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Syed makes final plea for Supreme Court review

In his final plea for the Supreme Court to hear his appeal, “Serial” podcast subject Adnan Syed has urged the justices to focus on his defense attorney’s failure to investigate his sole alibi witness and not be distracted by Maryland’s argument that the jury would have convicted him of first-degree murder anyway.

In papers filed at the high court Friday, Syed said the failure to investigate violated his constitutional right to effective assistance of counsel in countering the prosecution’s theory of when he allegedly killed his ex-girlfriend, Hae Min Lee, on Jan. 13, 1999.

The alibi witness, Asia McClain, would have placed Syed at a public library at that time, Syed’s appellate attorney, Catherine E. “Cate” Stetson, wrote in the Supreme Court filing.

Syed’s submission followed Assistant Maryland Attorney General Carrie J. Williams’ request that the justices deny Syed’s request that they review and overturn his Baltimore murder conviction.

Williams wrote that the uncalled alibi witness’ testimony would not have refuted the state’s evidence of Syed’s murderous motive and opportunity to kill Lee. Maryland’s top court, the Court of Appeals, had reached the same conclusion.

But Stetson, Syed’s attorney, responded that the state’s version of the facts is skewed in the absence of an investigation of an alibi witness who could contradict the prosecution’s timeline.

“Every state and federal court to address the question presented, with the exception of the court below, has uniformly held that a defendant suffers prejudice when defense counsel fails to investigate evidence that would have rebutted the case actually presented by the state at trial,” wrote Stetson, of Hogan Lovells US LLP in Washington.

“Instead of focusing on the legal question presented, the state spends the majority of its brief on a recitation of the facts, in an apparent attempt to convince this (Supreme) Court of Syed’s guilt,” Stetson added. “But just as the Maryland Court of Appeals should not have taken it upon itself to evaluate Syed’s guilt or innocence, neither is this court tasked with that duty.”

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 the witness’ 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 popular “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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