Of all the twists and turns in the legal odyssey of Adnan Syed, the one that caught the Court of Special Appeals’ attention may well have been the affidavit from the uncalled alibi witness who says a prosecutor dissuaded her from coming forward during the convicted murderer’s post-conviction proceedings.
As she did during the popular “Serial” podcast, Asia McClain stated in the affidavit that she saw Syed in the Woodlawn Public Library when his ex-girlfriend was strangled on Jan. 13, 1999, and that Syed’s attorney, M. Cristina Gutierrez, never contacted her before or during the 2000 trial, which resulted in a life sentence.
But McClain added in the Jan. 13 affidavit that she would have testified at Syed’s post-conviction proceedings in 2010 and 2012, but for a telephone conversation she says she had with former Assistant Baltimore State’s Attorney Kevin Urick in 2010.
“He told me there was no merit to any clams that Syed did not get a fair trial,” McClain stated in the affidavit.
“Urick discussed the evidence of the case in a manner that seemed designed to get me to think Syed was guilty and that I should not bother participating in the case, by telling what I know about Jan. 13, 1999,” McClain added. “Urick convinced me into believing that I should not participate in any ongoing proceeding. Based on my conversation with Kevin Urick, the comments made by him and what he conveyed to me during that conversation, I determined that I wished to have no further involvement with the defense team at that time.”
“Fourteen years ago we obtained a constitutionally valid conviction by jury of Adnan Syed,” said Urick, now an assistant Cecil County state’s attorney. “What is transpiring now is an example of defense tactics at their worst. The law allows a convicted felon a nearly never ending ability to continually attack the results we obtain.”
Urick’s email, reprinted in full above, points out that Syed’s counsel also didn’t call McClain and that “the immunity provided to filings during litigation allows one to file accusations with impunity thus obtaining wide publicity for the accusations while knowing you cannot be held accountable for them and that the subject of the accusations basically has no way to respond.”
McClain’s affidavit is contained in supplemental papers Syed’s appellate counsel, C. Justin Brown, filed Jan. 20 with the Maryland Court of Special Appeals in urging the court to review the conviction in the killing of Hae Min Lee.
The court, which already had filings from Syed and the state, granted McClain’s request to hear his appeal in an order Friday.
The court will hear arguments in June on Syed’s bid for a new trial.
McClain’s affidavit “obviously is something that is not in the conventional record” of the trial, Syed’s counsel, C. Justin Brown, said Tuesday.
“She is saying ‘I am ready to testify; I was essentially dissuaded from doing so in the past,’” added Brown, a Baltimore solo practitioner. “We’re saying, ‘Why not?” Let’s put her on the witness stand and see how credible she is.”
Attorney General Brian E. Frosh, through spokesman Davit Nitkin, declined to comment on the case.
One issue before the court, as stated in the order, will be whether it should consider McClain’s belated affidavit.
Court of Special Appeals Chief Judge Peter B. Krauser declined to comment on what role the affidavit or the popularity of “Serial” played in the court’s decision to hear Syed’s appeal.
“Let the order speak for itself,” Krauser said.
In the affidavit, McClain, who now lives in Washington state, says she contacted Syed’s counsel after the final podcast of “Serial” and provided the sworn statement, in which she said she would testify if the courts would allow.
McClain, through attorney Gary E. Proctor, declined to comment.
“She feels that her 15 minutes of fame is 14-and-a-half minutes too long,” said Proctor, a Baltimore solo practitioner. “We are saying it is for others to decide what relief that Adnan Syed is entitled to.”
At the Baltimore City Circuit Court trial in 2000, prosecutors argued that Syed became inconsolably jealous after Hae Min Lee began dating someone else. There were no eyewitnesses to her slaying, but a former classmate testified he helped Syed dispose of Lee’s body, which was found in a shallow grave in Leakin Park in Baltimore a month after she was killed.
Brown, Syed’s attorney, called it “just a coincidence” that McClain swore out the affidavit 16 years to the date after Lee’s slaying.
“This is a case that has more conspiracy theorists than any case since the Kennedy assassination,” Brown said.
Brown also claims in the appeal that Syed was denied his constitutional right to effective assistance of counsel by Gutierrez, whom he says never spoke with McClain, the main alibi witness, and ignored Syed’s request to negotiate a plea deal.
This is not the first time Gutierrez has been accused of mishandling a plea deal. A high-profile defense lawyer at the time, she represented teacher John Merzbacher at his child-rape trial in 1995. In 15 years of post-conviction proceedings that started in 1998, Merzbacher claimed Gutierrez never told him about the prosecution’s offer of a 10-year plea deal, ostensibly because she wanted the publicity of a trial and a big win.
The state courts rejected Merzbacher’s claim of ineffective assistance of counsel, but a federal judge ruled in 2010 that Merzbacher should have the benefit of the plea deal — only to be reversed by the 4th U.S. Circuit Court of Appeals in 2013.
In Syed’s case, though, Frosh has told the Court of Special Appeals that Gutierrez’ alleged failure to ask about a plea is insignificant because the prosecution was not interested in offering one.
“Indeed, it is undisputed that the government never even considered extending a plea offer to petitioner,” he added. “Since no plea offer, formal or otherwise, was extended by the prosecution to the defense, the Constitution was not engaged and no constitutional violation occurred.”
Frosh also said judges generally should not second-guess defense counsel’s reasonable strategic decisions regarding which witnesses to contact and call to testify.
Legal “representation is an art, and an act of omission that may be unprofessional in one case may be sound or even brilliant in another,” Frosh wrote, quoting from the Supreme Court’s 1984 decision in Strickland v. Washington.
By the time of Syed’s trial in 2000, Gutierrez’s career was drawing to a close.
She consented to disbarment in May 2001 after nearly 20 years in practice, based on cases unrelated to Syed’s.
At the time of her consent, Gutierrez was in ill health and under investigation by the Attorney Grievance Commission in connection with 16 docketed complaints. The complaints alleged she failed to hold property of clients separately from her own property, misappropriated funds given to her by clients for payment to third parties, and failed to refund advance fees that were not earned.
Gutierrez died in 2004. She was 52.