Deirdre Enright is director of the University of Virginia School of Law’s Project for Informed Reform and Center for Criminal Justice.
Sarah Koenig spent months and months collecting documents, reviewing evidence, interviewing witnesses, scrutinizing every weakness and questioning every strength in Maryland’s case against Adnan Syed, accused of murdering his former girlfriend Hae Min Lee in 1999.
Determined to miss nothing, she sought a “fresh set of eyes,” a phrase law enforcement has co-opted for cold-case review. My students at the Innocence Project at the University of Virginia School of Law formed “Team Syed,” and we were able to help identify the physical evidence recovery kit, which had been sitting in an evidence locker, and locate viable alternative suspects, among many other things. Koenig then captivated the world in 2014 with 12 episodes of “Serial,” energizing the growth of the, at the time, fledgling medium of podcasting. She even generated new evidence that attorneys would later use to revive Syed’s appeals.
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Syed’s case arguably received more attention, review and support than any other criminal case, ever. But it just wasn’t enough for the courts. Syed lost.
Now we learn that Syed’s hideous 23-year slog through jails and courts and then prisons could all have been prevented if Maryland prosecutors had done their jobs. Prosecutors have two fundamental obligations: to seek justice and to obtain convictions. In this case, prosecutors ignored their fundamental obligation to seek justice to devote themselves fully to obtaining a conviction. (And they did it twice. The first prosecution ended in a mistrial, because the jury overheard the judge accuse the defense attorney of lying — adding an additional level of irony.) Prosecutors have a constitutional obligation to turn over evidence that is “exculpatory,” or favorable to the accused, known as “Brady material.” This includes evidence that impeaches the prosecutor’s case. The prosecutors in this case had evidence — in a prosecutor’s handwriting — that a witness heard another enraged man say that he was going to “disappear” Lee, right before she “disappeared” and then was found strangled. It doesn’t really get more exculpatory than that.
In the 13 years after I founded and directed the Innocence Project at the U-Va. School of Law, discovering Brady violations in serious criminal cases has been both common and appalling. They weren’t all as outrageous as this one, but it was always crystal clear why the evidence was withheld; either the prosecutor might have lost or the case might not have been tried at all, because the suppressed evidence created substantial doubt in an otherwise weak or circumstantial case. The prosecutors’ desire to convict Syed preempted their investigation of this viable alternate suspect. Charges against Syed were dropped Tuesday.
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As I told Koenig on “Serial,” Syed’s case is like many other cases in our clinic and many other cases in all Innocence Project clinics. Prosecutors withhold material evidence with alarming frequency. The reasons are obvious. Most cases won’t see the light of day once the conviction is final. Most cases won’t get to the top of the pile at an Innocence Project for many years, and no other cases will likely get Koenig’s attention. Many innocent people enter guilty pleas because prosecutors have stacked the charges and defendants are too afraid to “roll the dice” — a commonly embraced description of going to trial, which says everything about our criminal justice system.
But there’s an even more insidious reason that prosecutors withhold exculpatory evidence: because they are virtually never held accountable. Prosecutors have absolute immunity for their bad behavior. They accused, trashed and wrongfully convicted Syed ad nauseam, not once but twice, and sent him to prison for 23 years. Next, the State’s Attorney Office accepted the baton and fought Syed’s efforts to prove his innocence for 23 years, presumably using the very file that contained the exculpatory evidence. Meanwhile, the two prosecutors were rewarded with career advancement. The state’s attorney eventually hired both Syed prosecutors Kevin Urick and Kathleen Murphy. Last month, Murphy was appointed by Maryland Gov. Larry Hogan (R) to become a judge for Baltimore County.
With the eyes of the world trained on Maryland, the state has a black eye and a teachable moment. Maryland should now hold accountable the ones who threw the punches. Remind Urick and Murphy that withholding exculpatory evidence has serious consequences and suspend or revoke their law licenses. Maryland could lead the charge in making a prosecutor’s right to immunity qualified, not absolute. And, most important, Maryland should identify a truly independent and objective “fresh set of eyes” to review all the cases ever prosecuted by Urick and Murphy.
Maryland should transform the hijacking of Syed’s life by two unethical prosecutors into consequences and meaningful and long-overdue reform.
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