Shedding Light

The first way to look at it is from the perspective of an incarcerated criminal defendant—someone like my client, Adnan Syed. Other obvious examples are Brendan Dassey or Steve Avery [from Netflix’s Making a Murderer]. The question is whether all of the publicity has been helpful. I think most would say it’s been helpful or neutral—it hasn’t had any effect, really, on the outcome of any proceedings. 

Dassey had an incredibly strong argument. His conviction should have been overturned. What happened to him was utterly outrageous, and there’s no way that conviction should have stood. Dassey is still in jail when, No. 1, he’s probably innocent, and, No. 2, his so-called confession was coerced. He got an incredible amount of publicity and, as a result, great lawyers. They mounted an incredible legal effort, but it failed.

Even though Dassey didn’t get out, the process and the increase in public awareness might prove to be helpful for future defendants, and it might help clean up the interrogation process that police officers use. 

But I represent one person only, and that’s Adnan Syed. It’s of little consolation to him if his case benefits future defendants. I’m looking to get my client out of jail, and until he’s out, I haven’t succeeded. I get a fair number of media requests—in fact, HBO is making a documentary about the Syed case right now—and I always have to remind myself that the ultimate question is whether it’s going to help my client or not.

The most concrete thing that came out of Serial is that the key alibi witness came forward and decided she wanted to tell her story, in court, and subject herself to scrutiny and cross-examination. If Serial had not come along, I think we would have lost the case. We were a hair away from losing it, and Serial breathed new life into our legal efforts. We’ve won a new trial, and now the state is the one appealing. I would say we’re the favorite to get a new trial, and I think that if we have a new trial, we’re going to prevail.

But through these cases, more people care about what goes on in the criminal justice system. There’s an army of people right now who [study] the criminal justice system who are getting involved. These are people who are reform-minded. 

I meet these people all the time. They might work in an IT department in Nebraska, but through these series, they become involved in criminal justice issues and become effective advocates. That’s a huge deal.

I’ve always believed that the more transparent our system is, the fairer it’s going to become. Jurors who understand that sometimes prosecutors get it wrong, that sometimes police officers lie, that sometimes evidence gets fabricated—those are good jurors who are going to uphold the Constitution and make this process fair to underdogs, minorities and the weakest members of our society. 

There are many repulsive things that go on behind the scenes in our criminal justice system. The only way that’s going to change is through exposure and visibility. I applaud the efforts that Serial and Sarah Koenig are making. The point is absolutely correct that 95 percent of what goes on is not a trial: It’s this plea-bargaining process and making deals and living in an imperfect system and trying to make the best of it.

One of the results of all this is that the conventional wisdom of the defense to keep their mouths shut should be reexamined. It’s possible that it makes sense for defense attorneys and their clients to speak to the public. I’m not saying it’s always going to work, but I think we need to be more open-minded about it and, in some instances, less cautious. A lot of times we’re in a losing fight anyway, so that’s the time when you can afford to take a risk. Rather than go down quietly, sometimes you’ve got to go down yelling and screaming.