SERIAL THOUGHTS: LEGAL INNOCENCE VS. ACTUAL INNOCENCE

I have not had time to post for the last month because I’ve been busy working on the Adnan Syed case. Ok…I’ve just been listening to the Serial podcast and doing other things while ignoring this blog.

Serial, the NPR podcast produced by This American Life station WBEZ chronicles reporter Sarah Koenig’s investigation into the case of Adnan Syed, who was convicted of murdering his ex-girlfriend in Maryland in 1999. Mr. Syed has maintained his innocence. He was convicted in large part on testimony of an accessory witness, a friend who claimed he helped dispose of the body. He did not confess and there are no direct witnesses to the murder. He also did not testify in his own defense and does not have an alternate theory.

Serial has become highly popular beyond the NPR crowd and has in turn inspired Internet theorizing and even commentary podcasts (Slate and A.V. Club each has its own). The major question among listeners is: did Adnan do it? That is followed by, what will happen to him? Ms. Koenig claims to not know where the story will end up. Much of her research and interviews have exposed flaws in the State’s case against Adnan–that he should not have been convicted at trial–that the testimony against him was unreliable and that the scientific evidence (cell phone pinging) was dubious at best. There are also questions about the effectiveness of his attorney: she apparently did not investigate a possible alibi defense and did not advise him to testify for himself to refute the State’s theory.

A criminal defendant is innocent until proven guilty (or through a plea). When there is not enough evidence to convict, a person is found “not guilty,” which is not a finding of innocence because a person starts out innocent. This is known as legal innocence. A person still could have committed the crime despite being legally innocent of it. A defendant does not have to establish his or her innocence and seldom does a defendant even attempt to do so.

Actual innocence is the concept that a person truly is innocent–that he or she did not commit the offense. This often comes up with people who have already been convicted. Whereas an accused is innocent until proven guilty, a convicted person is guilty until he or she can prove his or her innocence or the deprivation of a fundamental right (effective counsel being the most common). A person who is actually innocent cannot be constitutionally imprisoned even with a guilty conviction. The difficulty is in establishing that innocence. This might be the most difficult, steepest climb in all of law. It is so rare and difficult that the Supreme Court has not even decided the issue. Granted, when overwhelming evidence of innocence is discovered, the defendant’s release is often accomplished through other means, notably an executive pardon or the State agreeing to reopen and drop the case.

What Ms. Koenig and her team, and now the Virginia Law Innocence Project (introduced a few weeks ago are attempting to do is remarkable and honorable. But what will it take to exonerate Adnan? It will take proof of his actual innocence–essentially evidence that another person committed the murder and that he did not. While the Innocence Project has exonerated many people from death row and prison in recent years, many of those cases involved DNA evidence that eliminated the defendant or implicated another person, recantations of witness statements and confessions from actual perpetrators.

In Serial it does not look like the witness will recant or that there is a significant DNA issue. Not mentioned on the show yet is the Innocence Project’s theory that the crime was committed by one of two other convicted killers who committed similar crimes in that area. There is also a pending appeal regarding an ineffective assistance issue. The bar for that claim is high as well.

Adnan Syed’s case will likely not end with this season of Serial. Few cases do. Adnan is also not alone. Many people have been wrongfully convicted and at least a few have been wrongfully executed. I really can’t say whether I’m rooting for Adnan or not because there’s still a good chance that he’s guilty. I am however looking forward to listening to the rest of the story.