Duty to Pursue Alibi Witnesses Focus in ‘Serial’ Appeal

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By Jessica DaSilva

The post-conviction case for Adnan Syed has been full of twists and turns. The latest for the man who has been locked up for murder for 17 years could create a new rule for Maryland defense attorneys—an absolute duty to pursue alibi witnesses even if that person undermines defense counsel’s theory of the case.

Syed was convicted of killing his ex-girlfriend Hae Min Lee in 1999 and sentenced to life in prison. He gained a measure of fame following an in-depth review of the case’s evidence in the podcast “Serial.”

Maryland appealed a trial court decision overturning Syed’s conviction in June 2016 based on his lawyer’s failure to adequately raise questions about the state’s use of mobile phone tower data to connect him to the burial site of Lee’s body.

But attorneys and judges at a hearing before the Maryland Court of Special Appeals on June 8 predominantly focused on the alibi issue. They barely mentioned any arguments about mobile data—except to discuss whether Syed waived his right to make that argument in the first place, which could be the deciding factor in the case.

“Generally speaking, I was pretty surprised how little focus was on the cell chart issue,” said Colin Miller, evidence professor at University of South Carolina School of Law, Columbia, S.C. “That’s definitely not what I was expecting.”

Miller also co-hosts the podcast “Undisclosed,” which examines wrongful convictions. The podcast previously advocated for Syed’s innocence on its website.

Christine Tobar, deputy director of communications for Maryland’s attorney general, said the state would not comment on pending litigation.

Duties of Defense

In throwing out Syed’s conviction, Circuit Judge Martin P. Welch ruled that Syed’s lawyer, Cristina Gutierrez, acted deficiently when she failed to investigate an alibi offered by Asia Chapman, then known as Asia McClain.

Chapman told Syed in two letters that she saw him in the public library on Woodlawn High School’s campus at the time of the murder. Chapman gave her testimony at a post-conviction hearing in February 2016.

But the court found that the weight of the evidence wouldn’t have changed the outcome of Syed’s trial—a necessary finding to win an ineffective assistance of counsel claim.

Appellate courts give deference to lower court rulings and typically try not to overrule their decisions. Yet despite winning on the alibi claim, the state jumped straight into arguing that the trial court was correct on the alibi analysis and maintained that focus in both the initial statements and on rebuttal.

Creating a New Rule

Special Prosecutor for the Maryland Attorney General Thiru Vignarajah, now with DLA Piper Global Law Firm, Baltimore, framed a potential ruling as one that would second-guess defense counsel’s strategy.

Defense attorneys typically are given deference on appeal. Courts consider most defense counsel decisions to be part of trial strategy.

The strategy employed by Gutierrez, who was later disbarred for related errors in similar cases before her death in 2004, relied on a timeline established by piecemeal testimony that Syed attended track practice after school then went to a mosque with his father.

The Sixth Amendment reads broadly. It guarantees the “assistance of counsel” for criminal defense, It doesn’t provide guidance on what is considered sound assistance, however.

Vignarajah argued that finding Gutierrez’s conduct prejudiced the outcome of the trial would require more than the baseline constitutional guarantees. Pursuing an “uncertain line of defense” by spending resources tracking an alibi that undercut her trial strategy would create a harder burden for defense attorneys to meet, he argued.

“An alibi is not just a witness, but a witness at a particular time and particular place,” Vignarajah said.

But judges hit back, asking how it could be unreasonable for an attorney to investigate an alibi witness.

Defense attorneys “not talking to them raises a real concern,” Chief Judge Patrick L. Woodward said.

Until trial, a defense attorney must “always, always” investigate all leads for alibis, Syed’s attorney C. Justice Brown, Baltimore,said in his responding arguments.

But Judge Kathryn Grill Graeff pushed back, asking if that means defense attorneys never have discretion in how they use limited resources. Brown held his ground.

“As a defense attorney, you gather information,” he said. “It’s a fluid type of role.”

But regardless of what was provided and when, Gutierrez “did a pretty good job with what she had,” Judge Alexander Wright observed.

Minds Made Up?

It’s not clear why the alibi issue dominated the proceeding, but Miller gave two possible explanations: Either the state believed its brief sufficiently addressed the argument or the judges were just so fascinated with the duty regarding an alibi witness that they didn’t give attorneys enough time to discuss the mobile phone records.

Judges’ questions also indicate that they might have made up their minds, Miller said.

“My inclination is they think this might be a case where the alibi issue is the winning issue,” he said. “The probability is that that’s what’s going to happen, but it’s difficult to predict.”

As of now, Miller said his research indicates that every jurisdiction that has heard a case questioning the duty of defense attorneys to investigate alibi witnesses have recognized an absolute duty.

Maryland could join that cohort or consider Syed’s case an outlier, he said.

The Cover Sheet

But the case still could be decided on a more technical, procedural issue.

The state argued that Syed waived his right to claim ineffective assistance of counsel because of a post-conviction trial court decision made before a crucial cover sheet for mobile phone tower data was available.

The cover sheet instructs those reading mobile phone tower location data that outgoing calls are not reliable for pinpointing location—the exact method the state used to connect him to the burial site in Baltimore’s Leakin Park. An AT&T employee also recanted his testimony from the original trial, saying he never would have corroborated the state’s case had he seen the cover sheet.

Syed did not claim ineffective assistance counsel based on the failure to pursue the mobile phone data cover issue during his original 2010 post-conviction appeal—he focused on Gutierrez’s failure to contact Chapman about the alibi, a claim on which he lost. Only after the defense team received the cover sheet in 2015 did he raise the issue, once he won a rehearing on the alibi claim.

The state claimed during the June 8 hearing that Syed “knowingly and intelligently” waived his right to make an argument about ineffective assistance of counsel regarding the mobile phone data because he had made previous allegations of ineffective assistance of counsel and lost on those claims.

However, the defense countered that Syed had no way of alleging ineffective assistance for the mobile phone records in his original appeal because he didn’t receive the cover sheet until 2015.

Open Path or Closed?

Miller explained that the state views ineffective assistance of counsel as one claim that should include any and all errors. That means in making one ineffective assistance of counsel claim, Syed would have waived all others and lost his opportunity to make them later, he said.

The defense sees them as separate claims because the mobile phone tower data is not derived from the errors on investigating the alibi, Miller said.

Additionally, the defense argued that because the Court of Special Appeals didn’t rule on the merits of the ineffective assistance of counsel claim for the alibi before remanding it, the issue is still open-ended.

So even if the claims are viewed altogether as the state suggested, Syed is still free to argue the mobile phone error because the court hasn’t issued a final order by deciding the merits of the case, the defense claimed.

The state also argued the need for finality to protect against a potential onslaught of never-ending, post-conviction ineffective assistance claims. Meanwhile, the defense claimed this case is unique because the Court of Special Appeals has never remanded a case on ineffective assistance without ruling on the merits of the claim, as it did here.

“It gets down to how defense framed it versus state,” Miller said.

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

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

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