Last Wednesday, February 3, the subject of the popular podcast “Serial,” Adnan Syed, is finally getting another day in court, sort of. The man, now 35, began his post conviction hearing with his new attorney Justin Brown able to present new evidence including uncalled alibi witnesses and updated information regarding the cell phone tower data.
Whether you believe that Syed is guilty or innocent, what can’t be argued is that Syed never got a fair trial back in 1999 when he was convicted of murdering his ex-girlfriend. Syed was only 17 when he was convicted and sentenced to life in prison. He is now 35 but over the course of podcasts “Serial” and “Undisclosed” many issues were raised especially regarding the quality of the trial and evidence presented against him.
One of the shocking bits uncovered in both podcast’s investigations was just how ineffective Syed’s lawyer acted. The late Cristina Gutierrez reportedly was handling too many cases at the same as Syed’s, was barely in the country, never followed up on calling alibi witnesses (at least two of them) and had many of her unqualified legal assistants do much of her work and interviews with Syed. It was later found out that she had MS diagnosed a few years after Syed’s case was over and that the effects of that disease could have been bothering her during much of the trial. She was also disbarred in 2000 for defrauding hundreds of clients.
After all the evidence came to light along with much doubt about the officers and investigators who handled the case, the the Maryland Court of Special Appeals issued an order directed the case to a lower court for a post conviction hearing. Primarily so the testimony of one of the alibi witnesses, Asia McClain, could be added to the record and prove that Syed had ineffective assistance of counsel. After his initial conviction in 1999, McClain, another high school classmate, wrote him letters in jail, saying she had seen him in the library around the same time Lee was killed. She also offered to talk to investigators and lawyers for him however she was never contacted by anyone despite Gutierrez knowing of her.
Then in November 2015, Retired Circuit Court Judge Martin P. Welch granted Syed’s request to introduce the alibi witness testimony. He also agreed to hear new evidence regarding the famed cell tower records that were later claimed to be unreliable, according to the carrier, saying it would “be in the interests of justice.” In the initial trial, the prosecution claimed that the cell tower records put Syed in the area where Lee was buried but they left out a fax cover sheet sent from the carrier that stated incoming calls were not reliable for determining location. The prosecutions testing methods were also faulty and could not be relied upon for determining locations matching Syed’s cell phone. The evidence goes on and on. Judge Welch will hear all of it before determining whether Syed will get a new trial.
Currently, Syed and his new attorney, Brown, are working hard to factor in all the things that went wrong in his first trial and especially arguing that Gutierrez, who died in 2004, violated his Sixth Amendment right to due process by failing to call McClain to testify.
Brown is also expected to try and prove the cellphone records were not reliable and should never have been used as evidence against him. In a hearing last summer, Brown presented the fax cover sheet which outright states “Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location” yet Incoming calls were used as part of the evidence in trial without the sheet being presented alongside it.
However, it is not all good news. According to a recent 34-page court document filed by the attorney general’s office shows the state plans to call in experts to rebut the defense’s claims of ineffective counsel and unreliable cellphone evidence. The state may also call former members of Syed’s defense team, as well as the original homicide detectives and the original prosecutor, Kevin Urick.
After the evidence is presented, Syed’s future will be determined by Judge Welch. He could issue an oral ruling as early as Friday which would decide whether Syed would get a new trial or not. However, it could also take weeks or months. If Syed is granted a new trial, the state will likely appeal and Syed could be stuck in this process for months – even years, should the court take its time.