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Court of Appeals reinstates Syed conviction

In a split decision, the Court of Appeals on Friday reinstated the conviction of Adnan Syed, whose case gained international attention with the popular “Serial” podcast.

By a 4-3 vote, the state’s high court reversed lower court rulings that awarded Syed a new trial. Syed was convicted in 2000 of murdering his ex-girlfriend, but in post-conviction proceedings attorneys argued that his trial attorney had failed to call an alibi witness.

The court held that the failure to contact the witness was deficient performance but that Syed was not prejudiced by the failure because of the totality of evidence against him.

The witness, Asia McClain, has said she spoke to Syed at a public library in Woodlawn around the time prosecutors alleged he killed Hae Min Lee.

Judge Clayton Greene Jr. wrote the opinion, joined by Judges Robert N. McDonald and Joseph M. Getty. Judge Shirley M. Watts joined the majority’s decision to reverse the Court of Special Appeals, which had awarded Syed a new trial, but disagreed that the trial lawyer’s performance was deficient.

Syed’s defense attorney, the late M. Cristina Gutierrez, had notice of McClain as an alibi witness, according to testimony at the post-conviction hearing, but there is no indication that Gutierrez contacted McClain to follow up.

The majority found that Gutierrez’ failure to investigate McClain’s potential testimony fell short of her duty as a defense attorney but held that the failure to investigate McClain as a witness did not have a significant impact on the outcome of the case because McClain could speak to Syed’s whereabouts for only a narrow period of time.

“Under the circumstances, the State’s case against Respondent could not have been substantially undermined merely by the alibi testimony of Ms. McClain because of the substantial direct and circumstantial evidence pointing to Mr. Syed’s guilt,” Greene wrote.

“We are pleased with the Court’s decision,” Attorney General Brian E. Frosh said Friday. “Justice was done for Hae Min Lee and her family.”

Judge Michele D. Hotten wrote an opinion concurring in part and dissenting in part, joined by Chief Judge Mary Ellen Barbera and retired Judge Sally D. Adkins, sitting by special assignment.

Hotten concurred that Syed’s attorney’s performance was deficient. However, Hotten dissented because, she said, the failure to investigate McClain as an alibi witness was prejudicial because McClain was the sole witness who would have spoken to Syed’s whereabouts during “the most integral period of time in the case.”

“In my view, there exists a reasonable probability that had this alibi defense been offered, at least one juror, if not more jurors, would have had a reasonable doubt of Mr. Syed’s guilt,” Hotten wrote.

C. Justin Brown, one of Syed’s attorneys, declined to comment on the possibility of an appeal to the Supreme Court.

“We are weighing all options,” Brown told The Daily Record Friday afternoon.

Brown tweeted shortly after the opinion was released: “We will not give up. #FreeAdnan.”

In a statement later, Brown said the defense team was “devastated.”

“There was a credible alibi witness who was with Adnan at the precise time of the murder and now the Court of Appeals has said that witness would not have affected the outcome of the proceeding,” he said. “We think just the opposite is true. From the perspective of the defendant, there is no stronger evidence than an alibi witness.”

The case was argued by Catherine E. “Cate” Stetson of Hogan Lovells US LLP in Washington. Hogan Lovells attorneys worked on the appeal pro bono.

Cell tower evidence

During post-conviction proceedings, Syed raised new arguments about cell tower location evidence that was used to show he was near Leakin Park, where Lee’s body was discovered. Syed claimed that the evidence was unreliable and that Gutierrez should have cross-examined the state’s expert on the issue.

The trial judge granted the new trial on these grounds, but the Court of Special Appeals reversed that decision. The Court of Appeals affirmed the Court of Special Appeals’ decision, determining Syed had waived the right to make that argument because he had already made ineffective assistance of counsel arguments and failed to raise the cell tower evidence issue — which was discoverable in the original case file — in previous litigation.

Post-conviction proceedings had been reopened only because of the new evidence about McClain.

The Court of Appeals ruled the Uniform Postconviction Procedure Act, or UPPA, intended to discourage a petitioner from failing to raise all claims in one petition.

“When Mr. Syed advanced a claim of ineffective assistance of counsel in his one post-conviction petition under the UPPA but failed to assert all grounds upon which that claim is made, he waived any allegation upon which the ineffective assistance of counsel claim could have been made but was not,” Greene wrote. “Permitting otherwise would result in an end-run around the UPPA’s limit to one postconviction petition and, importantly, the Legislature’s intention to achieve finality in the context of post-conviction litigation.”

The case is State of Maryland v. Adnan Syed, No. 24, Sept. Term 2018.

Correction: An earlier version of this story incorrectly reported the year that Syed was convicted of murder. He was convicted in 2000. We regret the error.

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