It’s been two years since Serial subject Adnan Syed was granted a new trial, but his case will remain in limbo – and he’ll remain in prison – for another year.
This week, Maryland’s highest court agreed to hear the State’s appeal, which seeks to reinstate Syed’s conviction in 2000 for the murder of his high school girlfriend, Hae Min Lee.
The original conviction was overturned by Circuit Court Judge Martin Welch in June 2016. The court found that Syed’s trial attorney, the late Cristina Gutierrez, was ineffective by failing to cross-examine the prosecution’s cell tower expert about the reliability of location data for incoming calls. The prosecution used two incoming calls to corroborate their witness’s testimony about helping Syed bury Lee’s body hours after the murder.
Last March, the Court of Special Appeals also agreed to overturn Syed’s conviction, but due to Gutierrez’s failure to pursue an alibi witness named Asia McClain. Rather than address the substance of the cell tower issue, CoSA overruled Welch on procedural grounds, saying that Syed waived his right to raise the issue by not doing it sooner.
When Syed’s case goes before the Court of Appeals later this year, the seven-judge panel will be hearing appeal arguments related to CoSA’s ruling on both issues – whether the failure to pursue McClain as an alibi witness constitutes ineffective assistance, and whether Syed previously waived his right to refute the cell tower evidence. If the court finds in favor of Syed on either issue, he will have won the right to a new trial for the third time.
Maryland appellate attorney Erica Suter wasn’t surprised that the Court of Appeals chose to take on the Syed case, because of the opportunity it would provide to set legal precedent regarding the defense counsel’s duty to investigate potential alibi witnesses.
McClain’s alibi witness testimony was heard for the first time in February 2016, at the post-conviction relief hearing that precipitated Judge Welch’s decision to vacate Syed’s conviction on the cell tower issue. McClain testified that she was with Syed at the Woodlawn Public Library during the time frame when trial prosecutors argued Syed was committing the murder. Immediately following his arrest, McClain contacted the Syed family and wrote Syed two letters, which included her phone number and encouraging his attorney to contact her if her information about his whereabouts might be valuable.
McClain never heard back. For years, she assumed that seeing Syed in the library that day was of no consequence to his case. When she was contacted by Syed’s appellate attorney in 2010, she reached out to the case’s original prosecutor, whom, she alleged, discouraged her from responding or appearing as a witness at another post-conviction relief hearing that year. It wasn’t until 2014, when the podcast Serial publicized Syed’s case, that McClain realized the importance of her testimony. She got in touch with Syed’s attorneys so she could speak on the record.
The State’s basis for appeal claims CoSA “erred in imposing a new duty on defense counsel to contact one specific potential alibi witness even when a different alibi strategy was selected,” according to court filings. Their argument is that Gutierrez had an alibi strategy focused on Syed’s routine that McClain’s testimony about seeing him at the public library would have been inconsistent with.
However, the public library in question is on the Woodlawn High School campus, which means McClain’s testimony would have been consistent with an alibi-by-routine strategy. Their argument is that Gutierrez had an alibi strategy focused on Syed’s after-school routine of staying on campus until track practice; according to the State, McClain’s testimony about seeing him at the public library would have been inconsistent with that strategy.
The State claims that expecting the defense counsel, in general, to investigate every potential alibi witness “is an incredibly broad, burdensome duty to impose,” Suter says. “But I think if you look at the specific facts of this case, which is the context in which this decision is being made, it’s really not.” She doesn’t anticipate that the argument will ultimately convince the Court of Appeals to overturn CoSA’s ruling and reinstate Syed’s conviction.
“There were letters from [McClain], she provided a phone number, she affirmatively came forward,” Suter says. “The facts of this case I think are what save it from that slippery slope argument.”
Oral arguments before the Court of Appeals will be scheduled for sometime in November or December, and a final decision will be delivered no later than August 31, 2019.