Serial S01 - Ep. 7: The Opposite of the Prosecution
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To beyond. If you kind of, I feel like I want shoot myself every if I hear someone else say, I don't think you did IT because you're .

a nice guy previously on cereal.

Did anybody .

I remember? He's something into a girl. He put me on a phone with her for like three minutes. I said, hello, her. I just remember he had told my daughter .

he had seen a, the body of a girl in the back of, in the trunk of some vehicle.

I think the guy's name was maybe adnan.

This is a global tel link prepare call from say, and in data from mary in the correctional facility is.

From this american life and W B easy chicago, its cereal, one story told week by week. I'm Sarah. I heard about this other case of a kidnapping.

Justin wolf actually had not mention the case to me, kind of in passing. I can't member how he heard about IT. He means a lot of different stuff in prison.

Anyway, we've been talking about the cell records and how they were used in a non case. And a non said that in this other case of Justin wolf, sell records had also been used against him. But then Justin wolf's conviction was overturned, in part because of the cell records.

So I looked at this case of Justin wolf just to see. And on paper I have to say it's sort of uncanned how many similarities there are with a non's case. All Young people.

First of all, Justin wolf was a suburban kid, eighteen football player. People thought of him as a good, good though he was selling pot and hanging around with some tougher types. This next parts different, obviously.

He was convicted in the two thousand one murder of a drug dealer who was shot nine times. Justin wolf was not the shooter. The shooter was a slightly older friend of wolves named open barber, who got a deal in exchange for testifying against Justin wolf.

Open barber told the cups the Justin wolf had hired him to kill the drug dealer. Wolf was sentence to death in Virginia. Wolf's trial attorney later gave up his law license after the bar had initiated disciplinary charges against him.

For this is the technical term being a crappy lawyer. Oh, and there was a witness who has never heard from other than that totally different case anyhow. Eventually, open barby were counted.

He said Justin wolf had nothing to do with the murder. He'd only implicated wolf to avoid a death sentence for himself. So I read all about this and thought, let me talk to the lawyer who helped figure out the flaws in the state's case against Justin wolf.

Maybe SHE has some tips about how we should be looking at the cell records differently. In a non's case, I looked at her name is dear da and right, and he works at the university of Virginia s school of law. SHE runs their innocence project clinic.

There they do what innocence projects do. They reinvestigate all cases to see if someone's been wrongly ly convicted. I called her and asked how he dealt with the cell records in the Justin wolf case, and he was kind of so so on that topic.

SHE gave me a couple of names to try. No great insights though. But man, on every other topic, I found her so helpful. SHE started asking me about announced case and I ended up sending her a summary had made of the detectives reports. And then the next time we talked, I asked if you would mind going .

to a studio hey, you know I read um your synaptic, you just to jump right into your case OK I have a million questions for you but it's the very, very thin oh the state's case yeah after I started reading all the the what you had I started thinking, so so everybody here is in high school right? And why is done doesn't appear to be of interest. Anyone done was .

his new boyfriend. The police considered his alibi iron clad. He was working at lens crafters all day.

But see, this is how IT is with dear dra. A conversation with her never seems to begin exactly. It's already there, ongoing.

Her thoughts turning, and you just kind of join in when you're ready and hope you can keep up. SHE is not a small talker or a beter round of bushes. You discuss whatever IT is.

You came to discuss full law, looking at squarely in the face. SHE has no time for bullshit, and not because she's above in or anything, but because he actually has no time. He's one of the busiest and most curious people i've ever met.

You know, when you first talk to me about this case, the first thing I thought is, okay, do we have a jail house forment? Do we have a person who got way too sweet of a deal or um what? When I read through your police notes, your summary of your police notes, I just kept going back to motive and thinking that a big black hole for me.

I still don't understand why you want this girl dad yes, because you broke up with you. People break up with people all the time. And and I can and am a little concerned about .

racial profiling here kistler muslim people you know .

his dark side um and he know there was some notation about he was very controlling and I thought I wonder if he was really very controlling and so there there's that then a little bit I had the cell phone thing for us and Justin wolf is that they use the the cell phone records to say, they, they, they cabin out the period of time when the shooter is driving to the place where the victim is and shooting him and then coming back.

And so they they put those up on a board in the courtroom and say, look at this. He calls him right before he commit the murder, and he calls him right after he commits the murder. You know but and then you get everybody's phone record. It's write all these kids that are buying pot and smoking pot and selling pot, and everybody's calling each other all the time.

So so then you stop and stand back and say, also, what are they trying to say that Justin wolf in these kids, he's upper middle class kids, are so stupid that they get in a car and call and say, okay, i'm on my way to murder him. Okay, I just murdered him. I'm coming back now. I just murdered, you know, I mean, like, who does that? And so, you know, now all these witnesses are, oh, no, we were to stop calling each other to buy pot like those calls are that are infused with meaning by the prosecution theory, have no meaning in space.

I mean, it's funny. Like do you get case is like as in an oni's case.

I feel like .

from what I can tell you know, there's not sort of gross negligence or or or malfeasance or something on the part of the detectives or the states to turn is office like everyone seems to be doing our job responsibly. Just doesn't seem like there's an obvious like, oh, they never looked at the new boyfriend or oh, they never questioned the guy who found the butt like IT seems like an on on himself is not supplying anything super useful to say.

Like here is why I can prove I didn't do this like he has set out front. Like I can give you like some clinching piece of information or evidence that's gonna solve this. Like I wish I could, but I can.

I just don't have IT. Like, I don't know. I don't know how to prove this.

That's that's love hearing that because somewhere along the line, I started realizing that when you have an innocent client, they are the least helpful people in the whole world. They don't know, they they have no idea. Like as soon as I realized I have an innocent client and that the situation, I think, like, okay, well, i'll talk to you again when i've solved IT because i'm .

gonna need you wear because what's happening with a none is where all find something out that looks kind of bad for him. And i'll come to him with that and be like why IT does seem like you maybe made this phone call in the middle of the afternoon at a time when you are saying you were a track, but the phone number is to someone who only you know and jay didn't know and so like there's a phone call with this girl nisha and it's like this glaring thing to me in middle of the phone record. M like that's the one that kindle ks bad for you like explain that to me. How do you explain that call to me? And then his answer is so kind of mely or not so satisfying where he was like, I don't I can't explain IT like maybe he was a buttery and like a machine picked up and i'm like, but she's testifying that there's no machine on IT and you just like, I don't know, I don't know what to tell you but like I didn't I didn't have the font like I was a track and i'm just like I wanna be like north that .

explain IT you should have an that's not surprising to you. Not at all. So there was a case that I had the federal capital, murcer, where my cant deal rice, right? A charged with killing to hikers in shana national park in baba ba.

They filed a motion saying the motive in this case was hatred. IT was a, he hated lesbians. That's why he murdered these two women. So darell rice was easy for me, not in the beginning, because his answers weren't self serving and helpful. The way you think he's had time to think about this.

why? Why does he have a Better answer than that? And then I started to realize because he hasn't been thinking about this, because he didn't murder anybody. And so, like I remember one day I had in their maps, right to show him, like where the crime scene was versus where the large was versus where mile marker forty two point, you know.

And so I I put this all out on a table and get my reading glasses and and then I said, so so when you would camp there, can you show me where you were? And then he was like, okay, well, I didn't. I didn't camp there. I I would ride bikes there. And of course I like, okay, well, whatever that know, who cares whatever you're you ve been in the park before and then find that I said, but in relation to the crime scene, and then looked at me and I was so simple and but he said, well, I don't I don't know where the crime scene was so can you show me that and I remember thinking, of course, i'm like everybody else. I think he knows where the crime sca is.

right? How many like do you only take on cases where it's super cleared, everyone involved like on your side of the your side of the bar or the bench rather I guess um that that this person is instance rankly convicted or do you take cases where like you really don't know and you start down the road and like three quarters your cases turns out like again, we you probably did IT. So let's not take on that one or you are you only working with cases where you're pretty sure from the get go?

Well, we don't know if they get go because we're the people that decide whether it's it's gonna or not. So so, so IT goes every different way, right? Sometimes we start down the road and very quickly we talked to four witnesses, all of whom say, no, it's absolutely him.

They have no reason a lot you know there's not we quickly realize, okay, we're being had here. So we are in the weeds about a lot of things for a long time until we figured that out. So like today, um we had team meetings for our four clinic cases and those are four cases, you know two of whom we are sure already, two of whom were just trying to figure that out. Yeah but your guy went to a jury um we know that's relatively unusual and i'm assuming he went to a jury because he was saying I didn't do this right, right? And so sometimes people say I did some of this, but I didn't do all of this so i'm going to trial but he wasn't saying that yeah.

he's always said the same thing which is like going .

nothing do with this right, which I don't know people know a lot of so they're all guilty. They're guilty. I've generally feel like I especially for most of my career, I was dealing with people I wasn't a director and innocence project and I had a very clear sense of which of my lines did what um and that's because they told me like, you know so I put some stock in people saying I didn't do IT and staying .

with that .

you do yeah now I know some people would say i'm the naive, but I also think like I ve been doing this work for a really long time I don't think naive is a good word for me. No.

what me so I mean how I feel like because I feel like i'm having this experience where i'll read something or all do an interview and i'm like, oh yeah, there's no way he did. He just doesn't add up IT doesn't add up. And then the very next, oh my god, oh god.

Look at the phone call.

tanesha. Well, yes, yes. Or like, you know, oh, this friend said that he behave this way during the relationship, but the other girl I just talked to last night was like, no, he was really overbearing and possessing. Ve, oh my god, may be he did. Do you have that like this that still happen to you?

Or do you just, oh, I know, I now actually teach that. I tell people all the time, you you are, you are juggling and everything's in the air and your frozen and you have to stay there until you're just you've eliminated all questions um because if you if you come down or catch one and get attached to IT, you're going to make the same mistakes that law enforcement do.

Um and I think too, when you keep going, like what happens to me is that I reach a tipping point where I have answered questions to my satisfaction and I have answers for everything and and my answers are Better than law enforcements answers so when I read what you've given me, I just think you guys just don't have IT. You just didn't nobodies really doing anything bad. Every people are trying to run down their leads and talk to people, but they don't have enough to go forward, but they do anyhow, right? So people so know you've got bad feelings and you've got j changing the start.

You know like I look at this is this is just the case that wasn't ready to be brought. You don't have enough to put a non away like not not to me. You don't yeah but .

doesn't the fact that they did put him away mean that they .

had enough to put him away well and yeah and they would say yes and I would say no in the reason I say that is because I look at this and think law enforcement and prosecutors and defense attorneys, we we act like if a jury will convert, then that's fine and and I think those of us who know a good case from a bad case should know that even if we can get a jury to convict IT doesn't mean we necessarily .

should ask them to do that is the um so so where you not doesn't not happen to anymore where you're just like one day you think like .

or he did in the next day you think yeah know for the first however many months thinking oh yes of course of him oh no it's not him but in order to revisit IT in any kind of careful way, you have to revisit everything right in the good and the bad and whatever and look at IT with and I brow up yes, and sometimes it's gona stay exactly the way that is and it's unsatisfying.

That's my fear is i'm going to go through all this and just be like.

yeah and and you might and I can't pretend that that that I just thought of something that I think we should do unless you don't want to do IT. And you can just think about this OK. So just today, one of my teams and it's one of my Better teams because it's a kid who a law student who has summered at the FBI um and is gonna for the U S attn y.

So he doesn't have my tree hugger you know everyone's innocent instincts, but he's a really hard worker and he has a team. And we just closed their case and he came to me tonight and said, are you going to find me another good case? And I said, yeah, let me flip through tonight and see what we got and i'm sitting here thinking, wait, I should assign them oh.

oh my god. right? That's really well.

I literally just thought of about something here thinking you it's a lot of network hub. If we had a team of five students, we could get those things done, you know, with people that are being supervised. So think about that. I'm totally hooked.

I did think about IT. I said, yes, go ahead. Not that I would work with her. My job, unlike there is, is not to figure out if or how I can exonerate IT.

Not, but sure if they wanted to take a look at the case on their own, of course, i'd welcome that many more sets of eyes, some fresh, some gated, could only be helpful at. Seemed to me I went down to shallots, failed to see how they were getting along. Here is the sound of a law clinic getting ready to consider a new case.

That's a scanner, scanning a little scanner hard out. It's man by anyone. Digger can grab her students mostly a couple of kids come by the office.

SHE gets one of her daughter scanning. You said the scanner smells good. Yeah.

that smells like laundry and ink and I don't really know what laundry smells like .

that steer draw.

So now what we do usually in in when we get cases is we collect what mom has, what the inmate has, what is in the court file, uh, paper everywhere. That's what we do is collect all the paper and then do exactly what they're doing and then put the team and we say, take a weekend and read at all.

Post conviction work often involves going back and looking at physical evidence. In a case, some innocence projects only work with cases that have DNA evidence, for instance. Virtuous group isn't one of those, but still sh'll definitely take IT if you can get IT at one point, dear eries of print out of an email regarding evidence in a non's case.

So this is an email in two thousand eight from the bottom of police saying that he believes items from this case have been destroyed, but he doesn't have a document saying that that is true, so we can be a hundred percent sure and he's the evidence control unit person. So yeah, that's not good. I think there's two things to think about.

There's A A statue usually in every state about evidence retention. And you can destroy evidence until the cases over and done with doesn't mean they always honor. The other thing i'm thinking about is I can tell you the number of cases where somebody says, I think it's gone and then you go and you be annoying and you poke around and say, can I come back there and look and they say, okay, we'll look and then somebody got how here IT is like, so it's not fatal. So do you see how I refuse to accept anything?

It's true. I can't think of anyone more optimistic than diarra, which I don't know. I would have guessed that after doing this kind of work for decades and knowing how rare IT is to reverse a conviction, you'd naturally settled in as a pessimist.

But maybe the opposite is true that because your chances are so low, you have to look on the bright side in order to do this work at all. Otherwise you can function one steer. Her students digest this massive amount of paper.

The next step is decide what they've got on their hands. First thing they do. So, dear dra, is to give IT none back the presumption of innocence. This kind of a profound thing.

When you think about IT, it's supposed to happen the first time around a trial, but IT seems like no one in the profession really believes that IT does. Because you can't help IT as a jury, you figure the guy sitting behind the defense table must have done something wrong. So Georgeous team starts with the premise that he didn't do IT and then they see where that road takes them. If where they end up is that they think maybe a none really is innocent, then they have to figure out if there's any way they can prove that in court. The answer to that could definitely .

be no because the evidence has gone. The people won't change their minds. There is no legal remedy um is just those things are just after time. Those things are usually harder to get to.

As a legal question, digger says they should only have to prove a none isn't their guy. He's not the killer. But as a practical matter, he said, their chances are much Better if they can go a step further and say to the state, not only is this not your guy, we can tell you who is your guy.

The truth is, when you can give the answer of who IT is, IT makes IT a whole easy on everybody else to walk away and do this thing that no one ever wants to do. And usually there's some logical explanation, right? There is a guy, there is a serial clear, there is somebody who's motivated but you hate hate like usually there's something so you don't have to but I always have people yeah have to.

Of course, after looking everything over dirging, her team might well decide that maybe a none is guilty, in which case they would quietly pack up the files and just keep their mouth shut. So but what i'm saying is, like that could happen here in a non's case, like you could look at an nv like me. Looks like you did IT say IT to me. I mean, not to the world.

right? I would say IT to you, I would say IT to art plan, but I wouldn't say IT anyone else. I'll let you do that.

Four weeks later, I checked back in with dear red and two of her students, cady, Cliff d and mario paa theyd, read through all the files. Do you guys do any of you guys think .

at n's guilty? No, no, I wouldn't be. I wouldn't been able to find him .

and guilty with this. No, this is one of the things that was very odd when I have first started reading this case was how precisely he was convicted under this amount of material. But no, I do not see him as being guilty at this point.

I would just at this point, knowing what I know. I would say I guess i'd have to put him in the person of interest category because he was an old boyfriend. But even that I would think like, but I see no evidence that he was mad .

mountains of reasonable out yeah.

This surprised me. Somehow I thought at least one or two them would end up on the fence, but they all sounded so forth, right? They said the big things that troubled them were the same things that troubled me, namely jays shifting statements to police and how the cell tower information didn't fully match jays narrative.

But the other stuff they see as done with stuff I hadn't paid much attention to at all the forensic reports, rather the relative lack of forensic group. It's this is kd because in our files we have a lot of things, evidence they collected that sent off and we don't have reports for everything. And we are curious about the results that we don't have in whether or not those exist in, just why they're not in the files that we have.

The liquor bottle for one, that bottle of cornet VS q bRandy that was found right near haze body, a lab report says they recovered nucleated epaulet al cells from the mouth of the bottle and from the cap. But that's all IT just says, quote, retained for future possible analysis and quote, but the future never came. They never tested those cells for DNA.

Then mario didn't like the report on the fibers, two fibers, one redish that was found in his head and one that I think was Florescent blue. It's a little hard to tell from airport that was found underneath her in the soil. Mario didn't think they were tested against enough samples for insincere. They weren't tested against a rope that was also found right near the body.

I would think that you would be able to compare the fibers to the robot, compare the fibers to whatever you can get your hands on. And and I didn't actually see that ever get tested. The fibers were tested against some things, but nothing, nothing came back of significance. And in the fibers, the fact of the fibers just kind of went away.

As for the rope, which from a photo looks sort of like a laundry line, IT wasn't tested at all for anything. Dear says that kind of thing happens a lot where investigators will say, oh, that I don't we collected, it's not relevant. It's not connected to what happened. So there's no point testing.

So another case that I had um anything that didn't match the the perp or the suspect that they had, they just ignored IT right? And they would say, well, that's that's outside the crime scene. That's really not inside the crime scene.

So those beer cans over there, we're not going to test there because that's too far away. We're going to call that outside the crime scene. And when I talked to DNA experts about that, they were saying, yeah, I mean, if you swap that and you get some some skin cells or saliva and it's just random, you get no hit on anybody.

Well then it's then it's neither here nor there. But they were saying, but if if you put IT in and you get a hit on a serial killer, right, or one of two other people who killed asian women within a year involved more, well, now we've got enough to charge and convict somebody. So what you call relevant and they're relevant.

you can only do once you have a test result. Finally, deora and kate and mario were all confused by the swab s that we're taken from his body. The medical examiner had done what's known as a perk kit.

IT stands for physical evidence recovery kit as a standard procedure in a rape case, but it's also done in some murder cases. There was no evidence hay was sexually assaulted, but they did the swap just the same. The medical examiner report says they came back, quote, negative for supermoto za unquote. But that's about IT, which seemed very thin to dear a that these swaths weren't examined more thora that they were never tested for DNA.

which is just weird that just that seems very strange to me in a case like that .

seems very strange to you.

You almost always submit that for DNA testing OK. And that's what we're not seeing, is a lab report that says, know if he came back and that's the other being Lucy goosey about whether it's not j, not adnan, you know, that's strange.

right? So okay, so so is that something .

that you guys would .

want to get test IT? absolutely. Yes.

I do.

Do you can cracked me from wrong, but this certainly seems to be quite a bit to get started.

Do you have any metric of how hopeful slash hopeless this one looks at this point in terms of finding out something useful, unusable?

Marie, who is shaking his head that because he's a pro government, right wing republican Operative.

so easy here.

and don't please put that .

of I checked with mario.

He said I was fine. You know it's always an outside shot, always.

But there's enough here is what I guess what i'm saying is there's enough here that you think it's worth asking these questions. You do only mean like you guys independently feel like know something went wrong here? Or is this just like, well, we're sort of humoring you.

the reporter? No, I would. I I would look at this as this. I would have a team on this case saying, keep going.

I see. They all seem so hopeful, so sure that with enough digging, they're going to shake something loose. But I was more skeptical. I mean, I felt like i'd been in that same mindset for so many months, and I hadn't found anything that absolutely tipped the scale and a nce favor anyhow.

dear, you noticed you sound really down on ad non today?

I don't know. Yeah, I do. I go up and down. I go up and down.

Sometimes i'm totally with them and then other times i'm like, I don't know. Do this doesn't why I can't remember anything. Why does nothing?

I don't know that I just go back to like, why can't you account this day of all days you knew was an important day? You've got a call from a cup that day asking where your x girlfriend was. Surely you must have gone over IT before six weeks had passed. Surely you know I don't .

have that reaction but I see what you're saying ah .

and then I just am aware of like what if you is this amazing sociopath and I just like i'm being played, you know I mean, I don't get that sense but he I mean, he's really charming, he's really smart. He's really he's funny and you're like.

yeah and he could totally be the for three years where I go with that, like in my twenty to have him six years of doing this. I pray for association path because I never get those guys. I get the innocent ones, and I get these dumb.

So me and my friends smoke crack for three days and we drank five bottles of whatever. And then we got a plan. That's who I get all the time.

So I think like the odds of you getting the charming sociopath, you're just not that lucky. Very few times have I had a client in the ones who really did IT. And they they have serious mental issues and they they are not sociopathy there, schizophrenia, floor psychoses because of whatever. I just think the odds of him being that and no one having detected any signs of IT until he kills his girlfriend, who he's moved on from. So dear ter, in her game they've .

got a stick with stuff they can bring to a court, forensic mostly, and they're on the lookout for another explanation entirely. Maybe a none had nothing to do with this at all. Maybe IT was a serial killer.

Maybe there's a clue from another bottom mr. Cold case. They're like explorer headed for a bold new world. Me, i'm going to stay right here at home with my little garden spade and keep scraping at the thing that confuses me most. Jay, next time on cereal.

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