of our show, I’m Craig Williams.

Bob Ambrogi: And this is Bob Ambrogi. Thanks again to our guests for taking the time to share their insights about Serial with us. It was really an interesting show; thanks to all of you for being on the show today.

Craig. Williams: For our listeners, join us next time for another great topic. When you want legal, think Lawyer 2 Lawyer.

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