The Immigrant Bias: Reflecting on Serial

logoIf you live in the United States and do not live under a rock, you have likely heard of Serial. A spin-off of the well-regarded NPR podcast This American Life, Serial has been heralded as the first podcast to truly become a pop culture sensation.

In this first season, Serial examined the case of a 1999 Baltimore murder in which teenager Adnan Masud Syed was convicted of the murder of his ex-girlfriend Hae Min Lee and sentenced to life in prison. Serial host Sarah Koenig spent 12 episodes going over the case: the alibis, the defense, the timeline, the witnesses, the friends and family, and the jurors. As a result of the podcast’s popularity, Adnan’s case has reemerged into the public eye.

His trial and conviction raises interesting questions about how the American justice system treats immigrants, even second-generation immigrants who are U.S. citizens. Learning about Adnan’s situation through Serial left me with the primary question of whether or not it is possible for members of the immigrant community to receive a fair trial in the United States.

While Adnan is a U.S. citizen, his parents are Pakistani immigrants. Adnan’s mother (not surprisingly) believes in his innocence, and, as an Atlantic article summarizes from her interview with Koenig, “She believes her son is innocent, that anti-Muslim prejudice is the reason he was arrested, and that everyone in the local Muslim community feels the same way.” Koenig somewhat scoffs at this idea – that racism was the cause of Adnan’s arrest, however, she did find casual racism throughout case, including from the jurors, the supporting research the police used, and the prosecution.

This casual racism and xenophobia within the jury manifested in the form of the “otherness” of Adnan’s perceived culture. Juror William Owens, in an interview with Koenig, stated, “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 cultures over there, how they treat their women… he just wanted control and she wouldn’t give it to him.” Another juror, Stella Armstrong, said that when the jury was deliberating, it came up that in Arab culture, men rule, not women. The sixth amendment of the American Constitution “guarantees the rights of criminal defendants, including … the right to an impartial jury.” It’s hard to walk away from quotes such as those from the jurors that convicted Adnan and feel like they were “impartial.”

The investigation may have been biased against Adnan as well. One of the sources of research for the police – one which Koenig has no way of knowing how or if it impacted the detectives – was a report done by a consultant titled “Report on Islamic Thought and Culture with Emphasis on Pakistan.” The report stated that “For her to have another man dishonored both Anan Sayed and his belief structure. It is acceptable for a Muslim man to control the actions of a woman by completely eliminating her. Within this harsh culture, he has not violated any code, he has defended his honor.” And, “…for many ethnic Pakistanis, incidents like this are common place, and in Pakistan this would not have been a crime but probably a question of honor.”

Shot of Adnan's passport, originally appearing on Split the Moon

Shot of Adnan’s U.S. passport, including notation of his U.S. nationality. Originally appeared on Rabia Chaudry’s blog, Split the Moon

This approach to his heritage, with an emphasis on honor, carried over to the prosecution and was expressed in both the bail hearing and the second trial (there was a mistrial). At a March 1999 bail hearing, the prosecutor argued that there was a pattern in the United States of Pakistani men killing their jilted lovers and then escaping to Pakistan where they can’t be extradited – a statement she later retracted in an apology letter to the judge. In his opening statement at trial, Prosecutor Kevin Urick argued that, “He became enraged. He felt betrayed that his honor had been besmirched, and he became very angry, and he set out to kill Hae Min Lee.” The prosecution also focused a lot on Islam and dating, putting a religious spin on the age old “former lover” motive for murder. And, as attorney Rabia Chaudry, who initially brought Adnan’s case to Koenig, bluntly puts it: “It’s not uncommon in the murders of women that law enforcement will look at current or former partners. The State had no reason to spend time at trial examining religious practices other than to color Adnan in a bigoted way without overtly articulating it.”

In an effort to push back against this, defense attorney Cristina Gutierrez spent what Koenig described as a “nutty” amount of time on Adnan’s immigration status in her opening statement at the first trial, emphasizing, “Adnan Masud Syed is an American citizen. He was born in this country, like most American citizens.” However, given the focus on his “otherness” by the prosecution and jury, Adnan’s citizenship did not seem to matter.

But does this sort of casual racism exist in a manner that hinders justice in the wider American court system? Cornell law professors Kevin Clermont and Theodore Eisenberg argued in a 2007 journal article that “foreigners do not fare poorly in federal courts – indeed, they have outperformed their domestic counterparts,” concluding that “the data offer no support for the existence of xenophobic bias in U.S. courts.” While their data includes both jury and judge trials, it appears to focus on federal civil trials –not criminal trials – and included foreigners of all perceived races and cultural backgrounds. Some studies, which focus primarily on white-black racial dynamics, have demonstrated that a “small but significant racial bias effect exists for both verdict and sentencing decision.” However, mock trials using Middle Eastern names and garb for the defendant had a more mixed result that showed that “the effects of racial bias may have been mediated by deliberation.” In contrast, jury consultants from the National Jury Project found “that anti-Muslim and anti-Arab prejudice is rife regardless of the case” and they argue for the use of a juror questionnaire to help identify these possible prejudices.

A 1981 Supreme Court case about questions asked of jurors, Rosales-Lopez v. United States established somewhat of a standard for jury composition. In Rosales-Lopez, a Mexican immigrant asked the judge to ask a question about prejudice against Mexicans during jury selection. The judge did not, and Rosales-Lopez’ suit ensued after his conviction, pursuing a reversible error. However, the Supreme Court held that in federal courts at least,

…failure to honor a defendant’s request to inquire into racial or ethnic prejudice, where such an inquiry is not constitutionally mandated, is reversible error only where the circumstances of the case indicate a “reasonable possibility” that such prejudice might influence the jury. Federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and the victim are members of different racial or ethnic groups.

I’m unsure of the extent of the questions asked of jurors in Adnan’s case, and whether or not Rosales-Lopez came into play in his situation.  In recent years, however, some judges have acted to prevent possible discrimination against immigrants through questioning potential  jurors, something that may have helped Adnan if it was not done during his jury selection process. In 2012, a judge in Oregon asked during the jury selections for murder trials where the defendants were immigrants, “Do you believe that immigrants are causing problems in America?”  The judge cited Rosales-Lopez directly, saying “he believed it was his responsibility to address racial or ethnic prejudice to ensure the defendant received a fair and impartial trial.”

As The Atlantic observed, “Whether or not Adnan is guilty, it’s difficult to come away from this deep dive into his case without concluding that he would’ve gotten a fairer trial in ways big and small if he had not been a Muslim.” At the end of the day, witnesses, juries, prosecutors, judges – the very people who compose our justice system are just that – people. People with prejudices, big and small. People who compose a wider society with broader assumptions about social groups – Muslims and immigrants included – that must be mitigated through a judicial process that recognizes these prejudices.

Hopefully some day a juror won’t speak of a teenage kid from the Baltimore suburbs with the words “I’m not sure how the cultures over there, how they treat their women” without meaning the very American culture the defendant grew up with.

To listen to Serial, you can download episodes here, or through iTunes. The Atlantic Article cited in this post, along with Rabia Chaundry’s blog post on episode ten are excellent reads on this topic. Chaundry also has a “Help Free Adnan” page

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One comment

  1. Joshua Rigsby | The RigsBlog · · Reply

    Good points, great post. One of the things Serial did best was point out the flaws in the justice system due to prejudice, incompetence, and the unreliability of memory/eyewitness testimony. Hopefully it leads to meaningful examination of not only Adnan’s case but how immigrants are treated throughout the justice system.

    Some of my thoughts here: http://joshuarigsby.com/2015/01/14/thoughts-on-serial-season-1-a-podcast-post-mortem/

    Like

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