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Monday, October 3, 2022

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The podcast ‘Serial’ got Adnan Syed conviction vacated. But injustices continue


At the request of prosecutors, a Maryland court on Monday vacated the conviction of Adnan Syed, whose name may be familiar if you’ve listened to the “Serial” podcast or watched the HBO series “Forbidden Love.” 

More than two decades ago, a jury found Syed, then 18, guilty of murdering a fellow teenager, Hae Min Lee, and he was sentenced to life in person. Fourteen years into his prison term, “Serial” revealed a potential alibi witness and noted issues with some of the evidence presented at his trial. It also shed light on the deficient representation Syed received from his counsel, who was disbarred just a year after Syed’s conviction. A judge in Maryland granted Syed a new trial, and an appellate court upheld that decision. 

Due process — or the legal safeguards afforded to all defendants — mostly protects the accused until there is a conviction; after that, defendants need to complete the proverbial Hail Mary pass to get a new trial.

But in 2019, the highest court in Maryland, in a divided opinion, reversed the decision of the appellate court. It agreed that the performance of Syed’s trial counsel in investigating the case was unacceptable but concluded that the proof presented against Syed at trial was too strong for that deficiency to have made a difference. Later that year, the U.S. Supreme Court declined to hear the case.

Syed’s new attorneys from the Maryland Office of the Public Defender and the University of Baltimore’s Innocence Project pressed on. Finally, in a motion submitted last week, the prosecutors sought to vacate his conviction because they had uncovered information concerning the possible involvement of two alternative suspects in Lee’s murder. At least one of the suspects was known to the prosecutors before Syed’s trial yet that was not disclosed to him, resulting in “Brady violations” — meaning evidence helpful to the defense was not properly made available. The prosecutors also acknowledged “significant reliability issues regarding the most critical pieces of evidence at trial.” 

To be sure, the state has not conceded that Syed is innocent — only that it no longer had “confidence in the integrity of this conviction” and that Syed should be released from prison, without bond, while prosecutors continue their investigation. Syed may still be tried again for the same murder.

While the ruling is certainly worth celebrating for the time being, Syed’s experience exposes some unpleasant truths about our criminal justice system. For starters, due process — or the legal safeguards afforded to all defendants — mostly protects the accused until there is a conviction; after that, defendants need to complete the proverbial Hail Mary pass to get a new trial, much less earn their freedom.

Among other things, due process gives defendants the right to remain silent and the right to an attorney. They have the right to see the prosecutors’ evidence before trial and to confront their witnesses in court. Prosecutors, meanwhile, have to prove their case beyond a reasonable doubt. And they have to convince a jury of the defendant’s peers, selected with the defendant’s input, that they have cleared that very high bar.

As Syed’s case demonstrates, these protections are not perfect. But the pre-conviction safeguards are nevertheless robust and effective. Unfortunately, they fall almost entirely by the wayside following a guilty verdict or plea. The system is geared to prevent innocent people from being convicted. But once convicted, guilt is assumed, and the system shifts toward protecting the conviction.

Concepts like the presumption of innocence and the “rule of lenity” (the principle that any ambiguous criminal statute must be interpreted in the defendants’ favor) are replaced by procedural hurdles set up to prevent courts from getting to the merits of post-conviction petitions unless defendants present their arguments in a timely way at every step of the appellate process, to allow an orderly review of the issues before the record becomes stale.

Even clearing these hurdles is by no means a guarantee of success. Prosecutorial misconduct and court errors are not enough to earn a new trial; normally, defendants must demonstrate that they had a reasonable chance of prevailing at trial as well — and the court ordinarily considers the evidence in the light most favorable to the prosecution. What’s more, the bar for showing that the defense attorney was incompetent, that the judge made consequential errors or that the jury reached an irrational verdict is almost impossibly high.  

Just this year, the Supreme Court held that receiving ineffective representation at both the trial and post-conviction stages is no reason for criminal defendants to get a new trial — they cannot attack the competence of trial counsel when their second attorney, also incompetent, failed to do so, and the defendant therefore waived a chance to attack the trial counsel’s performance.  

To be fair, the shift from protecting the accused to preserving the conviction is a necessity. Thousands of defendants each year petition courts for release. In our observations as former law clerks to judges to whom these petitions are made, the vast majority are frivolous. If courts entertained each with full-blown evidentiary hearings, our justice system would grind to a halt and the due process that the accused receive could suffer.

If judges are occupied with holding useless hearings, they may give less attention to motions asking to dismiss indictments, suppress search warrants and other pretrial requests that may have merit. More importantly, defendants may not receive the speedy trials to which they are entitled to under the Constitution.   

That reveals another truth about the system: We are increasingly relying on prosecutors and investigative journalists to protect convicted defendants because the rest of the justice system cannot always protect them. Prosecutors have the power to get convictions like Syed’s vacated, and journalists are often crucial to bringing attention (and therefore pressure) for them to do so.

There is a growing number of conviction integrity units at district attorney offices (nearly tripling in the last six years), as well as sections like the Sentencing Review Unit, which filed Syed’s motion, that consider releasing defendants who have already served lengthy terms. These units are desperately needed because, while most prosecutors are honorable and conscientious, there are notable exceptions. And even honest prosecutors can convict innocent defendants — it often just takes a lying witness, which is the leading reason for convictions exposed as wrongful.

Since so many convicted defendants and their families vie for prosecutors’ attention even when undeserving of any relief, reporters can help identify worthy cases and pave the way for eventual release. For convicted defendants like Syed, journalists are often the only remaining hope.


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