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Bar News - February 18, 2015


Opinion: Serial Is Nourishing for Lawyers

By:

The best piece of legal reporting in 2014 was about a case that went to trial in 1999 and 2000. “Serial,” a podcast produced by Sarah Koenig, with the help of folks from This American Life, was a riveting, detailed, and truly unique piece of journalism. In an age when Nancy Grace shouts at guests and the general public embraces Shakespeare quotes about lawyers with glee, Koenig highlighted a criminal case in a way that gave the general public a real sense of what it is like to look at a complex criminal case as a lawyer.

For those who haven’t listened to Serial, you can find it in the iTunes store or at its own website, www.serialpodcast.org. The show ran for 10 episodes and each was between 30 and 60 minutes long. It covered all aspects of the trial following the murder of Hae Min Lee. Hae and the person convicted of her murder, Adnan Syad, were high school students in a Baltimore magnet student program. The podcast looked at the evidence with painstaking detail and did so from a perspective almost foreign in today’s legal reporting – indulged the presumption of innocence. The results were engrossing. Like a novel you can’t put down, once you start listening to Serial, its binge listening until the end (which I won’t spoil).

The podcast is great for lawyers because it does a few things very well, things we’d benefit from incorporating into our professional activities. It also lets us in on how juries undoubtedly think about our cases.

First, Koenig’s style is both refreshing and approachable. She manages to convey a complex set of facts without bias in a clear and understandable way. Trial lawyers could learn a thing or two from Koenig. There was very little jargon, very little spin, and lots of questions. She followed a fundamental rule of good journalism (and storytelling) and showed the audience the facts, instead of telling them what the facts were. There was never a sense that she was boiling things down in a way that favored one side. She also wasn’t kitchen-sinking people – while she presented lots of information, she wasn’t afraid to say that some pieces of information were more important than others. All too often we know the facts of our cases so well that we can just spout them out, but we don’t consider the audience, and Koenig’s presentation did just that.

Second, Koenig demonstrated the importance of tracking down all sorts of leads. Our clients come to us situated in the world, bound to a particular context, and from that position all sorts of things seem important. Lawyers sift through those facts and figure out which are relevant, legally speaking. But in that sifting process, sometimes we are too aggressive and pass by a crucial piece of information.

The lawyer in the Serial case was a highly accomplished criminal defense lawyer. She had a very solid theory of defense. She had a star witness to attack. While her style was clearly grating, she knew what she was doing. But as you will hear, she missed a crucial and provable alibi. There were notes about it, but no follow up, and what likely happened was that she just missed it, as she sifted through the mountains of information. Koenig didn’t. Koenig followed every lead, even going so far as to recreate the route the defendant was alleged to have taken the day of the murder, timing buses and stop lights. But because Koenig didn’t sift the way lawyers do, she found this alibi, standing out like a beacon, amid a pile of facts that were irrelevant or broke both ways.

Finally, Koenig’s reporting led me to a realization about how cases works. Cases are, in a way, a singular event. They cannot, however carefully done, be recreated after the fact. Cases that go to trial, like the arrow of time, flow in one direction. We can, in egregious cases, find clear fault (hence the ineffective assistance of counsel standards), but absent that, it’s hard to say some lawyer did something totally wrong. Syad’s attorney attacked at the right places and hit the right witnesses hard on cross, but she still lost the case (after getting a mistrial the first time it was tried).

Koenig’s reporting also showed me that the law’s relationship with the truth is asymptotic – we can approach, but never truly get to the truth. All of her research and all of her work got her closer than I think anyone else, the jury included, but in the end, there is an irreducible amount of uncertainty in a process that attempts to recreate the past perfectly.

Go listen to Serial. Drop it on your phone and listen while driving around from court to court or commuting. It’s worth it. It will make you a better lawyer. And if it doesn’t do that, it will make you prepared for parties where people ask you about Serial because, well, you’re a lawyer, and it seems as if EVERYONE has heard something about Serial.

Editor’s note: On Feb. 6, the Maryland Court of Special Appeals agreed to hear an appeal of Adnan Syed’s conviction, scheduling argument for this June.


Sculimbrene

Anthony Sculimbrene is a public defender in the Nashua office of the NH Public Defender and a graduate of the New Hampshire Bar Association Leadership Academy.

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