Serial’s big confession

This week on Serial, we finally heard something we’ve been hoping for since the hit podcast began: a confession. It didn’t come from Adnan Syed, the main subject of the show, who is serving life plus 30 years in prison for the murder of his ex-girlfriend Hae Min Lee. And although this week’s episode was called “What’s the Deal With Jay?” the confession didn’t come from Jay, the prosecution’s star witness at Adnan’s trial, who said that he helped Adnan bury Hae’s body. Despite host Sarah Koenig’s hope that Jay would answer the questions at the center of this story, there was no new confession from him this week.

Instead, the confession came from a woman named Lisa Flynn, who was a juror in Adnan’s case. At the end of the episode, Sarah asks the juror, “Did it bother you guys as a jury that Adnan didn’t take the stand?” This was her answer:

Yes, it did. That was huge. Yeah, that was huge. We all kinda like, gasped. We were all just like blown away by that. Why not, if you’re a defendant, why would you not get up there and defend yourself and try to prove that the State is wrong, that you weren’t there, that you’re not guilty? We were trying to be so open-minded… it was just like, get up there and say something! Try to persuade, even though it’s not your job to persuade us, but… I don’t know.

Remember, this jury voted to convict Adnan of murder in two hours, even though Jay’s testimony alone lasted five days. They couldn’t have spent much time talking about the evidence. And yet one thing they did talk about was the fact that Adnan should have tried to persuade them by testifying — something the judge explicitly ordered them not to consider or discuss.

After the right to a jury trial and a right to an attorney, the right to remain silent is the most important constitutional right in our criminal legal system. The American system is designed around the principle that a conviction must be based on the prosecutors’ evidence of guilt, and that nobody should be forced to prove his own innocence. This week on America’s favorite true crime podcast, a juror confessed without hesitation that Adnan’s jury neither followed that fundamental principle nor respected his constitutional rights.

The juror’s comment is shocking, but it’s not surprising. No criminal defense attorney can try more than a few cases before talking to at least one juror that makes a comment like Lisa’s. As legal analyst Jami Floyd noted on the Slate podcast this week, it’s “very hard” and “counterintuitive” for most people to presume a defendant innocent. And even though it’s very hard, there are also many jurors who insist that they took the judge’s instructions seriously, and some who even scold other jurors who bring up a person’s choice not to testify. We have good reasons for asking jurors not to think about a defendant’s silence, because even innocent defendants have good reasons to remain silent.

Last week on Serial, law professor Deirdre Enright, who runs the Innocence Project clinic at UVA Law School, explained that

…when you have an innocent client, they are the least helpful person in the world, because they don’t know.

Deirdre mentioned a client who didn’t even know where the crime scene was until she showed him. If an innocent person testifies, he can’t solve the case for the jury. And yet, just by getting on the stand and answering questions, an innocent person can start to “look guilty” — because he doesn’t sound the way you expect an innocent person to sound, or didn’t do the things you expect an innocent person to do, and he can’t explain why he doesn’t match up with the image of the innocent defendant you have in your head. Because he can’t persuade you, even though it’s not his job to persuade you.

This very phenomenon — Adnan’s failure to persuade Sarah of his innocence — has been a huge part of the dramatic arc of Serial. In the first episode, Serial seemed to be a podcast about What Really Happened. Listeners are still attached to that question, with many using the tag #TeamAdnan tag on twitter to indicate that they believe in his innocence. But as the weeks have passed, the show has really become about Sarah Koenig’s Quest to Figure Out What Really Happened. And a lot of that quest has consisted of taped telephone conversations with Adnan in prison. Episode six, titled “The Case Against Adnan Syed,” contains a lot of these conversations, and near the end, Sarah makes this comment:

I see many problems with the state’s case. But then, I see many problems with Adnan’s story too. And so I start to doubt him.

That is why we have a constitutional right not to testify. Because even when you spend 30 hours on the telephone answering every question a professional question-asking person has about your case, and even when that person has interviewed a believable alibi witness and rejected the prosecution’s theory of your guilt, that person can still doubt your innocence.

When the judge ordered the jury in this case to presume Adnan innocent, this is what the judge was really saying:

You are on Team Adnan. Stay on Team Adnan until you know What Really Happened. If he doesn’t testify, don’t gasp. Don’t be blown away. Don’t try to be open-minded. Your job is not to be open-minded. He is a seventeen-year-old boy fighting the entire State of Maryland, and your job is to be on his team.

The jury in this case heard the judge’s order, they understood it, and they chose not to follow it. That’s What Really Happened, and the juror confessed to it without remorse.

Sarah Koenig is not a juror, of course, and she doesn’t have to presume Adnan innocent. And we still don’t know how Sarah’s Quest to Figure Out What Really Happened will end. But for all the open questions raised by Serial, for all the interesting commentary about whether its ending will be a resolution or whether it will be a contemplation about the nature of truth, we have learned one thing for sure: if you believe in the American legal system, then this podcast is a story of that system’s failure. In the first episode of Serial, Sarah says, “If you’re wondering why I went so nuts on this story versus some other murder case, the best I can explain is this is the one that came to me.” There is nothing about this case, this jury, or this defendant’s decision not to testify that makes it different from any other murder case in America. It’s just the one that’s coming to you.