It was always pretty clear to anyone who knows me or my family that I’d practice law.
My parents are both attorneys. Growing up I remember classmates and their parents asking me how my dad can stand to represent and defend guilty people. I vividly remember being offended by the question. My dad, however, was never affected by this reaction. He’d consistently say, “Caroline, I protect each client’s rights, and I do that until the Government proves that it should take them away.” Those words have always remained with me.
From a young age I gravitated towards criminal defense, initially because I idealized my father, but as I grew older, because I developed a passion for that same advocacy and purpose. I grew to believe in protecting an individual’s constitutional rights, trying the Government every step of the way to ensure that the judicial process is legally executed, and ultimately challenging the inevitable stigma that attaches to a client as soon as he or she is charged with a crime.
But, over time, I’ve never escaped the type of question that once deeply offended me as a child. Now my peers and colleagues ask: How can you represent and defend someone like that?
… Like what? As soon as an individual is charged with a crime, an immediate stigma attaches to his or her character. This isn’t a new phenomenon. When an individual is charged with a crime, many people in our society jump to conclude that the accused probably committed the crime. And if the facts look bad, the same folks generally conclude that the accused definitely committed the crime.
The law, however, must not permit such hasty conclusions. The law requires an objective analysis of each case, a determination of which party has the burden of proving each issue, and an analysis of the facts as presented. Unfortunately, it doesn’t always play out that way.
This topic has recently arisen in the context of the Serial podcast. For those who don’t know, Serial is a series of episodes that seek to uncover the truth behind the 1999 murder of a high school senior named Hae Min Lee (“Hae”). Her ex-boyfriend, Adnan Syed (“Adnan”), has been serving the first fifteen years of a lifetime jail sentence for her murder. Throughout the entire podcast, the listener can’t help but wonder, “Did Adnan do it? Did he kill Hae Min Lee?” To this day, Adnan insists he didn’t.
It never looked good for Adnan. There’s the main witness who testified that Adnan told him he was going to kill Hae. This witness said Adnan was upset that Hae broke up with him and was dating someone else. The witness helped the police locate Hae’s abandoned car, and according to the witness, allegedly helped Adnan bury the body in a sketchy city park. Finally, what appears to be the icing on the cake, Adnan can’t remember what he did that afternoon.
No, this doesn’t look good at all. Six weeks after Hae’s disappearance, Adnan was arrested for the murder of his ex-girlfriend. After two trials (the first trial was a mistrial), a jury of his peers convicted Adnan of first-degree murder.
So, did he do it or didn’t he? The Government’s case has many issues. For instance, the main witness has no credibility – he gave several contradictory statements to the police, his trial testimony was inconsistent in each trial, his testimony never quite matches up with phone records and cell phone tower pings, he was referred to a criminal defense attorney by the prosecution, and he was given a sweet plea deal in exchange for his testimony. Yet, the defense arguably failed to explain these issues to the jury, and it didn’t help that Adnan was a practicing Muslim – according to Adnan’s loved ones, the jury indicated a certain prejudice.
I’ve scrutinized the facts of this case with my friends, colleagues, along with now millions of people who have listened to the podcast. It is really difficult to prove one way or the other if Adnan actually murdered Hae or had any involvement in her death. Either way, a general inquiry has been, if Adnan didn’t do it, why couldn’t he prove it?
From a legal standpoint, that’s not a relevant question. It’s not the defendant’s burden to prove whether or not he or she committed the crime. It’s the Government’s burden to prove beyond a reasonable doubt every element of the alleged crime. In Adnan’s case, Serial host Sarah Koenig illustrates to her listeners that there was insufficient evidence; the Government did not meet its burden, and the jury entered a guilty verdict because it believed Adnan probably did it anyway.
This brings us back full circle. Fifteen years later, Adnan still insists from prison he is innocent, and if the podcast accurately describes the facts as presented at trial, the Government failed to produce sufficient evidence that Adnan committed first-degree murder. Imagine this was you, or your spouse, or a loved one. There is increasingly less and less of a distinction between a criminal conviction and the stigma the vast majority of the public readily attaches to an accused as soon as he or she is charged. This distinction shouldn’t be taken lightly, and the impulse to jump to conclusions of guilt or innocence is an injustice that we, as a collective society, must be willing to challenge.
So next time I’m asked how I can advocate on behalf of an alleged criminal, I’ll give the same answer I learned as a kid. But as attorneys, we have a duty to ask a question in response: how can the prosecution prove its case?