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Maryland’s top court will hear state’s appeal in Syed case

FILE - In a Wednesday, Feb. 3, 2016 file photo, Adnan Syed enters Courthouse East in Baltimore prior to a hearing. The hearing, scheduled to last three days before Baltimore Circuit Judge Martin Welch, is meant to determine whether Syed's conviction will be overturned and case retried. After spending 16 years in prison, Syed, convicted of murder, who was at the center of the podcast "Serial" has won a new trial in Baltimore. Baltimore Circuit Judge Martin Welch ruled Thursday, June 30, 2016, that Syed deserves another trial because his attorney failed to cross-examine a cell tower expert about the reliability of data. (Barbara Haddock Taylor/The Baltimore Sun via AP, File) WASHINGTON EXAMINER OUT; MANDATORY CREDIT /The Baltimore Sun via AP) WASHINGTON EXAMINER OUT; MANDATORY CREDIT

FILE – In a 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)

Maryland’s top court will consider whether podcast star Adnan Syed’s murder conviction should be reinstated.

The Court of Appeals agreed Thursday to hear the state’s argument that Syed’s trial attorney’s ill-fated defense might have been flawed but was not constitutionally ineffective.

The high court is expected to hear arguments during its 2018-2019 session, which begins Sept. 1, and render its decision by Aug. 31, 2019.

The court will review an intermediate appellate court’s conclusion that the now-deceased defense 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 thanks to the “Serial” podcast.

Maryland Attorney General Brian E. Frosh, in his successful request for high-court review, argued in court papers that 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 Thiru Vignarajah, a special assistant attorney general who failed this summer in his bid for the Democratic nomination for Baltimore 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’s appellate attorneys had urged the high court to reject the state’s appeal, arguing it was unwarranted because the case did not present an issue of broad public importance. In this case, “the Court of Special Appeals did not create some novel, burdensome, and broadly applicable test,” the attorneys stated in papers filed with the high court.

The Court of Appeals also agreed to consider Syed’s challenge to the Court of Special Appeals’ ruling that he had waived his allegation of ineffective assistance of counsel based on his trial attorney’s failure to challenge cell-tower location data relied on by prosecutors.

The case is docketed at the Court of Appeals as State of Maryland v. Adnan Syed, No. 24, September Term, 2018.

Syed is represented in his appeal by Baltimore solo practitioner C. Justin Brown and a team of attorneys from Hogan Lovells US LLP in Washington.

‘Deficient performance’

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

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.”

Daily Record Legal Affairs Writers Anamika Roy and Heather Cobun contributed to this report.

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