Image via YouTube/Serial
If you were among the many millions of people who listened to the first season of the podcast Serial last year, chances are that you spent a good bit of time thinking about the merits of the case against Adnan Syed, who was convicted of murdering his 18-year-old ex-girlfriend, Hae Min Lee, and sentenced to life in prison. Then maybe you moved on.It's time to pay attention again.After Serial's investigation of Syed's trial raised doubts about the quality of his defense as well as key pieces of evidence used against him, he was granted a post-conviction hearing by a Baltimore circuit court late last year, allowing the submission of new evidence.
His chances for a retrial will be determined by what follows over the next few days. On Wednesday, in a bid to convince a judge that Syed's case should be re-opened, his lawyer will present fresh evidence and an alibi witness who was not asked to testify at his murder trial.C. Justin Brown, Syed's attorney, will argue that his trial was so flawed that it violated his constitutional right to effective counsel, and will accuse the state of Maryland of prosecutorial misconduct in its handling of evidence.The hearing will weigh questions well-known to Serial fans: Why wasn't Syed's classmate Asia McClain — who recalled having talked with Syed at a library at the time that authorities said he killed Lee — called to the stand? Did Syed's defense lawyer at trial, Cristina Gutierrez, provide catastrophically poor counsel? How reliable were the records from AT&T cellphone towers that prosecutors used to place him at the crime scene?Brown will argue that the cellphone records are not reliable and should have never been allowed into evidence — a page from Syed's records contained a disclaimer on their accuracy, and was ignored — and that Gutierrez, who died in 2004, violated his Sixth Amendment right to due process by failing to call McClain as a witness.Related: A Bipartisan Congressional Panel Just Agreed on Ways to Send Fewer Americans to PrisonSyed, who is now 35, is serving a life sentence plus 30 years for killing Lee, who went missing in January 1999 when they were both students at Baltimore's Woodlawn High School. She was found weeks later, strangled to death and buried in Leakin Park, just a few miles from the school.
Serial, a spinoff of the radio program This American Life, investigated Syed's trial more than a decade later, and in its first season became the most popular podcast of all time, topping some 120 million downloads.In hearings beginning on Wednesday, McClain, who was a central voice in the podcast series, will take the stand for the first time. She will tell a court what Serial fans have already heard her say: that she saw Syed at the library adjacent to Woodlawn High at the time of the alleged murder, that she wrote to Syed to tell him so, and — crucially — that the alibi wasn't vetted by Gutierrez.If McClain had been called to testify, she would have done so, Brown argues. But she wasn't.
She is also expected to tell the court that the state's lead prosecutor dissuaded her from attending a previous, unsuccessful post-conviction petition, which these hearings have re-opened, despite the fact that she was willing to share her story.To corroborate her version of events, Syed may take the stand as well. He did not take the stand in his previous trial."He may be needed to say, 'Yes, I gave this information to Ms. Gutierrez and I told her that I received letters from Asia McClain, and she was available as a witness,' " said Doug Colbert, Syed's bail hearing attorney and a University of Maryland law professor.State prosecutors countered in court filings that because Gutierrez — whom they described as a "skilled and seasoned trial attorney" — filed alibi paperwork for McClain, her decision to not use the classmate's testimony must have been strategic and doesn't warrant a new trial.
'Adnan has significant grounds to raise here.'
Related: What America's Creeping Criminal Justice Reform Looks Like From the InsideThe state also argued at Syed's earlier post-conviction hearing that even if Syed had an admissible alibi for the time of the murder, "it wouldn't explain why he's in Leakin Park with Jay Wilds at 7:00 on the night that Hae Min Lee is murdered," pointing to cellphone tower data that placed him at the scene.Throughout the trial, prosecutors relied on these records to corroborate the testimony of Wilds, their key witness, who was a pot dealer and acquaintance of Syed. Wilds's testimony, which was at times inconsistent, maintained that Syed had him help dig the hole in which Hae's body was buried.Wilds didn't participate in the Serial podcast, but he later spoke to The Intercept about the night that he says Syed approached him and told him that he had strangled Hae to death. He recounted how Syed blackmailed him into helping him dispose of the body by threatening to tell the police that he sold marijuana to students.Syed's conviction, Brown wrote in court filings, is "inextricably linked" to those records supporting Wilds's testimony — but the records have been called into question by a late disclosure in the case.A fax cover sheet from AT&T that accompanied cellphone records brought into evidence by the state contained a disclaimer: "Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location."
Related: Adnan from 'Serial' Is Hoping to Get Out of Jail on a Cellphone-Related TechnicalityThe prosecution has argued that the cover sheet applies to an entirely different set of records. But the state's expert witness, Abraham Waranowitz, a former AT&T engineer who placed Syed at the crime scene at crucial points using incoming call data, has since said that the cover sheet could have changed his testimony if he had seen it.Waranowitz filed an affidavit in October saying that senior prosecutor Kevin Urick never showed him the disclaimer, which the defense now wants to put into evidence."If I had been made aware of this disclaimer, it would have affected my testimony," Waranowitz wrote. "I do not know why this information was not pointed out to me."Before this affidavit was filed, Urick was asked by The Intercept whether he had any regrets about the trial.
"No," he answered. "Once you understood the cellphone records — that killed any alibi defense that Syed had. I think when you take that in conjunction with Jay's testimony, it became a very strong case."Syed's lawyers have argued in court filings that not only was the state aware of the flaw in the cellphone evidence, but so was Gutierrez.Brown argues that she could have cross-examined Waranowitz or attempted to have the records excluded from trial, but instead she "failed to act on it in any way."
'Once you understood the cellphone records — that killed any alibi defense that Syed had.'
Circuit Court Judge Martin P. Welch will rule on the post-conviction issues relating to the cellphone evidence, McClain's testimony, and Gutierrez's counsel — and these pieces only — in determining whether Syed is granted a retrial.Post-conviction hearings allow inmates to get a fresh review of the fairness of the original trial, separate from the appeals process. They are limited to newly discovered evidence or issues that were not raised during an appeal. Usually you only get one, but if a court deems it to be in the interest of justice, the hearing can be re-opened.Related: What Does Our Obsession with True Crime Podcasts Say About Us?Judge Welch's ruling will be "very major" for Syed's case, Colbert said, but it's not a final decision."The tendency will be for reviewing courts to say, 'Well, you've already had your appeals process' — and in Adnan's case he's already had post-conviction hearings," he said. "It will require a significant showing of grounds to result in Judge Welch ruling that Adnan was denied effective assistance of counsel."Nevertheless, he added, "Adnan has significant grounds to raise here."The quickest outcome would be if the judge denies Syed's bid for a retrial and then if the Court of Special Appeals rejects his appeal of that decision. That would definitely be the end.Other outcomes could put Syed's case "in appeals land for years," said Becky Feldman, chief of the post-conviction defenders division at the Maryland Office of the Public Defender.
While post-conviction hearings have extended the legal process for Syed, Feldman pointed out that he's had more chances than most to pursue a retrial. Not every state has a statute allowing for post-conviction hearings, and not every state gives defendants a right to counsel at those hearings — Maryland does.But even then, many Maryland inmates aren't aware of their right to pursue such hearings."Usually prisoners become aware of the post-conviction option by word of mouth from other inmates," she said.That's another area where the Serial series has had a significant impact."I'm thrilled for the publicity," Feldman said.Follow Annalies Winny on Twitter: @AnnaliesWinny