Legal Reflections for the Venture Community on the “Serial” Podcast

Guest post by Stuart Gasner, Partner Keker & Van Nest LLP

No doubt many venture capitalists were, like millions of others, captivated by the recent podcast “Serial,” produced and narrated by This American Life reporter Sarah Koenig. The podcast had all the charm of an old-fashioned radio serial, telling the story from several perspectives of the murder of Baltimore high school student Hae Min Li, and the trial and conviction of her former boyfriend Adnan Syed.

As a former federal prosecutor, I was curious about the real story. So I dug into the transcripts and exhibits and other source materials available on Reddit and elsewhere, and have the following to report of potential interest to the venture community.

The presumption of innocence is as dead as ever. As anyone who has listened to “Serial” can attest, the murder case against Adnan was thin, hinging on the testimony of a single witness and a lot of “pseudo-corroboration” from some cell tower pings. There was no physical evidence whatsoever, a defendant with no history of violence, inconsistent stories all around, and reasonable doubt galore. Yet the jury convicted in just two hours after a six week trial. Juror interviews and Koenig’s narrative all suggest that Syed’s failure to testify or to offer a convincing alibi, plus the absence of another plausible perpetrator, led to his conviction. None of that has much to do with the weight of the prosecution’s affirmative case, which is supposed to be what the “reasonable doubt” standard is about. In other words, the presumption of innocence is as mythical in practice as the tooth fairy. White collar defendants beware.

Your lawyer matters. Christina Gutierrez, now deceased, was Syed’s lawyer. Her “nails on a chalkboard” voice was bad enough, but it gets worse when you read the transcripts of her cross-examination of the government’s main witness, Jay Wilds. She keeps a witness who is killing her on the stand for 5 days, asks a million pointless questions, and lets her good stuff (Jay is a compulsive liar) get lost in a sea of irrelevancies and minor points. Pretty much every mistake in the book.

The medium is the message. Sarah Koenig raises lots of reasonable doubt in the course of 12 episodes, but remember, it’s a radio show that she gets to produce from beginning to end. There’s haunting “whodunit” music, lots of clips from the defendant protesting his innocence, and it’s all told from the perspective of an investigative journalist who “wants to get to the bottom of the story.” A criminal trial, in contrast, sends pretty much the opposite message. The guy who presumably did it is the one called the “defendant” who the police keep pointing at; the government gets to go first and takes up the vast majority of the air time before the defendant can present any evidence; and the rules of evidence are designed to let in the kind of evidence that the government has in abundance (photos of the crime scene, testimony from police officers, etc.) and to keep out the interesting stuff that leads to critical thinking and doubt (much of which ends up being called hearsay). And there’s no music at trial!

Geolocation evidence is becoming increasingly important but the law is developing. The Syed trial took place in 1999, when cellphones were just starting their march to ubiquity. Nonetheless, the government made highly effective use of celltower ping evidence at trial. It wasn’t nearly as strong as the government made it out to be – many of the pings did not corroborate Jay’s story at all – but it gave the illusion of corroboration. The trend towards relying on an increasingly large body of available electronic data is likely to continue, although courts are in a state of flux about how to deal with it all. The Supreme Court ruled last year that smartphones cannot simply be seized incident to arrest, in part because they contain so much information that they are more akin to a person’s house or office, therefore requiring a search warrant. Some courts have cut back on the admissibility of celltower ping evidence, but it’s not as clear as “Serial” would have you believe. One court’s restrictive ruling, for example, was based on the use of the pings to show a highly precise location (a particular building in a kidnapping case) by triangulating cell towers.

Adnan’s case is not over. Thanks to Serial, Adnan’s post-conviction review has gotten new life, with the Maryland intermediate court of appeals agreeing to review the trial court’s denial of post-conviction relief. That case hinges largely on deciding whether Syed’s lawyer was so bad as to be considered a denial of his constitutional right to counsel. The University of Virginia Innocence Project is also preparing a motion to seek DNA evidence and a comparison to a variety of other suspects, including that serial killer mentioned in the show as having been released from prison shortly before Hae’s disappearance.

Are podcasts the end of radio? Serial made me figure out that app sitting on my smartphone. Now, I have pretty much stopped listening to the radio in my car, preferring to listen to podcasts and Sticher streaming from my cellphone via Bluetooth. No ads or irritating DJs or uninteresting stories. The readers of VC Experts know more about where media is headed than I do, but, wow, I’d be worried if I owned an expensive radio station!


Stuart Gasner, Partner

Stuart Gasner is a Partner at Keker & Van Nest LLP in San Francisco where he centers his practice in the areas of white collar criminal and securities defense, intellectual property litigation and complex corporate disputes. His clients include venture capital firms and their portfolio companies, investment partnerships, and companies in industries ranging from biotechnology to semiconductors. He can be reached at sgasner@kvn.com and (415) 676-2209.

Keker & Van Nest LLP

For more than thirty years, Keker & Van Nest (www.kvn.com) has litigated complex, high-stakes civil and criminal cases throughout the nation. KVN takes the make or break cases where companies, products, careers and reputations are riding on the result.

This article reflects the law at the time of writing, but is for general educational purposes only, and should not be construed as legal advice or legal opinion on any specific facts or circumstances. It reflects personal views of the author and not necessarily those of the firm or any of its clients. For legal advice, please consult your personal lawyer or other appropriate professional. Reproduced with permission from Stuart L. Gasner. This work reflects the law at the time of writing in March 2015.

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