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Frosh urges Md. high court to review, reinstate Syed’s conviction

Adnan Syed.

Adnan Syed

Maryland Attorney General Brian E. Frosh is urging the state’s top court to reinstate podcast star Adnan Syed’s murder conviction, saying his trial attorney’s ill-fated defense might have been flawed but was not constitutionally ineffective.

In papers filed Monday afternoon, Frosh requests the Court of Appeals review and reverse an intermediate appellate court’s conclusion that the now-deceased attorney’s failure to investigate a potential alibi witness violated Syed’s constitutional right to effective assistance of counsel. The Court of Special Appeals ruled in March the Sixth Amendment violation warrants a new trial for Syed, whose case gained international attention due to the “Serial” podcast.

But Frosh, in his bid for high-court review, argued the Constitution does not require attorneys to chase down all potential alibis in defending their clients.

The Court of Special Appeals’ decision “implicates the scope of defense counsel’s Sixth Amendment obligations to investigate specific avenues that are different from, and potentially incompatible with, other potential defenses, threatening to dramatically broaden the work required by the Constitution and stripping them of the discretion and presumption of reasonableness with respect to which leads they pursue and which they forgo,” Frosh stated in papers co-signed by Thiruvendran Vignarajah, a special assistant attorney general and a Democratic candidate for Baltimore City state’s attorney.

If left unchanged, the Court of Special Appeals’ ruling “threatens to mint a new rule creating a broad obligation to investigate, essentially disregarding the presumption that a defense attorney’s decisions are sound and instead shifting the burden to the state to establish affirmatively that there were valid strategic reasons for a particular investigative decision or oversight,” Frosh added.

Syed was convicted in the 1999 murder of his ex-girlfriend, Hae Min Lee. He was sentenced to life in prison plus 30 years.

Syed’s appellate attorney, C. Justin Brown, will have an opportunity to respond to Frosh’s request for high-court review before the Court of Appeals votes on whether to hear the appeal. The high court did not say when it will take that vote in the case, State of Maryland v. Adnan Syed.

An aide to Brown said Monday afternoon he was in trial and could not be reached for comment regarding the state’s request. Brown is with Brown & Nieto LLC in Baltimore.  

The “Serial” podcast examined whether Syed’s case was prejudiced because his trial attorney, the late M. Cristina Gutierrez, failed to contact the potential alibi witness, Asia McClain.

McClain has said she spoke to Syed at a public library in Woodlawn around the time prosecutors alleged he killed Lee, but McClain 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 ruled in 2016 that Gutierrez prejudiced Syed’s case by failing to contact McClain. The judge previously denied that argument in Syed’s first request for post-conviction relief in 2014, determining Syed’s trial attorney’s decision to not pursue McClain was part of trial strategy.

Syed’s conviction was vacated in 2016, a decision stayed pending the appeal by the attorney general’s office. The Court of Special Appeals upheld Welch’s 2016 ruling in a reported 2-1 decision.

“Trial counsel’s deficient performance prejudiced Syed’s defense, because, but for trial counsel’s failure to investigate, there is a reasonable probability that McClain’s alibi testimony would have raised a reasonable doubt in the mind of at least one juror about Syed’s involvement in Hae’s murder, and thus the result of the proceedings would have been different,” Court of Special Appeals Chief Judge Patrick L. Woodward wrote in the majority opinion joined by Judge Alexander Wright Jr.

Judge Kathryn Grill Graeff, in dissent, said Gutierrez “presented a vigorous defense of Syed in the face of strong evidence of guilt” and Syed did not show Gutierrez’s failure to contact McClain was proof of ineffective counsel.

“There may be good reasons for a reasonable attorney not to contact a potential alibi witness,” Graeff wrote. In Syed’s case, “defense counsel reasonably could have concluded that Ms. McClain’s testimony that she saw Syed at the public library after school, when Syed never before had mentioned the public library, could be harmful because it would give the State another inconsistency or omission in Syed’s statements to the police.”

The attorney general then sought review by the Court of Appeals.

Daily Record Legal Affairs Writer Anamika Roy contributed to this article.

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