‘Serial' Defendant Gets Chance to Present Exculpatory Evidence

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By Jessica DaSilva

Feb. 3 — A three-day evidentiary hearing for Adnan Syed, the defendant in the high-profile case featured in National Public Radio's “Serial” podcast, will include new testimony from an alibi witness and evidence that calls into question the state's timeline of events, according to two legal bloggers intimately familiar with the case's evidence.

The hearing will take place Feb. 3 through Feb. 5.

Syed was convicted in 2000, when he was 18-years-old, of the murder of his ex-girlfriend Hae Min Lee. He has maintained his innocence since.

Syed first requested to reopen his post-conviction relief claim in January 2014. The Circuit Court of Baltimore City granted the evidentiary hearing on Dec. 15, 2015.

Legal bloggers who pored over the evidence presented in the case said they expected to finally hear testimony from an alibi witness Syed's trial counsel, Cristina Gutierrez, never pursued. They also speculated that the parties would address a disclaimer accompanying mobile phone records that the state used to create its timeline of events and entire theory of prosecution.

Colin Miller is an evidence professor at the University of South Carolina School of Law and author of the EvidenceProf Blog. Susan Simpson is a an associate at white collar criminal defense firm Volkov Law Group, who gained notoriety for her detail-oriented posts at the View From LL2 blog reviewing the evidence from “Serial.”

Both bloggers independently reviewed the case before joining the post-“Serial” podcast, “Undisclosed,” along with Rabia Chaudry, the lawyer who initially alerted the executive producers of “Serial” about her friend Syed's case.

“Undisclosed” focused on analyzing the evidence against Syed and presenting “a smart, nuanced legal argument based on the totality of the facts in the case,” according to the “Undisclosed” website. However, the podcast also advertises a banner for the Adnan Syed Trust, which is “helping [Syed] fund his legal defense” and features a “FreeAdnan” hashtag.

Alibi Witness Testimony

Miller told Bloomberg BNA in a phone interview that people can expect to hear testimony from Asia McClain, a classmate who said she saw Syed in the library during the time the state claimed he murdered Lee.

According to Syed's brief to the Court of Special Appeals of Maryland, Syed's trial attorney never pursued McClain as an alibi witness, the central argument in his post-conviction request alleging ineffective assistance of counsel and asking for a new trial.

Miller said he thinks McClain's testimony is the crux of the case because she is not a close friend or family member and has maintained since March 1, 1999, that she recalls seeing Syed in the library. Her responses on direct- and cross-examination will determine whether the judge finds her a credible witness and whether Syed deserves a new trial, Miller said.

Simpson told Bloomberg BNA that the judge's decision hinges on the two-part test set out by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

The court will need to make two determinations under that test, she said. First is whether Syed's trial counsel provided ineffective assistance in failing to pursue McClain as a witness. Second is whether that failure negatively impacted the result of Syed's trial.

Simpson said those following the hearing should also expect to hear testimony from then-prosecutor Kevin Urick to rebut McClain's statements.

“Based on the statements [McClain] made in ‘Serial,' and more recently in an affidavit for the defense, it appears that her testimony will contradict Urick's representations to the court at [Syed's] last [post-conviction relief] hearing about [McClain's] conversation with him, which will raise a question as to the credibility of his prior testimony,” Simpson wrote in an e-mail. “I don't see how the State can avoid calling him to the stand if that happens.”

Cell Tower Pings

The other significant piece of evidence Miller said will likely be at issue is the disclaimer accompanying mobile phone records that the state used to place Syed in the park where Lee's body was found.

Syed argued in a supplemental brief to the court that AT&T turned over the mobile phone records to police in 1999 with a disclaimer stating, “Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.”

According to an affidavit from Abraham Waranowitz, the engineer expert witness from AT&T Wireless who testified in Syed's trial for the state, prosecutors never showed him that disclaimer.

“If I had been made aware of this disclaimer, it would have affected my testimony,” Waranowitz stated in the affidavit. “I would not have affirmed the information of a phone's possible geographical location until I could ascertain the reasons and details for the disclaimer.” .

Miller explained that in 1999, if an incoming call went to an AT&T customer's voicemail, the cell tower closest to the caller's location would register instead of the receiver's closest cell tower. That is likely why AT&T issued a disclaimer stating location could not be accurately determined by incoming calls, Miller said.

Syed used the disclaimer to make a second ineffective assistance of counsel claim in his supplemental brief, arguing that the court would have found the evidence inadmissible if his trial counsel had hired an expert to analyze the data or asked for a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

A Frye hearing would have required the trial court to make an assessment on the admissibility of scientific evidence, Miller said. Under the Frye test, scientific technique or technology is only admissible when it is generally accepted as reliable in the scientific community, he added.

Simpson said she believed the state would likely argue that the cell tower evidence was generally reliable. However, that doesn't address the true issue with the evidence, she added.

“The bigger problem for the State is that this isn't about the reliability of historical cell site location data as an abstract or theoretical matter, it's about the reliability of the specific records in this case—where they came from, how they were compiled, and why AT&T felt compelled to warn law enforcement that they were unreliable with regards to incoming calls—and also about the way in which the prosecutors chose to use those records at Adnan's trial,” Simpson wrote.

Overall, Simpson declined to speculate about the outcome of the hearing, but Miller expressed optimism in Syed's chances. Miller said he believes the judge will grant Syed a new trial.

“If the judge doesn't grant him a new trial, then the Maryland Court of Appeals will,” Miller said.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

To follow Criminal Law Reporter's hearing coverage, visit http://news.bna.com/crln/ and follow Jessica DaSilva on Twitter @jdasilva.