S01 - Ep. 10: The Best Defense is a Good Defense
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Adnan Sayed.

An inmate at a Maryland correctional facility. This call will be recorded in... From This American Life and WBEZ Chicago, it's Serial. One story told week by week. I'm Sarah Koenig. Today's episode is mostly going to take place in the courtroom. And before we get into the arguments at trial, I just want to play you this thing from Adnan's jury selection.

I used to be a reporter for the Baltimore Sun, and I covered some trials. And if I happen to be in the courtroom for jury selection, it was always such a good reminder of what living in Baltimore was like for so many people.

Here's what I'm talking about. December 8th, 1999, jury selection for Adnan's first trial. Judge William Quarles asks a standard question of the jury pool. Have you or any close family member ever been the victim of a crime, convicted of a crime, served time for a crime, or have pending criminal charges?

A lot of people rise from their seats and then line up to talk to the judge. I can't tell exactly what proportion of the jury pool, but it looks to be at least half. What did you come up to tell me? My husband's son was convicted of murder. Good morning. Good morning. What did you come up to tell me? My house was broken into and we were robbed in the middle of the night about six years ago. Good morning, 37. What did you come up to tell me? My husband was shot. I have a brother that's wanted...

He's 17. In May, my parents and I were victims of an assault. And in October, my aunt was shot in the head. My husband was convicted. Handgun violation. My brother was convicted of attempted murder. And my partner was a rape victim. I was robbed with a small amount of money on the street. Next. 207. 207.

One guy says, we moved from a very peaceful town in Oregon to a violent community. And Judge Corral says, welcome to Baltimore.

Quarles asks all these people whether they think they could still be impartial jurors on Adnan's case. Some say no, and they get dismissed. Some say yes, and he sends them back to their seats. He was on the lookout for prejudice, all kinds of prejudice, against cops, against prosecutors, against Koreans, and against Muslims. One guy tells him he doesn't think he can be impartial because he's got a friend of the Muslim faith, and he's seen him and also his son mistreat their families. A friend of mine that was Muslim faith,

And I've seen him mistreat his family, his wife and everything, you know. And I've seen this go on between him and his son got up. He got married. He did the same thing that his father did. So I just couldn't, you know, be honest with you. Okay. I appreciate that, honestly.

This brings me to something Shamim told me when I first interviewed her. Shamim Rahman, Adnan's mother. Shamim and her husband, Syed Rahman, they believe Adnan is innocent. There's no question about it for them. Adnan's father said to me, we've had no happiness in our family since Adnan was arrested. It has been continuous torture. I don't know what to say. Believe me, it's like my, I mean, my whole body is like numb. You know, I cannot think nothing anymore. Yeah.

But Allah, you know, he didn't do it. What, I mean, how do you guys make sense of what happened? Like, how do you explain what, to yourselves, I mean, not to the outside world, to yourselves, like, how do you understand why? Like, you must think about this. Believe me, that's the only thing, you know, I still believe, you know, because we were Muslim. There's a discrimination.

And everybody feel, the whole community, because it was a Muslim child, that's why they took him. It was easy for them to take him than the other people. This was so, you know... And do you believe that? Of course, yes. I do believe it too, yes. Because it was easy to target, you know, for them to come and pick him up. We still don't know why they're doing it. But again, I say discrimination. Because we are Muslim and we are, you know, minor in this country. So that's why they took Adnan. I don't know. I mean...

You can hear me not believing her, right? The notion that the cops and prosecutors in this case were driven by anti-Muslim feeling, by racism, and by racism alone, that I found very hard to believe. And I still don't believe that, by the way. But I didn't want to write off what Shamim was saying either, because maybe anti-Muslimness crept in, contributed in some way to how the investigation and the prosecution operated, advertently or inadvertently.

Shamim said she hadn't personally felt discrimination just out in the world in Baltimore before the trial. And she didn't feel it after, not even after 9-11. But at a hearing on Adnan's bail status on March 31st, 1999, she felt it. The courthouse that day was packed with people from Adnan's mosque, the Islamic Society of Baltimore. They'd raised tens of thousands of dollars for his defense. They offered to put up their own houses and other properties to secure his bail.

Adnan's attorneys during the bail phase of his case were two guys named Chris Flohr and Doug Colbert. The family would hire Christina Gutierrez soon after for trial. Chris Flohr remembers the busloads of people who came to Adnan's bail proceedings, filling the courtroom and the hallways. He said he'd never seen anything like it before or since. I remember almost every case.

of the available standing space in the courthouse at the Wabash District Court where the bail review happened being full up with people. So a lot of beards and a lot of traditional garb. Many of the people here are people who you would almost say they're extended family. They care for each other's children. It's sort of the old-fashioned sense of community. That's Doug Colbert, who did the talking during this hearing. And so the people who are here in this courtroom

represent the doctors and the teachers and the lawyers and the accountants and the correction offices as well as three religious leaders, imams, who are from different mosques here in Baltimore. So the community here, Judge, is here to say, first of all, that they commit themselves to

to promise, to vow that they will not only supervise Adnan should he be released, should bail be set, but at the same time they will also accompany him to court as well.

After he finished, the prosecutor, Vicky Walsh, took that same crowd, the people Doug Colbert describes as solid, respectable folk who'll make sure Adnan does the right thing. Walsh cast them as a room full of aiders and abettors, the same people who are likely to help Adnan run away to Pakistan. And that's why he shouldn't get bail.

Your Honor, the fact that the defendant has strong support from the community, that is what makes him unique in this case. He is unique because he has limitless resources. He has the resources of this entire community here. Our investigation reveals that he can tap resources from Pakistan as well. It's our position, Your Honor, that if you issue a bail,

then you are issuing him a passport under these circumstances to flee the country. We do not want another Scheinbein situation, Your Honor. We are asking you... I told you I wasn't going to take it. That's Judge David Mitchell telling the big crowd to settle down. Scheinbein is Samuel Scheinbein, a kid who was accused of brutally killing another Maryland teenager in 1997 and then absconded to Israel.

Ms. Walsh said she'd talked to a Mr. Harry Marshall, a senior legal advisor for international affairs with the Justice Department. And Mr. Marshall had explained to her that the U.S. had tried unsuccessfully to extradite certain criminals from Pakistan.

and he cited that there is a pattern in the United States of America where young Pakistan males have been jilted, have committed murder, and have fled to Pakistan, and we have been unable to extradite them back. He gave me a specific instance that's occurring now that's pending in Chicago, where the factual pattern is frighteningly similar.

Again, it's a young Pakistan male who was jilted by his girlfriend who fled the country and they have had no success. And he indicated it would be a dim situation indeed if the defendant would flee to Pakistan. We have information from our investigation that the defendant has an uncle in Pakistan and he has indicated that he can make people disappear. That information about the badass uncle? I think they got that from a non-science teacher. I'm not kidding.

The cops talked to this teacher on March 24th, and in their notes, it says the teacher, Mr. Nicholson, had had Inanna as a student the year before. The word brooding is in there. Then it says, suspect, quote, had an uncle in Pakistan who could make people disappear, unquote. Under that, it says, they drained blood from cow at the mosque one day. He was pumped.

So that odd tidbit from Mr. Nicholson ends up as an argument at Adnan's bail hearing. I couldn't find any other source for it in the detectives' or state's attorneys' files I looked at.

Adnan's attorney made a stab at fact-checking Walsh's information. One thing led to another, and three weeks after that hearing, Ms. Walsh writes a letter to Judge Mitchell, apologizing if she misled the court. She said she'd misconstrued information from Mr. Harry Marshall of the Justice Department. She talked to him again, and he made it clear that there was not a pattern of young Pakistani men committing murder after they'd been jilted and then running off to Pakistan.

And that other case she'd mentioned, the frighteningly similar one out of Chicago, quote, Even in her apology, there's an error. Adnan is not Pakistani. He's American, with Pakistani heritage.

And maybe this seems like I'm parsing. I don't mean to. I'm only pointing all this out because to me, it shows how easy it is to stir stereotypes in with facts, all of which then gets baked into a story. Something like, those Muslim men, they can't control their pride, their passions. They kill their lovers and flee the consequences with the full support of their families and communities. That's what shocked Shamim.

Obviously, the state never said and was careful not to say Adnan did this because he's a Muslim. But they did skirt this idea a few times at trial. They wanted to show that this wasn't a normal high school romance, that this young couple was under an unusual amount of scrutiny and pressure from their families. And because Adnan's culture forbid the very thing he wanted, that's why he reacted the way he did to the breakup. They had various witnesses talking about what happened at the homecoming dance or how the relationship was secret. But they didn't want to show that to the public.

Prosecutor Casey Murphy tells the jury, And in his opening argument, you've heard this language before in an earlier episode, but it bears repeating, Prosecutor Kevin Urich talks about how Adnan reacted when Hay broke up with him. Quote,

Besmirched. It's not a word you're accused by accident. It's not a word you usually hear applied to a 17-year-old kid at Woodlawn High School. It's a word from the old country, where honor killings come from. And this word honor, it comes up a lot too. For instance, one day I was looking through a huge set of documents from the detective's investigation, and I came upon a confidential report.

In late August of 99, so six months after Adnan's arrest, a woman who runs a consulting group that, among its services, helps law enforcement understand other cultures, wrote a report for detectives Ritz and McGillivary. It's titled, Report on Islamic Thought and Culture with Emphasis on Pakistan, a comparative study relevant to the upcoming trial of Adnan Syed. The report is eight pages long. I'm going to skip to the money shot. Summary as it relates to Mr. Syed.

It goes on, And finally,

I have no idea what the cops made of this report, whether they looked at it and thought, oh dear, and stuffed it in a file, never to be considered again, or whether they thought, huh, interesting. But they were, at the very least, in regular communication with this consultant, especially during the early stages of the investigation. Finally, I noticed that Jay also gives a shout out to Islam. It's during the second trial. He's testifying about what happened after he picked Adnan up at Best Buy as they're driving back to school.

Jay says, quote, "This is when we started to talk a little bit. I don't know. He said to me it kind of hurt him, but not really. And when someone treats him like that, they deserve to die. How can you treat somebody like that, that you're supposed to love? And then all knowing is Allah." Yurik asks him, "Did he explain what he meant by that?" "No," Jay says. It's a detail Jay mentions neither to the detectives in his taped statements nor during the first trial. So why now? Allah only knows.

Reporting this story, I found plenty of examples of casual prejudice against Muslims. One of Adnan's teachers, for example, quote, Another teacher I talked to told me she was terrified at the time that Adnan's relatives were going to come after her for talking to the detectives. She told me she assumed his parents were evil.

On that website that lists all the bodies found in Lincoln Park, the author's commentary about Heyman Lee's case is, quote, maybe my prejudice is showing through, but who in their right mind lets their daughter date a man named Adnan Musood Syed?

The jurors we spoke to said Adnan's religion didn't affect their view of the case. Lisa Flynn said maybe at first it interested her, but then she pretty quickly realized that more to the point, Adnan was a teenager in America doing American teenager things. She said once they all understood that, whatever stereotypes they had went right out the window, which is exactly what you'd want in a jury. But when we pressed them a little more, it seems stereotypes about Adnan's culture were there, lurking in the background.

I don't feel religion was why he did what he did. It may have been culture, but I don't think it was religion. I'm not sure how the culture is over there, how they treat their women. But I know some cultures, women are second-class citizens, and maybe that's what it was. I don't know. He just wanted control, and she wouldn't give it to him.

That's juror William Owens. Here's Stella Armstrong. They were trying to talk about in his culture, in the Arabic culture, men rule, not women. I remember hearing that. You mean when you were deliberating, one of the jurors said that? Yes, when we were deliberating. So he had put his whole life on the line for her, and she didn't want no ball of her anymore.

The first thing Cristina Gutierrez, Adnan's trial lawyer, said in her opening statement about her client, this is in the first trial, was, quote, "Adnan Mussood Syed is an American citizen. He was born in this country, like most American citizens."

She obviously knew, despite what happened at jury selection, that the jurors might be prone to anti-Muslim, anti-foreigner sentiment, which probably explains why she spent what seemed to me a nutty amount of time during her opening talking about what an immigrant is, what a mosque is, what Pakistan is, quote, unquote.

She talks and talks about how Adnan was raised, about young romance. The judge interrupts her four times. How much longer will you be, Ms. Gutierrez? Five minutes, Ms. Gutierrez. One minute, Ms. Gutierrez. She's rushing at the end when she rather quickly throws suspicion onto J and then finally onto Mr. S.

I know I've talked about Cristina Gutierrez in earlier episodes, about whether she should have talked to Asia McClain or whether her style might have graded on jurors. But now I'm going to address this question head on. Did she blow it? You might be surprised to hear that Adnan's only beef with Cristina, in terms of what happened at trial, is that she never contacted Asia McClain. He thinks it wasn't deliberate on her part. He just thinks she made a mistake, like a surgeon's slip of the scalpel.

And personally, she was nothing but compassionate towards him, he said, always asking him how he was doing. She made sure he got the skin medication he needed, the glasses he needed. She was his protector. Oh, man, I loved her. I still, I still, I mean, I still, she was just, man, I just, I just had like a great deal of affection for her, man. I just really felt like, you know what I'm saying? She really, really had my back and, you know what I'm saying? You just, you trust, you trusted her that like she knew what she was doing? Oh, yeah.

I mean, completely. Honestly, I couldn't. No one could explain it. No one could understand it unless they're in that situation. The closest thing I could think of is if you combine a doctor, a nurse, a schoolteacher, a coach, and your parents. If you combine all that, then you may have an idea of how much, you know, I trusted Ms. Gutierrez in that situation. Because your life is really in her hands. Literally. Right. Literally. I mean, no, she never really mentioned what her plan would be. I never really knew what it would be.

Christina died in January of 2004. So obviously I can't ask her what her strategy was for conjuring reasonable doubt. I have to go by what we've seen in her notes and in the courtroom. And based on all that, I can summarize her defense theory in four words. Someone else did it. Such as Jay or the new boyfriend Don or Mr. S, the guy who found the body. After all, she argued, we don't even know for sure when Hay died. What day? It could have been the 13th or 14th or 15th.

Christina wanted to show that once the cops zeroed in on Adnan, they ignored other viable suspects. So rather than pinning down an alibi for Adnan, she dumped as much suspicion as she could onto these other players. I mentioned before that Adnan's first trial ended in a mistrial. Here's what happened. Christina was what Chris Flohr described as a fighting person, generally a good quality in an attorney.

That scratchy part of Christina, though, sometimes it could elicit a response, shall we say, in the courtroom. Obviously, it's an adversarial situation. Both sides in Adnan's case were suspicious that the other was playing fast and loose when they could. And it could get bristly. Here's prosecutor Casey Murphy during a bench conference at the first trial before Judge Quarles. Judge, I'm going to object to defense counsel calling my co-counsel an asshole at the trial table. Okay. I did not hear...

I wish I could complain to a judge every time someone called me an asshole. Anyway, Quarles says he knows Christina to be a, quote, pit bull on the pant leg of justice, unquote, but an otherwise courteous person. And how about everybody just behaves themselves, okay? But five days later, Quarles loses his patience with Christina. It's over something small. Kevin Urich asks if he can show Exhibit 31 to the jurors. It's the AT&T call records from Anand's phone, showing calls from January 12th, 13th, and 14th.

Christina says she hasn't seen it before. Yorick says that's not true. She has. They'd already stipulated to the call record. She says, yeah, but I hadn't actually looked at it before. I haven't physically seen this exhibit. Quarles calls him up to the bench. Miss Gutierrez, he says, if you're going to stand there and lie to the jury about something that you agreed could come in, I'm not going to permit you to do that. Christina says, judge, the fact that I agreed, but he cuts her off. That was a lie. You told a lie. I'm not going to permit you to do that.

That's not a lie, Judge. I resent the implication." Christina starts getting heated now. Quarles says, "Please be quiet. Please be quiet." She says, "It's very hard to be quiet when a court is accusing me of lying." I don't want to overdo it here, but it's possible that had this bench conference not happened, Adnan's whole life could have been different. That first trial, according to Adnan, to Christina's colleagues, to people who were watching it, seemed to be going well for Adnan's side. It was moving fast, and Jay seemed to be more on the defensive.

Then this happened. And of course, jurors overheard it, despite the white noise they turn on during bench conferences to muffle the sound. After a break, Christina asks for a mistrial. Corll says he's gotten a note from alternate number four. In view of the fact that you've determined that Ms. Gutierrez is a liar, will she be removed? Will we start over? Corll says to Christina, your motion for mistrial is granted.

Julie Remy was a law clerk for Christina at this time, and she said moving into trial number two, Christina was confident. I mean, look, you know, the jury's polled after the first, at the end of the state's case, and they're giving the indication that they're going to acquit. And then you turn around and try it in front of a different jury, and it comes out completely the opposite. Wait, so you guys polled the jury after the mistrial? I wasn't part of it, but I knew the jury was polled after the mistrial. By her? Yeah.

By her and I believe the law clerks. Maybe Mike was involved. I'm not sure. But the jury was polled and it was at the end of the state's case. They interviewed the jurors and they gave every indication that they were heading toward an acquittal. In fact, it wasn't quite at the end of the state's case. The AT&T expert hadn't testified about the cell tower technology and Jen hadn't taken the stand either, which is significant.

But it's true the jury had heard the bulk of the state's case. You know, to have that information, I mean, you've got to feel pretty good about that. You know, as the defense attorney, I would expect, you know, being a trial attorney myself, that you would kind of want to stay the course and, you know, keep doing the same things and hope to get the same kind of result. But you just never know with these juries.

True, different jury, but also different judge, slightly different arguments, different weather, for all we know, winds blowing slightly more this way or that. There are so many factors, including chance, which no one wants to think about in a first-degree murder case. But of course, luck is part of it, too. About a month later, they start all over again with trial two. Christina's strategy is the same. Try to show that someone else killed Haye.

She did a lot of research in hopes of linking Mr. S to the crime, or at least trying to link him to Jay. Did he patronize the video store where Jay worked, for instance? But she never succeeded. During that second trial, it takes some doing, but she finally gets Mr. S on the stand. He so desperately didn't want to be there. The courthouse staff basically had to prevent him from leaving the building.

So even though he's her witness, he's a hostile witness. Here's Christina trying to get him to explain how work orders at his job got filled. If we could get to that specific job, we would do it at the time. We can't do it at the time. We'd do it when we could get to it. That's my answer. Which might be the next day. Whenever. When your workday would end, you would then leave? I guess so. You wouldn't, well, sir, is that a yes or a no? I'm not asking you to guess. It's a yes. When your workday, don't you leave?

Of course, Mr. S was more of a side dish. Christina's main prey was Jay. She tells the judge. Judge, I'd just like to be heard. It is our entire defense theory to make Jay was the person who committed this crime with all the ways in which he acted guilty and describing the ways, in fact, in which he acted with consciousness of guilt by concealing evidence, his clothes, his boots, his

his outer coat, his shovels, wiping shovels to conceal evidence, as he said, both in his statement and on Cross, to conceal evidence of his involvement. Christina Cross examined Jay on five different days. She was exhaustive and exhausting. Her questions are detailed and deliberate. But somehow the way she questioned him, and maybe it was the half-speed pacing or the sing-songy aggression,

Somehow, to me, it added up to something less than effective. Her punches, and there were many, many punches, don't always appear to land. The prosecution just did like a masterful job of presenting the facts. Adnan says Christina, actually he calls her Ms. Gutierrez, that Ms. Gutierrez did do some great things for him. She was successful in barring the school nurse from testifying at a second trial, for instance. That was the woman who said she thought Adnan was faking his reaction after Hay's death.

But he says he wishes some of her arguments had been clearer.

The state's argument, flawed as it might have been, it was at least linear. It seemed like Christina, Ms. Gutierrez, I don't want to say she was confusing things, but she was just saying it wasn't like a clear outline like the prosecution had. It just seemed like everything was kind of jumbled. Like she took so long to question Jay. She took so long to cross-examine people. It was just like, it was almost like, you know, I don't even remember what we started talking about. Right, you kind of lose the thread of what is this even about. Right, right, right.

To give you an idea, in Jay's first and second tape statements to detectives, he tells them different stories about when Adnan first told him he was going to kill Hay. In the first statement, he says Adnan mentions it that same day, January 13th, while they're driving Adnan back to school at lunchtime. In the second tape statement, he says Adnan told him the night before, and also that Adnan had been talking about it for four or five days already.

When he testifies at trial, though, he goes back to the first version, that he first heard about it from Adnan on the 13th. So obviously, Christina questions Jay about all this. It's fertile territory for her side. Listen to how she does it. This tape goes on for a while, by the way, but I want you to get the full effect. Another occasion, you told them all the conversations I had with Adnan Saeed. They occurred four or five days early. Yes, ma'am. And...

Let me make sure, because now there are new interviews. Your first, your very first interview occurred at a time when there was no tape recording, right? Yes, ma'am. And on that occasion, did you tell them it occurred on the 13th? No. Then your second interview, after the tape recorder got turned on...

Did you tell them it occurred on the 13th? No, ma'am. On the 15th of March, did you tell them it occurred on the 13th? I believe so.

Well, sir, do you recall that actually on the 15th of March, you told them that Adnan told you that he was going to kill that bitch? Yes, I remember. So on the 15th, you actually told them that you knew...

So something just happened. Jay just admitted something or didn't admit something, but I honestly can't tell if it's a point for the defense or for the prosecution or if it's a draw.

There were lots of stretches like this, where it seemed as if her cross-examination went so far into the weeds, it was hard, even for me reading it years later, to hack back to the main trail. A juror that Dana interviewed, a guy named Theodore Wotus, said Christina's strategy was a little lost on them, too. The defense attorney, everybody, you know, it's been a long time ago, but everybody would seem to think that they're talking, but...

They're not saying nothing. You know what I mean? They're not making a point. So there was just like a lot of words. Right. They talked and talked and didn't prove anything. You know what I mean? I think there's a good chance, though, that Christina leaves these threats hanging for a reason.

As another defense attorney explained to me, during cross-examination, you don't want to tie each point up in a bow in the moment. You don't want to tip your hand because then the other side might come back with questions on redirect examination that could undo what you've just laid out. So you save all the threads and then tie them up in a nice, fat, unassailable bow at closing after all the testifying is over.

And indeed, Christina does revisit Jay's testimony at her closing, the gist of which is, the detectives arrested Anand because of what Jay told them, and what Jay told them wasn't true. Quote, and he lied to them about many, many things. It wasn't just that things didn't match up. They were lies. They called them lies. Jay called them lies. On the 15th of March, on the 18th of March, on the 13th of April, every single time, lies. Unquote.

Clearly, Christina put a ton of time and effort into discrediting Jay. But the fact is, the jurors believed him. They didn't think he'd be sitting there talking about this if it weren't true. She was less rigorous on other aspects of the case.

The cell phone records, for instance. Her main argument there was that the way the state's expert, Abramowitz, tested the sites wasn't valid because he used an Ericsson phone to make the calls, a different brand than Anand's, which turned out to be a bad bet on her part. The brand of the phone doesn't matter.

But what she didn't do with the cell phone evidence was attack the state's timeline, call by call, tower by tower, or point out with clarity that a significant swath of the day, the hours between noon and 6 p.m. on the call log, do not match Jay's testimony. There did come a moment in the second trial, though, when Christina really came to life and just kicked ass.

She teased some information out of Jay she hoped would change the course of the proceedings. It had to do with Jay's plea agreement with the state, and specifically the attorney who was representing Jay. According to Adnan, when she figured this one thing out about Jay's lawyer, she told Adnan this was their big chance. I remember just good ears getting really excited about that. Like, this is like a huge thing.

Jay had been charged with a felony, accessory after the fact to first-degree murder. He pled guilty and had an agreement with the state that if he cooperated, basically showed up in court and told the truth, his sentence would reflect that. In the end, he got no jail time. For that plea, he had his own lawyer, a woman named Ann Benaroya. She was representing him pro bono. She wasn't a public defender. She was a private defense attorney.

Now, Christina had been complaining to the court that the prosecution hadn't been totally forthcoming about Jay's plea and how it came about, which isn't unusual in a trial like this one. But in the middle of the second trial, Jay says something, something that Christina would later call the magic information. It happened on the stand when she was asking Jay how Ben Arroyo came to represent him. She asks, did anyone help provide you a lawyer? Objection. Overruled. Yes, ma'am.

Mr. Urich. Mr. Urich, the prosecutor in this case will provide you a lawyer? Yes, ma'am. What? Gutierrez freaks out. This is the magic information. Jay testifies that after his last interview with detectives in April of 99, he had no contact with the cops or the prosecutors until September 6th. So a long stretch where he doesn't know what's going on.

He says he called the Office of the Public Defender to try to see if he could get himself a lawyer. And they told him, unless you've been charged, we can't help you, which is true. So Jay says the next thing that happens is the cops come to see him on September 6th and tell him he's about to be charged with accessory after the fact and that he'll be able to get a lawyer.

The next day, September 7th, they come pick him up, they book him, and they take him to the state's attorney's office. He meets Kevin Urich, the prosecutor. Jay says he's never met Urich before. And then he says Urich introduces him to Ann Benarroya, who can represent him for free. Jay and Benarroya talk privately for a while, and then they sign the plea agreement. Then, that same day, they all go across the street to the courthouse and present the signed plea to a judge.

If you or a loved one is an attorney, your jaw is hanging open right now, correct? Prosecutors do not find attorneys for witnesses they are prosecuting. That is not a thing. A former prosecutor who worked in the Baltimore office at that time said she'd never heard of anything like that happening before. It sounded very strange to her. Hence, Gutierrez's freakout. There is no jurisdiction in America that affords a prosecutor the right to pick counsel. Witnesses nowhere.

If Jay got a free lawyer thanks to the state, Christina argues, that's what's called a benefit. It's worth money. And it could look like Jay is being paid by the state for his testimony, or else maybe Jay felt beholden to the state for giving him this benefit and therefore might lie to please them. And if it could look like that, she says, then the defense was entitled to know about it before the second trial or the first trial began.

And here she was learning about it at this late date. That, she said, was a violation of the rules of discovery. She sounds so mad. The jury's not present for this ranting, by the way. But probably she was also giddy with gotcha excitement. She told the judge this is so patently improper. To have a witness for this benefit, I feel indebted.

in a way that may affect what he testifies to, to the man who provided him the lawyer, to the man who selected the lawyer. Once she'd bitten into this, Christina did not let go. She wanted to wrest from it everything she could, maybe a mistrial, maybe some other relief. They spent hours on this issue over several days of the trial, sometimes in front of the jury, sometimes not.

I called Benaroya about this to find out if it was true that Yurik sought her out and that the first time she met Jay was in Yurik's office on the same day they signed the plea agreement. She said, no, it could not have happened that way. Absolutely not. At trial, though, Yurik doesn't dispute it. And at Jay's sentencing in 2000, Benaroya says to the judge, quote, unquote.

The judge, Wanda Hurd, agreed with Christina that this arrangement looked fishy at best. She was not happy about it. But she also said, the witness in question, that is Jay, he doesn't seem to be aware that it's messed up. He doesn't appear to think he's getting a benefit or being paid in some way for his testimony or that anything untoward went on. So it would seem his testimony isn't tainted by any of this. And that's the main thing.

So A for effort, Judge Hurd tells Christina, but overruled. And that, more or less, was that. In terms of defense witnesses, the case Christina brought was swift. It took about two and a half days for her to rest. Aside from the cops, a private detective, and the guy who surveyed the burial site in Leakin Park, the other witnesses Christina put on the stand were mostly character witnesses who had either neutral or nice things to say about Adnan.

That's Adnan's guidance counselor, Betty Stuckey, reading from a college recommendation she wrote for him, which, incidentally, she printed out for Adnan on January 13th, the same day Hay disappeared.

She was the last defense witness at trial. When Rabia Chowdhury first told me about Adnan's case, she told me she thought Christina had bungled it, on purpose even, so she could make money off the appeal. That was the only way Rabia could account for screwing up the Asia thing. And she said she thought Christina's defense, the witnesses she brought, were laughably weak.

I do not agree with Rabia's assessment of Christina. I do not believe Christina threw this case on purpose. Because from reading the transcripts and watching the trial videos, you can see her scrapping on Anand's behalf at every opportunity.

sometimes in long and rather beautifully constructed extemporaneous paragraphs. She made a thousand strategic decisions about what to pursue when. She had four clerks plus an associate, so five people working on the case. It's not like she did some sloppy rush job. You know, I know that losing the case, she was sick over it. I don't think she ever got over that case.

This is Julie Remy again, who worked for Christina at the time of Adnan's trial. And I can tell you the physical effects and the depression that I saw firsthand. She was, I think she went into kind of a deep depression after that case, and I don't think she ever really bounced back. She really was impacted by the loss of that case.

People who worked with Christina back then, they all said the same thing, that she was tireless and she cared a lot about her cases, including Adnan's. She was always going, going, 100 miles an hour. One guy said she'd sort of fly into the office in the morning, sunglasses on, hair flying, barking orders. She smoked and she cursed and she fiercely mentored her clerks.

She could be a giant pain in the ass, but also she was a giant in the profession, not just in Maryland, but nationally. She did the first or at least one of the first DNA cases in Maryland. To figure out how to explain it to a jury, I heard a story that she went to a grade school and practiced. Each time a kid said he or she didn't understand the science, she started over. Christina did one of the first cases in Maryland that used luminol to track blood spatter. About six people told me she was brilliant, not in a hyperbolic way either.

Despite her stellar reputation, though, it does seem as if something not right was happening with Christine at around this time. Everybody says she's the best, she's the best. So she's, we was like, you know, we was begging her to take our case.

That's Shamim, Adnan's mother. She and her husband consulted with friends and leaders at the mosque about who to hire. Everyone said Christina sounded great. They felt like they were lucky to get her. Whatever she asked for, you know, we'll just go and get it before we lose her, you know, because we was afraid if we lose her, we don't have that, you know, like a nice attorney.

Shamim said Christina's bedside manner, at least with them, lacked a certain delicacy. She said they were both intimidated by her and that they could never get her to talk to them about Anand's case or what was going on. And Shamim says she thought Christina had lost some of her magic in the courtroom by the second trial, that she seemed sort of agitated. So all the time she would be smoking in and out. She was a very nervous kind of person. Before she wasn't like that the first trial.

Christina initially asked for $50,000 to represent Adnan. That fee would more than double by the end of the second trial. Members of the mosque had donated lots of money to help pay her. But Shamim says that toward the end of the second trial, Christina had begun to bully them about money. If they managed to get Christina on the phone or in a meeting, Shamim said the only topic would be money. Money, money, Shamim said.

At one point, Shamim says Christina told Adnan's parents she needed them to bring her $10,000 cash to the courthouse to pay for a jury expert. So it was kind of, you know, strange. But when I told my friend, I said, oh, no, don't worry, she's doing her job, you know. That's weird. That's strange. It was weird to me because, you know. How could you even fit $10,000 in your pocket? And plus she said, bring it cash. Yeah.

Imagine, I mean, usually they're supposed to take the check, like, you know, but she said, no, bring it cash. Oh, wait a minute. Was that the only time that she asked you for cash? Yes. Yeah, she asked for cash. Weird. Yes. But evidently she never hired the expert. Shamim says there came another time toward the end when Christina insisted Anand's parents owed her money and that she could take their house if they didn't pay up. They said they had paid her for everything. They were so scared they transferred their house into their oldest son's name.

I bring all this up because Adnan's parents were not the only ones who had dealings like this with Christina. I spoke to another couple, Ron and Sue Whitman, and to hear them tell it on the heels of Adnan's conviction in early 2000, Christina began to go downhill pretty fast. The Whitmans hired Christina to defend their 15-year-old son in what might be the worst and saddest case I've ever heard. Their son, Zach, was accused and ultimately convicted of killing their younger son, Greg, who was 13.

It's just a terrible, gruesome, confounding case. And so the parents, I can't even begin to imagine, but anyway, they seek out Christina because she's been recommended to them, and they'd read about her defense work in the paper. And at first, she was great, they said. She successfully argued a couple of important pretrial motions. Ron Whitman said she was magnificent in the courtroom. But then as time went on, things started to get weird. This was around the same time she was working on Adnan's case.

She'd be late, really late, filing briefs with the court. The Whitman's case was in Pennsylvania. They live right on the border with Maryland. So that meant the briefs had to be filed in the courthouse in Harrisburg. They'd check in for weeks in advance with Christina, they said, asking, how's it going? When can we review the brief? No brief. Day of, even. No brief.

Twice, Ron had to go wait for the brief in person at Christina's office in Baltimore and then race the 80 miles to Harrisburg, meeting up with Sue along I-83 so they could get it stamped by 4.30 p.m. at the court. Ron said one of them would have to run in while the other waited. They didn't even have time to park the car.

The Whitmans talk about many of the same things Shamim told me, that they couldn't get a hold of Christina or saw that things weren't getting done. But when they asked people who knew her, they were told, don't push it. It'll be fine. Here's Sue Whitman. And they would say to me, this is how Tina works. This is don't don't tell Tina what to do. This is what she does. She's very good at it. Don't worry about it.

So someone that has worked with Tina for years tells you that this is just her way. Then you think that this is just her way. Ron says it got worse and worse. Adnan's trial ended in late February of 2000. By the end of that same year, Christina had been hospitalized at length. She had diabetes. She had MS. She got very, very sick. Her law clerks told me they'd bring files to her in the hospital. One of them told me Christina would sneak cigarettes in the bathroom.

In other words, she was still at it. And maybe she shouldn't have been. Ron Whitman says it should have been clear to everyone around her that Christina couldn't keep up with her cases. But no one cried uncle. Ultimately, in January of 2001, if I have my years correct, we had a brief due at the Supreme Court of the United States in 10 days.

And she had told us that she had a University of Baltimore law professor who she had worked with many times before doing the drafts. And finally, I called him. And he said, I haven't talked to Tina about your son's case for a year and a half or two years. The Whitmans say Christina asked them for an additional $65,000 for work she had to know full well she couldn't do.

that they gave her $25,000 for an expert, but Christina never paid the guy, so he came to them for the money. They say that happened with a second expert, too, for a few thousand dollars. If she was too sick, why didn't she tell them? Why did she leave them hanging? Christina's career had collapsed by the spring of 2001, a year after Adnan's trial ended. According to newspaper stories in the Baltimore Sun, written by me, Christina had gotten in trouble with the Attorney Grievance Commission of Maryland.

Clients were complaining that she'd taken their money and had not done the work she promised or not used it the way she said she would. The state fund that compensates people when their lawyers misuse their money paid out a total of $282,328 on 28 claims against Christina. The largest payout was to the Whitmans. The Whitmans feel as though she was lying to them, trying to get as much money out of them as she could. A more generous assessment would be that Christina was in denial about how sick she was.

And people who worked with her told me she was never much interested in the business side of things. It wasn't her forte. One former law partner of Christina's told the Whitmans that Christina had been slipping for a while, the past five years even. There have been a lot of news stories this week that Adnan's gotten an appeal. That's not quite true. He had an initial appeal, which was denied, and he had a hearing for post-conviction relief, also denied.

But he appealed that denial to a higher court, the Maryland Court of Special Appeals. And recently that court ordered the state to respond to one aspect of Adnan's petition by January 14th. So it is still alive by a thread. Adnan's petition is based on a claim of ineffective assistance of counsel, meaning Cristina Gutierrez screwed up. The brunt of the claim is about Asia McClain, that she might have provided an alibi for Adnan at trial if Cristina had talked to her.

But the part of the petition that the higher court wants the state to answer is actually about a different complaint. Namely, that Adnan had asked Christina to seek a plea deal. Twice he'd asked, and Christina never did it. Prosecutors in Adnan's case said they never made an offer, but Christina also didn't seek one, even though Adnan says he asked her to, once before his first trial and once before the second. When I first read his petition, I told Adnan that I found it hard to believe he'd asked for a deal.

He's been so unshakable for 15 years that he's innocent, that he had nothing to do with Hay's death. And it also seemed to me as if he trusted back then that the system would sort all this out and he'd go home. But Anand told me there were times when he was really scared. He was trying to be brave for his family, but then he'd hear stories or watch guys he knew get 50-year, 70-year life sentences, and it would hit him. I could be in prison for the rest of my life.

I think it's so difficult to understand these things not ever having been in that situation. Like, I would always think before I ever came to jail that a person only would plead guilty to something because they did it. You know, no way would a person ever plead guilty to something. Once you come into, like, this whole system, one thing that you really learn is that no one really beats cases. And when it comes to, like, first-degree murder cases, it's almost impossible. I can't...

I can think in all the years I've been in prison, I can probably think of a handful of people who ever beat a first-degree murder case simply because, you know, the odds are just so stacked against you. So there are people that, like, I've met and I've known and I'm so jealous of them, and, you know, not in a bad way, in a good way, because when we were over the jail, over the city jail,

they'll arrive at the look next take a few life spent over thirty years life spent for twenty years whether you did it or not because the way the elements of the case are you know if you don't have like a strong alibi you know you have to get you have someone come in the court saying that you did it whether you did it or not you could go in front of a jury itself people are going to convince you because they have never sat in your shoes before so it's really a choice that you have in a life sentence

versus the choice that you have in my life. Because now I still communicate with some of these guys. They're actually getting ready to go home, you know, 15, 16 years later. Adnan says when he's seen younger guys come in on parole violations or for whatever reason, he tells them, take the deal. Regardless of whether you did it, take the deal. Because Adnan has maintained his innocence, he's got no hope of getting out, or very little hope. That's how the system works. He understands that now.

Technically, Adnan is eligible for parole, but the chances of getting it are so slim for anyone with a life sentence for first-degree murder, but especially if you don't show remorse. Because, you know, what if he's a psychopath, right? Next time on Serial. Serial is produced by Julie Snyder, Dana Chivas and me. Emily Condon is our production and operations manager. Ira Glass is our editorial advisor. Research and fact-checking by Michelle Harris. Administrative support from Elise Bergersen.

Our score is by Mark Phillips, who also mixed the episode. Our theme song is by Nick Thorburn, who provided additional scoring. Special thanks to John B. Minor, Terry O'Connor from Purdue University, Scott Calvert, Craig Timberg, Meredith Cohn, Lisa Pollack, Chuck Salter, Blake Morrison, David Cohn, and Natasha Lesser. Our website, where you can listen to all our episodes and find photos, letters, and other documents from the case, and sign up for our weekly emails, SerialPodcast.org.

Serial is a production of This American Life and WBEZ Chicago. The best relationships are the ones where people feel comfortable being themselves. They're with people who really see someone for who they are. Someone who really gets them. So why not use a dating app that is designed to do specifically that? eHarmony helps you find someone you can be yourself with. Find someone you can be yourself with. Get who gets you on eHarmony.