Serial Recap: Episode 10, The Best Defense Is a Good Defense

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“Maybe my prejudice is showing through, but who in the world would let their daughter date a man named Adnan Masud Syed?” 

Serial picked a good week to talk about institutional racism in our justice system. This week’s episode is super-sized, running almost an hour (longer even than the premiere, which was a full episode of This American Life), and, playing armchair producer, I wonder if Koenig and her team didn’t see what happened in Ferguson and decide to use their week off to delve deeper into this topic than they might have otherwise, tacking it on to the episode they already had. After last night’s surprising and terrible decision in the Eric Garner case seemed to get half of the city out in the streets protesting, it’s pretty obvious they made the right decision. This is something we need to talk about.

How much did Adnan’s conviction turn on his race? Remember, this all happened in 2000, before 9/11. It’s almost hard to remember what we as a society thought of Islam and the Middle East back then.  So much has happened since 9/11, and Americans have learned a lot about Islam in spite of themselves: an average episode of Law And Order displays a pretty shockingly high level of literacy with Islam and Pakistan and Iran and everything else with which we’ve been forced to get familiar by our decade plus of wars in the region. Back in 2000, we just weren’t there. James Bond villains at the time—a pretty accurate indicator of who America thinks the bad guys in the world are—were an out-of-control media tycoon and a rogue North Korean Colonel.

Given all that, it’s surprising how similar our stereotypes were at the time. Pakistanis are a strange and insular community, the thinking of many people involved in the case seemed to go, obsessed with honor, who kill women basically at will without consequences. The prosecutor says the word “Pakistani” like her mouth is suspicious of it, making it tumble out “Packy-stan-ee” (Adnan, by the way, was born in America). She looks at a room packed with Adnan’s whole community—lawyers, doctors, corrections officers, as they’re characterized by his attorney at the time—and sees a bunch of suspicious strangers, people who are anxious to pat Adnan on the back and smuggle him out of the country.

That quote at the top is from a website which tracks dead bodies found in Leakin Park, but many of the jurors seem to have similar attitudes. “I’m not sure how the culture is over there, what they’re taught about women. He just wanted power over her, and she wouldn’t give it,” says one . Another says, “In the Arabic culture, men rule, not women. I remember hearing that.” These are all arguments that get deployed against Latino defendants, and African-American ones, too. These people aren’t like us, it goes, they’re so macho and aggressive, who knows what might happen if you crossed one! They try to conjure the bleakest thoughts you might have if you saw someone different from you in an empty late-night subway station. Who knows what’s going to happen?

As this episode reminds us, our justice system—cops, lawyers, judges, and juries—are made up of people, of Americans. You can’t draw a neat line around things that happen there and demand reform of the legal system, or just say that the legal system is broken. What happens there reflects the rest of society. Let’s remember that in both the Michael Brown and Darren Wilson case, the cops in question were relieved of their responsibility in these deaths not in some shady back room deal, but out in the open, by a jury. Whatever racist thoughts the cops in those cases had, it seems that they’re shared by plenty of people on grand juries.

Lots of other stuff happened this week! Including maybe the first time I have ever heard the New York Times sponsor a podcast. Serial’s moving up in the world! Maybe most interestingly, we finally learned the reason for the mistrial in Adnan’s first trail: his lawyer started an argument with the judge in front of the jury, something they don’t usually recommend in law school. The lawyer, Cristina Gutierrez, had claimed in open court not to have seen a document everyone involved knew full well that she’d seen, something she’d signed off on during the discovery process. The judge called her to the bench and told her he wouldn’t allow her to lie in court, which descended into a tense and loud back and forth.  This came just days after the prosecutors had complained to the judge that she’d called one of them an asshole, which, okay, is a little tattle-tail-y. The judge had replied by calling Gutierrez “a pit bull on the pant-leg of justice” and advising everyone to get on with it.

This time, though, the jury had heard. Gutierrez asked for a mistrial, and the judge revealed that he’d gotten a note from Alternate Juror #4 that read, “In view of the fact that you’ve determined Ms Gutierrez to be a liar, will she be removed? Will we start over?” Gutierrez’s motion for a mistrial was granted. This was a big deal: a poll of the jury after the mistrial revealed they’d been leaning towards acquitting Adnan.

Much of the episode focused on Gutierrez and her work with Adnan and other clients. We learn that she’d been taking on too much work, that her health was in decline, that she filed motions late, that she made ridiculous and unprofessional demands for money that would be more at home in a kidnap thriller, like telling Adnan’s parents to bring her $10,000 in cash at the courthouse. Gutierrez died in 2004 of a heart attack while in the hospital, suffering complications of multiple sclerosis. I’ve known people who died after long battles with illnesses, and they don’t strike you all at once. There’s usually a prolonged and painful period of decline, made all the worse by the sick person’s desire to ignore the changes and their anticipation of a day when they’ll be “better,” a day in all likelihood they’ll never live to see. Indeed, in this episode we learn that Gutierrez was hospitalized for long stretches going back to 2000, and that her colleagues had seen her decline as long ago as 1995. She just didn’t want to believe it.

So, did Gutierrez tank the case? Considering this, Koenig says at one point, “I do not believe Cristina threw this case on purpose.” The way she says it, there’s just a bit of a pause before “on purpose,” that’s just not quite big enough to warrant an ellipsis, but it’s definitely there. She lost the case, obviously, but maybe there were things she should have known she wasn’t getting right, signs she should have seen that she was slipping. What Koenig doesn’t doubt is her dedication, and her desire to win. Koenig speaks to one of Gutierrez’s former staffers who says she went into a deep depression after losing the case from which she basically never recovered.

Maybe she doesn’t deserve all the blame we’ve been heaping on her, and that she obviously put on herself. As we’ve seen in the past few weeks, the deck was stacked against her as soon as the jury saw the color of her client’s skin.

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