The Serial Podcast, Followup: Todd Berger on Adnan's Chance of Success on Appeal

I've done nineteen posts

(here, here, here, here, here, here, here, here, here, here

here, here, here, here, here, here, here, here, here, and here)

about Sarah Koenig's 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, on January 13, 1999. In a prior post, I assessed Adnan's chances of succeeding on a claim of ineffective assistance of counsel based upon his trial counsel not asking the prosecution about a plea bargain. This issue is important because it could very well be the only issue that the Court of Special Appeals of Maryland addresses if it gives Adnan leave to appeal. Unfortunately for Adnan, I concluded that he has very little chance of winning on this argument.

After posting this entry, I got an e-mail from Todd A. Berger, an Assistant Professor of Law and the Director of the Criminal Defense Clinic at the Syracuse University College of Law. He's actually written an article on this issue, and I have included his e-mail and article in this post.

 

Here's the e-mail, reprinted with his permission:

Hi Colin, 

By way of introduction, my name is Todd Berger and I'm a professor at Syracuse Law School. A colleague of mine who is familiar with some of my scholarship forwarded me your blog post regarding Adnan Syed and his claim that his defense counsel was ineffective for failing to pursue a plea bargain. 

This has been a topic that I have studied a great deal, culminating in a recent article I wrote in the American Journal of Trial Advocacy, entitled, After Frye and Lafler: The Constitutional Right to Defense Counsel Who Plea Bargains. 

I agree completely with your analysis. However, I believe that it is virtually impossible for a defendant in Adnan's situation to ever satisfy Strickland's prejudice prong and it is unfair to ask a similarly situated defendant's to do so. 

This is in large part because the attorney never plea bargained to begin with. That is really the essential point of Marshall's dissent in Strickland when he says that evidence showing how the defendant might have been prejudiced by counsel's failures, could be missing from the record precisely because of those failures. ​ 

That's why I proposed that when the assertion is that defense counsel failed to plea bargain, the prejudice prong should be abandoned. 

 

The remedy is a complicated issue as well. I suggest that the only appropriate remedy is to return the parties to their pre-trial position. Yes, this could theoretically result in a windfall for some defendant's, but I believe, borrowing heaving from a market based theory of plea bargaining practice, the likelihood is that the parties will enter into the plea bargain that was lost the first time around. 

 

In any event, I've attached my article in case this subject matter interests you further. Thanks again for your excellent and interesting blog post ! 

All the best, 

Todd A. Berger

And here's the article: (Download Berger Article).

-CM