Adnan Syed, the convicted murderer made famous by the blockbuster podcast Serial, concluded his latest effort at a retrial on Tuesday. After five days of post-conviction hearings weighed the merits of his conviction, the fate of his case is now in the hands of a Baltimore Circuit Court judge.
Syed's attorney Tuesday vowed to appeal if Judge Martin P. Welch rules against a retrial. He promised to "fight to the bitter end," for Syed's innocence, and to pursue the case as far as federal court if necessary.
Judge Welch did not give a ruling Tuesday, and will issue a written opinion at an undisclosed date.
Syed, who is now 35, was convicted of murdering his ex-girlfriend Hae Min Lee when they were both 18 and students at Woodlawn High School in Baltimore. Currently serving a life sentence plus 30 years for the crime, Syed has lost other appeals, including an earlier post-conviction petition heard by the same judge in 2012. Syed's latest petition has re-opened arguments by bringing new evidence never before heard in court.
In closing arguments Tuesday, Syed's attorney Justin Brown summed up the two key arguments he raised in the post-conviction petition. Brown argued that Syed's 1999 trial counsel was fatally ineffective — particularly in failing to call a key alibi witness who said she was with Syed at the time of the alleged murder. He also argued that cell phone records tying Syed to the crime scene were unreliable and should have never been admitted into evidence.
According to Brown, the state's effort to undermine the defense was like "taking a square peg and trying to put it in a round hole." Brown told the judge that, even taken alone, their new disclosures on these questions warrant Syed a new trial.
Maryland Deputy Attorney General Thiru Vignarajah painted a picture of a possessive young man who showed "early warning signs of intimate partner violence" before he was convicted of Lee's murder by a jury of his peers. Despite "Herculean" efforts by his storied trial lawyer Cristina Gutierrez, "the evidence was overwhelming" the prosecutor told the court, and Syed was convicted "because he did it."
Serial, a spinoff of the radio program This American Life, investigated Syed's trial more than a decade after his 1999 conviction, and in its first season became the most popular podcast of all time, topping some 120 million downloads. Among the podcast's scores of fans, many have become convinced of Syed's innocence; dozens were in attendance throughout the hearings.
Vignarajah reminded the court in closing arguments that his job "is not to bend to the fashion of the moment, but to do justice".
In a press conference Tuesday, he said the hearings had been an opportunity for the judge "to make a decision that will restore faith in the system that Mr. Syed received a vigorous, complete defense" in 1999.
But the court saw new evidence last week in the form of Asia McClain (now known as Asia Chapman), who took the stand for the first time as Syed's alibi witness.
Now 34, living in Washington state and expecting her third child, Chapman was presented by the defense as a central piece of Syed's case that should have been fully vetted by Gutierrez, but wasn't.
Seventeen years later, Chapman has told a court for the first time that she was with Syed at the Woodlawn Public Library between 2:15 and 2:35, the time the murder is said to have taken place. She also said that she made this clear to him in letters to Syed in the days following his arrest, in an affidavit she signed after his conviction, and now by appearing in court, 17 years later.
Chapman was never contacted by Syed's defense team. Questions of the extent of a defense attorney's obligation to pursue an alibi witness were hotly debated by both sides.
"The state has taken the position that there was no duty for Gutierrez to talk to the alibi witness," Brown said in a press conference Tuesday. "We strongly disagree with that."
Vignarajah argued that Brown had to prove that Gutierrez' performance was not just sub-par, but "constitutionally defective".
According to Vignarajah, Gutierrez did not fail to include a key witness her defense, but rather made a "wise" strategic choice not to pursue Chapman as a witness. He asserted throughout the hearings that she was a lawyer "at the top of her game" when she defended Syed. He pointed to notes from Gutierrez' defense team indicating she was aware of Chapman's story.
Vignarajah maintained that Chapman proved herself a "charming witness," but argued that she was not a credible one, and that Gutierrez must have noticed this.
Gutierrez tried to establish a timeline consistent with Syed's usual daily routine of "school, track, mosque," said Vignarajah, and a non-routine trip to the Woodlawn Public Library would not have fit into that timeline.
"Asia McClain was not a weapon for the defense," Vignarajah told a press conference Tuesday. "She was a potential weakness".
Vignarajah also questioned whether letters Chapman wrote to Syed in his defense were genuine, suggesting that the content of Chapman's second letter to Syed, dated March 2 1999, was fed to her from Syed and "wasn't written at the time she says it was written." He referred to notes from a conversation between a police officer and fellow Woodlawn student Ja'uan Gordon.
"Why did Ja'uan (Gordon) tell police that Adnan gave a letter for a girl named Asia McClain to type up?" Vignarajah asked Chapman during cross-examination. She denied any knowledge of the scheme.
Just before both sides rested their case on Monday, the defense handed Judge Welch a new affidavit, dated February 7, 2016, in which Gordon denies that Syed asked Asia to falsify her story:
"I have no knowledge of Adnan asking Asia to write anything fraudulent, or with intentions of misrepresenting anything to the court," he wrote.
Three of Brown's seven witnesses testified to Gutierrez' decline in health and performance in the late 1990s, when she defended Syed. She was disbarred in 2001, and died in 2004.
Testifying for the defense, attorney David Irwin said there was no excuse for Gutierrez to not vigorously pursue any credible alibi witness, let alone Asia Chapman, whom he viewed as a "fabulous witness" and "powerfully credible."
He asserted that an alibi witness is the "best possible defense" a defendant can hope for — but Gutierrez decided to defend Syed without one, instead pursuing an alibi through cross-examining the state's witnesses.
"You're begging the world to think she had a strategy. She had no strategy," Irwin told Vignarajah in cross-examination. "The best way to put it is she was ineffective, and constitutionally so I'm afraid."
This, argued Brown, was the reason the state did not call a defense attorney witness of its own to the stand to counter Irwin's argument.
"No defense attorney can justify not calling an alibi witness," he said, dismissing Vignarajah's closing remarks as "two hours of conspiracy theories" without witnesses to back them up.
Arguments over the validity of cell phone records tying Syed to the crime scene at the time of the murder led to a fraught testimony from the state's cell phone expert, a 19-year veteran of the FBI.
Special agent Chad Fitzgerald testified that the AT&T cell records analysis done at Syed's 1999 trial was "very good and very thorough", even by today's standards— despite the fact that the expert who performed that analysis has now questioned his own analysis—twice.
AT&T Engineer Abe Waranowitz filed an affidavit in October saying that if he had seen a fax cover sheet that contained a disclaimer saying that incoming calls were not reliable in establishing location, it could have changed his testimony. Waranowitz filed a follow-up to that affidavit on Monday, reiterating his doubts about his own work in 1999, which placed Syed at the crime scene at two crucial points using incoming calls.
Brown insisted that "these incoming phone calls are really, really important" to Syed's case. Unable to draw a firm conclusion from the contrasting arguments of cell experts, but there was "something messed up about these phone calls," Brown insisted.
"What's wrong with the records? I don't think we really know," he concluded.
It is now up to Judge Welch to decide whether the contrasting analyses of cell records in the case, along with questions surrounding Syed's trial defense, are enough to warrant him a new trial.
Syed's attorney Justin Brown told a press conference that rulings on post-conviction hearings can take months, or even years — but that he expects this decision to come much quicker than usual.
If Judge Welch rules against Syed, Syed can appeal that decision at the Maryland Court of Special Appeals. If the judge rules in Syed's favor, the Court of Special Appeals is likely to honor his opinion and grant Syed a retrial.
In a rare statement Sunday, Hae Min Lee's family spoke out against the media storm: "Unlike those who learn about this case on the internet, we sat and watched every day of both trials — so many witnesses, so much evidence."
They said the hearings have made it "more clear than ever that Adnan is guilty and that his lawyer did the best job she could have for him."
For their part, Syed's camp have said the hearings leave them hopeful. In a statement delivered through Brown, Syed said that "the events of the last 16 months have filled me with a great sense of hope, and I intend to keep fighting to prove my innocence."
Follow Annalies Winny on Twitter: @annalieswinny