'Serial': How Adnan Syed Could Win His Retrial

With his conviction vacated, Syed has another chance at freedom – and three big pieces of evidence could help him win the case

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'Serial': How Adnan Syed Could Win His Retrial

On July 2nd, Baltimore Circuit Court Judge Martin P. Welch delivered the decision Serial fans had been waiting for – he overturned Syed's conviction for the 1999 murder of his ex-girlfriend, Hae Min Lee. Judge Welch found that the late Cristina Guttierez, Syed's previous attorney, had failed to cross-examine the state's cell phone expert in the 2000 trial and therefore violated his right to effective counsel. So he granted the defense's petition for a new trial.

The Maryland Attorney General's Office has suggested that they will appeal Welch's ruling and "defend what it believes is a valid conviction," which would kick-start what could be a years-long delay of the retrial. While it’s possible that the prosecution has lost faith in Syed’s guilt and has already determined that they won’t pursue a retrial, it’s in their interests to delay any resolution by dragging on the appeals process, because it gives them the chance to win and have Welch’s decision to overturn Syed’s conviction thrown out. But even if the state anticipates losing this appeal, delaying a resolution gives them an upper hand in future plea negotiations.

"This is kind of game of chicken, because I don't think the state has any interest in prosecuting this case again," says Colin Miller, a professor at the University of South Carolina School of Law and one of the hosts of the Undisclosed podcast, the unaffiliated follow-up to Serial whose investigation helped vacate Syed's conviction. "But I don't know how much of an interest Adnan has in going through a new trial, paying hundreds of thousands of dollars to pay for his defense, and possibly a few more years in prison.” (The defense has not yet decided whether they will pursue bail.) "The alternative could be taking an Alford plea and getting time served," he continues. "It's a tough situation – I'm sure he wants to prove his innocence, but you could completely understand why he would be just want to be out of prison at this point."

An Alford plea – perhaps most famous for its role in the release of the West Memphis Three – allows a defendant to assert their innocence while agreeing that the state has enough evidence to convict. In the event of an Alford plea, the investigation into Lee's murder would remain closed, and while Syed would be free, he would still be a convicted felon and would not have grounds to sue over the nearly two decades he spent behind bars.

Unless the State decides to drop the charges against Syed – which is incredibly unlikely, given that would leave him with the option to sue – his best hope for exoneration is refusing any plea offers and forcing the state into a retrial. Rolling Stone has already reviewed the state's key points of evidence used against Syed in 2000, and detailed why their "overwhelming evidence" – as Deputy District Attorney Thiru Vignarajah put it – is significantly flawed. While the state doesn’t have to argue the same narrative and timeline at a retrial, or even call the same witnesses, anything they present now is open to being impeached by previous trial testimony. 

However, the thought of a new trial is likely making the state nervous. The defense's case is a lot stronger now, thanks to new evidence that tarnishes the legitimacy of the investigation and prosecution; new material that further undermines the state's star witness; and a bombshell revelation about the most basic piece of physical evidence in the case.

Lividity Doesn't Lie
Lividity is the process by which blood settles in a body once the heart has stopped pumping and gravity takes over. Simply put, the lowest point in the body is where the blood will settle. About two to four hours after death, lividity is partially fixed, so if a body had been, say, resting on its left side for four hours after death, and then flipped onto its right side, a lividity pattern will remain on the left side of the body, while the rest of the blood pools on the right side. However, eight to 12 hours after death, lividity is fixed; if a body had lain on its left side for 14 hours after death, and then was flipped onto its right side, the lividity pattern would remain entirely on the left side. Lividity, along with rigor mortis, is often used to determine time of death.

Even if a body is not discovered for many weeks, as was the case with Hae Min Lee, lividity is helpful in determining what happened to a body in the 12 hours after death. Lividity was discussed in some detail at Syed's 2000 trial when Gutierrez cross-examined Medical Examiner Margarita Korell about her autopsy findings. However, the timing of lividity was referenced in only very general terms, while the specifics would have offered a crucial opportunity to punch a massive hole in the state's timeline and their star witness's testimony.

According to Korell’s testimony and the autopsy, Lee's body had only frontal lividity. There was no lividity pattern present on either side or on the back of her body, which means for the 12 hours after death, Lee's body was laying flat and facedown. This directly contradicts Wilds' testimony about the positioning and location of Lee's body after her murder and the timing of the burial in Leakin Park.

"According to Jay, for four to five hours after death, Lee was pretzeled up on her side in the trunk of her Sentra," says Miller. "Her body was found buried on its right side in Leakin Park, where, according to Jay, he helped Adnan bury her at around 7 p.m. on the day of her death. The timing of lividity is crucial here, because it shows Lee couldn't have been on her right side in the trunk for four to five hours, otherwise there would have been some lividity on the side of the body."

"Her legs, her abdomen, her chest – her body below the neck had to have been parallel to the ground, facedown and spread out pretty evenly for this lividity pattern to occur," Miller says.


Jay Wilds’ New Timeline
In late 2014, Jay Wilds, the state’s star witness, gave a three-part interview to the Intercept, which was chock-full of unchallenged contradictions. On top of admitting to multiple counts of perjury in the 2000 trial, Wilds completely totaled the State's timeline – and provided a new one that still doesn't jive with the lividity evidence. He also explicitly contradicted his earlier testimony that Syed told him in advance that he was going to "kill that bitch," the basis for the prosecution's premeditated first-degree murder charge and arguably the reason why the jury convicted Syed on that count. Without testimony pointing to premeditation, the jury would have likely delivered a second-degree murder or manslaughter conviction, and the judge would have probably imposed a lighter sentence than life in prison without parole. 

Regardless, Wilds' most recent account is wildly different from his previous testimony, on which the State based their entire timeline. In it, he contradicts numerous things, like how he testified that Syed had shown him Lee's body in the Best Buy parking lot soon after the murder – in his interview, said he didn't see the body till much later in the evening. Or how he'd originally said that he helped Syed bury the body around 7 p.m., and now claimed that the burial had taken place after midnight. He also told the Intercept that he only helped dig the hole, staying back with the car while Syed buried the body himself.

There are plenty of other, more minor differences as well. But this change in the narrative is also unlikely to convince even the most forgiving jury. For starters, Syed's last outgoing phone call on January 13th was at 10:30 pm, and he didn't make another call until the next morning, which means that Syed's participation in a midnight burial can't be corroborated with his cellphone records. The jury would have to take Wilds at his word.

Also, while Wilds' new timeline has Lee being buried after the lividity has fixed, his story still involves her body being pretzeled up inside a cramped car trunk for eight to 10 hours – and the full frontal lividity pattern makes that impossible.

The First Crime Stoppers Tip 
At the 2000 trial, prosecutors claimed that on February 12th, 1999 — three days after Lee's body was found in Leakin Park — Crime Stoppers received an anonymous tip telling the police to look into Syed in connection to Lee's murder. According to the testimony of Baltimore City Detectives William Ritz and Greg MacGillivary, as well as their documented investigation, this tip sparked their investigation into Syed as a possible suspect. However, the detectives' notes (many of which were written up well after the fact, or have since gone missing, or never existed in the first place), files, and witness statements suggest Syed had been a suspect since well before February 12th.

Last August, a Reddit user who had become interested in Syed's case after listening to Serial – i.e. one of those "armchair detectives" helping to crowd-source the reinvestigation of the case – contacted Crime Stoppers about the reward offered in 1999 for information about Lee's then-disappearance. According to Crime Stoppers, the February 12th tip was not the first tip they received – on February 1st, they received an anonymous tip from someone who was ultimately awarded a Crime Stoppers payout of $3,075.

"We have written documentation from Metro Crime Stoppers that someone was paid the full reward amount," Miller said. "We're still not 100 percent sure as to the content of the tip or who the tipster was, but if it were helpful to the state's case, we would have heard about it at trial."

Crime Stoppers only rewards tipsters if the information they provide leads to an arrest and indictment for the crime. The fact that this February 1st tipster received the full reward means that the information they had was vital to the investigation, yet it was never disclosed to the defense, nor was it ever referenced at trial. However, the anonymous tip on February 12th, which did not result in a Crime Stoppers payout, was disclosed and repeatedly referenced by the prosecution as what led to Syed being seen as a suspect. So why hide the February 1 tip, if the information provided gave law enforcement reason to investigate and eventually arrest and charge Syed with first-degree murder?

If there is a retrial, the defense could certainly subpoena the content of the tip and identity of the tipster from the state, and, as Miller has written, there are multiple examples of Maryland case law that suggest they be required to disclose that information. Depending on what's revealed, there may be grounds for arguing that this failure to disclose constitutes a Brady violation – that is, by suppressing information that would have been favorable to Syed's defense violated his right to due process. His defense has the right to cross-examine the substance and validity of the tip, if it indeed led to his arrest and indictment.


That the state's case was propped up by just a few key piece of evidence suggests there's a strong possibility that the person was already a witness in 2000. After all, there was no physical evidence linking Syed to Lee's disappearance and murder that could have come via the Crime Stoppers tip. And only two of the state's witnesses provided the police with evidence that was essential to the investigation – Mr. S, who discovered Lee’s body in Leakin Park on February 9th, and Jay Wilds, who allegedly led police to Lee's car after his first interview on February 28th.

"By process of elimination, [Mr. S and Wilds] are they only people we know of who might be entitled to this full reward amount," Miller says. "It's always possible there's someone out there who the state had valuable information from that they didn't call to the witness stand, but it seems likely to me that the tipster would be someone who ended up testifying at trial."

Mr. S led police to Lee's body, but he offered no evidence or testimony linking Syed to the crime. Wilds, on the other hand, was the only person to directly implicate Syed; that he allegedly led police to Lee's car was offered as proof of his connection to the crime, bolstering his credibility to the jury. Wilds' testimony, with the corroboration of the cell tower evidence, is the reason the jury convicted Syed. In exchange for his testimony, Wilds was offered a plea agreement in which he would plead guilty to being an accessory after the fact, and the state upon sentencing would recommend five years in prison with two years suspended. He ended up serving no time.

If police and prosectors went out of their way to hide the February 1st Crime Stoppers tip for some reason, having that information revealed, with all its potential implications for the state's case and its key players, may be exactly what they're trying to avoid – and thus, Syed's best possible bargaining chip.