The Serial Podcast, Take 4: Did the Prosecution Violate the Brady Doctrine in Connection With Jay's Plea Deal?

Update: 12/4/14: For those coming to this post after listening to the 10th Episode of Serial, once you've read this post, you can check out this post for further thoughts on the issue. 

This is my fourth post on the Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. My prior posts dealt the admission of Hae's diary (diary post), a letter from Hae to Adnan (letter post), and a note Adnan allegedly wrote on the back of that letter (note post). In this post, I will address an alleged Brady violation by the prosecution in connection with its key witness.

The one thing that everyone seems to agree on with regard to Adnan's prosecution was that the State's case hinged upon the testimony of Jay Wilds. According at least one accounting of events by Wilds,

(1) Adnan told Wilds that he was going to kill Hae;

(2) Adnan left his cell phone with Wilds and told him that he would call him after he killed Hae;

(3) Adnan called Wilds, said he'd killed Hae, and told Wilds to meet him in a Best Buy parking lot;

(4) they met in the parking lot, and Adnan showed him Hae's body in the trunk of her car;

(5) Adnan drove Hae's car to Lincoln [Leakin] Park while Wilds drove his own car to the park;

(6) Wilds helped Adnan dig a hole to bury Hae's body; and

(7) at Adnan's request, Wilds drove him back to his high school so that he could be seen.

So, according to Wilds' own testimony, he was, at a minimum, an accessory after the fact to murder, which is probably why he struck a plea bargain with the prosecution. But, according to the defense, the prosecution didn't disclose two key aspects related to plea bargaining: 

The suppressed evidence included the fact that there was a separate oral agreement with Jay Wilds which permitted Wilds to withdraw from the plea agreement at any time, which fact was not included in the written plea agreement furnished to Appellant and introduced by the State at trial. In addition, the State hid the fact that it provided Wilds with a free private attorney, who recommended that Wilds sign the plea agreement.

In turn, the prosecution countered with two arguments. First, it noted that,

as to Syed's repeated insistence that there was some sort of "side deal" whereby Wilds could withdraw his plea at any time, the law specifically allows withdrawal of a guilty plea at any time before sentencing in "the interests of justice." Md. Rule 4-242 (g). Because the law permits withdrawal of a plea, that is not a benefit that requires disclosure....

Based on Rule 4-242(g), I agree with the prosecution.

Second, the prosecution claimed that Adnan misconstrued what it did because it did not provide Wilds with a free private attorney. So, who's right on this issue? I have no idea, but I do know that the defense was prepared to call "a member of the Office of the Public Defender, who would have testified that the actions of the State in the present case in procuring a free private attorney for a witness was so rare that she had never even heard of it before." The jury, however, didn't hear this testimony. Nor was defense counsel able to cross-examine Wilds as thoroughly as she would have liked. Nor was defense counsel able to do a few other things in connection with Wilds' testimony. This takes me to the Brady doctrine.

In Brady v. Maryland, the Supreme Court held that the prosecution violates the Due Process Clause when it fails to timely disclose material exculpatory evidence to the defendant. Evidence is material when it creates the reasonable probability of a different outcome at trial. In United States v. Bagley, the Supreme Court held that material exculpatory evidence includes evidence that could be used to impeach a key witness for the prosecution. Generally, the prosecution has to turn Brady material over to the defendant weeks if not months before trial. In Adnan's case, the defense did not learn of the situation with Wilds, the prosecution, and the procuring of an attorney until Wilds actually testified at trial.

So, Adnan clearly had a Brady claim, assuming the information regarding an attorney was material, right? Well, not exactly. In the government's brief, it cited to U.S. v. Smith Grading and Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985), in which the defense only learned about impeachment evidence regarding a key witness for the prosecution when the witness testified at trial. In finding no Brady violation, the Fourth Circuit concluded that

Even if we assume that the engineer's testimony is exculpatory, its belated disclosure does not constitute reversible error. No due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial. United States v. Higgs, 713 F.2d 39 (3rd Cir.1983). In this case, the exculpatory information was put before the jury during cross-examination of the very first trial witness. The information was available for use in the defendant's cross-examination of all further government witnesses as well as in the defendants' case in chief. The disclosure of this exculpatory evidence, at trial, does not rise to the level of a constitutional violation. 

So, the prosecution wins, right? Well, not exactly. Was defense counsel able to make effective use of the information regarding Wilds, the prosecution, and the procuring of an attorney at trial? The court denied defense counsel's motion to call a witness from the Office of the Public Defender to testify regarding the oddness of the arrangement. The court curtailed defense counsel's interrogation of Wilds (albeit, after five days). And the court also precluded the defense from doing other things in connection with Wilds that I omitted for sake of brevity. 

If the prosecution had disclosed the subject evidence weeks or months in advance of trial, defense counsel could have fully briefed the issues, prepared a motion in limine, etc. Therefore, I think the prosection's argument about disclosure being timely is a red herring. Assuming the subject evidence was material, I think it is clear that the disclosure was not timely. Now, was the evidence actually material? It is impossible for me to tell which side has the better of the issue from just the briefs. But if the arrangement with Wilds was odd, I think that there was a Brady violation.

-CM