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The Case of Adnan Syed: Media Spectacle and Juvenile Justice

news cameras on courthouse steps

In 2014, the first season of the hit podcast Serial aired. It told the story of the murder of Hae Min Lee and the subsequent trial and conviction of her one-time boyfriend, Adnan Syed. Each episode explored evidence for and against Syed’s guilt, and, by the end of the season, both host and listeners were left with lingering doubts. Eight years later, on September 19th, 2022, Syed’s sentence was vacated, and he was released from prison after serving 23 years.

The case against Syed in 1999 was based primarily on two forms of evidence: the eyewitness testimony of Jay Wilds and cell phone tower evidence that purportedly supported Wilds’s description of the events of the crime.

Though the specific details changed from one telling to the next, Wilds’s basic story was that Syed strangled Lee to death in her own car in the parking lot of a Best Buy and then called Wilds for help with disposal of her body. The two allegedly worked together to bury Hae in a shallow grave in a nearby park. A cell phone expert in the original trial testified that the locations that Syed’s cell phone pinged that day corroborated Wilds’s basic account of the events that took place on the day of the murder, including pinging in the location where Hae’s body was later found.

Sara Koenig, the journalist who hosted and did much of the research and investigation for the show, was drawn to the case because of some of the clear holes in both the initial investigation and the trial. Among the most noteworthy of these was an eyewitness, Asia McClain, who claimed to have interacted with Adnan at length at the local library at precisely the time the state alleged that he was committing the crime. Though Syed’s lawyer, Christina Gutierrez, was aware of the alibi witness, she never contacted McClain and the jury never heard about the alibi. Gutierrez was disbarred for unprofessional conduct in a different case shortly thereafter.

The only evidence the state gathered to corroborate the eyewitness testimony offered by Wilds was the cell-phone evidence. Even at the time, that evidence suggested an elaborate and improbable route through the city on the afternoon of the murder. During their investigation, Koenig and her team found disclaimers from the cell phone company at the time which explicitly said that it could not confirm the veracity of reported locations associated with incoming calls. And yet pings associated with incoming calls were used to corroborate eyewitness testimony and to ultimately convict Syed. During both the bail hearings and the trial, the state engaged in racial stereotyping about violent and passionate Middle Eastern men to suggest that Syed killed Hae because he couldn’t endure having his “honor besmirched” when she broke up with him.

In light of the reporting in the podcast, many listeners concluded that the state did not meet its burden of proof in the case. Syed may or may not be guilty, but the evidence presented against him should not have led to a conviction.

Serial was one of the first massively successful podcasts; in many ways it defined the genre. And this resulted in tremendous media attention on the case.

Despite all of this attention, it was a new law passed in the state of Maryland that finally led to the reexamination of the facts of the case — the Juvenile Restoration Act. Among other provisions protecting youth, the act provides some potential relief for offenders who committed crimes while still juveniles. If an offender who committed the crime for which they were convicted was under the age of 18 at the time, they can ask the court to reduce their sentence and possibly even let them out.

Syed’s case qualified, and this initiated a sentencing review which required the state’s attorney to look at the case with fresh eyes. When she did so, the attorney found a handful of shocking things, including handwritten notes in the prosecutor’s files suggesting an alternate suspect in the case. This information was never shared with Syed’s attorney. Since the Syed conviction, Bill Ritz, one of the main detectives responsible for interrogating Jay Wilds, has been investigated for coaching eyewitnesses.

The totality of the evidence — the constantly changing eyewitness testimony, the erroneous cell-phone evidence testimony at trial, the existence of other viable suspects — suggested that the state could no longer justifiably hold Syed in prison any longer.

This does not mean that Syed is innocent, only that the case against him was hopelessly flawed at many stages.

This case introduces a cluster of questions about justice and the role of emerging technology in the criminal justice system. Perhaps most noteworthy is the question posed by the Juvenile Restoration Act that necessitated the reassessment of Syed’s case. At the heart of this issue are questions about what it is to act autonomously and the kinds of mitigating factors that might diminish a person’s culpability. We tend to think of children as moral patients rather than moral agents — moral agents are thought to be able to think clearly about alternatives and to effectively weigh their reasons for action given their interests and the interests of those about whom they care. They are capable of considering consequences carefully and of choosing to act in the interest of what they take to be the good. Moral patients, on the other hand, are sentient beings who are not capable of engaging in this kind of reflection for one reason or another.

It is clear that infant children cannot act autonomously; they are moral patients. It is less obvious where the cutoff point is for older children.

When we speak about teenagers outside of the context of their criminal culpability, we are quick to acknowledge that the changes young people go through at this age can make them almost unrecognizable to their loved ones at times. Hormones, intense emotional reactions, and mental health struggles that are common among people this age cause people to act in ways that might be less autonomous than we would expect from a moral agent. People this age can also often be easily manipulated by charismatic figures who seem to have all the answers. These kinds of considerations led to the ruling that Lee Boyd Malvo – 17 years old when he participated in the spree killings known as the D.C Sniper Murders – must be resentenced in Maryland.

The case also poses the related question of whether juveniles should be sentenced to life in prison without parole when their conviction was secured on the basis of circumstantial evidence. Such convictions are always less than ideal because they could be miscarriages of justice, but the harm done when the offender is a juvenile is particularly acute because it potentially prevents them from engaging in all of the life and character-building that is critical to late adolescence and early adulthood. The Juvenile Restoration Act recognizes the complexities of cases involving minors and, going forward, bans all sentences of life without parole for juveniles in Maryland.

Serial transformed Syed’s case into a cultural phenomenon. Internet sleuths all over the world assessed the evidence and discussed their findings with one another. This podcast marks a shift toward crowd-sourcing detective work.

Since it came out in 2014, countless other podcasts have made true crime cases their focus. The hosts of these podcasts often do not have the background in reputable journalism that Sara Koenig has — many hosts are just armchair sleuths pontificating about cases with a beer and a microphone in their garage. Some armchair sleuthing, such as the work done by civilians explored in the Netflix documentary special Don’t F**k With Cats, leads to progress in a case. Perhaps even more often, however, idle speculation and rumor mills end up unfairly maligning people and ruining their lives.

The media influences also raise issues of fairness.

How many convicted people like Adnan are out there who were convicted on the basis of unreliable witness testimony whose cases didn’t get made into popular podcasts?

It can be a good thing for a convicted person when the case against them is viewed with a critical eye. But most convicted people do not get this chance since the appellate process typically focuses on procedural fairness and not on factual innocence.

Finally, a highly public case like this leads to even more pain for the victim’s families. Syed was convicted in 1999. Going through that process was difficult enough for families and now countless people are questioning whether the courts got the conviction wrong. Though this sort of scrutiny can be useful to achieve justice, relitigating a case, either literally or figuratively, can leave a family feeling like the very worst moments of their lives will never end. The state prosecutes criminals using taxpayer money and these stories become part of our culture and our collective identity. As such, there is a sense in which these stories belong not just to individuals but to communities. There is also a sense in which they don’t — individuals and their families are the parties who actually experienced the pain and devastation caused by a crime. Even if the wrong person was convicted, sensitivity to the victims remains important.

Streaming services for podcasts, movies, and television have led to a proliferation of true crime entertainment. Though one of the goals may be justice, it would be disingenuous to suggest that they do not use tragic crimes to entertain viewers. At the very least, the proliferation of the phenomenon should motivate discussion about the role that true crime storytelling plays in our culture.

Implications of Exonerations

black-and-white photograph of empty jail cell

I expect that in the near future we will know, for certain, that at least one innocent person has been executed in the United States. This should not come as a surprise. There have been many cases where those on death row are found to be innocent; indeed by some estimates more than 4% of death row inmates may be innocent. One major reason we have not previously proven someone’s innocence is that there is rarely the political will to continue investigating post execution.

What I want to investigate in this piece is what this should mean for the use of the death penalty. The BBC, in its Ethics Guides, notes that the “most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.” But just how cogent an argument is this?

Let me lay my own cards on the table; I am emphatically anti-death penalty. I think the unnecessary killing of any human being is monstrous, and that the state may only use lethal force when combating an active threat, not as punishment for a past threat. However, I would hold this view even if there was no chance of an innocent person ever being executed; my objection is grounded in an invariant pro-life commitment. Thus, I think I am particularly well placed to assess the ethics of this question. I’m not in favor of capital punishment, and so am not looking for any rationalization to dismiss the argument from innocent execution; but nor do I feel a rationalizing compulsion to think the argument works — my own commitments would persist regardless. Of course, this all may just be a second-order rationalization about my own objectivity, but I’ll put aside worries about meta-level rationalizations for another post.

So here is a simple argument from the possibility of executing the innocent to the wrongness of the death penalty:

  1. If we use the death penalty, eventually an innocent person will be killed. (innocence premise)
  2. Executing the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
  3. Therefore, if we use the death penalty, we will eventually do something wrong that cannot be justified by the goods of executing the guilty.

Now, there is a certain intuitive plausibility to this argument. Suppose I thought that the death penalty has a strong deterrent effect, and so executing the guilty would save many lives (see this article for a defense of this argument; note there have been, as far as I can tell, several persuasive replies); I still would not think it is permissible to frame an innocent person and execute them to get that same deterrent effect. Thus, it is wrong to kill the innocent, even to bring about the valuable execution of the guilty.

The problem with this argument, is that, by parity, it seems to suggest we should never punish anyone:

  1. If we imprison people, eventually an innocent person will be imprisoned. (innocence premise)
  2. Imprisoning the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
  3. Therefore, if we imprison people, we will eventually do something wrong that cannot be justified by the goods of imprisoning the guilty.

This argument, as far as I can tell, has the same surface level plausibility as the previous one. If I knew the only way to capture a murderer was to, for some reason, imprison an innocent person for life, it would not be permissible to imprison that person.

So what has gone wrong with these two arguments? I think it is that there is a difference between killing or imprisoning the innocent as an intended means to punishing others, and foreseeing that the innocent may be killed or imprisoned as a consequence of a broader policy of punishment. While there may be an absolute prohibition on killing or imprisoning the innocent, that does not mean there is a prohibition on anything that could lead to that as a result.

To articulate the innocence argument against the death penalty, one needs to show that a) the fact an innocent person will be killed means we cannot use the death penalty, and b) the fact an innocent person will be punished does not mean we cannot use any schema of punishment (since I assume few people would accept that the inevitable punishment of the innocent means all punishment is unjust).

In fact, the problem for the innocent argument is even more profound. Remember that study I cited at the beginning, saying that as many as 4% of death row inmates are innocent? The way that study worked is that they compared the exoneration rate of those who stayed on death row (about 4%) to those who were shifted to life in prison. Because more scrutiny is given to death penalty cases (especially as the guilty approach execution), those who are actually to be executed (and not just on death row) are more likely to be exonerated. So, the study most commonly cited to support the claim that some innocent will be executed, actually shows that likely more innocent people would be punished if we switched from the death penalty to life in prison (since we are less likely to identify the innocent without the scrutiny provided to death penalty cases).

So, what can we point to in order to say that executing the innocent is uniquely bad — bad in a way that imprisoning the innocent is not?

Barbarity. Perhaps the thought is that the death penalty is, in some way, so much worse than life in person, that we cannot take any risk with the innocent being killed, even if we can take risks on an innocent person going to jail for life. But I’m not sure this is quite right. In other parts of life, we don’t treat risks of death as categorically worse than other risks. Anytime you drive a car there is a disturbingly high chance an innocent person might die (far more innocent people die in car accidents than are executed); but I don’t think we treat such risks as categorically distinct from other types of risks. You might, for instance, choose a small risk of death to avoid a much larger risk of having to spend the rest of your life locked in prison.

Irreversibility. The first thing we might suggest is that the death penalty is irreversible. If you kill someone you cannot bring them back to life, but if you imprison someone you can always let them go later. But it is not quite that simple. For one thing, you really cannot reverse a prison sentence. Even if you are eventually released, you do not get back those twenty years spent in prison. The punishment cannot be reversed, all we can really do is shorten it if we discover you are innocent.

Permanency. Is that the solution then? Is the reason the death penalty is so bad because it is permanent? Perhaps the thought is that if we cannot be certain someone is guilty, no permanent punishment is justified. But here, again, this does not seem quite right. After all, I still permanently lose my twenties and thirties to prison, even if I get released on my fortieth birthday.

And note too, the risk of permanence is not the same thing as permanence. Just because someone could be released does not mean they will. And we know that, since executions receive greater scrutiny, an innocent person is more likely to be sentenced to life in prison than sentenced to death.

Reparability. Perhaps it is not that the death penalty is permanent, but that it cannot be repaired. Sure, someone imprisoned till they are forty permanently, loses out on their thirties, but at least the state can do something to make it up to the person falsely imprisoned. For example, often those falsely imprisoned are given financial compensation from the state.

I actually find this argument somewhat convincing, but we have already seen that as a society we don’t accept the broader implication. After all, it is death, not execution, that is irreparable. But we have already seen that we don’t treat risks of death as categorically different from other types of serious risks. If car accidents just resulted in serious bodily injury, we could imagine making some reparation for such injury. Since they sometimes result in death, sometimes no such reparation is possible. But, again, it seems we don’t see that fact as particularly dispositive when assessing the ethics of driving.

It is a terrible and tragic thing to execute the innocent. But, I think, that is just a subset of the terrible and tragic thing that it is to punish the innocent. Perhaps we should strengthen our criminal standards for conviction (I’m quite sympathetic to that line of thought) so that fewer innocent people are punished. But I’m not sure. At the very least, if we accept as inevitable that the innocent will be punished it gives us a categorical reason to select some punishments over others.

Making a Murderer, Brain Fingerprinting, and the Ownership of Thoughts

Photograph of a billboard that says Avery's Auto Salvage and 24-Hour Towing

In 2015, Netflix released the first season of the docu-series Making a Murderer.  The series follows the story of convicted murderer Steven Avery. Avery’s case is noteworthy because, in 1985, he was wrongfully convicted for the rape and attempted murder of Penny Beernsten. The Innocence Project used DNA technology that did not exist at the time at which Avery was convicted to prove that Avery was innocent and that a different man had committed the crime. Avery was released in 2003 and subsequently filed a $36 million lawsuit for unlawful conviction against Manitowoc County, among others.

In 2005, photographer Teresa Holbach went missing. Her most recent scheduled appointment was to photograph a van at Avery’s home for his family business, Avery’s Auto Salvage. Charred fragments of Holbach’s bones were later found in a fire pit on Steven Avery’s property. Avery and his young cousin, Brendan Dassey were convicted of Holbach’s murder.

As a docu-series, Making a Murderer was widely successful. Many viewers were left with the impression that the evidence against Avery was planted and that the police misconduct was motivated, at least in part, by a desire to affect the outcome of the impending lawsuit. Many were also left with the impression that Brendan Dassey was wrongly convicted as well because, when interrogated, he was a minor with a particularly low IQ. Many feel that the officers who interrogated him fed him the information that comprised his false confession.

One might think that the way that the details were presented in the first season of Making a Murderer was morally questionable. The producers of the series left many details out, including the fact that a sample of Steven Avery’s touch DNA was found on the hood latch of Teresa Holbach’s car. Many viewers of the Netflix series became very personally invested in the case, going so far as to write letters to Avery, Dassey, and the law enforcement officials they hold responsible for what they view as the wrongful conviction of two innocent men. The series also had the effect of opening old wounds for those who loved Teresa. True crime is a popular form of entertainment. We should, perhaps, put more thought into the fact that these stories that serve as entertainment for so many are quite real for the people involved.

Despite these concerns, Netflix recently released a second season of Making a Murderer. One might naturally wonder whether reviving the story was an ethically defensible thing to do. This season focuses on both Avery’s and Dassey’s quest for post conviction relief. In 2016, defense attorney Kathleen Zellner took on Avery’s case, and the new season of the show focuses heavily on her efforts to prove Avery innocent. One tool she uses in this endeavor is a relatively new technology known as “brain fingerprinting.” Brain fingerprinting involves showing an individual (in a criminal case, presumably a suspect) a series of images or words. Some of the images will be associated with the case at hand, some will not. The individual is hooked up to electrodes that monitor their brain activity. When an image is familiar to the person, there will be electrical activity in their brain in predictable locations within 300 milliseconds. When the images or words are unfamiliar, there will be no such activity, or the activity will be of a different type. Brain fingerprinting, then, serves as a far more sophisticated lie detector test. While lie detector tests detect physical changes like sweat and heightened blood pressure, brain fingerprinting looks directly at the location the thought is taking place. Zellner claims that brain fingerprinting of Steven Avery reveals that he does not remember key features of the crime committed against Teresa Holbach and could not, therefore, be guilty of the crime for which he has been convicted.

In this case, brain fingerprinting was used by a defense attorney to establish that a particular perpetrator could not have committed a specific crime. At this stage, then, it doesn’t appear as if there is a lot of potential for abuse. But is this a technology we should be comfortable with governmental officials making use of? There are a number of reasonable concerns about the use of this practice.

The first set of concerns has to do with accuracy. Making a Murderer’s Larry Farwell contends that the technique has a 100% success rate—a claim that is rather difficult to believe. Even if the test is 100% effective at measuring something, surely what it measures will be highly contingent on nature of the images or words shown to the potential suspect.

Another concern is that the test has the potential to be more prejudicial than probative. Even if the test reliably indicates that a person remembers something, the test cannot reveal precisely why they remember that thing. What’s more, human minds are complex. Events and crime scenes are nuanced. So, though the test might indicate that the suspect remembers something, it cannot establish with certainty what exactly is being remembered. Finally, the fact that a suspect’s scan indicates that they are familiar with, say, an, object, location, or event, does not entail that the suspect’s association with what they remember is indicative of a mens rea—a guilty mind.  

Concerns about this new technology don’t end there. Even if the accuracy of the procedure was perfect—even if we could establish that a suspect remembers something, what it is they are remembering, and why they are remembering it, there still be may significant moral reasons that speak against the use of this procedure by the government. It may be that human beings have a fundamental right to bodily autonomy and privacy, the importance of which outweighs the government’s interest in catching criminals. Seeing to it that criminals are held accountable for their actions is a laudable goal. One might think, however, that our own personal thoughts are inherently, inviolably ours. This might be the right place to draw an insuperable line.