Adnan Syed, the central figure in “Serial,” the most popular podcast of all time, is serving a life sentence — plus thirty years — for the murder of Hae Min Lee, his ex-girlfriend, in 1999. But for the first time since his conviction, Syed will be able to submit new evidence in his defense at a hearing in January. The two key pieces of evidence, both of which were first raised by Sarah Koenig and the team behind “Serial,” are the reliability of cell tower records that supposedly placed Syed at Leakin Park, where Lee’s body was buried, and a potential alibi, Asia McClain. Syed maintains his innocence, as he has since Lee’s death, when he was 17 years old.
If you listened to “Serial,” you may recognize Doug Colbert, a law professor at the University of Maryland: He was one of two lawyers who represented Syed at his first bail hearing (when Syed was denied bail), a fact that made its way into a later episode of the podcast. Colbert worked with Syed for about a month and or so, before Syed retained his private lawyer, Cristina Gutierrez. Colbert spoke with ThinkProgress by phone about Syed’s case and what role things like “Serial” and The Jinx (the HBO docuseries on Robert Durst, skyscraper scion and possible serial killer) can and should play in the justice system.
What was your initial reaction to the news that Syed would be able to present this new evidence at a hearing? Is it rare for someone like Syed to be given the opportunity to do this?
In thinking about what the legal ramifications are, let me begin by saying, challenging convictions after appeal becomes one of the great uphill legal battles to undo an unjust conviction, or a wrongful conviction. And that’s because the judiciary, generally, favors finality of verdicts, and closure, except when new evidence or errors at trial likely affected the jury’s guilty verdict. So it’s a heavy burden on the defendant, to gain what we call a post-conviction hearing. And that’s why it’s a highly significant event for the judge to order a hearing about new evidence on top of already scheduling a hearing that challenges the competence of that trial attorney.
Are you surprised that Syed was granted a hearing?
I think, based on the defense’s allegations, it calls for a hearing to evaluate the credibility of the challenge to the conviction. So it would be surprising if the court did not grant the hearing.
It seems like, as a country, we’re more interested than ever in the rights of prisoners, in mass incarceration, in efforts like the Innocence Project — that there’s a broader cultural shift toward supporting the accused and questioning the system or circumstances that landed those individuals in prison. Do you think that a case like Syed’s — the willingness for the court to grant this hearing — is part of that shift? That he was more likely to get this hearing today than he would have been ten years ago, or in 1999 when Hae Min Lee was killed?
I only wish there were more programs or more podcasts that could help educate the public about what takes place.
It’s so interesting. Right now I’m headed to an all-day conference sponsored by the Justice Department about the right to counsel for indigent and low-income defendants. I just returned from a two-day conference sponsored by the Koch brothers in which they brought together people from across the political spectrum who also share a common view when it comes to over-incarceration and the need for change. We’re at a critical point, and the opportunity presents itself to question and reform long-overdue deficiencies in our pre-trial and sentencing justice system. So am I surprised? I think, periodically, we encounter these opportunities and they usually occur after some tragic situations which cost people their lives or where they’re seriously injured.
As someone in the legal community, what are your thoughts on the fact that much of the evidence that will be presented at the hearing — the cell phone tower data and the potential alibi — were first uncovered by the reporters behind “Serial”? Are you grateful that journalists did work that lawyers couldn’t, or didn’t do? Does it feel like that evidence is problematic because of the nature in which it came to light?
I guess I’ve been around long enough to view the fourth branch of government as crucial to both investigate and educate the public about injustices. So when I was a full-time lawyer for poor people, I was a New York City legal aid lawyer for more than 11 years, and we looked to journalists and the press to publicize what was wrong with our justice system, because the people on the front lines are reluctant to provide candor at what takes place on a daily basis in our justice system. And my focus has been primarily on pretrial proceedings and the use of money bail to keep people in prison for lengthy periods who do not jeopardize public safety. Most of us regard freedom as our most important human right, and we expect counsel to be provided if we are unable to afford a private lawyer.
So, to connect to your question, there’s a very important role for journalists to investigate and report on and I only wish there were more programs or more podcasts that could help educate the public about what takes place.
This is reminding me of the reaction to The Jinx and the “evidence” it brought out in the Robert Durst case. These investigations are kind of a hybrid — pop culture meets journalism — and the people producing these projects don’t have to abide by the same rules as lawyers do. Which means we wind up with a lot of evidence that is maybe not evidence, or that could even be damaging to a case: A Sarah Koenig speculation, or Durst muttering to himself in the bathroom. But it sounds like you aren’t as concerned with those issues, that you think these productions are a net good for the justice system?
I do. I’ve spoken to a lot of different audiences who are mostly unaware and ignorant about the reality of our justice system. Everybody assumes that people get a lawyer, because they watch Law and Order. They think that the only people who are in jail are really dangerous people, or they believe there’s a role for bail bondsmen to decide which people are freed and who remains incarcerated. And when you’re on the front lines on a regular basis, lawyers keep too many things taking place in some of the courtrooms that really require public scrutiny.
I think there’s a serious question raised regarding the reliability of the cell tower’s evidence placing Adnan in Leakin Park.
Frankly, reporting on one case, Adnan’s, is one way of telling a compelling story. But I would love to see the old fashioned investigative reporter who is going to take a look at something like our money-bail system and the enormous profits where people must rely on paying a 10 percent non-refundable fee. We have two systems of justice, and I would love to see a journalist really focus on what takes place when you and I are brought into a justice system, or people with financial resources and influence, versus the typical person who is a low-income, working or poor person.
But does something like “Serial,” in its way, contribute to a different divide in the justice system? Instead of separating people with means from people without, it’s like, everybody who is semi-famous — everybody with a podcast — gets one justice system, and all the no-name defendants get another?
Adnan has served 17 years in prison. So it’s hard — maybe viewed from the outside, he’s become better-known, but I don’t think any of us can imagine surrendering 17 years of freedom to find someone ready to tell his story.
What’s your take on the evidence he’ll be presenting in his defense?
You mention the cell tower’s evidence, and I think there’s a serious question raised regarding the reliability of the cell tower’s evidence placing Adnan in Leakin Park, and it raises a potential question of prosecutorial misconduct, by allegedly withholding two pages of the phone company’s display.
Are you optimistic that the hearing will go well for Syed?
I’m always a big believer in process. I like to wait and consider what takes place in the courtroom before evaluating anyone’s testimony. On its face, it appears to be compelling evidence. But it still needs to be tested through cross-examination. And I’ll add that, had Adnan been freed at the beginning of the trial or released on bail, that usually plays a very big role in the outcome of a case. Most of the data shows that people who remain incarcerated are far more likely to be found guilty than people who are freed.
This interview has been edited and condensed for clarity.