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.

Serial and White Reporter Privilege

Also in the second episode of Serial, Koenig reads passages from Hae’s diary. Koenig notes, “Her diary, by the way—well I’m not exactly sure what I expected her diary to be like but—it’s such a teenage girls diary.” (My emphasis added.) This statement seems to suggest a colorblind ideal: In Koenig’s Baltimore, kids will be kids, regardless of race or background. But I imagine there are many listeners—especially amongst people of color—who pause and ask, “Wait, what did you expect her diary to be like?” or “Why do you feel the need to point out that a Korean teenage girl’s diary is just like a teenage girl’s diary?” and perhaps, most importantly, “Where does your model for ‘such a teenage girl’s diary’ come from?” These are annoying questions, not only to those who would prefer to mute the nuances of race and identity for the sake of a clean, “relatable” narrative, but also for those of us who have to ask them because Koenig is talking about our communities, and, in large part, getting it wrong.

The accumulation of Koenig’s little judgments throughout the show—and there are many more examples—should feel familiar to anyone who has spent much of her life around well-intentioned white people who believe that equality and empathy can only be achieved through a full, but ultimately bankrupt, understanding of one another’s cultures. Who among us (and here, I’m talking to fellow people of color) hasn’t felt that subtle, discomforting burn whenever the very nice white person across the table expresses fascination with every detail about our families that strays outside of the expected narrative? Who hasn’t said a word like “parameters” and watched, with grim annoyance, as it turns into “immigrant parents?” These are usually silent, cringing moments – it never quite feels worth it to call out the offender because you’ll never convince them that their intentions might not be as good as they think they are.

Koenig does ultimately address Syed’s Muslim faith in Serial, but only to debunk the state’s claim that Syed’s murderous rage came out of cultural factors. The discussion feels remarkably perfunctory—Koenig quickly dispenses with Syed’s race and religion. She seems to want Syed and Lee, by way of her diary, to be, in the words of Ira Glass, “relatable,” which, sadly, in this case, reads “white.” As a result, Chaudry believes Koenig has left out an essential part of Syed’s story—that his arrest, his indictment and his conviction were all influenced by his faith and the color of his skin. “You have an urban jury in Baltimore city, mostly African American, maybe people who identify with Jay [an African-American friend of Syed's who is the state’s seemingly unreliable star witness] more than Adnan, who is represented by a community in headscarves and men in beards,” Chaudry said. “The visuals of the courtroom itself leaves an impression and there’s no escaping the racial implications there.”

I found myself nodding as I read Jay Caspian Kang's excellent piece on the new hit podcast Serial.

The dancing around race throughout Serial has been the most glaring and particular choice in the series. I'm enjoying Serial, it has us all questioning why no one ported the serial genre to the podcasting medium earlier, but the more episodes I hear, the greater my frustration with having my attention in the case narrowly focused by Sarah Koenig's world view, and the more I just want to throw myself into the Serial subreddit, spoilers be damned, and start hearing from a more diverse group of detectives.

And I did, just for a bit. Rabia Chaudry, the civil rights attorney who originally reached out to Koenig to see if she might be interested in the case, posted a link there to a piece he just wrote about episode 8: Confirmation Bias FTW:

Raise your hand if you were surprised by what Jay had to say in this week’s episode. No one better have their hand raised. If you thought for an instant that “Mr. Your-Plea-Deal-Is-Good-Unless-You-Change-Your-Story” was going to do another “ok I come clean” when two random women show up at his door, I’ve got a bridge and a mid-east peace plan to sell you. You may have been surprised, however, with how Jay was described. Or you may have been confused. His is a catalog of contradictory personality traits, from goofy to mean, from animal lover to rat-eating-frog enthusiast (sorry, you kind of can’t be both – Google that ish and you’ll see what I mean). Unlike Adnan, who has overwhelmingly been described in similar terms by most people who know him, Jay poses a challenge to us. Other than being identified as the odd guy out, there was little similarity between what people had to say about him. What to make of his conflicted, yet beautiful, unconventionality? Nothing. That’s right. You make nothing of it. Because at this point if you really think you can assess the truth and reality of who a person is through a superficial, carefully edited and crafted, partial but maybe not impartial treatment of his (or any) character in a production, then you will forever be lost in crazy-making cognitive mazes. Is it too much of a stretch to say unless you know someone personally, you can’t really know them? You can’t. Trust me on this. Listeners will never be able to figure out whether Adnan is a sociopath or a nice guy, Jay is a psychopath or a victim, or Sarah is a bewildered glutton for punishment or a master weaver of addictive narrative (come on now). So let’s stop pretending we can psychoanalyze the depths of the souls of these people through 30-40 minute podcasts. If you still think you’re just special that way, I recommend you watch the documentaries “Paradise Lost“, “Paradise Lost 2: Revelations“, and “West of Memphis” and get back to me. A TL;DR of that experience is that you, as the consumer of a show, are at the mercy of the storytellers, second and third hand narrators, and incomplete profiles of people. The only thing you can do in such a situation is try and pin down what you can, make an assessment with a sack of salt, and then forget that assessment the minute a new tidbit of information is revealed.

Like many other listeners to Serial, I've been bracing myself for the possibility of an open-ended conclusion, one in which we never learn whether Adnan was really guilty or not. Even if we find out he's innocent, maybe we never learn who the actual murderer was.

But perhaps we're obsessing too much over the details of one particular case, one which may be unsolvable with the facts at hand. The greater legacy of the podcast may be the exposure of the insidious ubiquity of confirmation bias, nesting in on itself recursively so that it's almost impossible for us to trace back to the origin.