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Last week concluded Sarah Koenig’s captivating 12-week podcast, Serial, which will go down as one of the things many of us remember most about 2014 and about the workings of our criminal law system.

Also in 2014, the criminal law system was itself the subject of a great deal of attention — most of it negative.  And yet the  news stories, protests, and themes related to the events unfolding in Ferguson and Staten Island, for instance, somehow did not overlap with the dubious conviction of Adnan Syed?

Is it because they are not connected?

In November, Josie Duffy a racial and economic justice lawyer in Brooklyn and a friend and former student of mine brought the two topics together, at least implicitly, in her powerful critique of Serial.   Duffy took Koenig to task for overlooking the larger systemic forces at work in the Syed trials — some of the very forces that were made salient by the grand jury determinations regarding the Michael Brown and Eric Garner killings.

Behind the pretense of journalistic thoroughness and fairness, Duffy argues, Koenig was actually being careless and unfair.

Clearly there was a lot to like about the first volume of Serial, and I count myself among the millions eagerly anticipating next season’s series.  Nonetheless, Duffy’s focus on the system itself strikes me as critically important and fitting.  If this country is going to have the sort of meaningful national conversation that it needs to have in order to bring about significant and sustained reforms, first-rate journalists need to do their part to help to shift the focus away from the compelling individualistic narratives and futile character assessments and toward the larger trends and pressures in which people operate. Or, at least, they need to do more of the latter.

Here are a few excerpts from Josie’s article:

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[T]here are critical questions Koenig’s not asking, and we need to talk about those. She’s focused almost entirely on the details of the crime, peripherally sketched out some details on the criminal, but failed miserably to examine the failures of the process.

This is where her reliability starts to unravel. You can’t be fair without context.

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What does seem clear to me, though, is that there was rampant and serious misconduct by Baltimore law enforcement. It seems impossible that, as a defendant, Adnan got within the realm of a fair shake here. And even if law enforcement’s shady behavior didn’t rise to illegal misconduct, there’s a reasonable possibility that it could have had a tangible effect on the outcome. The police ignoring Jay’s inability to stick to his story, the disappearance at trial of an entire portion of his story, the prosecutor quickly hushing one of their primary witnesses before she says something that stands in direct opposition with the theory they’re presenting—each of these, handled differently, could have imparted much more reasonable doubt into the minds of the jurors.

This behavior is startling but not unusual—this is how the criminal justice process works. More often than not the things that explain the various players’ motivations happen after the crime. They happen once the police get involved, threaten sentences, make deals, elicit confessions. It happens when prosecutors cover up part of the story and defense lawyers throw cases and a man involved in a murder gets to walk if he talks.

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How can you tell a story about a convicted criminal without talking about the system that convicted him?

You can’t tell us Adnan’s story without talking about what it means to be a defendant in a courtroom in 1999, as America was putting the finishing touches on its most incarceratory decade yet. Over 350 new state prisons built in one single decade, each quickly filled to capacity. This is when incarceration was accelerating disconcertingly fast but before any of us were talking about it.

And Baltimore at that time. Jesus. Grim and poor and punitive. More than half of young black men in the city were in the criminal justice system—if they weren’t incarcerated they were on probation or parole.

That “more than half” thing is incomprehensible. And it matters here. It matters because Koenig doesn’t seem to know it. When, in episode 7, Deirdre says, “I’m a little concerned about racial profiling here, you know?” Koenig replies with surprise, “Oh really?”

Even apart from race, this statistic matters because of sheer numbers. That’s a remarkably high body count that Baltimore was moving through the assembly line. It’s even crazier because of what the prosecutor’s office looked like in 1999.

Koenig doesn’t talk about Baltimore. But Baltimore matters.

Just a few days before the murder, Baltimore’s head prosecutor had to publicly apologize after two men accused of murder were released when the city accidentally failed to try their cases. In this apology she described her office as “totally overwhelmed,” asked for a budget increase of $8 million—over 50%—or else she wouldn’t be able to do her job properly, and was rejected by the Mayor.

This happens again, by the way. It happens a few times—serious violent criminals getting let out because the prosecutor’s office was too overwhelmed to process cases in a reasonable time. People are all over the Baltimore Sun calling the office incompetent, expressing disgust.

Fast-forward a few months to early March, a few days after the police wake Adnan up in the middle of the night and take him to the station. In trying to stem a cavernous deficit the city came for police officer’s overtime hours, hours often spent in court over charges they’d issued. These charges usually didn’t hold any weight—60% percent were dismissed—and it was wasted time of the cops and the court. So the city changed the whole process, instead giving the struggling State Attorney’s office the role of deciding the validity of police-issued charges, burdening the prosecutors with more work but granting them more power.

Meanwhile there were still thousands of cases to be handled and defendants in jail awaiting trial.

And Baltimore’s prosecutors, stretched impossibly thin, still managed to convict or plea out an astronomical number of young black men in the city. Including Jay, who pled out and got a few years probation.

Think about this. In early 1999, the prosecutor’s office was a public relations nightmare. They had no time, no money, but more charging power than ever. Plus they must have had tactics—after all, they were putting a shocking amount of people away while vastly under-resourced.

And then two months after a girl disappeared, someone is pointing to the boyfriend. That’s open and shut, quick and clean. I don’t think it’s crazy to consider the fact that the police were overlooking Jay’s six remixes to his own story to get a win and get it off their desk. . . .

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Read Josie’s entire article here.  She blogs at The True Fight and tweets at @_johelen.

Links to some related articles investigating the investigator who is investigating the investigators:

  • An article about the larger inequities in our criminal justice system that Serial misses here.
  • An inventory of Serial backlash here.
  • A defense of Serial against the backlash here.
  • And, finally, an inventory of the backlash and defenses here.