On March 8, 2019, the Maryland Court of Appeals, the highest court in the state, issued a 4-3 decision reinstating the murder conviction of Adnan Syed. Previously a trial judge and the intermediate appellate court had ruled Mr. Syed was entitled to a new trial because his attorney was so ineffective as to have prejudiced his defense. The Court of Appeals confirmed the trial attorney’s performance was deficient, but determined her conduct did not prejudice Mr. Syed’s trial. (The attorney was disbarred a couple of years after the trial, and died a few years later as a result of complications of MS.)

On March 20, 2019, the United States Supreme Court heard oral arguments in the case of Mississippi v. Curtis Flowers. Mr. Flowers was convicted in 2010 for a quadruple homicide in Winona, Mississippi. It was the sixth time he had been tried for the crime. Three prior convictions had been overturned for prosecutorial misconduct, and two trials ended in hung juries. The issue before the Supreme Court, who has not yet ruled on the case, is the prosecutor’s decision to remove African-American jurors from the jury pool. Each side had a certain number of “strikes’ they could use to remove jurors they perceived to be biased or partial to the other side. The prosecutor repeatedly used his strikes to remove African-American jurors from the pool, leading to juries comprised of primarily white jurors, even though the community is racially diverse. In fact, Justice Brett Kavanaugh repeatedly stated during oral arguments that the prosecutor, over the course of the six trials, had used his strikes almost exclusively to remove black potential jurors. According to Justice Kavanaugh, the prosecution used 41 of 42 strikes to remove black jurors.

Changing Stories and “Perfect” Bullets

These two cases are both interesting on their own merits. The Adnan Syed case was based almost entirely on the testimony of an alleged accomplice and cell phone tower evidence. In the nearly two decades since the conviction, however, both of those items have come under scrutiny. The accomplice has told multiple variations of his story, changing times and locations of supposed events. He has also told some people that he made up the story to get out of his own criminal charges. In fact, every time he speaks about the case – police interrogations, trial testimony, media interviews – he changes key details in the story. The Curtis Flowers case is, likewise, fascinating. There are no eyewitnesses. There was ballistic evidence, but the collection of the evidence is incredibly bizarre and the analysis is extremely suspect. When I say the ballistic evidence is bizarre, I am not giving in to hyperbole. The police conducted a thorough investigation of the scene – a retail furniture store. Then, a few days later the investigator went back to the store, walked into the mattress department and “found” a perfectly preserved bullet in a mattress, and left, all within five minutes of entering. This bullet was compared to a bullet removed from a tree stump in the backyard of Mr. Flower’s grandmother’s house. The analyst then compared the perfect bullet from the mattress to the one dug out of a tree stump and concluded they were from the same gun. The gun itself was never found. Then there is the fact the same case has been tried six times, and three prior convictions have been overturned because of prosecutorial misconduct.

Award Winning Podcasts Explore Cases

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There is one remarkable link between the two cases. Both were the subject of extremely popular, and, award-winning podcast series. Adnan Syed was famously featured in the podcast Serial, which originally aired between October 3, 2018, and December 18, 2014. The podcast has been downloaded more than 340 million times and won a Peabody award for its reporting in 2015. It also led to multiple other podcasts and documentaries on the case. HBO has just released a four-part documentary on the case. The Curtis Flowers case was featured on season 2 of the podcast In the Dark, which is routinely included on lists of the best podcasts. It won a Peabody award for its reporting in 2017. The reporting uncovered by the podcast team was cited in the Supreme Court briefs as well as in oral arguments of the case.

The vast majority of criminal cases do not receive media attention. As a result, problems which occur in the courts are often unseen. These two cases, thanks to the podcasts which brought them to the public’s attention, are exceptions. The cases highlight, for the general public, serious questions about the criminal justice system.

Issue: Plea Deals for Cooperating Witnesses

One such question is the role of plea deals and leniency for cooperating witnesses. In the Syed case, the star witness testified he had knowledge of the crime before it happened and he participated in disposing of the body. This testimony may have implicated him as a full co-conspirator in the case. In exchange for his testimony, however, he received a suspended sentence and served no time in jail. Mr. Syed was sentenced to life in prison without a chance at parole. In the Flowers case a jailhouse informant, with a substantial criminal record and a possible motive for the underlying crime, testified Mr. Flower’s confessed while in jail waiting for trial. In exchange for this testimony, the informant was not investigated in the case and was given special privileges, including access to a cell phone and Facebook while serving a prison sentence. In both cases, there are substantial reasons to doubt the credibility of the witnesses, in no small part because of the special deals they received.

Issue: Social Bias in the Courtroom

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A second question involves the role of social bias in the court system. In an early hearing in the Syed case, the prosecutor told the court that the facts fit a pattern of cases of Muslim honor killings in America. Subsequently, the prosecutor admitted to the court that no such pattern existed. The idea of an honor killing continued to be argued throughout the trial. The prosecutor in the Flowers case used his juror strikes in a systematic way to remove nearly every potential African American from the jury pool. This prejudice impacts, not just the defendant, but also the members of the African American community. They were denied the right to fully participate in the justice system in their own community.

Thanks to the hard work of Serial and In the Dark, the public has received an inside look into the system. Because these questions have been raised in such high profile cases, it can be hoped that the system will have to answer these difficult questions. If so, the benefits of all of this publicity may be an improved criminal justice system for everyone, not just these two defendants.