State outlines appeal in Adnan Syed case

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A Baltimore judge should not have even considered the evidence he ultimately used in granting Adnan Syed a new trial, lawyers for the Maryland attorney general’s office have argued in appealing a ruling in favor of the subject of the popular ‘Serial’ podcast.

Retired Baltimore City Circuit Judge Martin P. Welch based his June 30 decision on evidence that cast doubt on the reliability of cellphone records that prosecutors used to support their theory that Syed killed his high school girlfriend, Hae Min Lee, in 1999.

Prosecutors relied on two incoming calls in Syed’s cell records to place him near the burial site on the night of Jan. 13 but a fax cover sheet on the records warned that incoming calls should not be relied on to determine location.

Syed is serving a life sentence in prison. The attorney general’s office previously requested a stay of Welch’s order while the appeal is pending.

In its appeal, filed late Monday, the state argues Welch abused his discretion by considering the fax cover sheet because post-conviction proceedings were reopened based on an affidavit from alibi witness Asia McClain. McClain said she spoke with Syed around the time prosecutors alleged he murdered Lee and was not asked to testify at trial despite reaching out to the defense team.

After the Court of Special Appeals granted the limited remand, Syed filed a supplemental motion based on the cellphone records disclaimer which was “not an invitation to reopen the post-conviction proceeding altogether,” the attorney general’s office argued in court filings.

The state’s lawyers added the trial court “abused the discretion it was accorded by this Court when it allowed Syed to present a novel standalone claim in reopened proceedings that were supposed to be predicated on the newly-available affidavit of Asia McClain.”

Syed’s trial counsel failed to cross-examine the state’s cell phone expert about the reliability of the evidence, which Welch found to be ineffective assistance that prejudiced Syed.

“Whether Petitioner’s cellphone records revealed an incriminating link between Petitioner and the murder was an issue of crucial importance,” Welch wrote in his 59-page opinion. “Under these circumstances, a reasonable attorney would have carefully reviewed the documents disclosed as part of pre-trial discovery.”

Trial counsel

Syed had waived the issue of his trial counsel’s treatment of the cellphone evidence because the disclaimer was available at trial and during initial post-conviction proceedings and should have been raised sooner, according to the state.

Welch found that Syed never made an intelligent and knowing waiver of the argument, but the attorney general’s office contends that standard had never applied to an ineffective assistance of counsel claim.

Syed’s trial attorney, the late Cristina Gutierrez, “carefully prepared and focused on the cellphone evidence, communicated directly with the expert witness in advance of trial, and launched a broad-gauged attack on cross examination,” the appeal states.

Gutierrez’s method of attacking the state’s evidence when it was “a novel forensic field” continues to be used today, according to the state, and should not be found ineffective.

“Courts have long held that the trial tactics and strategies deployed by seasoned counsel are entitled to a presumption of reasonableness,” according to the appeal, and Syed’s complaint amounts to second-guessing Gutierrez’s decisions.

The state further contends experts disagree 15 years later on which information the disclaimer referenced.

Experts for the state and defense as well as the trial expert reached different conclusions, with the state’s witness finding the conclusions reached by the trial expert correct.

“[It] is not constitutionally defective to fail to cross examine a cellphone expert based on a disclaimer on a fax cover sheet when expert witnesses cannot agree, even fifteen years later, on the interpretation of the disclaimer, what it’s referring to, or its basic significance,” the state argues.

The Court of Appeals has not scheduled oral arguments in the case.