For the 80 million people who downloarded the Serial podcast, Monday’s Supreme Court news is an outrage: The Court has declined to hear Adnan Syed’s latest appeal, and the (wrongly?) convicted murderer will continue to rot in jail.
But don’t blame the Supreme Court for keeping Syed in prison—blame the system that put him there and keeps him there: the system of “tough on crime” prosecutors with their eyes on public opinion rather than the fair dispensation of justice.
To begin with, the question presented to the Court was not whether Syed is guilty or innocent; that was a question for the jury in Syed’s 1999 trial, and will be for a future jury if he ever gets a new one.
Rather, the question the Court faced was a narrow, legalistic one, about how petitions for a new trial are to be evaluated in cases like Syed’s.
As Serial listeners may dimly remember, Syed actually had an alibi witness who was willing to testify that she was with him at the exact time the state said he murdered his ex-girlfriend, Hae Min Lee.
But Syed’s lawyer, Cristina Guttierez (now deceased), mysteriously didn’t call that witness, Asia McClain.
That, Syed’s new lawyers argued in 2010, when the latest phase of appeals began, meant she had rendered “ineffective counsel”— and that, as a result, Syed is entitled to a new trial.
The first court to hear Syed’s claim sided with him. So did the second court.
But in March 2019, the Maryland Court of Appeals (the highest court in the state) overturned the lower courts’ decisions. They held that while Gutierrez’s counsel was indeed deficient, even if she had called McClain as a witness, a jury would probably still have convicted Syed. The only thing McClain would have called into question, the court held, was the exact time the murder took place.
That bit of hypothetical reasoning is what the Supreme Court just declined to review.
According to Syed’s lawyers, the appeals court’s ruling is based on conjecture and hypotheticals. Whether a lawyer has provided ineffective counsel should be decided based on the actual court record—not based on what a court imagines that a jury would do in a different situation.
But according to the State of Maryland, ineffective counsel claims must be evaluated by the “totality of the evidence.” And if all McClain could’ve said is that Syed didn’t kill Lee at 2:45 in the afternoon, that’s no reason for a new trial.
Who’s right? For now, we don’t know.
But if all this seems like a weird, arcane little side-conversation to you, you’re exactly right.
In Serial, listeners heard a lot more than just Asia McClain’s alibi testimony. We heard about how prosecutors coached Syed’s “friend” and accomplice Jay Wilds, who even now, 20 years later, can’t seem to get his story straight. We heard about how the state’s theory of what Syed did on that fateful day is incoherent, how no one could go to all the places Syed was said to have gone (all the more so if McClain’s alibi is to be believed). We heard about unreliable cellphone transmitters, DNA evidence, and Islamophobia at Syed’s trial.
In short, we heard a lot more of the whole story than the tiny slice of it that the Supreme Court declined to review today.
But that’s the whole point. Most of those who are or may be wrongfully convicted don’t get the opportunity to tell their stories. They don’t star in podcasts. Rather, only rarely with the assistance of counsel, they must hang pieces of their story on thin threads of legal doctrine—like the abstruse question of what “ineffective counsel” means.
In Syed’s case, for example, his lawyers can’t even discuss the cellphone records issue because that issue was “waived” earlier in the appeals process. This is common in criminal law: if you don’t bring up an issue at a certain time, you can never discuss it again.
Likewise, all the evidence of Wilds’ lying and manipulation that Sarah Koenig presented in Serial can’t be presented in a court of law unless Syed gets a new trial.
Most importantly, while the state of Maryland could have simply allowed the new trial to proceed, zealous prosecutors, from the attorney general on down, have pursued appeal after appeal in order to prevent one from happening.
Why? To avoid embarrassment? To look “tough on crime” so that they can run for higher office? To stick it to the podcast crowd? Why the state of Maryland is so intent on keeping Adnan Syed in jail, given all that we know about his case, is baffling, to put it generously.
Now, of course, the family of Hae Min Lee deserves justice and finality. She was the main victim here.
But are they getting justice and finality now, knowing that Lee’s actual murderer may still be walking the streets? Yes, there’s a chance Syed did it. But what if he didn’t? Isn’t it worth a new trial to find out—rather than the patchwork of appellate court proceedings that have been dragging on for fifteen years now?
And there are thousands of Adnan Syeds out there.
Prosecutors have vast discretion—as we saw in the Serial podcast itself—regarding who to charge, what crimes to charge them with, and whether to seek a plea deal. (Notably, Gutierrez didn’t even seek a plea bargain in Syed’s case.) They are almost completely immune from prosecution for misconduct, or even accountability for it.
And when they do commit misconduct, the consequences are grave. Prosecutorial misconduct —suppressing evidence, coddling informants like Wilds, even outright lying—is responsible for convicting roughly half of the people later exonerated from them, according to the University of Michigan Law School’s National Registry of Exonerations.
And, as listeners heard on Serial but the Supreme Court was not allowed to consider, that was true in Syed’s case, where prosecutors helped Wilds get a lawyer and helped him make his case.
That’s who’s really to blame here: Syed’s initial prosecutors, eager for a conviction; the Maryland attorney general, eager to seem tough on crime; and the entire system of which they are a part.
Even now, they still won’t give him a fair day in court.