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Syed lawyers request his release pending appeal

In this Wednesday, Feb. 3, 2016 file photo, Adnan Syed enters Courthouse East in Baltimore prior to a hearing. (Barbara Haddock Taylor/The Baltimore Sun via AP, File)

In this Wednesday, Feb. 3, 2016 file photo, Adnan Syed enters Courthouse East in Baltimore prior to a hearing. (Barbara Haddock Taylor/The Baltimore Sun via AP, File)

Attorneys for Adnan Syed, whose first-degree murder conviction was thrown out earlier this year, have requested he be released while the state’s appeal of the judge’s decision goes forward.

“We’re going to continue to be aggressive about this and do everything we can to get him out of jail,” C. Justin Brown, one of Syed’s attorneys, said Monday.

Retired Baltimore City Circuit Judge Martin P. Welch ruled in June that Syed, whose case was the subject of the first season of the “Serial” podcast, should have a new trial based on evidence presented at a post-conviction hearing.

The state appealed the ruling to the Court of Special Appeals, and arguments have not yet been scheduled. But Syed’s lawyers, in Monday’s filing, claim their already has served more than 17 years in prison for a crime he did not commit.

“He has no history of violence other than the State’s allegations in this case, and if released he would pose no danger to the community,” the motion to request bail states. “He is also not a flight risk; it makes no sense that he would run from the case he has spent more than half his life trying to disprove.”

Syed was convicted of murdering his former high school girlfriend, Hae Min Lee, in 1999 and burying her in a park. He was sentenced to life in prison plus 30 years.

Brown said his team is in a better position having waited to request bail having waited several months after Welch’s order vacating the conviction.

“We wanted to wait until everybody, including Adnan, was ready to make this push,” he said. “We wanted to make sure we had completed some ongoing investigation, that we had vetted some facts, and they were keyed up and ready go.”

A spokeswoman for the Maryland Office of the Attorney General said the state has not received the filing as of Monday afternoon.

In limbo

Syed’s case is in a different posture than someone who has been accused of a crime and is considered legally innocent, said University of Baltimore School of Law professor Colin Starger, because although Welch vacated the conviction, his decision has been stayed pending appeal.

This places Syed in an “in-between zone” where he is neither legally innocent nor legally guilty, according to Starger, one of the directors of the law school’s Pretrial Justice Clinic.

“He’s almost presumed legally innocent [and] but for the stay of the circuit court ruling, he would be,” Starger said.

Syed was denied bail in 1999 after the state made “ethnically-charged arguments,” including allegations from prosecutors that Syed — a U.S. citizen — would flee to Pakistan if released, according to the defense motion.

“For me,” said Starger, “one of the most powerful things here, is to rectify the clear injustice of how he was denied any kind of release the first time around.”

Brown said the arguments made at the time have no place in a courtroom.

“I think that those arguments were inappropriate then and they would be inappropriate now,” Brown said. “I think, fortunately, that times have changed a bit since then. I don’t think any prosecutor today would go into court and make those arguments.”

Brown also said Syed’s arguments that he’s not a danger to the community have only been bolstered by his years in prison, during which he was not cited for any violent acts.

“He has been taken out of his childhood house, thrown into an adult prison, remained there for 17 years,” said Brown, who is working with a pro bono team from Hogan Lovells US LLP on the case. “If he had a propensity to commit violent acts, it would have come out in an adult prison. They are notoriously violent places.”

A social worker retained by Syed who specializes in transitions from long-term incarceration will be available to testify about any appropriate conditions of release, according to the motion.

Starger said the risk of Syed fleeing is minimal, in part because of the support he has garnered for his cause.

“He wants to contest these charges and he’s got massive community and frankly larger than just community support, so there’s every incentive for him and those around him to make sure he shows up for trial,” he said.

Weakened case

The state’s case against Syed has “crumbled in the face of ongoing investigation,” according to the defense motion, including the key evidence discredited by Welch.

Welch based his decision on cellphone evidence presented at trial that placed Syed near the burial site based on incoming calls; it was later revealed that incoming calls are not reliable to show location. Syed’s trial attorney did not question the evidence in detail and did not introduce the fax cover sheet containing the disclaimer.

The state has built its case on questionable evidence, according to the motion, including the cell phone records and testimony of Jay Wilds, who said Syed showed him the body and confessed to strangling the victim. Wilds also said he helped Syed bury the victim.

Wilds is not a credible witness, according to the motion, because he “never told a consistent version of the events” and has since been arrested, convicted or investigated by police more than 20 times.

In its appeal, the Maryland attorney general’s office claims Welch abused his discretion by considering the cellphone evidence because post-conviction proceedings were reopened based on an affidavit from alibi witness Asia McClain, which did not end up forming the basis for Welch’s ruling.

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