Steve Lash//November 25, 2019
//November 25, 2019
“Serial” podcast subject Adnan Syed will stand convicted of the first-degree murder of his ex-girlfriend in Maryland.
The U.S. Supreme Court on Monday declined to hear Syed’s appeal of his Baltimore conviction based on his trial attorney’s failure to investigate an alibi witness.
The justices let stand without comment the Maryland high court’s ruling that the lawyer’s lapse constituted ineffective assistance of counsel but did not deprive Syed of a fair trial because he would have been convicted even with the witness’s testimony.
The Supreme Court’s decision not to hear Syed’s appeal is just that and not a decision on the merits of the issue he raised. The appeal was docketed at the high court as Adnan Syed v. State of Maryland, No. 19-227.
In its controversial ruling, the Maryland 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 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.
In his ill-fated petition for Supreme Court review, Syed argued through counsel that the defense attorney’s failure violated his constitutional Sixth Amendment right to effective assistance of counsel because the alibi witness’s testimony would likely have resulted in his acquittal.
“The case that Syed would have presented at trial had his counsel been effective included testimony from McClain, 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 Maryland Attorney General’s Office, in its successful request that the justices deny review, stated that the uncalled witness’s testimony that Syed was at the library would not have refuted the state’s evidence of Syed’s murderous motive and opportunity to kill Lee, on Jan. 13, 1999.
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,” wrote Assistant Attorney General Carrie J. Williams, the state’s counsel of record before the high court.
“McClain’s omitted alibi testimony … would not have eviscerated the state’s theory that the defendant was the actual killer,” added Williams, who heads Attorney General Brian E. Frosh’s criminal appeals division. “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.”
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.