ANNAPOLIS — Attorneys for Hae Min Lee’s brother told a skeptical Maryland appeals court Thursday that Adnan Syed’s murder conviction in her death should be reinstated because her family’s rights as crime victims were violated when they were denied adequate opportunity to testify before the more than 20-year-old guilty verdict was vacated.
Young Lee’s counsel urged the Maryland Appellate Court to order a new hearing at which Lee could testify in person and question the newly discovered evidence that then-Baltimore City State’s Attorney Marilyn Mosby told a judge last September cast doubt on Syed’s guilt.
After that Sept. 19 hearing, Baltimore City Circuit Judge Melissa M. Phinn granted Mosby’s request that Syed’s conviction be vacated. Mosby later decided not to retry Syed, whose claim of innocence in the 1999 slaying was examined in the popular true crime podcast “Serial.”
David W. Sanford, an attorney for Lee, told the appellate court his client was denied his Maryland constitutional right as a crime victim to be treated with “dignity, respect, and sensitivity during all phases of the criminal justice process.”
Specifically, Lee was given just a few days’ notice of the Sept. 19 hearing, which he could not attend in person. Instead, Lee participated via videoconference and his participation was limited to a brief statement, Sanford told a three-judge panel of Maryland’s second-highest court.
Lee also was not given an opportunity to attend private meetings the prosecution and Syed’s defense held with Phinn in her chambers prior to the hearing, Sanford said.
“Young Lee’s rights were violated at this secret hearing,” at which “substantial” evidentiary matters were discussed, Sanford said.
But Judge Stuart R. Berger interjected that Lee’s appeal might be moot now that Syed’s conviction has been overturned and he will not be retried.
“There is no underlying conviction,” Berger said
“There is no case,” he added. “The defendant has due process rights as well.”
Berger said meetings among the prosecution, defense and presiding judge “happen in chambers all the time” in preparation for proceedings in open court without violating the victim’s rights.
Berger, joined by Judge Kathryn Grill Graeff, said that neither the Maryland Constitution nor state law appears to expressly give crime victims a right to be heard in court, much less a right to question the state’s evidence.
Sanford’s co-counsel Steven J. Kelly responded that the right is at least implied in the constitutional concepts of dignity, respect and sensitivity for crime victims.
“We’re talking about justice and fairness, not just innocence,” Kelly said.
Sanford and Kelly are with Sanford Heisler Sharp LLC in New York and Baltimore, respectively.
Assistant Maryland Attorney General Daniel J. Jawor told the court that he agrees crime victims have a right to be present and heard at hearings at which a conviction may be vacated.
He equated these hearings to post-conviction sentencing proceedings at which victims have a right to testify regarding the impact the crime had on their lives. A victim, likewise, has a right to speak when a sentence could be altered, as would be the inevitable result if a conviction is vacated, Jawor said.
However, victims, such as Lee, cannot present evidence, call witnesses or challenge the prosecution’s motion at these hearings, Jawor added.
Jawor said the Sept. 19 hearing was invalid because Lee was neither given sufficient notice nor afforded the opportunity to appear in person. And because the hearing was invalid, Phinn’s vacating of the conviction must be overturned as well as the state’s attorney’s subsequent decision not to retry Syed, Jawor added in explaining why he believes Lee’s appeal is not moot.
Syed was present at Thursday’s hearing, along with his parents and brother. After the hearing, they exited the courthouse together, with Syed pushing his father’s wheelchair slowly through the front entrance.
Syed’s attorney, Erica J. Suter, countered that the appeal is moot as a result of the conviction being vacated and the case not being retried.
“There is no criminal case,” Suter told the Appellate Court.
She said victim impact statements are perhaps appropriate before a convict’s sentencing but not when the prosecution is conceding that a conviction was in error.
“This is not an environment in which their impact should be influencing the court’s decision,” said Suter, director of the University of Baltimore School of Law’s Innocence Project Clinic.
She added that even if Lee’s appeal is not moot, his right to attend the hearing was satisfied because he was duly notified and participated via videoconference, which has become standard operating procedure during and since the COVID-19 pandemic.
Chief Judge E. Gregory Wells completed the Appellate Court’s three-judge panel.
The Appellate Court did not state when it will issue its decision in Young Lee, as victim’s representative v. State of Maryland, No. 1291 September Term 2022.
Syed was serving a life sentence after being convicted of strangling 18-year-old Hae Min Lee, whose body was found buried in a Baltimore park. Syed, 17 at the time, has always maintained he did not kill Lee, his ex-girlfriend.
Phinn’s order to release Syed and vacate his murder conviction came after Mosby told the judge that an investigation with the defense had uncovered evidence that undermines the conviction, including a DNA test on Hae Min Lee’s shoes that excluded Syed.
During the hearing, Young Lee spoke via videoconference, saying he felt betrayed by prosecutors since he thought the case was settled.
“This is not a podcast for me. This is real life,” he said.
Prosecutor Becky Feldman told the judge that she contacted Lee before the motion was filed, and went over it with him. A day before the hearing, Lee indicated by text message that he would attend virtually, Feldman said.
But that evening the Lee family hired Kelly, who filed a motion to postpone the hearing for seven days so Lee could attend in person.
Phinn denied that motion, but paused the hearing more than 30 minutes so Lee, who was at work, could join the call.
Kelly said then that prosecutors shut the family out of the legal process, calling it “inexcusable” and a violation of Maryland law. The family seeks the truth and might have supported Syed’s release if they had understood the basis, he said.
Syed’s case captured the attention of millions in 2014 when the debut season of “Serial” focused on Hae Min Lee’s killing and raised doubts about some of the evidence prosecutors had used to convict Syed.