BALTIMORE — Attorney Erica Suter recalled the disbelief in the voice of her high-profile client Adnan Syed, the subject of viral podcast Serial, when the judge told him he was being released from prison after 23 years on one count of murder, Syed says he has not committed.
“At the negotiating table, he turned to me and said, ‘I can’t believe it’s real,'” Suter said.
Troy Burner, 50, remembers that feeling. Burner, who also lives in Maryland, served 25 years in prison for a crime he didn’t commit before a judge ruled in 2018 that prosecutors like Syed had failed to give him a fair trial.
According to Innocence Project records and attorneys, Syed and Burner are just two of thousands of wrongful prosecutions.
At least 3,000 exonerated individuals in the U.S. as of March 2022 have spent a combined 25,000 years of their lives behind bars for wrongful prosecution, according to the National Registry of Exonerations, a database compiled by the University of California Irvine, University of Michigan Law School and Michigan State University College of Law.
They were there for false confessions, failure to disclose relevant evidence and a lack of reform of criminal justice systems, which has led to thousands of wrongful prosecutions, said Suter, an attorney with the Public Defender’s Office.
“It’s not just one factor,” said Suter, also director of the Innocence Project Clinic in Baltimore. “It depends on how our system was designed.”
Syed was released after a Baltimore District Court judge ruled that prosecutors withheld crucial evidence at his trial that could have prevented his conviction.
Syed’s release indicates the prevalence of such prosecutorial conduct. In Baltimore, Suter said that 80% of recorded exonerations involved the state withholding evidence.
In 2021, there were 161 exonerations in the US, and official misconduct was involved in 102 of those cases, according to the national registry. Of the 102 misconduct cases, 59 were homicides.
Studies show that when prosecutors find misconduct, there are rarely consequences.
The Chicago Tribune, one of the nation’s leading publications, investigated 11,000 homicide cases nationwide between 1963 and 1999 involving prosecutorial misconduct. The publication noted that of the cases of significant prosecutorial misconduct, “not a single state disciplinary agency has publicly sanctioned any of the prosecutors,” according to the prosecutor’s report from The Innocence Project.
The Liman Prosecutorial Misconduct Research Project at Yale University conducted a study examining the disciplinary practices and ethical codes of the 50 states and Washington, DC, and found that the workers most likely to identify prosecutorial misconduct, such as prosecutors and Defense attorneys do not report because they “work in a culture that does not support reporting, poor administrative processes and professional disincentives,” according to the oversight report.
There may or may not be repercussions in Syed’s case, said Baltimore District Attorney Marilyn Mosby. One reason for this is to establish the prosecutor’s intent, she said.
“Sometimes it’s negligence,” Mosby said. “Sometimes it’s on purpose. It’s really difficult to prove willful misconduct.
“I haven’t seen a vengeful charge yet. I have seen no charges or appeals against prosecutors. You have to prove intent, and often negligence is not criminal intent.”
Arrested at 17 for allegedly killing his girlfriend Hae Min Lee, Syed could have spent the rest of his life in prison if it weren’t for Maryland’s Juvenile Restoration Act.
The law, passed by the General Assembly in 2021, says people arrested as juveniles at the time of the crime and who have served at least 20 years can ask the court to reconsider their sentence.
Syed remains under house arrest for the next 27 days awaiting a decision from Mosby’s office on whether to retrial or exonerate him.
In an interview with Capital News Service, Mosby said her decision will depend on the outcome of DNA evidence related to Syed’s case.
“If the DNA comes back and it’s a different person, then of course I’ll go in and certify his innocence,” she said. “But if it comes back to him, then that’s a consideration given all the negative factors we’re using to call for a new trial.”
Suter said she expects a new trial date of 2023 because the state must decide whether to retrial the case within 30 days of Syed’s release on Monday, and the results of testing the DNA evidence are unlikely to be available sooner. However, a new trial date does not mean that the state will try Syed again.
Even if the case is dropped, Syed will have spent more than half his life in prison.
Burner said nothing could make up for his time in prison. He said he spent half his life behind bars based on five false and ever-changing testimonies from a witness who placed him at a Washington, DC crime scene.
In Burner’s case, he was released from prison under the 2016 Incarceration Reduction Act, which allows persons under the age of 18 to apply to the court for a retrial after serving at least 15 years for the crime.
He was sentenced to 30 years to life in 1994 for a murder he did not commit.
“I lie [in prison] several times a day, and I’ll just sit there, and to be completely frank with you, I’ll say in my head, I wish I actually did, because that would have gratified my conscience that I was in there for a reason.” said Burner.
At the time of his sentencing, Burner said he was an amateur boxer hoping to turn pro. He also worked for the Department of Public and Assisted Housing, now the US Department of Housing and Urban Development. He said he is a month away from being certified in home construction and maintenance repair.
His hopes and dreams were dashed after his conviction, he said.
“I can still remember walking into the courtroom and hearing my mother’s screams,” Burner said. “I felt like a dead person and failed in many ways.”
Burner was released on parole in 2018 and was cleared of his charges in March 2020.
Under Washington DC’s Compensation Act, Burner should have received $200,000 for each year in prison. A portion of Burner’s compensation was dedicated to the Venable-Burner Exoneree Support Fund, which funds the hiring of mentors and navigators for Exonerees to help them re-enter the world after their release from prison, he said.
Under Maryland’s Exoneree Compensation Act, which went into effect July 1, 2022, Syed would receive the state’s average annual income for each year he was incarcerated.
Burner said he found his purpose working with the Justice Policy Institute and the Mid-Atlantic Innocence Project to advocate for and raise awareness for those wrongly convicted like him.
“I’m a natural fighter,” Burner said. “Well, I understand when you lose that hope, you lose yourself. So, being here now, I’m just trying to be and create that hope and show that guys.” [who] strive to see the world again one day, that they have someone out here working for them.”
By Abby Zimmardi and Shannon Clark
capital news service