Serial: A British Criminal Lawyer’s Perspective

I started using the Serial podcast as my motivational soundtrack.

I play it as I am driving up to a witness’s house to prepare myself for the interview. Or when I have a tricky phone call to make to a prisoner or their mum. Like Serial’s presenter, Sarah Koenig, my job is to investigate old murder cases that bear the hallmarks of a miscarriage of justice.

However, my job differs fundamentally from Koenig’s because, as a criminal appeals lawyer, I represent the Adnans of this world. I identify and interview new witnesses and gather records that the trial lawyers can’t find in order to test the Crown’s case against the defendant. If the Crown’s case crumbles, I use this fresh evidence to challenge prisoners’ conviction and sentence in the Court of Appeal.

As the media-savvy amongst will know, the Serial podcast centres on Adnan Syed, a young man currently serving a life sentence for strangling his ex-girlfriend, Hae Min Lee, when they were both still at high school. From prison Adnan maintains his innocence, and each week Sarah Koenig investigates a different strand of the case. The last podcast of the series airs today.

Despite the fact that Adnan was convicted in Baltimore, and I work on cases from Birmingham to Bolton, there are many parallels between his case and the miscarriage of justice cases here in the UK.

The first episode of Serial ends on a cliff-hanger as Koenig finally traces a witness who says she saw Adnan in the local library at the time the prosecution said he was killing Lee. This information didn’t come out at trial because Adnan’s defence attorney never interviewed this witness.

The failure to develop alibi evidence is also a theme in miscarriages of justice cases in the UK. One of my clients (I will call him John) gave up on his cash-strapped Legal Aid lawyers after they failed to take the time to investigate his alibi, leaving him to represent himself at a three-week Crown Court trial in which he was convicted and sentenced to thirty years in prison. Recent fresh investigation has uncovered not only evidence of John’s alibi but also an alternate suspect with a far stronger motive to commit the offence, providing the material to challenge his conviction at the Criminal Case Review Commission.

Under-resourced criminal defence lawyers often struggle to find the time to speak to witnesses or request CCTV footage before memories fade and data evaporates. Some UK solicitors even assume this is not their job, and that investigation is solely a province for the police.

In the absence of physical evidence connecting the defendant to the crime scene, the prosecution in Adnan’s Syed’s case resorted to tracking his movements using data gathered from his mobile phone, and specifically cell site evidence. By identifying the phone mast closest to the phone at the time each call was made, it was possible to map the location of his phone. On both sides of the pond, this type of evidence has received sustained criticism. Mobile phone signals do not always use the tower closest to it, tower signals overlap and the range of a tower constantly shifts.

In another recent case the Crown relied on cell site evidence to convict a young man who I will refer to as Liam of a murder, despite there being no physical or eye-witness evidence connecting him to the crime. The cell site evidence put him in the vicinity of the crime scene. It also put him in either his parents’ or his sisters’ homes, both of which were round the corner from crime scene.

So, I listen to Serial for inspiration, but another emotion has crept in too — envy.

I’m jealous of Sarah Koenig and her team, as they have so many more tools at their disposal when investigating this case than I do as an English lawyer.

In order to understand the case against Adnan, Koenig examines not only the transcript of the trial, but she also listens to audio clips taken from a video of the trial. In England, getting hold of trial transcripts is prohibitively expensive. I was recently quoted £21,000 for the cost of transcripts for a 19-day trial. Without it, I am left piecing together what happened at trial from the judge’s summing up and the defendant and lawyers’ recollections.

Second, Koenig describes hiring at least two private investigators, including one who speaks Korean, who work for months to help her trace witnesses. She also uses an array of experts to support her work. She speaks to Adnan for hours by phone and interviews witnesses on multiple occasions. As she develops a rapport with witnesses, you hear them open up to her and share more information.

This sort of work is becoming harder and harder to do in the UK, for one simple reason. The legal aid cuts.

Criminal appeals have long been a loss leader for criminal law firms. Firms must pay for the cost of the case up front (including both expert fees and the solicitor’s time) as the Legal Aid Agency only pay up once a case is over, which can take years. As profit margins become razor thin, fewer firms are willing to undertake this work and consequently only one in three prisoners can find a lawyer to challenge their conviction and sentence.

While the lucky few may have their cases picked up by an university-based Innocence Project, like Dwaine George who was released from prison last week after serving 12 years for a crime he did not commit, or by campaigning journalists like Louise Shorter at Inside Justice, it is often the family of the prisoners who are left to fight alone for freedom in a highly technical legal system.

For this reason, over the next 12 months we are launching the Centre for Criminal Appeals, a new non profit law practice that will champion the cases of the wrongfully convicted and fight for the resources to get the criminal justice system’s mistakes rectified both promptly and systematically.

No system can be said to be working when innocent prisoners have to rely on serendipity, students or investigative journalists to get their convictions overturned.

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