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Defense lawyers urge Supreme Court justices to take Syed’s appeal

The National Association of Criminal Defense Lawyers is urging the U.S. Supreme Court to review and overturn the Baltimore murder conviction of “Serial” podcast subject Adnan Syed, saying a trial attorney’s failure to investigate an “unbiased and credible” alibi witness deprived the defendant of a fair trial in all cases.

In reinstating Syed’s conviction, Maryland’s top court diverged from rulings of other state and federal courts by erroneously concluding that his defense attorney’s disregard for an alibi witness had no effect on the ultimate verdict of guilty, NACDL stated in papers filed Tuesday with the justices.

“Here, the Maryland Court of Appeals agreed that trial counsel’s actions fell outside the wide range of professionally competent assistance,” the association wrote. “But unlike every other court to assess the failure to investigate and call a credible, non-cumulative, and neutral alibi witness, Maryland found that this error was not prejudicial.”

The association stated that other courts have found the failure to investigate an alibi witness prejudicial even in cases in which the prosecution presented compelling eyewitness testimony or strong evidence of motive.

“In other words, the loss of a potential credible alibi witness is so significant that even a very strong government case has not overcome this prejudice,” NACDL wrote.

If left intact, the Court of Appeals’ “unfortunate decision will impact criminal defendants … far beyond Maryland’s borders,” the association added. “It has consequences not only for Syed, but for all defendants with counsel who fail to investigate and present testimony from a neutral, credible alibi witness. If this outlier decision stands, it will frustrate the ability of courts around the country to remedy trial counsel’s prejudicial errors.”

Lindsay C. Harrison, of Jenner & Block LLP in Washington, is the association’s counsel of record before the Supreme Court..

The association submitted its brief in support of Syed’s bid for Supreme Court review, which his appellate attorneys filed last month. The Maryland Attorney General’s Office has until Oct. 21 to file its response to Syed’s request.

The justices have not set a date for their vote on whether to hear Syed’s appeal of the Maryland high court’s decision.

In its controversial ruling, the Court of Appeals said the failure of Syed’s trial counsel to interview his sole alibi witness was deficient legal representation but had no “prejudicial” effect because her testimony would not have created “a substantial or significant possibility” that the jury’s verdict would have been for acquittal.

The uncontacted alibi witness, Asia McClain, stated in a post-trial affidavit that Syed was at a Woodlawn public library when prosecutors said the 1999 slaying of his ex-girlfriend, Hae Min Lee, occurred.

That testimony, however, would have contradicted Syed’s statements regarding his whereabouts, which did not mention his having been at the library, the Maryland high court held.

The “Serial” podcast examined whether Syed’s case was prejudiced because his trial attorney, M. Cristina Gutierrez, failed to contact McClain. Gutierrez died in 2004.

When post-conviction proceedings were reopened based on the affidavit, Baltimore City Circuit Judge Martin P. Welch ruled in 2016 that Gutierrez’ failure to contact McClain had prejudicial effect and the conviction was vacated, allowing for a retrial.

The Court of Special Appeals upheld that decision.

However, the Court of Appeals reinstated the conviction in March and rejected Syed’s bid for reconsideration in April, prompting his request for Supreme Court review.

Syed’s counsel of record before the justices is Catherine E. “Cate” Stetson of Hogan Lovells US LLP in Washington. Assistant Maryland Attorney General Carrie J. Williams is the state’s counsel of record.

The case is docketed at the Supreme Court as Adnan Syed v. State of Maryland, No. 19-227.

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