Maryland high court reinstates ‘Serial’ subject Adnan Syed’s conviction

BALTIMORE – Maryland’s highest court has determined that Adnan Syed does not deserve a new trial, reversing the opinion of a lower appellate court and reinstating Syed’s conviction in the murder of Hae Min Lee. The 20-year-old case shot to international prominence as the subject of the “Serial” podcast.

The Court of Appeals, on a 4-3 vote, agreed with the lower court that the performance of Syed’s counsel during his initial trial was “deficient” for failing to pursue a possible alibi witness account. But they disagreed that it had prejudiced Syed, saying the evidence against him was strong.

“Given the totality of the evidence the jury heard, we conclude that there is not a significant or substantial possibility that the verdict would have been different had trial counsel presented” an alibi witness, Judge Clayton Greene Jr. wrote for the majority.

Syed’s lead attorney, C. Justin Brown, told The Baltimore Sun that the defense team believes there are “at least three other avenues of relief” that they would be exploring in the coming weeks. He declined to discuss what form those options might take.

“We are devastated by the Court of Appeals’ decision but we will not give up on Adnan Syed,” Brown said in a statement. “Our criminal justice system is desperately in need of reform. The obstacles to getting a new trial are simply too great.”

Attorney General Brian E. Frosh said: “We are pleased with the court’s decision. Justice was done for Hae Min Lee and her family.”

Syed was convicted 19 years ago of killing his former girlfriend and Woodlawn High School classmate, and has been serving a life sentence. The case became an international hit podcast in 2014 with “Serial,” and Friday’s opinion was issued as a four-part documentary series on the case is set to premiere Sunday on HBO.

Lee disappeared Jan. 13, 1999. Her body was found almost a month later buried in the city’s Leakin Park. At trial, the state’s evidence included a friend, Jay Wilds, who said that Syed told him he killed Lee and showed him the victim’s body in the trunk of his car. Syed filed an alibi notice saying he had been at track practice and attended services at a mosque, and that 80 people would corroborate that as his typical routine.

Many questions have been raised about the case since, but Syed’s appeal relied primarily on his trial counsel, the late M. Cristina Gutierrez, allegedly failing to pursue an alibi witness: classmate Asia McClain, who had written Syed a letter saying she saw him in the campus library after school. His appellate attorneys also questioned cellphone tower evidence.

The Court of Appeals in its Friday ruling said Gutierrez’s efforts “fell below the standard of reasonable professional judgment and was, therefore, deficient.”

But they disagreed that McClain’s account would have helped Syed, saying it “does little more than call into question the time that the state claimed Ms. Lee was killed and does nothing to rebut the evidence establishing Mr. Syed’s motive and opportunity to kill Ms. Lee.”

The alibi “could not have affected the outcome of the case because that evidence did not negate Mr. Syed’s criminal agency,” Greene wrote.

In a concurring opinion, Judge Shirley Watts went further, saying she did not believe Gutierrez’s performance was deficient, and said there were “several obvious indications that McClain’s version of events was false.”

“Syed’s trial counsel was not required to call McClain as a witness just because there was a chance, however slight, that the jury would have viewed her testimony as exculpatory. No reasonable criminal defense lawyer would advocate that, in every case, the defense should, to use a colloquialism, ‘throw everything at the wall to see what sticks,’” Watts wrote.

Judge Michele D. Hotten, in a dissent joined by the court’s chief judge, Mary Ellen Barbera, wrote that “not only does Ms. McClain’s alibi address the most integral period of time in the case, it presents direct, not merely circumstantial, evidence of Mr. Syed’s whereabouts during that time.”

“The state offered no direct evidence establishing that Mr. Syed ‘caused the death’ of Ms. Lee, and its case was largely dependent on witness testimony, which the state readily admitted was conflicting and problematic,” Hotten wrote. “ . I would remand the case for a new trial.”

In overturning Syed’s conviction in 2016, Baltimore Circuit Court Judge Martin Welch said he had been most swayed by questions over cellphone tower evidence. But both appeals courts dismissed the cellphone tower questions, saying Syed waived his right to the claim because it was not included in his original petition. That could be one of Syed’s avenues for reconsideration.

Colin Miller, a law professor at the University of South Carolina who has been closely tracking the case and called the court’s ruling “bizarre,” wrote on his blog that Syed can file a motion for reconsideration with the Court of Appeals of Maryland or ask the U.S. Supreme Court to take up the case. But he said both were “highly likely” to reject it.

Instead, he said, Syed may file a motion to reopen his postconviction proceeding noting Welch’s support for the cell tower claim.

“I still think Adnan is getting a new trial . but now, it might be another few years before he gets relief,” Miller wrote.

The “Serial” podcast delved into the case and became a phenomenon, breaking records for downloads and streams, and spawned intense interest that led to new theories and questions.

In 2016, Welch vacated Syed’s conviction and ordered a new trial. The state appealed, but the Maryland Court of Special Appeals upheld the lower court ruling.

The state appealed again. Last July, the Maryland Court of Appeals agreed to consider whether to reinstate Syed’s murder conviction.

Thiru Vignarajah, a former deputy Maryland attorney general who argued on behalf of the state – and continued to handle the case after leaving the office and going into private practice – said the records didn’t indicate why Gutierrez chose not to investigate McClain’s claim. He argued that defense strategy might have been one reason. Syed had said nothing to police about going to the library, so McClain’s story would not have been consistent with his.

Furthermore, Vignarajah argued if Syed’s conviction was vacated it would create a precedent that would require any defense attorney to contact any potential witness, regardless of their merits. In the absence of an explanation, he said, the court must presume the reasonableness of Gutierrez’s actions.

Cate Stetson, the appellate defense attorney, argued Syed had asked Gutierrez to follow up on McClain’s claim. Stetson argued the attorney had failed her client by not calling the witness – a violation of his right to effective counsel.

“There was a credible alibi witness who was with Adnan at the precise time of the murder, and now the Court of Appeals has said that witness would not have affected the outcome of the proceeding,” Brown said Friday. “We think just the opposite is true. From the perspective of the defendant, there is no stronger evidence than an alibi witness.”

McClain took to social media after Friday’s ruling and tearfully criticized the decision.

“We were just hopeful that this was going to be resolved in a manner that made sense, something that we could all accept,” McClain said. “And this is not acceptable.”