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Adnan Syed’s bail request denied

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)

A Baltimore City judge has denied Adnan Syed’s request to be released on bail while the state’s appeal of his new trial grant is pending.

In a memorandum filed Wednesday, retired Baltimore City Circuit Judge Martin P. Welch found Syed was in a post-trial status, not pretrial as urged by the defense, and used the applicable Maryland rules to deny release.

Syed’s first-degree murder conviction, which was the subject of the first season of the “Serial” podcast, was vacated by Welch in June and a new trial was ordered. The order was stayed June 30 after the state filed an application for leave to appeal.

The Court of Special Appeals had not granted the state’s application to appeal as of Thursday, according to a judiciary spokeswoman. Syed has also filed a conditional cross appeal that addresses Welch’s finding that the failure of Syed’s trial counsel to investigate alibi witness Asia McClain was deficient but not prejudicial.

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 and has spent 17 years in jail. Welch granted a new trial because he found the failure of Syed’s trial counsel to elicit testimony challenging the reliability of cell tower data that was used to place Syed’s phone near the burial site was prejudicial.

“While we are disappointed by the ruling, we are focused and hopeful that we will have the opportunity to prove Adnan’s innocence at a new trial,” defense attorney C. Justin Brown said Thursday.

Syed’s defense team submitted a lengthy request for release and suggested conditions such as electronic monitoring.

“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,” Syed’s October motion stated. “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.”

The state opposed release, noting Syed remains a convicted murderer because the order vacating the conviction was stayed pending appeal.

In his Wednesday memorandum denying bail, Welch said both parties briefed the issue of Syed’s release extensively and a hearing on the issue was not necessary.

“We think we presented issues that were sufficient to merit a hearing but obviously the court did not agree with that,” Brown, of Brown & Nieto LLC in Baltimore.

Alternative analyses

Welch analyzed Syed’s motion from two perspectives, one based on the case’s unique procedural history and the second under the Maryland Rules pertaining to defendants who are awaiting appeal after a conviction.

In remanding the case to the circuit court in May 2015, the Court of Special Appeals ordered that “after taking any action it deems appropriate, the circuit court shall forthwith re-transmit the record to this Court for further proceedings.”

Welch reopened the closed post-conviction proceeding and held a multi-day hearing in February 2016 after which he issued his order vacating the conviction and ordering a new trial.

In Wednesday’s opinion, Welch said the order staying post-conviction relief was “issued in recognition of and in accordance with the limitations and directives of the remand,” and given the outstanding appellate issues, he denied Syed’s request for release.

In what he called “an overabundance of caution,” however, Welch also considered Syed’s request as a typical motion from a convicted defendant who has appealed his conviction. He determined that Syed is not a danger to himself or others but does pose a flight risk due to the serious charges he faces and possibly lengthy prison sentence that could be imposed if he is convicted a second time.

Welch did agree, however, with the defense argument that Syed’s original bail hearing in 1999 was “fundamentally flawed” due to the state’s highly charged assertion that Syed’s Pakistani roots made him a flight risk.

The arguments made were “xenophobic and a gendered, cultural stereotype of Pakistani men,” Welch wrote, and was so egregious it negates giving any weight to the original bail determination.

Even without considering the initial determination to hold Syed without bail, Welch concluded Syed had not met his burden to prove he is not a flight risk.

The case is Adnan Syed v. State of Maryland, Case Nos. 199103042-046.

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