New Evidence in ‘Serial' Hearing Comes 16 Years Later

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By Jessica DaSilva

Feb. 16 — Both parties to the post-conviction hearing of Adnan Syed introduced evidence discovered or dated within a week of the proceedings, despite the passage of 16 years since he was found guilty of murder.

Although the nature of the claims for ineffective assistance of counsel and a Brady violation require the introduction of new evidence, an evidence professor said it is “unusual” to see testimony from witnesses never called to trial about events so long ago.

Syed was convicted in 2000 when he was 18 years old for the murder of his ex-girlfriend Hae Min Lee. He has maintained his innocence ever since. The viral podcast “Serial” garnered international attention when it scrutinized the police's investigation and evidence presented at trial.

The Maryland Court of Special Appeals granted Syed's request for a post-conviction hearing based on his allegations that his original trial counsel Cristina Gutierrez provided ineffective assistance of counsel by not pursuing an alibi witness who came forward the week after Syed was arrested in 1999. The hearing took place Feb. 3-9.

The court also asked for evidence regarding a potential Brady violation for the state's failure to disclose a fax cover sheet from AT&T that cast doubt on the location of Syed's mobile phone, which the state used to connect him to the burial site of Lee's body.

Brady requires a defendant to show that but for the prosecutor's failure to disclose, the trial would have turned out differently.

A 17-Year-Old Alibi

Colin Miller, an evidence professor at the University of South Carolina's law school, served as one of the three leading voices of the website post for the “Serial” podcast, “Undisclosed,” along with lawyers Susan Simpson and Rabia Chaudry.

The follow-up podcast 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 website also advertises a banner for the Adnan Syed Trust, which is “helping [Syed] fund his legal defense” and features a “FreeAdnan” hashtag.

While the proceeding seemed to play out like a “mini-trial,” Miller told Bloomberg BNA that was partially because of the nature of the claims. Both ineffective assistance of counsel and prosecutorial misconduct claims require the parties to prove prejudice and whether the outcome of the initial trial would have been different but for the errors.

The witness at the center of the recent proceedings, Asia McClain, now known as Asia Chapman, claimed she saw Syed in the public library at the time of the murder. She testified that she wrote Syed two letters within a week of his arrest.

That error could have had a major impact on Syed's case, even if Gutierrez diligently pursued other options, Miller explained.

“You could have the best attorney in the world and they could dedicate their life and time and resources to the case and if they fail to interview one alibi witness,” that would likely be enough to satisfy ineffective assistance of counsel, Miller said.

Although the state argued that no absolute duty to interview an alibi witness existed, Miller maintained that every federal circuit that has heard a case on that issue has found that an absolute duty exists to contact and investigate an alibi witness.

The U.S. Court of Appeals for the Fourth Circuit, which includes the state of Maryland in its jurisdiction, held in Griffin v. Warden that even when an alibi witness doesn't corroborate the exact time of a crime, an attorney still maintains a duty to contact that witness before making a decision on trial strategy.

“Courts should not conjure up tactical decisions an attorney could have made, but plainly did not,” the majority stated. “The illogic of this ‘approach' is pellucidly depicted by this case, where the attorney's incompetent performance deprived him of the opportunity to even make a tactical decision about putting [the witness] on the stand.

“Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another,” the court wrote.

2016 Affidavits

Strategy for a post-conviction hearing can vary according to the defense's approach to establishing ineffective assistance of counsel, Miller said. Typically, he added, defendants can show ineffective assistance in the aggregate or on a specific point.

Syed's approach focused on solely the impacts of the alibi witness and a mobile phone expert's recanted testimony, Miller said.

Syed's attorney, C. Justin Brown, of Brown & Nieto in Baltimore, told Bloomberg BNA the key to introducing evidence at a postconviction proceeding is anticipating the arguments and trying to “cut off their arguments before they even make them.”

Brown said his team was “extremely prepared” for the hearing. The last-minute evidence he introduced had been gathered because they either knew or assumed that those issues would arise.

The defense introduced three new affidavits before resting its case. One came from Abe Waranowitz, the mobile phone expert who recanted his testimony from Syed's original trial in an October 2015 affidavit.

Waranowitz's new affidavit, signed on Feb. 9, reiterated the same points that he made in October that his testimony would have been different had he seen a fax cover sheet from AT&T that cast doubt on pinpointing Syed's mobile phone locations based off incoming calls in his phone records.

Another affidavit came from Ju'aun Gordon, Syed's high school friend. A detective's notes of his interview with Gordon stated that Syed asked Gordon, Chapman, and another friend Justin Adger, to write letters to him.

Gordon's affidavit, signed Feb. 7, clarified that the letters were in reference to character letters for Syed's bond hearing.

The last affidavit came from a lawyer who served as a law clerk for Gutierrez during her representation of Syed. Although not made available to the press, the affidavit appeared to have a date of Feb. 8 or 9—the last two days of the proceedings.

Brown said that the affidavits signed during the proceedings from Waranowitz, Gordon, and the law clerk arose by the judge's request. Rather than extend the proceedings, Brown said the judge asked for affidavits in lieu of live witness testimony, which might have extended the hearing by another day.

“Make no mistake,” Brown said. “Waranowitz was in town and ready to testify if the judge had wanted him to testify.”

New Witness, Old Information

The two other witnesses were a branch manager at the public library who said the library definitely contained surveillance cameras and a security guard who could not confirm or deny the cameras' presence.

The officer, whose name the court asked not to disclose and identified by the initials “SM,” testified that he signed a couple of documents after being interviewed by the state's detective on Feb. 3, 2016.

Those documents state that SM said there were no security cameras in the Woodlawn Public Library. However, SM also said he was not surprised to learn that the library had surveillance cameras because he worked for the security company contracted to the library, rather than for the library itself.

Assistant Attorney General Thiru Vignarajah told Bloomberg BNA in an e-mail that the proceedings offered the chance to clarify and complete the record for the appellate court.

The state called the officer found a week before the proceedings because the defense file from Syed's trial counsel, which the state received in January, showed he was interviewed by the defense team within a few days of Syed's arrest.

A Different Strategy

Ineffective assistance of counsel and Brady claims require a certain amount of strategy from attorneys approaching a nuanced post-conviction hearing like Syed's, Miller said.

While the attorneys' decisions in this hearing may have been dictated by the court and access to new records, Miller said strategy is often involved in deciding whether to call forth a witness or submit their testimony in an affidavit instead.

For example, Miller said it might have been risky for either side to call the original prosecutor, Kevin Urick, to testify.

Urick gave a two-part interview to The Intercept, an online news source and self-proclaimed government watchdog, in which he explained that the state could not have made the case against Syed with just the testimony of an accomplice without the mobile phone records.

Miller said that interview established a risk in the state calling him as a witness because he might testify to the weakness of the state's original evidence. As for the defense, Miller said the risk could be undermining Chapman, their credible alibi witness.

With the close of evidence on Feb. 9, the trial court will determine whether to overturn the conviction based on the alleged error. The losing party may appeal the decision to the Maryland Court of Special Appeals.

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