ANNAPOLIS – A three-judge Court of Special Appeals panel hammered one question repeatedly Thursday afternoon as they weighed whether Adnan Syed, whose murder conviction gained international attention thanks to the “Serial” podcast, should be granted a new trial: Does a defense attorney have an obligation to investigate an alibi witness, even if that witness may curtail the defense strategy?
A lawyer arguing for the state argued Syed’s trial lawyer used her judgment to use the best story possible to explain his whereabouts the afternoon his ex-girlfriend Hae Min Lee was killed. Thiru Vignarajah warned the court of the “dangers of second guessing” complex criminal proceedings from several years ago.
Syed’s appellate lawyer disagreed.
“As a defense attorney, you gather information, you keep your options open,” C. Justin Brown said. “The defense doesn’t have a theory until the defense starts trial.”
The judges heard oral arguments on two appeals in front of a packed courtroom, including Syed’s mother: one from the state arguing a trial-court judge overstepped his authority last year when ruling Syed should be granted a new trial; and one from Syed’s attorneys arguing that the lower court erred in not finding that Syed’s trial attorney’s failure to contact alibi witness Asia McClain prejudiced his case.
Syed was sentenced to life in prison plus 30 years for the 1999 murder. But McClain has said she spoke to Syed at public library in Woodlawn around the time prosecutors alleged he killed Lee but she was not contacted to testify at trial.
Post-conviction proceedings were reopened based on an affidavit from McClain.
Baltimore City Circuit Judge Martin P. Welch did not find Syed’s attorney’s failure to contact McClain prejudiced his case. The judge previously denied that argument in Syed’s first request for post-conviction relief in 2014, determining that Syed’s trial attorney’s decision to not pursue McClain was part of trial strategy.
Vignarajah, a former deputy state attorney general and now partner at DLA Piper US LLP in Baltimore, argued that there were several accounts of where Syed was the afternoon Lee was killed and about when his trial attorney, the late M. Cristina Gutierrez, first heard about McClain.
But Chief Judge Patrick L. Woodward kept pressing.
“That’s the problem counselor,” he said Vignarajah. “Defense counsel never talked to Ms. McClain. Nobody from her office talked to Ms. McClain,” he said. “How do you know it’s inconsistent if you don’t talk to the person?”
Added Judge Katherine Grill Graeff: “If it’s a credibility issue, wouldn’t it be reasonable to talk to her?”
Brown, Syed’s lawyer, said McClain included her phone number in letters she sent to Syed after Lee’s murder.
“That is all the more reason to pick up the phone and call her,” said Brown, of Brown & Nieto LLC in Baltimore.
Syed’s conviction was vacated last year, a decision stayed pending the appeal by the attorney general’s office. The state has argued Welch should not have considered that Syed’s trial counsel failed to adequately cross-examine a state witness on cell-tower evidence because that issue was not the basis for reopening post-conviction proceedings.
During Syed’s trial, prosecutors relied on two incoming calls in his cellphone records to place him near Lee’s burial site the night of Jan. 13, 1999. However, an instruction sheet that told readers how to interpret the records had a disclaimer that incoming calls were not reliable for determining location. That sheet was never given to the jury, Brown said.
On Thursday he compared interpreting the phone records without that information to building Ikea furniture without instructions. A cellphone expert who testified during Syed’s trial has also said he would have testified differently had he known about the disclaimer information.
“That would have been a game changer in this case,” said Brown, who is joined on Syed’s defense by a pro bono team from Hogan Lovells US LLP.
Lawyers for the state counter Welch abused his discretion by considering the instruction sheet to make his decision.
The appellate panel, which also included Judge Alexander Wright Jr., did not say when it will issue its opinions in State of Maryland v. Adnan Syed, No. 1396 September Term, 2016 and Adnan Syed v. State of Maryland, No. 2519 September Term, 2013.