Defense Expert Says ‘Serial' Defendant's Trial Counsel Deficient

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By Jessica DaSilva

The post-conviction hearing for Adnan Syed heated up today as a defense expert stated his trial counsel provided constitutionally deficient representation and a state's witness undermined a second claim based on mobile phone records.

Syed was convicted in 2000, when he was 18 years old, for the murder of his ex-girlfriend Hae Min Lee, and he has maintained his innocence ever since. He was featured in National Public Radio's “Serial” podcast, which examined the evidence in his case.

Sean Gordon, an investigator hired by the defense, testified that of the 83 people on an alibi notice list, he managed to contact 41. Out of those, he said four spoke to Syed's trial counsel Cristina Gutierrez. None of them said she ever asked them for an alibi, he added.

This list came under fire because “Serial” creator Sarah Koenig interviewed a member of Syed's track team who said neither police nor Gutierrez contacted him to confirm Syed's alibi that he attended track practice the day of the murder.

However, the state introduced evidence of handwritten notes from someone at Gutierrez's firm indicating they contacted all the members of the track team, leaving messages with parents and voicemails. Gordon said he couldn't be sure that Gutierrez contacted them, as he couldn't identify her handwriting.

Defense attorneys also questioned Michelle Hamiel, former branch manager of the Woodlawn Public Library where Asia Chapman—then McClain—claimed she saw Syed during the time of the murder.

Hamiel told attorneys that the library definitely had surveillance videos, but the tapes were wiped every month.

Strickland Test Met, Witness Says

The most legally significant testimony came from two experts: one in criminal defense work and the other in reading mobile phone records.

David Irwin, an attorney with extensive experience in both prosecution and criminal defense work, said Gutierrez provided constitutionally deficient counsel that fail the two-pronged test set out by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

By not investigating Chapman's testimony after Syed received letters from her in jail within a week of his arrest, Gutierrez's performance fell below the minimum standard of care, Irwin said.

“It was a game changer,” Irwin said of McClain's testimony. “It would have made an incredible difference in the outcome of the case.”

Explaining that alibi testimony is the second-best evidence after video surveillance, Irwin said no tactical reason could ever explain or justify Gutierrez's failure to follow up on those letters.

Defense Cell Site Expert Contradicted.

Due to scheduling, the defense paused their case to allow the state to bring forward a mobile phone expert from the FBI.

Special Agent Chad Fitzgerald contradicted the defense's expert on two sets of mobile phone records. One set contained redacted information and the other didn't have redactions, but contained fewer details unrelated to location.

Syed's team claims the testimony of a cell tower expert at trial was incorrect because he wasn't provided a fax cover sheet that stated locations could only be determined using outgoing calls, rather than incoming calls.

The defense expert said this undermined the state's entire theory of the case, which heavily relied on those locations for Syed's mobile phone.

However, Fitzgerald said the cover sheet only applied to the redacted records, which had extraneous information mentioned in the fax cover sheet. The cover sheet then served as a legend, using abbreviations to reference specific columns of information on the redacted reports not included in the other set, he testified.

The hearing was continued for Monday, Feb. 8 at 9:30 a.m. You can follow developments on Twitter @jdasilva.

A recap of the Feb. 4 testimony is available at http://www.bna.com/serial-hearing-day-n57982067017/.

A recap of the Feb. 3 testimony is available at http://www.bna.com/witnesses-offer-new-n57982066952/.

An interview with Jessica DaSilva about the hearing is available at http://www.bloomberg.com/news/audio/2016-02-04/bloomberg-best-special-delivery-serial-update-audio.

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