Witnesses Offer New Testimony During Hearing for ‘Serial' Defendant

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Jessica DaSilva

New testimony in the case of Adnan Syed, the defendant featured in National Public Radio's "Serial" podcast, was offered today in support of his theory that the state misrepresented information about a phone call with an alibi witness, and that he received ineffective assistance from his trial lawyer due to her alleged health and financial problems.

The court allowed testimony from Asia Chapman, known as Asia McClain at the time of the case during the Feb. 3 evidentiary hearing in Baltimore. For 17 years, Chapman claimed to have information about Syed's whereabouts during the time the State says he murdered his ex-girlfriend Hae Min Lee. Chapman claims the prosecutor who testified at a post-conviction hearing in 2013 lied about her statements to him regarding Syed's alibi.

Testimony from two colleagues and coworkers also pointed to the rapid physical and financial decline of Cristina Gutierrez—trial counsel for Syed, who rose to fame in the podcast's first season examining the evidence in his case.

Syed was convicted in 2000, when he was 18-years-old, for the murder of Lee and has maintained his innocence ever since.

New Alibi Evidence 

Chapman's testimony was some of the most highly anticipated of the hearing given that she became one of the central figures of "Serial" for her letters to Syed that detailed her memory of talking to Syed in a nearby public library when the state claimed he murdered Lee.

Chapman's new testimony today focused on a conversation she had with prosecutor Kevin Urick in 2010. An investigator showed up on her doorstep, asking her husband how to get in contact with Asia McClain, she testified. Chapman called Urick because she said she believed prosecutors were the good guys and would give her an unbiased opinion of her significance to the case.

Urick spoke to her for 34 minutes, according to Chapman—who examined her own cellphone records. She took notes during the call, which were entered into evidence.

Those notes detail specific quotations from Urick. Chapman said Urick assured her that Syed killed Lee, that Syed's counsel was "B.S.," and that the defense team "didn't have a snowball's chance in hell" of showing his trial counsel Cristina Gutierrez provided deficient representation.

"If I had any doubt that [Syed] killed Hae, it would be my moral obligation to see that he didn't serve any time," her notes quote.

Chapman said the phone call left her with the impression that her alibi testimony was unimportant and Syed was just "trying to work the system to get in front of a judge."

It wasn't until she received the phone call from "Serial" creator Sarah Koenig that she realized her testimony could have changed the case, she testified.

Months later, when Chapman said she and her husband listened to all of "Serial," she discovered that Urick testified at a previous post-conviction hearing and misrepresented the content of their phone call, she said. Chapman's records show they spoke for 34 minutes, but Urick testified they spoke for five. Urick also testified that Chapman told him that Syed's family pressured her to lie about his whereabouts that day and she wanted to recant the affidavit she signed in front of a notary around 2000.

Chapman said those facts were false.

Cross Examination 

Although Syed's friend Rabia Chaudry—who brought the initial case to Koenig—asked Chapman to write, sign, and notarize an affidavit, Chapman said she was glad to do it.

Finding out about Urick's misrepresentation angered and upset her, Chapman said.

"It placed a great weight on my heart," she testified. "I was mostly angry with myself for allowing my thoughts and opinions to be represented by a third party."

Chapman stood by those statements in a new affidavit signed in 2015 detailing the discrepancies between her version of the phone call with Urick and his post-conviction testimony.

On cross examination, the State doggedly asked her about the details of events surrounding her memory of talking to Syed in the library. The State asked about her class schedule, her work schedule, her after-school activities, and when she saw her then-boyfriend.

Syed's lawyer C. Justin Brown of Brown & Nieto LLC, Baltimore, eventually objected for badgering the witness.

"Objection: This is ridiculous!" he shouted.

The court overruled the objection and allowed for more detailed information surrounding Chapman's high school life from almost 17 years ago.

"I'm sorry," she apologized. "I just don't remember everything."

Deficient Representation 

Two other witnesses offered testimony on Gutierrez's declining health and the toll it took on her professional abilities.

The first witness, Phillip Dantes was a friend, colleague, legal counsel, and former professor of Gutierrez. The trial court indicated reluctance in allowing his testimony, but decided to continue to ensure finality in Syed's case.

Although the trial court sustained continued objections to his testimony, Dantes explained that in the late 1990s, Gutierrez seemed to fall victim to a downward health spiral. She began losing files and her office became barren and disorganized. It was completely different than the start of her career, he said.

In trial, she demonstrated "great physical discomfort" and would lean against the podium when she spoke, Dantes said. She ate food every hour in the courtroom, he added.

By the time more than 20 clients filed complaints against her with the Maryland Bar Association, Dantes said Gutierrez was blind in one eye and confined to her couch. The state objected, and the trial court sustained it.

Second witness William Kanwisher worked for Gutierrez and testified that she regularly handed off cases last-minute and seemed to lose her touch. The firm also experienced financial issues, he reluctantly testified. Shortly before his departure, the firm failed to pay its staff, even though Kanwisher said Gutierrez later corrected that.

Throughout direct and cross, Kanwisher maintained that failing to contact Chapman or investigate her alibi for Syed could not be considered trial strategy.

"You don't do that," he said. "Zealous advocacy requires investigation. There's no tactical reason not to do that."

The hearing will continue through Feb. 5. You can follow developments on Twitter @jdasilva.

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