Convicted murderer Adnan Syed, the star of Serial — the immensely popular podcast and cultural phenomenon — received good news this month when the Maryland Court of Special Appeals agreed to consider his appeal. The court even took the unusual step of asking the prosecutors whether Syed received effective counsel from his lawyer.
The news comes as a recent episode of Serial documented the lawyer’s “career meltdown” in the midst of Syed’s second trial for the 1999 murder of his ex-girlfriend and classmate, Hae Min Lee, in Baltimore County. Syed’s appeal argues that he received ineffective assistance of counsel because his lawyer did not discuss a plea deal with prosecutors, even though he asked her to do that twice. Ninety-four percent of criminal cases in state courts ended in plea deals in 2009, according to a 2012 study, so the lawyer’s failure to honor Syed’s request seems unusual. The U.S. Supreme Court in 2012 ruled in favor of two “defendants who failed to take plea bargains after receiving bad legal advice,” in the words of the New York Times.
Millions of listeners are hooked on the podcast and awaiting any news on Syed’s case. It seems that, with each episode, more listeners believe Syed is innocent and that, as host Sarah Keonig artfully summarized his lawyer’s argument, “someone else did it.” (ThinkProgress has discussed at length the ethics questions presented by Keonig’s unique brand of journalism.)
Syed’s fate is now in the hands of the Maryland Court of Special Appeals, and the judges deciding his appeal will stand for retention election under Maryland’s constitution. Given Syed’s status as “a household name” with “a dedicated fan base,” how much pressure will elected Baltimore judges feel to overturn the verdict? Syed’s attorney told the Associated Press, “I truly think the appellate courts make their decisions based on the merits of the case, and not the popularity of a podcast.”
But recent research suggests that when elected judges rule in the cases of criminals — most of whom are not podcast celebrities and are vilified by our society — politics affect their decisions. Take a recent study by the American Constitution Society, in which Professor Joanna Shepherd of Emory University found that a doubling of the number of attack ads that accuse judges of being weak on crime “is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.” In other words, when judges felt electoral pressure to look tough on crime, they ruled against defendants more frequently.
Expanding the scope of that pressure also made judges more likely to rule against defendants. In states where bans on electoral spending were struck down after the landmark U.S. Supreme Court decision in Citizens United v. FEC, judges sided with defendants 7 percent less frequently.
Given these correlations between politics and rulings in criminal cases, how can one not think that a defendant’s popularity or unpopularity will impact an elected judge’s decision?
A recent piece in AlJazeera America by Chrisopher Moraff concluded:
There are better ways than popular election to select jurists. The rest of the world knows this, which is why the U.S. remains an outlier in its reliance on judicial elections. The last thing judges should be thinking about in the minutes before sentencing a defendant is how the ruling could be portrayed on television the next time they are up for re-election.
While tough-on-crime election ads incentivize judges to rule against defendants, Serial has the potential to perpetuate a dramatically more uncommon bias by the judge in favor of Syed. This is not because the show might provide new factual information or insight that could be of use to the judge or Syed’s lawyers; that could be a useful side effect. It’s because voters who listen to the show and believe Syed is innocent may consider how that judge decided the case when they vote in a judicial election.
This risk of bias is not a reason to question content like Serial that draws attention to the problems inherent in our criminal justice system. It’s a reason to question a system of judicial elections that makes judges vulnerable to their influence.