Everywhere I go, I’m asked whether I think that Adnan Syed “did it”, whether he received a fair trial and whether he has any chance of getting his conviction and life sentence reversed.

The answer to the first question is “I don’t know”; to the second, “no”; and to the third, “it will be an uphill struggle, but it is possible – largely due to the podcast itself”.

So many people ask because they’re all talking about the remarkable podcast Serial, which documents the factual weaknesses – and strengths but mostly weaknesses – in the prosecution and conviction of Adnan Masud Syed for the murder of his former girlfriend, Hae Min Lee, in 1999 when they were both high school students in Baltimore, Maryland. Sarah Koenig, who narrates and co-produces the podcast, turned her reporting about the case into a worldwide conversation about justice, doubts and the limitations of the American legal system.

Koenig, who has re-examined almost every aspect of the prosecution’s case from multiple angles, came to an uncertain conclusion: she believes Syed is probably not guilty, but she can’t swear to it. The evidence she presents raises considerable doubts about the prosecution’s case, but also leaves open the possibility that Syed committed the murder for which he is serving time in prison.

The facts of his case are fairly representative of several dozen homicide cases I’ve handled over my 50 year career.

Several weeks after Lee went missing, her strangled body was found in a shallow grave in a wooded area. There was no obvious physical evidence pointing to a particular suspect, so the police turned to her ex-boyfriend, Syed, and her then-current boyfriend. The latter had an air-tight alibi, but the former, who’d never been in trouble with the law, also seemed like an unlikely murderer.

Then the police got a break. One of Syed’s acquaintances – a marijuana dealer named Jay, recently identified as Jay Wilds – claimed that Syed killed his ex-girlfriend out of revenge for the break-up she initiated. Wilds’ detailed account – which included the claims that Syed told him that he was going to kill Lee, that Syed then showed Lee’s body in the trunk of her car to Wilds, and that Wilds then helped Syed bury her – seemed to be corroborated by cell phone records. Though the specifics of Wilds’ incriminating account varied over time, the essence of his story remained constant: Syed said that he would kill Lee, admitted he killed her, showed Lee’s body to Wilds, and then buried Lee’s body together with Wilds.

It was enough to secure a conviction, especially since Syed’s trial lawyer did a poor job of investigating the evidence and defending him at trial. For instance, she failed to interview a potential alibi witness and she didn’t press for forensic testing of hair and skin found on the victim’s body – either of which could’ve proved potentially exculpatory.

The vital question for listeners now is whether the evidence discovered in the course of reporting the podcast – including some new evidence not known to the defense lawyer at trial – will get Adnan a new trial at which he could be well-represented and armed with evidence that could help him contest the prosecution’s case.

The answer is that current law is very much against him.

Once a trial is over and the jury has found a defendant guilty beyond a reasonable doubt, it is very difficult to secure that person a new trial unless there were serious legal mistakes at the original trial. New evidence that casts doubt on the reliability of the conviction is viewed with skepticism – especially when the case has been unsuccessfully appealed and challenged in other post-conviction proceedings, as Syed’s was.

For example, there are even judges on the US supreme court, led by Justice Antonin Scalia, who seem unwilling to reverse even death penalty convictions even in the case of clear evidence of innocence. In the 2009 case of Troy Davis, Justice Scalia wrote:



This court has never held that the constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable

It is doubtful that Scalia’s extreme view would command a majority of votes on the current supreme court, but it does illustrate the difficulty of re-opening legal cases in which there was a conviction based on new evidence. It’s even more difficult if that new evidence doesn’t clearly establish the innocence of the defendant, as, for example, new DNA evidence that points to another killer might. (A Virginia Innocence Project is now trying to have an analysis performed on hair and skin found with Lee’s body to determine if there is DNA that point to a different suspect.)

In this case, the new evidence uncovered in the course of reporting the podcast in combination with the inadequate performance of his trial lawyer has raised doubts about Syed’s guilt in Koenig’s mind, in my mind and in the minds of many, but certainly not all, listeners to the podcast. Were I a juror at trial hearing this evidence, I would probably vote to acquit based on the totality of the evidence now available. But “beyond a reasonable doubt” – which is the standard for conviction at trial – is not the standard for granting a new trial based on newly-discovered evidence.

The standard for granting a new trial varies from state to state, but is fairly daunting in Maryland – where the defendant has the burden of proving both that he could not have discovered the new evidence with due diligence at the time of trial, and that the evidence is likely to result in an acquittal in a new trial. So, unless more and better evidence of actual innocence can be found, I doubt that Syed will get a new trial based on the current challenge, which is currently on appeal. That’s a tragedy because, were Syed to be tried again with a good lawyer and the new evidence assembled, he might well be acquitted.

But courts are often influenced by public opinion, and in the “court of public opinion” – as distinguished from the court of law – Syed is widely, though not universally, seen as the innocent victim of shoddy police work, overly aggressive prosecutorial conduct (and perhaps misconduct) and an inadequate (perhaps even unconstitutionally ineffective) defense. That widespread perception could lead the courts to resolve any legal doubts in Syed’s favor.

For many listeners there is enough doubt – both factual and legal – to raise serious questions about whether Syed’s continuing imprisonment is just, even if the legal system considers it “justice”.