Is it rare for a court to overturn a conviction based on a defendant’s counsel being “ineffective”?

It’s very uncommon. The doctrinal standard for proving ineffectiveness is extremely high. You have to show not only that there was an error, but also that that error affected the results—that the outcome of the trial might have been different. As a general matter, it’s very hard to prevail on ineffectiveness, particularly in a post-conviction proceeding as opposed to on appeal. In a direct appeal of the case, you look at what happened at trial and make the argument that it was an ineffective performance. But in a post-conviction motion many years later like this—where it’s a collateral attack—you usually have to present new information that shows the performance was ineffective. That’s what makes this ruling doubly astonishing.

What happens next?

First, I’m almost certain that prosecutors will appeal. I don’t see why they’d relent and go for a new trial. They fought this case for 20 years. Second, once it gets to Maryland Court of Appeals, the court might be mindful of ineffectiveness doctrine and potentially wary of creating precedent that makes it easier to get new trials. But, on other hand, appellate courts often display some deference to lower courts on these issues because the lower courts are in a better position to evaluate what happened at trial and the impact of a failure of a defense attorney to call an alibi witness.

As an expert on wrongful convictions, what has stood out to you about this case?

There are a couple of things. The most obvious one is the impact of media attention and the “Serial” podcast on the course of the litigation. I did appellate and post-conviction litigation cases for years, and you seldom get different bites at the apple. The idea that we’ve had two rulings to reverse the conviction in the past couple of years since “Serial” makes you think that the lawyers, the public, and the judges are giving this case more attention because of the work of a journalist. And frankly, I’m conflicted about that because of selection bias—just because a journalist picks this particular case doesn’t mean it is more meritorious than other cases. Also, are we creating a precedent where the media becomes part of the advocacy lane for a case?

Also, this case had many of the hallmarks of an innocence case: it had dubious lawyering, a shaky main witness, evidentiary gaps in terms of the timeline, and some potential alibi witnesses with credibility issues.

The truth in these cases is often somewhat elusive, especially years later, where there isn’t some magic bullet of DNA evidence to prove innocence or guilt. The vast majority of cases like this one have a lot of gray areas. We may never know with absolute certainty what actually happened to the victim. But the legal process is the best we can do to approximate justice.

The success of “Serial” has inspired the launch of many other true crime podcasts. Is the content of these podcasts fair game for both defense attorneys and prosecutors to use in legal motions and retrials?

The general legal rules will apply to the admissibility of the evidence. General commentary wouldn’t satisfy relevance grounds—like, whether the majority of people believe someone to be innocent. The pieces of a podcast that could be relevant are direct evidence, such as statements by new witnesses. The fact that the podcast brought new people out of the woodwork who didn’t comment the first time—that could potentially lead to some usable evidence. There are rules of relevance and reliability, especially for hearsay statements.

There will be more evidence at the retrial than at the initial trial largely because the podcast has prompted people to come out of the woodwork. And the investigative journalism and research that went into the podcast has uncovered a whole host of things, like cellphone records and a potential alibi witness. A lot of information indirectly might affect the new trial, but the public reaction to “Serial” and comment boards would be inadmissible as irrelevant.