Case closed: No new trial in killing made famous by ‘Serial’ podcast

Adnan Syed in 1998. “This American Life”

Adnan Syed, convicted in 2000 of killing his former girlfriend, high school senior Hae Min Lee, in a Best Buy parking lot in 1999, is not going to get a new trial, Maryland’s highest court ruled on Friday.

Perhaps you recognize the name; this is the case that practically made podcasting a “thing.” His story — and allegations of ineffective counsel by a lawyer who’s dead, failure to interview an alibi witness, questionable witness testimony, and withheld evidence — was told by the podcast “Serial.”

After the “This American Life” spinoff told the story, a lower court ordered a new trial in 2016.

Instead, his conviction was upheld by the Maryland Court of Appeals, that state’s version of a supreme court (see ruling).

The decision boils down to a combination of “he had his shot” and “what difference would it make” with the court ruling that Syed’s lawyer didn’t do her job well.

But the court ruled that Syed waived his right to raise the insufficient defense claim when he failed to raise it in the appeal immediately following his conviction and can’t do so now.

So the court didn’t rule on Syed’s claim that his lawyer should’ve have entered AT&T’s notation that pings from incoming calls on Syed’s cellphone were unreliable when they showed him in the park where his ex-girlfriend’s body was buried.

Not that the court didn’t wade into an evaluation of his lawyer.

The justices said to get a new trial on the basis of ineffective counsel, Syed had to show two things: “that his or her counsel performed deficiently” and “that he … has suffered prejudice because of the deficient performance.”

And they criticized the now-dead lawyer’s failure to interview the alibi witness, Asia McClain, who said she saw Syed in the school library at the time prosecutors say he was killing his ex-girlfriend.

Mr. Syed’s trial counsel failed to even contact Ms. McClain. This lack of exploration of Ms. McClain, whom trial counsel learned of as early as July 13, 1999 and for whom trial counsel had contact information, falls short of the tenets of a criminal defense attorney’s minimum duty to investigate the circumstances and facts of the case.

At a minimum, due diligence obligated Mr. Syed’s trial counsel to contact Ms. McClain in an effort to explore her potential as an alibi witness.

An attorney cannot be said to be carrying out the ABA’s requirement of due diligence without conducting a factual investigation of an alibi witness who claims to have knowledge of the defendant’s whereabouts on the day of the crime in question.

Even if Mr. Syed’s trial counsel knew what facts Ms. McClain would present about seeing Mr. Syed on January 13, 1999, trial counsel should have nevertheless made a bona fide effort to investigate Ms. McClain. An investigation could have verified Ms. McClain’s assertions as well as revealed whether Ms. McClain was a disinterested witness.

That met the first of the requirements Syed needed to get a new trial.

It’s the second one where he fell short — that had the lawyer not been deficient, Syed would’ve been found not guilty.

“A defendant has a right to effective representation, not a right to an attorney who performs his duties ‘mistakefree,’” the court said.

Even taking Ms. McClain’s statements as true, her alibi does little more than to call into question the time that the State claimed Ms. Lee was killed and does nothing to rebut the evidence establishing Mr. Syed’s motive and opportunity to kill Ms. Lee.

Thus, the jury could have disbelieved that Mr. Syed killed Ms. Lee by 2:36 p.m., as the State’s timeline suggested, yet still believed that Mr. Syed had the opportunity to kill Ms. Lee after 2:40 p.m. Ms. McClain’s testimony, according to her affidavit, failed to account for Mr. Syed’s whereabouts after 2:40 p.m. on January 13, 1999.

Likewise, Mr. Syed’s statements to the police fail to account for his whereabouts after 2:15 p.m. when school let out. Therefore, even if the alibi testimony had been admitted into evidence it could not have affected the outcome of the case because that evidence did not negate Mr. Syed’s criminal agency.

Given the totality of the evidence, the justices said, there is not a substantial possibility the verdict would have been different had Syed’s lawyer not made the mistakes she made.

“Unfortunately we live in a binary criminal justice system in which you either win or you lose. Today we lost by a 4-3 vote,” said Justin Brown, Syed’s attorney.

Our criminal justice system is desperately in need of reform. The obstacles to getting a new trial are simply too great.

There was a credible alibi witness who was with Adnan at the precise time of the murder and now the Court of Appeals has said that witness would not have affected the outcome of the proceeding. We think just the opposite is true.

From the perspective of the defendant, there is no stronger evidence than an alibi witness.

Friday’s ruling reignited the international debate on the case that had subsided since the “Serial” podcasts.

Friday’s ruling came just days before HBO was to premiere a documentary on the case.

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