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July 1 — Although a trial judge granted Adnan Syed a new trial June 30, the Maryland Attorney General may still appeal that decision, according to a statement from the office.
When asked whether the state plans to retry Syed—subject of the viral podcast ‘Serial'—Deputy Communications Director Christine Tobar, from the attorney general’s office, provided the following statement to Bloomberg BNA:
“It is the continued desire of the Attorney General to seek justice in the murder of Hae Min Lee. The court ruled in the State’s favor on a number of issues, but there does appear to be at least one ground that will need to be resolved by the appellate courts. The State’s responsibility remains to pursue justice, and to defend what it believes is a valid conviction.”
Tobar didn't respond to additional questions from Bloomberg BNA via e-mail and phone about which ground needed resolution from the Maryland appellate courts.
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.
In 2015, Syed was granted a post-conviction hearing, which allowed him to present new evidence over the course of five days in February, including an alibi witness and mobile phone records (98 CrL 455, 2/17/16).
Judge Martin Welch granted the new trial based on his finding that Syed's attorney, Cristina Gutierrez, provided ineffective assistance by failing to cross-examine a cell phone tower expert regarding a disclaimer that came with the original records.
That disclaimer stated that, “Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.”
When Syed sought his post-conviction hearing, his attorney, C. Justin Brown, of Brown & Nieto LLC, Baltimore, submitted an affidavit from Abraham Waranowitz, the original trial expert who testified for the state about how to interpret the 1999 mobile phone records.
“If I had been made aware of this disclaimer, it would have affected my testimony,” Waranowitz said in the affidavit. “I would not have affirmed the interpretation of a phone's possible geographical location until I could ascertain the reasons and details for the disclaimer.”
Waranowitz had never been made aware of the disclaimer because Gutierrez never questioned him about it, Brown argued at the February hearing.
“The disclaimer casts a fog of uncertainty over [the cell phone records] and thus, but for trial counsel's failure to cross-examine Waranowitz about the disclaimer, there is a substantial possibility that the result of the trial was fundamentally unreliable,” Welch wrote.
Welch rejected Syed's two other claims:
While Welch found that the alibi issue fell below the standard for reasonable care, he declined to find that it influenced the fairness of the trial because “the crux of the State's case did not rest on the time of the murder.”
Welch also found that Syed waived his right to make a Brady argument because he didn't raise the issue at a prior proceeding.
If the state appeals Welch's ruling, an evidence professor said it's unlikely that the Maryland Court of Special Appeals will overturn the grant of a new trial, and it might even find ineffective assistance of counsel for failing to investigate the alibi witness.
Colin Miller, an evidence professor at the University of South Carolina School of Law, was one of the three leading voices, along with lawyers Susan Simpson and Rabia Chaudry, involved in the “Undisclosed” podcast.
This follow-up to “Serial” 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 its website.
Miller said the state faces four options following the ruling:
“My guess is that they will appeal,” Miller said.
If the Court of Special Appeals overturns anything, Miller said it would be the prejudice finding regarding alibi witness Asia Chapman—known in 1999 as Asia McClain.
Chapman wrote several letters to Syed in 1999 stating that she saw him in a school library at the time of the murder. No one from Gutierrez's office ever contacted Chapman.
Miller said a 2016 opinion from the U.S. Supreme Court could offer persuasive analysis on the issue of ineffective assistance of counsel for not investigating Chapman's testimony ( Wearry v. Cain, 2016 BL 67934, U.S., No. 14-10008, 4/7/16 ) (98 CrL 538, 3/9/16).
Although the case dealt with a Brady violation instead of an ineffective assistance of counsel claim, Miller said the analysis is similar to how Chapman fits into the unfairness of the trial.
In Syed's case, Welch found the failure to investigate didn't prejudice the fairness of the trial because Chapman placing Syed at the time of the murder didn't undermine the testimony from state witness Jay Wilds that he helped Syed bury Lee's body that evening in Leakin Park.
“That analysis doesn’t make sense because that whole conflict of evidence, if valid, would only tend to show that [Syed] was an accessory after the fact and not guilty of murder,” Miller said.
That analysis is similar to what the Supreme Court rejected in Wearry, which dealt with the failure to investigate alibi witnesses who may not have completely discredited the state's case, but who would have contributed to an overall reasonable doubt.
“The State's trial evidence resembles a house of cards, built on the jury crediting [the state's witness's] account rather than Wearry's alibi,” the court wrote in the per curiam opinion. “But all of the evidence the dissent cites suggests, at most, that someone in Wearry's group of friends may have committed the crime, and that Wearry may have been involved in events related to the murder after it occurred. Perhaps, on the basis of this evidence, Louisiana might have charged Wearry as an accessory after the fact.”
Regardless of the decision or these recent events, Miller said it is important to keep in mind that Syed's legal battle is not over. Even if the Court of Special Appeals affirms the new trial, Miller said the state could still appeal that decision to the state supreme court.
“This is not the end of the line,” Miller said. “It's not 100 percent clear which way this will end up.”
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