A Maryland judge recently overturned the conviction of Adnan Syed, a middle-aged man imprisoned for murdering his high school sweetheart. The case received national attention, largely because it was the subject of the wildly popular podcast Serial. Lost amid the hubbub, all those cries of “justice at last,” is a more sobering reality. It took 23 years to reach this moment; it demanded the efforts of countless elite lawyers and high-profile journalists; and Syed was not actually exonerated.
In legal parlance, Syed’s conviction was “vacated,” not erased. Baltimore prosecutors later decided not to retry him—a reasonable move given the emergence of evidence from the prosecutors’ own files that point to not one, but two, alternative perpetrators. But that still doesn’t mean Syed will be declared “innocent” by a court. Without that official stamp of approval, Syed might struggle down the line to recover compensation for his horrendous experience, convince skeptics of his innocence, and secure stable employment.
All of this aside, Syed is in select company. For every innocent prisoner who manages to navigate the procedural labyrinth of our system and attain liberty, countless others remain locked up.
Many Americans believe it’s easy to get out of prison on “technicalities.” They believe the appellate and post-conviction process contains lots of escape hatches from the cellblock. That’s flat-out wrong. It’s virtually impossible to win on a technicality. On the contrary, technicalities are often what keep the actually innocent behind bars. The system exalts finality over accuracy, the appearance of justice over genuine justice.
To see how hard it is to traverse the shoals of this system, consider the case of Jeff Deskovic. In 1989, someone raped and murdered a teenager in a park in Peekskill, New York. Deskovic, a socially awkward loner enrolled at the same high school as the victim, became a suspect. Witnesses saw him cry inconsolably at the victim’s wake, despite not being a close friend, and he inserted himself into the investigation with bizarre offers to “help.” The police subjected the biological evidence from the rape kit to DNA tests; the results excluded Deskovic.
Prosecutors inexplicably plowed forward, crafting a novel theory of the case along the way. They argued at trial that the semen inside the victim was the product of consensual sex that must have occurred before Deskovic murdered her. Never mind that no evidence existed that the victim was sexually active, let alone in a relationship. The jury bought this story, absurd as it was, and convicted Deskovic in 1990. A court upheld that conviction on appeal in 1994.
Deskovic then sought relief through what’s known as a federal habeas corpus action, a remedy based on an ancient British procedure that allows prisoners to force the government to justify why “they have the body” in custody. But his lawyer, like many attorneys, struggled to dodge the hazards of the byzantine habeas process. The filing deadline was April 24, 1997. As the date neared, his attorney contacted the court clerk to verify the submission procedure. The clerk assured the lawyer the petition would be considered “filed” as of the date of mailing. So, the attorney put the final touches on the document and mailed it in on April 24. It arrived at the court for processing on April 28.
It turned out the clerk screwed up. Case law required actual receipt of a habeas application on or before the pertinent deadline, which spurred a federal judge to dismiss Deskovic’s habeas petition as untimely without ever reaching the merits of his claims. This incident shows in all its ignominious glory how procedural booby-traps can injure prisoners, even those with strong claims.
Nine years after a federal trial court deemed his habeas application time-barred, science proved Deskovic’s plea of innocence had merit. The Innocence Project in New York City urged Janet DiFiore—the now-resigned Chief Judge of the N.Y. Court of Appeals who was the Westchester County District Attorney at the time—to put the remaining biological evidence through further DNA tests. She agreed to do so in 2006, and the genetic profile produced a match to Steven Cunningham, a man in prison for strangling another woman to death. By the time of his release from prison, Deskovic had spent more than half his life behind bars for a vicious rape and murder he didn’t commit.
DNA evidence freed Jeff Deskovic in the end, but this type of scientific proof is seldom available. The police collect biological evidence suitable for DNA testing in only an estimated 10-20% of cases. Someone who commits a robbery or drug offense ordinarily doesn’t leave biological specimens at the crime scene, so there’s nothing for the police to find. And when genetic material from the perpetrator exists, it’s often lost, degraded, or destroyed over time. So, DNA isn’t the answer to the plague of wrongful convictions in most instances.
In fact, let’s think about this hypothetical, yet sadly representative, scenario: Suppose you’re an innocent person facing serious criminal charges. You’re convicted after trial—and later sentenced to spend years in a cage in a forlorn prison hundreds of miles from your friends and family. What’s your next move?
Contrary to popular opinion, appeals aren’t endless. Every state grants you the right to appeal your criminal conviction to a higher court once and once only. It’s called the “direct appeal,” and it permits you to attack what happened at trial. But the legal issues you may raise are limited; you may not introduce new evidence.
Even if you can prove an error occurred at trial and the error is appropriate for review on appeal, that argument isn’t enough to win. You’re up against something called the “harmless error doctrine.” That rule requires defendants to show not only the errors surfaced at trial, but also that those errors affected the end result. Time and time again, appellate courts treat even serious trial errors as harmless in comparison to the quantity of evidence signaling guilt. You could ask a higher appeals tribunal, even the U.S. Supreme Court, to look at your case. Yet the odds are stacked against you. This stage of review is entirely discretionary, and legions of other litigants compete for the few, prized slots on the docket.
That’s not the end of the road. After your direct appeal is over, you could pursue what are known as “collateral” post-conviction remedies. These permit you to challenge your conviction indirectly, from the side, rather than challenge precisely what happened at trial, which is the function of the direct appeal.
These procedures leave much to be desired. Habeas corpus is full of procedural obstacles, as we saw in Jeff Deskovic’s case. Habeas corpus is also designed to address constitutional or jurisdictional mistakes, not fundamental questions of guilt or innocence. Another remedy, which was originally known as the “writ of error coram nobis,” seems more promising in theory. It authorizes you to go back to the original trial judge with newly discovered evidence and try to show how this newfound information casts doubt on the soundness of the conviction. In practice, that remedy contains a number of procedural potholes, among them, a narrow vision of what counts as “new.”
That’s about it. You could prostrate yourself before government officials and seek parole, a sentence commutation, or perhaps a full pardon. The civil servants who evaluate these requests normally demand an acceptance of responsibility for the crime as a precondition to granting mercy. This poses a dilemma for the innocent. Parole and clemency are all about seeking forgiveness for your criminal transgression, and it’s hard to be forgiven for something you didn’t do. You could lie about doing the crime. But feigning guilt is a price you might be unwilling to pay: to sacrifice your long-term goal of being declared innocent to maximize the short-term, if very tangible, benefit of freedom. Plus, there’s no guarantee “admitting” guilt will do the trick and convince parole or clemency boards to let you out.
While we should applaud the news from Maryland and revel in the fact that Adnan Syed is currently free, we shouldn’t get too comfortable—at least not until he gets a formal proclamation of innocence. Even then, we shouldn’t rest.
Syed was lucky, after all. Jeff Deskovic had luck on his side, too. But what about all the other innocent people ensnared by the carceral state who lack such good fortune— the good fortune of DNA, of investigative reports about alternative suspects retained in law enforcement case files, of podcasters with a national audience, of dedicated lawyers willing to champion an innocence claim without charging fees?
The size of this population of innocent human beings languishing behind bars is unknown and unknowable. Their letters haven’t reached an innocence project. Their legal filings haven’t led to a courtroom hearing. Their stories have yet to be fully told.
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