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Frosh urges Supreme Court to reject Syed’s appeal

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 Attorney General Brian E. Frosh on Friday urged the U.S. Supreme Court to deny “Serial” podcast subject Adnan’s Syed’s request that it review and overturn his Baltimore murder conviction, saying defense counsel’s failure to investigate Syed’s alibi witness had no effect on the jury’s guilty verdict.

In papers filed with the justices, Frosh’s office stated that the uncalled witness’s testimony would not have refuted the state’s evidence of Syed’s murderous motive and opportunity to kill his ex-girlfriend, Hae Min Lee, on Jan. 13, 1999. Syed’s appellate attorney has argued that the trial lawyer’s failure to contact the alibi witness violated Syed’s constitutional right to effective assistance of counsel.

The witness, Asia McClain, stated she would have testified that Syed was at the library at the time Lee was slain, wrote Assistant Maryland Attorney General Carrie J. Williams, the state’s counsel of record before the Supreme Court. But the prosecution’s case hinged not on when the victim died but rather on what the Baltimore City Circuit Court called, in upholding the conviction, “the crucial link between Mr. Syed burying Ms. Lee’s body and the state’s evidence supporting that allegation,” Williams wrote.

“McClain’s omitted alibi testimony … would not have eviscerated the state’s theory that the defendant was the actual killer,” added Williams, Frosh’s chief of criminal appeals. “McClain’s testimony, at best, would have called into question the time that the state claimed Ms. Lee was killed, without undermining any of the evidence supporting the state’s theory that Syed was the killer.”

Frosh submitted the brief in opposition to Syed’s bid for Supreme Court review based on the asserted constitutional violation.

“The case that Syed would have presented at trial had his counsel been effective included testimony from McLain, who testified in post-conviction proceedings that she spoke with Syed at the library during the exact time that the state alleged Lee was killed,” wrote Catherine E. “Cate” Stetson, Syed’s appellate counsel, in papers filed with the justices in August. “Had these conflicting narratives been presented to the jury, there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Stetson is with Hogan Lovells US LLP in Washington.

The justices have not set a date for their vote on whether to hear Syed’s appeal of the Maryland high court’s decision reinstating Syed’s conviction. The case is docketed at the Supreme Court as Adnan Syed v. State of Maryland, No. 19-227.

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.

McClain, the uncontacted alibi witness, stated in a post-trial affidavit that Syed was at a Woodlawn public library when prosecutors said Lee’s slaying 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.

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