June 28, 2015
Double-Edged Helix:
The Role DNA Could and Should Play in the Re-Opening of Adnan’s Case
Though it seemed like the end towards which Sarah Koenig’s Serial tirelessly journeyed, the hope of exoneration for Adnan Syed remained unrealized for the duration of the podcast. Hope may yet, however, soar in the saga of Syed. With advancements in Syed’s legal options for exoneration, new avenues offer the promise of closure. When Adnan Syed learned of DNA taken from Hae Min Lee’s body in the final, inconclusive episode of Serial, he reacted with a tone of understandable chagrin and incredulity: “You guys had it sitting for sixteen years and you never tested it? It’s impossible for it to be sitting there for sixteen years and you guys never tested it.” [1] Neither DNA from the “rape kit” testing of rape-consistent bodily areas, nor the two hairs found on Hae’s body, nor the liquor bottle, nor the rope found near Lee’s body was ever screened for this investigatively significant material (Koenig). Before narrator Sarah Koenig sets her project free to unfold in real-time, the audience gleans from Koenig’s finale that Deirdre Enright of the “Innocence Project” is pushing forward a motion to get this DNA tested and possibly matched with that of someone other than Syed (Koenig). As Adnan’s case has seen some favorable developments since the close of Serial, DNA may end up being Adnan Syed’s saving grace. Lauded by lawmakers and its own track record alike in exonerating the erroneously convicted, testing of this DNA is integral to the future of Syed’s case.
First used forensically in the UK in 1986, DNA testing has gained a foothold as the forefront in modern forensic “fact-checking.”[2] By 2000, confidence in DNA testing had grown to the degree where the United States Congress declared its credibility and forensic value superlative. In a hearing of the Senate Judiciary Committee on Post-Conviction DNA testing, which took place in June of 2000, DNA-forensics took a legislative leap forward with the introduction of the Criminal Justice Integrity and Law Enforcement Assistance Act, which recognized the importance of DNA forensics, and defined when it could be used. [3] Then-Utah Senator, the Hon. Oren Hatch opened the proceedings’ summary with a concise affirmation of where and why DNA-testing should be legislatively promoted:
I believe that post-conviction DNA testing should be allowed in any case in which the testing has the potential to exonerate the defendant of the crime. To ensure that post-conviction DNA testing is available in appropriate cases, I, along with 13 other Senators, plan to introduce the Criminal Justice Integrity and Law Enforcement Assistance Act. This legislation will authorize post-conviction testing in Federal cases and encourage the States through a new DNA grant program to authorize post-conviction testing in State cases. In addition this legislation will provide needed resources to help States analyze DNA evidence from crime scenes and convicted offenders, and conduct post-conviction testing (Post-Conviction DNA Testing, 2000).
In the proceedings, it was stated “DNA testing has evolved as the most reliable forensic technique for identifying criminals where biological evidence is recovered…In some cases, post-conviction DNA testing led to the actual perpetrator being caught and the originally convicted person being released…Advanced DNA testing should be used where appropriate, but not to the ends of ongoing appeals (Post-Conviction DNA Testing, 2000).” The provision, of course, was given justified limitations: “In conclusion, “[it] is fundamentally important for the American people to understand, [that in] the overwhelming number of cases that come forward, there is strong to overwhelming evidence of guilt. There are some that are close calls…I think we need to bring finality to the cases in which there is a powerful evidence of guilt, and we should be open to evidence that would indicate some may not be guilty (Post-Conviction DNA Testing, 2000).” Though efforts to make post-conviction testing a constitutional right were unsuccessful in 2009, “hanging” a divided Supreme Court, it didn’t lose much ground, and remains a powerful tool for the justice system.
From different fronts, two separate factions are moving forward with their efforts to cast long overdue light onto un-reviewed aspects of Syed’s conviction. One of those factions is Adnan’s legal team. The focus of Adnan’s legal representatives does not involve DNA yet, but could be a foot in the door to discredit other procedural oversights. The effort is a “collateral appeal,” meaning that it does indict what the judge or prosecutor did, but centers instead around ineffective defense counsel by former defense lawyer Christina Gutierrez.[4] Gutierrez’s failure to pursue key witnesses, if it can be combined with the investigators’ oversight of this crime-scene DNA, further discredits the damning first case as a whole. Initially, the Maryland Special Appeals Court’s consideration for reopening, which provided hope that “Adnan’s case stands to receive a whole new review,” was delayed, and even potentially thwarted altogether by the efforts of the Maryland Attorney General’s office and prosecutors’ request to deny an appeal in January of this [2015] year.[5] These adversaries felt that Adnan’s request, based on his own attorney’s failure to seek a plea agreement, was unmerited. The attempt to have the request denied was based on the argument that the state and defense would not have been able to submit an acceptable agreement to the court at that time.[6] On May 18th, 2015, however, the Maryland Court of Special Appeals ordered that the case be sent down to the Baltimore City Circuit Court, who would decide whether Syed’s case would be re-opened for the consideration of the possibly exonerating account of Asia McClain. This decision was reached due to the decision that Gutierrez’ failure to follow through with McClain’s official agreement to testify was not strategic, and was, indeed, neglectful.[7] As it stands, this lower Circuit Court has yet to decide whether or not to re-open the case, but, if they do, there is a possibility that Syed’s conviction for first-degree murder could be overturned. Even if the case is reopened, this appeal still relies mainly on the eyewitness testimony of McClain, which is subjective, and not entirely certain to succeed at revealing any verifiable insight into Adnan’s original conviction. DNA, on the contrary, is objective and quantifiable, as there is no statistically significant margin of error in the identity connected to any successfully matched DNA. Due to the precise and concrete nature of its findings, DNA testing would add a powerful element of certainty to Adnan’s otherwise subjectively-based case.
On the DNA front, Deirdre Enright’s “Innocence Project” is moving forward to get the crime-scene DNA the appraisal that the first damning investigation overstepped. With the mission of using “groundbreaking…DNA technology to free innocent people,” the Innocence Project credits itself with having “provided irrefutable proof that wrongful convictions are not isolated or rare events but instead arise from systemic defects.”[8] In “Episode 7” of Serial, Enright, upon reviewing the the degree of neglect of forensic follow-through by the investigators of Syed’s case, conveys how much of an anomalous hole the absence of DNA analysis in the first investigation actually is, asserting, “You almost always submit that for DNA testing. That’s what we’re not seeing, is a lab report…”[9] Though Deirdre Enright’s indomitable optimism casts a dubious portrait of her credibility in Serial, the statistics of her success exonerating the innocently convicted reveal she is doing something very right. Of her many victories, the case of Roy Criner stands out. Roy Criner was convicted in Texas in 1990 of the 1986 rape and killing of Deanna Ogg. [10] Similarly to Adnan’s conviction, Criner’s relied heavily on the imprecise and inconsistent claims of “informants” -in this case, Criner’s co-workers- that he had confessed to them that he had raped, and notably not killed, a hitchhiker. Through years of multiple failed motions by Criner’s defense team, even the finding of another man’s sperm on Ogg’s body, and none of Shriner’s, was shot down by the claim that Shriner could Have worn a condom while raping Ogg, and that Ogg’s reported promiscuity made it plausible she had had sexual intercourse with another man not long before her alleged fatal attack by Criner. Criner spent ten years in jail before, partially by efforts of the Innocence Project, DNA from a cigarette found near Ogg’s body definitively matched that of the sperm found in the victim, and absolutely ruled out Criner. In August of 2000, then-governor George W. Bush pardoned Criner, noting that, “credible new evidence raises substantial doubt about the guilt of Roy Criner (Cases).” That credible evidence Bush was referring to, recognized as superlatively so by the United States’ highest legislative body, was DNA (Post-Conviction DNA Testing, 2000). The case of Roy Criner, so parallel to Adnan’s in the frailty of the informant-based testimony that initially made Criner a suspect, also contained multiple elements of doubt in the initial conviction. Correspondingly, Adnan’s is a case where DNA stands a probable chance of clarifying so many glaring doubts.
There are a handful of different ways that DNA could end up proving the innocence thirsted for by many at all levels of connection to Syed and Serial, but there also remains a chance it could confirm his guilt. According to research by the innocence Project into its first 325 cases that led to exoneration by DNA, eyewitness accounts are overwhelmingly the leading cause of wrongful convictions (see Fig. 1).
Fig. 1. A bar graph, quantifying the causes of wrongful convictions in cases of eventual exoneration, reveals the fallibility of eyewitness accounts.[11]
Of the top four determined causes of wrongful conviction in the first 325 successful DNA-exonerations by the Innocence Project, all four, eyewitness misidentification, improper forensics, false confessions, and snitches, are all present in Syed’s case, as told by Serial (see Fig. 1). Syed’s is not one of those cases referred to in the 2009 Supreme Court decision where DNA-testing would be a waste of time and funds, “in which there is a powerful evidence of guilt (Post-Conviction DNA Testing, 2000).” Indeed, Syed’s guilt is hugely doubtful in so many ways, and is a prime candidate for elucidation by DNA-analysis. In an candid interview with “Time Magazine,” Deirdre Enright outlines the ways in which DNA could invalidate Syed’s conviction, focusing on three main scenarios, all of which exonerate Syed in her purview: the matching of crime scene DNA with that of the deceased rapist-murderer, Ronald Lee Moore, who was released from incarceration just thirteen days prior to Hae’s death, the linking of the DNA with another criminal currently in prison, or the matching of the DNA with that of some male other than Syed or Hae’s last boyfriend, Ron.[12] Even this lattermost sort of “anyone-but” match would exculpate Adnan in Deirdre’s eyes, though she does not make clear in the interview exactly how. With characteristic optimism, even when her beliefs are against the odds, Enright circumvents any discussion of a negative outcome, even when asked bluntly, “What are the chances that nothing comes back at all?” She goes on to enumerate all the ways innocence could be proven even if DNA were to prove fruitless, suggesting, “in the subsequent search we’ll find out that there was other exculpatory information that was withheld from the defense…So it’s still possible even if our DNA evidence yields nothing that we would have what we think is sufficient evidence to file a writ of actual innocence (Dockterman). “
It is no surprise that Mrs. Enright, in her perennial optimism, did not mention the very real prospects of DNA incriminating Adnan, or yielding nothing at all. On a page for her very own “Innocence Project,” however, some statistics show that DNA-testing does not always result in post-conviction exoneration. On the Innocence Project’s official site, it is revealed that, “in a review of Innocence Project cases that went to DNA testing … over a five-year period, DNA testing proved innocence in about 43% of cases, confirmed the prosecution theory in about 42% of cases, and was inconclusive or not probative in about 15% of cases (Our Work).” Simple extrapolation reveals that, in fact, more cases-fifty-seven percent- end up either confirming guilt or not rendering any case-changing data, than the forty-three percent of cases in which exoneration is the final answer. Indeed, some of the DNA, most incriminatingly the material under Hae’s nails, could be Adnan’s. Moreover, the DNA could also turn up not matching any DNA in the database. On top of all of these ways that innocence may not be the result of DNA testing, the audience learned in Episode 7 that the DNA could be no longer “useful or usable” altogether (Koenig). Regardless of whether DNA results would disprove, confirm, or lack insight into Syed’s original conviction, they stand a high probability of furnishing the very first piece of objective, science-based evidence to a case that has been altogether circumstantial for far too long.
With the current dearth of factual certainty in the case of Adnan Syed, it would be a travesty of justice not to test the DNA taken from Hae Min Lee’s original burial site. Combined with the increasing accuracy and falling costs of DNA-testing, the enormous past success of Enright in DNA exoneration cases like Roy Criner’s illustrates that, at the very worst, the results of such analysis would leave the case unchanged. Even unchanged, but with the DNA having finally been given its due consideration after years of egregious neglect, Syed’s case would be a better reflection of justice than it currently is, just for that “stone” finally having been turned over. Should DNA-testing render an actual change in the case, there are a variety of directions such a development could take. As this case remains inconclusive at the close of June 2015, Asia McClain is standing by the statements of her affidavit, and whether her voice gets heard in any meaningful way depends on the forthcoming hurdles that Syed’s legal team must navigate. If heard, the subjectivity of McClain’s story could be enormously buttressed by the concrete scientific factuality of DNA-evidence. Though Serial is long over, the case it cracked open is more alive than ever, and only time will reveal if the possibilities offered by DNA testing will untwist all, some, or none of the snarls in the fraught case of Adnan Syed, capital murderer in the first-degree.
[1] Koenig, Sarah. “Episode 12” Serial. Audible, 3 Oct. 2014. Web. 4 June. 2015.
[2] James, Randy. “A Brief History of DNA Testing.” Time Inc. Network, 19 June 2009. Web. 27 June 2015.
[3] United States. Cong. Senate. Committee on The Judiciary. Post-Conviction DNA Testing: When Is Justice Served?. 106th Cong., 2nd sess. Washington: 13 June 2000, U.S. GPO, 2001. Print.
[4] Nelson, Libby. “We asked a legal expert if Adnan Syed has a chance to get out of prison.” Vox Media, 10 Dec. 2014. Web. 26 June 2015.
[5] Dornbush, Jonathan. “Maryland Attorney General advises court to deny Adnan Syed’s appeal.” Entertainment Weekly Online, 14 Jan. 2015. Web. 26 June 2015.
[6] Mullen, Jethro. “Adnan Syed, convicted killer in ‘Serial,’ gets big break in quest for new trial.” CNN News Online, 19 May 2015. Web. 27 June 2015.
[7] Schiavenza, Matt. “Serial’s Second Act.” The Atlantic Online, 8 Feb. 2015. Web. 26 June 2015.
[8] Innocence Project. Our Work. Innocence Project. n.d. Web. 27 June 2015.
[9] Koenig, Sarah. “Episode 7” Serial. Audible, 14 Nov. 2014. Web. 4 June. 2015.
[10] Innocence Project. 2014. “Roy Criner.” The Cases. Innocence Project. Web. 27 June 2015.
[11] Innocence Project. 2014. The Causes of Wronful Conviction, Innocence Project. n.d. Web. 27 June 2015.
[12] Dockterman, Eliana. “The Innocence Project Tells Serial Fans What Might Happen Next.” Time Inc. Network, 19 Dec. 2014. Web. 27 June 2015.
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