The Serial Podcast, Episode 10: Was There Prosecutorial Misconduct With Jay's Plea Deal?

I've done sixteen posts

(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. This post is about the tenth episode of the Serial Podcast: "The Best Defense is a Good Defense." This episode deals with the performance of Adnan's trial counsel: Cristina Gutierrez. This post, however, is mostly concerned with the performance of the prosecutor: Kevin Urick.

A good deal of the tenth episode deals with Gutierrez's reaction in court when she realizes that Urick has been less than forthcoming regarding various aspects of the plea deal struck for Jay, the key witness for the prosecution. I've already done two posts (here and here) about whether Urick's failure to disclose those details of the plea deal violated the Brady doctrine, which requires the prosecution to timely disclose material exculpatory evidence to the defense. This post, however, deals with whether Urick's behavior during the plea bargaining process constituted prosecutorial misconduct.

There is no dispute between the defense and prosecution about how Jay came to meet his defense counsel, Anne Benaroya, who represented him in connection with the death of Hae. The following facts are taken from the Brief of Appellee (the government), which was submitted in response to Adnan's appeal of his convictions:

On the day that Jay first met Urick, September 7, 1999, Urick told Jay that there was someone he wanted Jay to meet:

Urick then took [Jay] to meet a person that Urick described as "a very good lawyer, defense attorney, and that she takes - she does some pro bono work." (2/15/00, 61). [Jay] then testified before the jury that he knew nothing about this other lawyer, nothing about her reputation or experience, and had never met her before that day. (2/15/00, 61-62)....

After meeting with Benaroya for approximately one hour and thirty minutes, Benaroya, Urick, and [Jay] discussed a plea agreement. (2/15/00, 71). At the end of another hour, [Jay] signed the plea agreement, which he previously called a "truth agreement," in his testimony. (2/15/00, 72)....At the end of this meeting, the plea agreement had been totally negotiated. (2/15/00, 77-78). 

Jay, Urick, and Benaroya then went before a judge. The judge, Judge McCurdy, asked Jay whether he understood the nature of the plea agreement: If he testified truthfully at Adnan's trial and pleaded guilty to accessory after the fact to murder, Urick would recommend no incarceration; if Jay did not testify or did not testify truthfully at Adnan's trial, Urick would recommend a sentence of five years incarceration. Jay indicated that he understood, and the plea deal was accepted.

Let's fast forward for a second to Adnan's trial. Sarah Koenig notes that Gutierrez strenuously objected to Urick's behavior in securing Jay a free attorney and failing to disclose this fact. Gutierrez asks for a mistrial or other relief. Then, according to Koenig,

The Judge, Wanda Heard, agreed with Cristina. That this arrangement looked fishy at best. She was not happy about it. But she also said "the witness in question, that is, Jay, he doesn’t seem to be aware that it’s messed up. He doesn’t appear to think that he’s getting a benefit, or being paid in some way for his testimony, or that anything untoward went on." So, it would seem his testimony isn’t tainted by any of this and that’s the main thing. So, ‘A’ for effort, Judge Heard tells Cristina, but overruled. And that, more or less, was that. 

I find Koenig's use of the word "fishy" intriguing. I don't know whether this was her choice of words or the judge's choice of words, but I do know one thing: It was Jay's choice of words in describing the arrangement. Here's a Q&A between Gutierrez and Jay at Adnan's trial, again as relayed by the Brief of Appellee:

Q. Yes. [Jay], when there came the time that you had questions about [Benaroya], you also had questions about the plea that had gone down that day, did you not?

A. Yes, ma'am.

Q. You thought, in your words, that things smelled fishy, did you not?

A. Yes, ma'am.

Q. And by the use of that term you meant they didn't smell quite right, did you not?

A. No, ma'am.

Q. Well, I want to make sure.

A. I'm agreeing with you.

Q. That they didn't smell right?

A. Yes, ma'am.

Q. And by not smelling right, they didn't make you feel too good, did they?

A. No, ma'am.

Q. You came to have questions about how it was that Mr. Urick provided you a lawyer, did you not?

MR. URICK: Objection.

THE COURT: Overruled.

Q. Did you not?

THE COURT: Is that the reason that you thought it smelled fishy?

THE WITNESS: No, ma'am.

Q. Well, sir, you had thought like it sure felt like a conflict, did you not?

A. Yes, ma'am.

Q. That was the word that you used, was it not?

A. Yes, ma'am.

Q. That the conflict was that it didn't appear to you that the lawyer was going to be for your interests, isn't that right?

A. Yes, ma'am.

Q. And you had suspicions that because of the appearance of things that the lawyer might be working for his interest?

MR. URICK: Objection.

THE COURT: Overruled.

Q. Did you not?

THE COURT: Is that what you were thinking, [Jay]?

THE WITNESS: Somewhat.

Q. Somewhat. And you knew that it wasn't quite right if the lawyer is working for his interest but acting as your lawyer, isn't that correct?

A. Yes, ma'am.

Q. And that's what you meant by it smelled fishy, is it not?

A. Yes, ma'am.

Q. And you questioned, in fact, whether or not this lawyer that you met in the prosecutor's office who was prosecuting you was just brought in to make you make the plea, did you not?

A. Yes, ma'am.

Q. That's what you thought?

A. Yes, ma'am.

Q. In your mind?

A. Yes, ma'am.

Q. Even after this day, isn't that correct?

A. Which day?

Q. The 7th of September.

A. Yes, ma'am.

MS. GUTIERREZ: No more questions.

Given this exchange, how in the world does the judge reach the conclusion that Jay wasn't aware that anything untoward went on with his plea bargaining process? He literally says that he thought the arrangement smelled fishy and continued to hold this belief after the fact. Jay knew the score: He was being railroaded into the plea deal so that he could help Urick secure Adnan's conviction at trial.

What's even more interesting is that Jay understands exactly what's fishy about the arrangement: Jay thinks that Benaroya possibly has a conflict of interest and is possibly working for Urick's interest rather than his interest. The Model Rules of Professional Conduct is the code of ethics that governs lawyers. Model Rule 5.4(c) and Model Rule 1.8(f) are both conflict of interest rules.

Model Rule 5.4(c) provides that

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Meanwhile, Model Rule 1.8(f) provides that

A lawyer shall not accept compensation for representing a client from one other than the client unless:  

(1) the client gives informed consent;  

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

In essence, (1) Urick, as the attorney who "recommended" Benaroya to Jay, had to refrain from directing or regulating Benaroya in rendering legal services to Jay; and (2) Benaroya, as the person solicited by Urick, had to ensure that Urick did not interfere with her rendering of legal services to Jay (Note: Given that Rule 1.8(f) and Rule 5.4(c) contain reciprocal obligations, I think it's possibly fair to say that Benaroya agreeing to represent Jay pro bono was the functional equivalent of accepting compensation. See, e.g., Roman M. Roszkewycz, Note, Third-Party Payment of Criminal Defense Fees: What Lawyers Should Tell Potential Clients and Their Benefactors pursuant to (an Amended) Model Rule 1.8(f), 7 Geo. J. Legal Ethics 573, 581 (1993)).

From Jay's perspective, both failed in these obligations. You see, Jay didn't simply think the arrangement was fishy; he did something about it. At this point, I am now citing from the Brief of Appellant (Adnan's appeal brief), but, as you will see, there are citations to the record:

In the face of direct questioning from the trial court, the State hid the fact that sometime after the September 7, 1999 "guilty plea" hearing, Jay...became disenchanted with his attorney, questioned whether that attorney was given to him by the State solely for the purpose of advising him to sign the plea agreement, questioned whether the attorney was loyal to him or to the State, and thought about withdrawing his plea. (2/11/00-150, 160, 168, 171) [Jay] called Judge McCurdy to inform him of his doubts and problems. [Jay] also called the prosecutor and informed the State of his situation. (2/11/00-204-06).

Now, keep in mind the nature of Jay's plea deal. Both sides acknowledge that the plea deal allowed Jay to back out of the plea deal with no consequences. It is undisputed that Jay's plea deal ended in him getting no prison time. Indeed, before Adnan's trial, Jay's guilty plea was held sub curia, meaning that it was not actually entered and that Jay did not have provide a statement of facts that would (1) support the plea; and (2) cause Jay problems if he testified inconsistently at Adnan's trial. And yet, despite this extremely favorable plea deal, Jay still questioned the arrangement enough to call Urick and the judge to ask about withdrawing his plea.

So, what's Urick's response? His response is to have Jay and Benaroya talk to Judge McCurdy without Urick being present. For the non-lawyers reading this post, such a meeting in which only one side is present is known as an ex parte communication and is basically never allowed, except in the rare case in which the opposing side consents. It is thus understandable why the Brief of Appellant notes that the judge at Adnan's trial "get[s] confused" by this meeting, prompting the following Q&A:

THE COURT: You're suggesting that a Judge would have ex parte communications with a Defendant and his attorney without the presence of the State?

MR. URICK: It was with our permission. We waived our presence.

According to the Brief of Appellant, the meeting also confuses Jay:

Although [Jay] testified out of the presence of the jury that he believed the ex parte hearing was on the record, no record or evidence of the hearing could be found. 

So, what happened at the meeting? The way I see it, there's one key thing I need to know: Did Judge McCurdy know that Urick introduced Jay to Benaroya? If Judge McCurdy was aware of this fact, I'm sure he counseled Jay that Benaroya worked solely for him and that if he had any doubts about her loyalty or whether he wanted to plead guilty, he could secure new counsel and/or withdraw his plea. But I'm guessing this didn't happen. Why?

What Urick did was odd. So odd that the defense wanted to call "Ms. Julian, 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. (2/23/00-239, 246, App. 15, 19)." Obviously, such procurement was rife with the possibility of a conflict, which even Jay, a layperson, was able to recognize. Given this, I find it highly unlikely that the judge would have been okay advising Jay without Urick present, especially given that Jay would later be working with Urick in (1) testifying at Adnan's trial; and (2) finalizing his plea agreement after this testimony.  

In the Brief of Appellant, Adnan alleges that Urick intentionally recused himself from the meeting with Judge McCurdy so that the judge wouldn't learn about Urick putting Jay into contact with Benaroya. If that's true and Judge McCurdy didn't learn this fact, you can probably imagine how Jay's meeting with the judge went: "Jay, I know that you have some concerns about Ms. Benaroya, but let me tell you, she got you an amazing plea deal. If you back out of it, you could do a lot worse at trial. What do you want to do?"

Is this what happened? As always, I will include the caveat here that I'm relying on some combination of the podcast and publicly available documents to reach my conclusions rather than having anything resembling comprehensive knowledge of the case. What I do know is that the judge at Adnan's trial did not allow Gutierrez to call Benaroya to testify about what happened at the meeting. And what I also know is that the Brief of Appellee (the government's brief) doesn't state what happened at the meeting or even claim that there was a lack of prosecutorial misconduct. Instead, the Brief merely states that, even if there were misconduct, reversal is only warranted if there was actual prejudice, and

Here, there was no actual prejudice because Syed was provided more than ample opportunity to cross-examine Jay] over five days of examination and was able to elicit all relevant information concerning the plea agreement and the manner in which he was introduced to Ms. Benaroya. In sum, the trial court properly exercised discretion in its evidentiary rulings with respect to Jay..., and there was no Brady violation given that all issues argued on appeal by Syed were completely before the jury prior to deliberations.

This seems to miss the biggest claim of actual prejudice, which is that the prosecution can't use improper methods to compel a witness to testify against a defendant a trial. Obviously, a prosecutor can't pay a fact witness to testify against a defenant, and a prosecutor can't call a witness who agreed to testify against a defendant only after being tortured by law enforcement. See, e.g., Bradford. v. Johnson, 354 F.Supp. 1331 (E.D.Mich. 1972) (reversing a conviction based upon a tortured witness for the prosecution).

Therefore, it seems to me that Adnan could have a viable argument of actual prejudice if he could prove the following: (1) on the first day Jay met Urick, Urick introduced him to Benaroya, who agreed to represent him pro se; (2) two and half hours later, he had a completely negotiated plea deal; (3) they immediately went before the judge to present the plea deal; (4) Jay questioned the loyalty of Benaroya and thought about withdrawing his plea; (5) Urick set up an ex parte meeting with Judge McCurdy, who convinced Jay to stick with the plea deal (and thus testify against Adnan) without knowing that Urick introduced Benaroya to Jay.

We know that (1)-(4) happened. The only question is whether (5) also happened. Well, the other question is whether proving (1)-(5) would be enough for a mistrial, reversal, or other relief. I can't answer that question because, like Ms. Julian, I've never heard of a case in which a prosecutor introduced a suspect to a pro bono attorney. What I can say is that this is a question that the judge at Adnan's trial should have addressed. Instead, she reached the conclusion that Jay had no idea there was anything untoward with his plea bargaining process.

Well, actually, she reached the conclusion that Jay had no idea there was anything untoward AND the conclusion that Jay didn't think he was getting a benefit. On this latter point, I actually agree with the judge, but THAT'S the problem. Jay thought that URICK was getting a benefit and that Benaroya was working for Urick's interest rather than his interest. And, unless Judge McCury disabused him of this notion, this means that Jay likely felt like he had no choice but to continue with the plea deal and testify against Adnan. 

-CM