Serial and the flaw in the design of our criminal system

Great piece by NY public defender Sarah Lustbader about a crucial bug in the design of our criminal system, one she argues that Serial could have put a spotlight on.

In our judicial system, two equal opponents argue zealously for their side, right? 

Actually, that common-sense belief is completely wrong. Prosecutors in the United States occupy a special role, charged not only with protecting society from crime but also with protecting the defendant from an unfair trial. According to the American Bar Association, a prosecutor “has the responsibility of a minister of justice and not simply that of an advocate.”


I’m a public defender, and when I begin a case, I often know my client’s side of the story and nothing else. The prosecutor, by contrast, usually has access to police investigations, witnesses, forensics, and, after indictment, grand jury testimony. We have no legal right to that material until much later, most of it only on the eve of trial. 


The Supreme Court ruled in the 1963 case Brady v. Maryland that if a prosecutor comes across evidence that is potentially exculpatory — a witness recantation, a negative DNA match — that evidence must be turned over to the defense. Unfortunately, the Brady rule is violated at a rate Federal Judge Alex Kozinski called “an epidemic.” In 2009, the New York State Bar Association’s Task Force on Wrongful Convictions found the practices of police or prosecutors — including several Brady violations — might have led to wrongful convictions in 31 of the 53 cases examined.

I had no idea this was how our criminal system is supposed to work, but I'm just as unsurprised most prosecutors don't adhere to their legal duty to seek justice rather than just seek to win a conviction. It's crazy to expect humans to be able to optimize for two goals which may be in opposition.

Lustbader identifies a possible solution.

One partial fix to this problem would be open-file discovery, a system allowing defense access to the state’s entire file throughout the case (adjusting for witness safety). This system would ease the burden on prosecutors to play contradictory roles as judge and adversary, a combination that NYU Law Professor Rachel Barkow has called “the most significant design flaw in the federal criminal system.”

Open files would improve and accelerate plea bargaining, allowing defendants to make informed decisions, instead of the blind game of chicken we currently play. “If we were designing a government from scratch and knew that prosecutors were the final adjudicators in 97 percent of the cases, there is no way we’d let them make those determinations in secret,” Barkow said in an e-mail.

Recall Linus's Law: “given enough eyeballs, all bugs are shallow.” Open-file discovery seems like a helpful step towards some legal equivalent. 

Lustbader's piece was a real eye-opener for me. However, I don't fault the folks behind Serial for not having locked in on this single aspect of the our justice system as the podcast's central theme. Koenig and team stated that they were figuring things out as they went along. Many of us have, myself included, took a long time to realize they weren't kidding. The way the first episode or two unfolded, we couldn't believe that they didn't know how things were going to end.

The whole thing was reminiscent of a mystery narrative, but it's become clear with the past few episodes that it really was more of a narrative of the reporting process, of just how many false starts and dead ends one encounters when trying to unravel the truth in real life, whether as a reporter or a criminal lawyer or investigator.

When the twelfth and final episode of season one of Serial posts in just a short while, I doubt we'll have any tidy conclusion as to Adnan's true guilt or innocence. Some listeners will be disappointed because they thought the podcast was one thing when it was something else entirely, but the next time around, both Koenig and team and listeners will have clearer expectations from the outset.