If you know who Adnan Syed is, you know because of season one of Serial, the This American Life spinoff hosted by Sarah Koenig that became the biggest podcast of all time back in 2014. The podcast investigated Syed’s conviction in 2000 for murdering his former high school girlfriend, Hae Min Lee, the previous year. Syed was seventeen at the time of her death.
On Monday last week, Syed was released (Serial; New York Times) by a judge ruling on a motion by the state’s attorney’s office for Baltimore County. The motion acknowledged that, while Syed might not be factually innocent, his conviction had to be overturned because of prosecutorial misconduct in the original trial. Syed is not quite free — he is under home detention pending a decision whether or not prosecute him again — but he is highly unlikely to be re-convicted, in part because he has already served more than twenty years in prison for a crime committed as a juvenile.
In the episode discussing Syed’s release, Koenig described the case as an example of “just about every chronic problem our system can cough up”: aggressive police behavior, prosecutors sitting on exculpatory evidence (which is clearly illegal but almost never punished), fake science, excessive sentences, and the difficulty of correcting mistakes. That’s a bit of an overstatement — there are plenty of other egregious failings of the criminal legal system — but it’s a start.
Even after Serial became a cultural phenomenon, Syed still couldn’t get a new trial. There are very few grounds on which someone in prison can overturn a conviction after the direct appeal. You can’t just relitigate the case; in essence, you have to show that there was something wrong with the process by which you were convicted in the first place. One of the few ways to do that is to argue that your trial lawyer was ineffective, but to do that successfully you have to show that your lawyer was egregiously bad, that any mistakes they made were not the product of a rational strategy, and that those mistakes would have changed the outcome of the trial. Another is if you can show that the prosecution withheld evidence that could have shown that you were innocent; the problem here is that, while the prosecution has a legal obligation to disclose such evidence, in most states there is no process that forces them to do so, even after the conviction.
(As I wrote when I stopped listening to Serial back in 2014, “I found myself listening for two things: ineffective assistance of counsel and failure to turn over exculpatory evidence. Those are Adnan’s best chance at overturning a conviction that happened fourteen years ago. Raising doubt about his actual guilt or innocence is pretty much irrelevant at this stage.”)
In 2016, Syed got a hearing on the issues of whether his lawyer had been ineffective for failing to follow up on a potential alibi witness and for failing to challenge the cell tower evidence that the prosecution used to convict Syed. In 2016, one court ruled that Syed should get a new trial because of his lawyer’s mistake regarding the cell tower evidence. In 2018, however, the Maryland Court of Special Appeals overturned that ruling — not because the lower court was wrong, but because the claim regarding the cell tower evidence had not been properly raised. You see, after your conviction has been upheld on appeal, you are now in the post-conviction process. In that process, you get to file one post-conviction petition, which has to include all of your claims, and to file a new claim later you have to have a good excuse for not filing it earlier. Otherwise, the courts hold that you “waived” your claim by not including it in your initial petition. That’s what happened to Syed. Discussing a similar issue, Supreme Court Justice John Paul Stevens once wrote, “I fear that the [Supreme] Court has lost its way in a procedural maze of its own creation” (Smith v. Murray, 477 U.S. 527 (1986)).
At the same time, the Court of Special Appeals held that Syed’s lawyer had been ineffective in failing to investigate Syed’s possible alibi. In 2019, however, the Court of Appeals reversed that judgment on the grounds that, even if the lawyer had made a mistake, it wouldn’t have changed the outcome of the trial.
So why did Syed get out? Because the prosecutors realized they had committed a Brady violation — failing to turn over exculpatory evidence to the defense — in the initial prosecution. The violation was that their own trial files contained notes indicating that two other people might have murdered Lee. But why, in 2022, did they not only realize but voluntarily admit their mistake? Serial aired in 2014 and had no impact on the prosecutors, who opposed Syed’s post-conviction petition as vigorously as they could. As recently as 2019, the Maryland attorney general said that the evidence against Syed was “overwhelming.”
The first part of the answer is that the Maryland legislature last year passed a “second look” law, which in this case allows people who were convicted of offenses committed as juveniles to ask for resentencing once they have been in prison for twenty years. Second look laws are a relatively recent mechanism to try to undo some of the damage done by our unconscionably harsh sentencing practices in recent decades. Note that this law has nothing to do with overturning erroneous convictions. But when the Maryland prosecutors looked at Syed’s case file to determine how to respond to his request for resentencing, they found the Brady violation.
But this was certainly not the first time that prosecutors took a look back at their files in the past twenty-two years. The difference is that this time the person looking at the file was Becky Feldman — who had been a career public defender prior to joining the state’s attorney’s office and becoming head of the Sentencing Review Unit. It took a prosecutor who was actually willing to look at the file with an open mind and with the goal of achieving justice — not someone just trying to secure or protect a conviction.
It’s good that Syed is out. But what even this latest development still shows is that, in the criminal legal system, the prosecutors hold all the cards. If they want to play by the rules and let defendants have a fair trial, they can, but it’s up to them. If they want to look for mistakes in previous prosecutions, they can, but it’s up to them. The result is that the kind of justice a community gets depends, in most places, on who gets elected. And, in most places, district attorneys win elections by talking about how tough on crime they are; even supposedly liberal San Francisco just recalled its progressive prosecutor because of a virtually nonexistent crime wave. In this case, Syed (eventually) just got lucky.
What can we do about this problem? Short of fundamentally rethinking the criminal legal system, the single measure that could have helped in Syed’s case is a compulsory open-file discovery statute: a law requiring prosecutors to turn over their complete investigative files to the defense. That is the only reliable way to protect against Brady violations — and, in addition, to balance the tremendous informational advantage held by the prosecution in any criminal case. In 1996, North Carolina passed a law granting open file access to people who had already been convicted and sentenced to death; ten convictions were reversed because of that law, which only applied to people on death row. In 2004, North Carolina expanded open file access to all felony cases.
In criminal cases, access to prosecution files matters. If you’re not convinced by Syed’s case, remember the case of Timothy Foster — a man who would probably have been executed by now if the prosecutors had gotten around to shredding his file. We shouldn’t have to depend on the good faith of the prosecution.