Serial And Why The Criminal Justice System Is Lazier Than The Folks On Public Radio
Serial illuminates something important and sad about the current state of criminal defense.
Over the holidays I developed a serious Serial addiction. It’s a great program.
In case you aren’t familiar with the show, the friendly folks at This American Life put together a podcast where they delved into an old murder case in Baltimore. Fifteen years ago, or so, Adnan Syed was convicted of murder for killing his ex-girlfriend. Sarah Koenig and others try to dig up evidence about the case to see if Adnan is really guilty.
Koenig and her producers pore through just about everything they can find about the case. They interview old witnesses — including an alibi witness that Adnan’s defense lawyer missed. They debunk a lot of the government’s use of cell phone records. They painstakingly describe why the government’s main witness was wrong about a number of crucial parts of his story.
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In short, they put hundreds, if not thousands, of hours into the investigation of the case.
A lot of people think it’s a damning portrayal of the criminal justice system and how it failed Adnan. I hear in L.A. there are “Free Adnan” stickers popping up in public places. The podcast has turned the case of Adnan Syed into the O.J. Simpson of post-conviction relief. In the generally pretty good commentary about Serial there’s one point I haven’t seen talked about.
(And, in case you care, I think the podcast doesn’t really convince me that Adnan didn’t do it, but it does convince me that if they had presented everything to a jury that was in the podcast, and the jury hadn’t been biased against Muslims, there would have been reasonable doubt)
The thing about Serial that impresses me is just how much work the public radio people put in. And how much more work they put in than many many criminal defense lawyers would. They put in more work than anyone associated with the case — more than Adnan’s lawyer, the cops who investigated the case, or the prosecutor who worked it.
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When entertaining (or informing, or whatever This American Life does) is at stake, there’s a massive investment of time and energy. When the question is whether a guy spends the rest of his life in prison is at stake, the amount of effort is much less. (the same could also be said of, say, most reinsurance litigation — $100 million in coverage gets a huge fight where every stone is turned with a cast of 80 lawyers; a guy facing massive jail time gets one lawyer and two law clerks)
That’s messed up.
That the government doesn’t spend as much time as a Serial produce on a case makes sense to me. They lock in on a suspect early then start working to confirm their early decision. If you want to churn through cases and get convictions, that’s not a bad strategy.
But why defense lawyers do that illuminates something important and sad about the current state of criminal defense.
Most criminal cases — even most white-collar cases — are either paid for by the person charged, or the lawyer is court appointed. Very very few people have the ability to lay down the kind of coin they’d need to in order to do the kind of investigation that Serial did.
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Virtually no court would authorize payment for that much investigation; the courts tend not to think that an investigation that exhaustive would matter. Indeed, even in the federal system, where court appointed lawyers tend to be paid more (a whopping $126 an hour, subject to a presumptive cap of just less than $10,000 a case), judges and court administrators were recently so eagerly cutting payment to court appointed lawyers that the head of the Administrative Office of the U.S. Courts had to send them a memo telling them that balancing a court’s budget is not a good enough reason to not pay a lawyer for work she did.
Why would courts have that kind of hostility to paying lawyers who are safeguarding a fundamental right? Of course, part of the reason is that courts — among others — don’t believe in the importance of defense lawyers. Costs are costs and they must be cut.
Worse, the law about when a defense lawyer matters lets them do it.
As everyone knows, a little more than 50 years ago the Supreme Court decided Gideon v. Wainwright. In Gideon, the Court held that everyone has a right to a lawyer when they’re being tried for a crime. It’s a beautiful and sweeping holding, that guaranteed that no one in America would be in danger of going to prison without a lawyer standing by his side.
Then, in 1984, the Supreme Court held that the lawyer standing by his side didn’t actually have to be very good.
In Strickland v. Washington, the Court set out a two-part test to see if someone’s lawyer was so bad that the lawyer was basically no lawyer at all.
The first Strickland question is whether the lawyer messed up. The second is, basically, whether the lawyer’s mistake made a difference — absent that mistake, would the client have been in the same position.
Courts and prosecutors have let Strikland’s second prong silently overrule Gideon. If the government has a lot of evidence that a person is guilty, then, on this theory, unless the lawyer failed to find rock solid evidence of innocence — like, maybe, Adnan’s friend in the library — then the lawyer’s ineffectiveness wouldn’t have mattered.
It’s basically a no harm no foul rule for violations of the Sixth Amendment.
If that’s the standard — that to succeed on a claim that a defense lawyer was so bad that there should be a new trial you have to show that the person was actually innocent — then any time a defense lawyer is convinced there’s overwhelming evidence of guilt the lawyer’s conduct won’t matter anymore.
Which is one reason why courts — the same ones who enforce Strickland — are too often comfortable not paying for all the investigation that could raise the kinds of doubts you see on display in Serial.
At the end of the day, the only guarantee that a defense lawyer will dig in and find out what actually happened in a case is the native diligence of that lawyer. Some are great and dig in out of passion for the work or real care for the client. Others see themselves as processing guilty people into the Bureau of Prisons.
Adnan’s case fascinated the country. And for good reason. But it looks like it didn’t fascinate his lawyer. And it’s probably the case that the courts don’t care.
Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.
