Last month, Baltimore witnessed a startling development when Circuit Court Judge Melissa Phinn granted the city state’s attorney’s motion to release Adnan Syed from the prison cell where he had spent the last 23½ years after being convicted of murdering his ex-girlfriend.
Indeed, it’s a rare event when a chief prosecutor like Marilyn Mosby reopens a two-decade-old murder case and persuades a judge that the conviction requires dismissal. Ms. Mosby’s motion concluded that the trial evidence lacked integrity and was insufficient to prove that Syed committed the crime.
Rather than recognize Mosby’s extraordinary action in taking a stand against an unjust conviction and focusing on the prosecutorial and police misconduct that led to Syed’s incarceration, critics in the news media cast Mosby in the most negative light.
But it’s the trial prosecutor, not Mosby, who failed to meet his constitutional and ethical duty by not disclosing the identity of two men whom detectives had identified as the possible killers. Either person could have given jurors the necessary “reasonable doubt” to acquit Syed, particularly since one suspect allegedly threatened to kill Hae Min Lee, and the second suspect had been convicted of a series of sexual assaults against women.
Despite these factors, police arrested Adnan six weeks after Lee’s disappearance.
Mosby’s nearly one-year investigation revealed substantial weaknesses in the state’s case. With no eyewitnesses and no forensic evidence connecting Syed to the murder, the trial prosecutor relied on the testimony of Jay Wilds, a classmate considered a suspect himself, and on cell tower evidence that placed Syed’s cellphone in a location near where Lee’s body was found.
Having attended the first trial, which ended with the judge declaring a mistrial, I was not surprised when Mosby’s prosecutors highlighted the many inconsistencies in Wilds’ testimony, along with the unreliability of the cell tower evidence. Judge Phinn’s ruling took into account the trial prosecutor’s egregious constitutional and ethical violations in hiding detectives’ discovery of the two suspects. Known as Brady material, defense lawyers rely on prosecutors to share evidence that could help establish innocence.
That’s what makes Mosby’s actions so extraordinary. The easy thing would have been to let Syed’s conviction stand. That would not have disrupted the delicate balance that often favors law enforcement’s interest in obtaining convictions over uncovering the ones that are unjust.
Since taking office in 2015, Mosby chose to be a prosecutor dedicated to just outcomes. By creating the Conviction Integrity unit, Mosby went against conventional wisdom by appointing a former public defender, Becky Feldman, rather than a career prosecutor to lead the bureau and investigate other possible wrongful convictions. Feldman’s conscientious work led Mosby to successfully move to vacate 11 convictions and to request sentence reductions for 40 people convicted of crimes as youths.
Rather than focusing on Mosby’s longstanding commitment to correct injustices, many local news media stories questioned her motive in acting with just four months left in office (why not sooner?). Media also reported that Mosby failed to communicate with Lee’s family (she did), did not allow Lee’s brother to testify in person (the judge arranged a ZOOM call), and focused on the controversy with Attorney General Brian Frosh over whether prosecutors had disclosed the two potential suspects.
Consider the defense effort to gain Adnan a new trial shortly after his conviction in 2016. Frosh surprised many by appointing his former chief deputy, Thiru Vignarajah, as the chief prosecutor. Though Vignarajah vigorously defended the state’s conviction, he failed to persuade the trial judge, who granted a new trial.
Vignarajah’s prosecutorial role should be explored further. During the years he represented the attorney general’s office, Vignarajah had access to the Syed file, which Feldman said she did not receive notice of until a few months ago. Vignarajah should have examined the file and known about the two suspects who were never revealed to the defense. If he knew and failed to share the information, that constituted a clear violation of ethical duty and the basis for Mosby’s questions to Frosh about why the suspects weren’t disclosed..
Years ago, when the trial judge declared a mistrial, I asked several jurors leaving the courtroom what they thought of the prosecutor’s case. “What case?” they replied and told me they would have voted “not guilty.” More than two decades later, we can be thankful that prosecutor Mosby pursued answers.
Doug Colbert is a law professor at Maryland ‘s Carey Law school. He represented Adnan Syed at his bail hearings in 1999 before the family retained a full-time lawyer and has closely followed the case.