Md. high court hears state’s appeal in ‘Serial’ star Syed’s case

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ANNAPOLIS — Attorneys for Maryland and for podcast star Adnan Syed battled Thursday before the state’s top court as it considers whether he was denied effective assistance of counsel when his trial attorney chose not to telephone an alibi witness before the trial at which he was convicted of murdering his ex-girlfriend.

An intermediate appeals court has overturned the conviction, concluding the lawyer’s never-explained failure to call the witness was unreasonable and denied Syed his constitutional right to effective assistance of counsel.

Thiru Vignarajah, representing the state, urged the high court to reinstate the conviction. He told the Court of Appeals that criminal-defense attorneys’ strategic decisions – regardless of how questionable — have a “presumption of reasonableness” that defendants have the difficult burden of defeating to show ineffective assistance.

In Syed’s case, the defense attorney might reasonably have chosen not to contact the alibi witness after concluding her expected statement that the “Serial” star was at the library conflicted with her client’s explanation of his whereabouts at the time of the slaying, Vignarajah said.

“These are exactly the kinds of judgments that defense counsel has to make,” Vignarajah added. “An alibi is not just a person. It is a place and a time.”

But Syed’s appellate counsel Catherine E. “Cate” Stetson said the reasonableness presumption can be overborne by a showing that the attorney’s omission was “objectively unreasonable.”

Syed’s  trial counsel had a duty to speak with the alibi witness as part of the pre-trial investigation, especially since the witness – as was later learned — would have mentioned her boyfriend and his friend as corroborating witnesses, as well as the potential presence of a security camera at the library, said Stetson, of Hogan Lovells US LLP in Washington.

“You (defense attorneys) have an obligation to follow avenues of investigation even if your client tells you something different,” Stetson added. “Counsel had an obligation to pursue that witness.”

Stetson was assisted by attorney C. Justin Brown, of Brown Law in Baltimore.

Judges on the high court appeared to be as divided as the attorneys during the hour-long court session.

Judge Sally D. Adkins, a former Court of Appeals judge sitting by special assignment, appeared to side with Syed in noting that his trial attorney “did not even contact” the alibi witness. But Judges Robert N. McDonald and Shirley M. Watts interjected that Syed never said he was at the library, an omission that potentially belied the alibi witness, as the state contended.

The high court is expected to render its decision by Aug. 31 on the state’s bid for reinstating the conviction. The case is State of Maryland v. Adnan Syed, No. 24, September Term 2018.

The seven-judge panel is reviewing the intermediate Court of Special Appeals’ decision that Syed’s now-deceased defense attorney’s failure to investigate the potential alibi witness violated  his Sixth Amendment right. The Court of Special Appeals ruled in March that the constitutional violation warrants a new trial for Syed, whose case gained international attention thanks to the “Serial” podcast.

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 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.”