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Syed: Failure to investigate alibi witness prejudiced outcome of trial

Attorneys for subject of 'Serial' podcast file conditional cross appeal

Attorney C. Justin Brown, a lawyer for Adnan Syed. (File photo)

Attorney C. Justin Brown, a lawyer for Adnan Syed. (File photo)

A Baltimore judge should have found that the failure of Adnan Syed’s trial attorney to contact a potential alibi witness prejudiced the outcome of his case, lawyers for the subject of the wildly popular “Serial” podcast argued in a recent court filing.

Following a five-day, post-conviction hearing in February, retired Baltimore City Circuit Judge Martin P. Welch in June granted Syed a new trial based on evidence that Cristina Gutierrez, his trial attorney, did not cross-examine the state’s cellphone expert about the reliability of cellphone records used to tie Syed to the 2000 murder of his ex-girlfriend, Hae Min Lee.

Lawyers for the Maryland attorney general’s office have appealed Welch’s ruling granting a new trial, arguing that Welch abused his discretion in considering the reliability of the cell phone records because the post-conviction proceeding was reopened based on an affidavit from McClain.

Welch also rejected Syed’s argument that he was also eligible for post-conviction relief because Gutierrez failed to contact or investigate Asia McClain, a potential alibi witness. McClain, who now goes by Asia Chapman, testified at the post-conviction hearing that she had spoken with Syed in the Woodlawn Public Library at the time the state said he killed Lee.

Syed’s lawyers this week filed a conditional application for cross appeal with the Court of Special Appeals, asking the appellate court to hear its argument on the alibi witness since the court is going to hear the state’s appeal.

Welch ruled that while Gutierrez’s failure to interview McClain was “deficient,” it did not prejudice the outcome of the trial because the “crux of the state’s case” did not consist of when and where the murder occurred, but rather rested on the theory that Syed buried Lee in Leakin Park at about 7 p.m.

But Syed’s attorneys argued noted McClain’s repeated statements — in two letters and two affidavits, as well as during her post-conviction hearing testimony — that she would have testified she was with Syed when the state claimed the murder took place if she had been called as a witness at trial.

Her testimony would have “dismantled” prosecutors’ timeline and undermined the credibility of the state’s star witness, the attorneys wrote.

“It is incomprehensible how — as a matter of law — trial counsel’s failure to present the testimony of an unbiased witness who would have provided an alibi for the entire time of the murder could have not undermined confidence in the outcome of Syed’s trial,” the application reads. “… Syed’s counsel’s failure to present an alibi defense was all the more damaging because such an alibi would have rebutted the ‘relatively weak’ theory the State offered regarding the timing of the murder. The fragility of the State’s theory means that it is ‘more likely to have been affected by errors’ of trial counsel.”

Syed’s lawyers also argued in the application for cross appeal that the circuit court failed to consider the cumulative effect of Gutierrez’s mistakes in finding the failure to investigate McClain to be not prejudicial.

“But for trial counsel’s deficiencies, there is a substantial possibility that Syed could have persuasively undermined the State’s case — both as to the timing of the murder and his presence near where the victim was found,” the application reads. “When properly considered together, the prejudice resulting from trial counsel’s errors is easily sufficient to warrant a new trial.”

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