Lessons from the Popular Podcast "Serial"

My wife and I finished the first season of the podcast "Serial." The popularity of the podcast does not surprise me. Not only was the presentation well done, but the integrity of the investigation was sound. For those who may not know what I am referring to, "Serial" is an expose into the 1999 murder of Hae Min Lee, a charming, brilliant high school student.

A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.

The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.

The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.

Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).

A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.

Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.

Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.

Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.

No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.

Will the Natural and Probable Consequences Doctine be Rejected in California?

A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.

Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.

Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.

In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.

But in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant can never be convicted of first degree premeditated murder on a natural and probable consequence theory. In Chiu, the defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately until one of them shot and killed another young man. The defendant was charged with first-degree murder under the theory that he aided and abetted an "assault," which premeditated murder of the perpetrator was a natural and probable consequence. Defendant was sentenced to 25 years to life after he was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.

Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:

"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."

It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application. 

In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.

Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law. 

Murder

In general terms, murder means taking the life of another person. However, the specific crime with which a defendant can be charged varies significantly because under California law there are a number of degrees of murder ranging from attempted murder to first degree murder. California law actually has three broad categories of murder, each with multiple sub-categories.

• First Degree Murder
• Second-Degree Murder
• The Felony Murder Rule

First-Degree Murder

Murder in the first degree involves the premeditated killing of another person. Under certain circumstances, the prosecution may seek the death penalty for a first-degree murder. You can be convicted of first-degree murder if:

You committed a murder:
using a destructive weapon or explosive, a weapon of mass destruction, ammunition primarily designed to penetrate metal or armor, or poison; or
by lying in wait for someone or inflicting torture
by a killing that was willful, deliberate, and premeditated; or
if someone dies while you are committing certain felonies (described under the Felony Murder Rule).
<;br />A capital murder is one in which the prosecution may seek either the death penalty or life in prison without the possibility of parole and can be charged whenever there is a murder with special circumstances such as:

• a murder involving more than one victim
• murdering someone for financial gain
• murdering a police officer, firefighter, prosecutor, judge, juror, or elected official
• murdering a person because of their race, color, religion, nationality, or country of origin
• murdering someone while discharging a firearm from a motor vehicle
• murdering someone for the benefit of a gang
• murdering a witness to prevent them from testifying
• certain felony murder situation

Second-Degree Murder

Generally, a second-degree murder is a murder in which the killing was willful but not deliberate and premeditated. This could include actions such as shooting a gun into a crown or driving while under the influence and causing a death.

Felony Murder Rule

Under California law the felony murder rule can apply to both first and second degree murders. Essentially, the crime sets up liability for deaths which happen during the commission of a dangerous felony. The murder need not be intentional, even a negligent or unforeseeable death may qualify.

The first-degree felony murder rule only attaches to specific underlying felonies which are:

• Arson
• Robbery
• Burglary
• Carjacking
• Train Wrecking
• Kidnapping
• Mayhem
• Torture
• Sex Crimes such as rape, forced oral copulation, forced penetration, and lewd acts with a minor

The second-degree felony murder rule can attach to any underlying felony which is both inherently dangerous and not specifically listed under the first-degree rules (see above).

The general elements of any murder are:

1. Committing an act that results in the death of another person or a fetus
2. Committing that act with malice aforethought, and
3. That the killing was without lawful excuse or justification.

Getting Legal Advice

As you can see from the above material, a murder charge under California law can involve a lot of complex factors and the penalties differ substantially. If you have been charged with any type of murder you are strongly advised to seek legal counsel immediately to protect your rights.