Yesterday, Adnan Syed, whose conviction and life sentence for the murder of his high-school girlfriend was the focus of the first season of the hit podcast Serial, got the news he had been waiting to hear for over 16 years – Baltimore Circuit Court Judge Martin P. Welch, who presided over Syed’s post-conviction relief hearing in February, vacated his conviction and granted him a new trial.
Judge Welch’s 59-page opinion breaks down his decisions on the issues raised by Syed’s defence attorneys, Justin Brown and Chris Nieto, in their appeal. The short story is this: Welch found that Syed’s trial attorney, the late Cristina Gutierrez, didn’t challenge the reliability of some potentially faulty cell-phone tower evidence – what the judge called the “foundation” of the state’s case – a mistake so egregious that it violated Syed’s right to effective counsel. Judge Welch also agreed that Gutierrez acted unreasonably by failing to contact potential alibi Asia McClain, but said this wasn’t the reason he vacated the conviction, writing that Syed did not prove that calling McClain to the stand would have created a reasonable probability of a different verdict.
Last night, the state’s Attorney released a short statement about Welch’s decision, and indicated that they intend to appeal the ruling, potentially preventing the new trial from taking place. “It is the continued desire of the Attorney General to seek justice in the murder of Hae Min Lee,” the office said in a statement. “The state’s responsibility remains to pursue justice, and to defend what it believes is a valid conviction.”
Defence attorney Brown has said that he expects the state’s Attorney’s Office to appeal, though he questions why they would want to “draw it out.”
“On one hand, they lost, so their instinct is to appeal. But on the other hand, if they feel like they’ve got the evidence, and they feel like they have a strong case, why don’t they just retry it?” Brown told Rolling Stone. “Do they really want to draw it out for another year, year-and-a-half in the appellate courts? What purpose does that serve?”
If the state appeals and Welch’s decision to vacate Syed’s conviction is upheld by the higher court, the state will then have to decide whether to go forward with a retrial, or attempt to negotiate a plea deal.
Regardless of what happens next, Brown said that his team has begun preparing for a retrial. “We have not been resting on our laurels,” he said. “We’ve been investigating and looking toward a trial for the last month. We will be 100 percent ready.”
In his opening remarks at the post-conviction hearing in February, Deputy District Attorney Thiru Vignarajah maintained that a jury convicted Syed because there was “overwhelming evidence” of guilt. With that in mind, let’s review the evidence the state clearly believes will lead a jury to convict Syed a second time.
1. The cell phone evidence
The reliability of the cellphone evidence was first called into question in the aftermath of Serial on an unaffiliated follow-up podcast called Undisclosed, which carefully deconstructed the police investigation into Lee’s murder. Along with Syed family friend and lawyer Rabia Chaudry – who brought the case to Koenig’s attention and appeared on the first episode of Serial – “Undisclosed” featured the investigative efforts of lawyers Susan Simpson and Colin Miller. It was Simpson who first honed in on a couple of sentences on a fax cover sheet sent by AT&T along with Syed’s subpoenaed “subscriber activity report,” from which a selected number of pages had been entered into evidence at trial. Those few sentences were instructions that “incoming calls are not reliable for determining location.”
The two calls used to place Syed in Leakin Park at the time when star witness Jay Wilds said they were burying Lee’s body were both incoming calls. The state’s cell tower expert at trial was not aware of these instructions during his testimony; if fact, they were only brought to his attention in 2015, after which he wrote an affidavit for Syed’s defence counsel essentially retracting his trial testimony.
In an interview with The Intercept last year, Kevin Urick, the prosecutor from Syed’s 2000 trial, said that on their own, neither the Wilds’ testimony nor the cellphone evidence would have been enough to prove Syed’s guilt beyond a reasonable doubt. Remember, Wilds never claimed to have seen Syed kill Lee; he merely claimed to have helped Syed bury Lee’s body.
And now, the cell tower evidence which corroborated that story has been determined to be unreliable. If the state wanted to present that exact same evidence again – specifically that the incoming calls put Syed in Leakin Park when Wilds says they were burying Lee’s body – they will have to go through a separate hearing in hopes of convincing the judge that the evidence is admissible. This, despite multiple experts, including their own expert from the original trial, having determined that it’s not reliable in the manner in which its being used.
The outgoing cell towers pings, on the other hand, are accurate, but they do not link Syed to Lee’s murder – unless the state tries to argue an entirely different timeline for the crime, which would require their star witness to change his testimony. Speaking of which…
2. Jay Wilds’ testimony
Jay Wilds – a former classmate of Syed’s and an acquaintance with whom he would sometimes smoke weed – borrowed Syed’s car and cellphone for a period of time on the day Hae Min Lee disappeared. According to Jay, Syed told him he was planning to kill Lee, and would need Jay to pick him up after the murder was done and then somehow roped him into helping bury the body.
How and when that all that went down, however, has not been consistent across Wilds’ multiple police interviews or his testimony at Syed’s two trials (the first was declared a mistrial before the jury began deliberations); in a 2014 interview with The Intercept, Wilds offered yet another narrative with even more inconsistencies, giving the defence ample material with which to impeach his testimony should the state call him as a witness again. Without the cellphone evidence as corroboration, jurors would be left to decide whether they’re willing to take Wilds at his word. The alternative is that Wilds changes his testimony again to support a narrative that can be corroborated by the outgoing calls, but that would not only further call into question his credibility, but the prosecution’s as well, and that’s unlikely to go over well with a judge or a jury.
Welch and former Prosecutor Urick are seemingly in agreement that Wilds’ testimony and the cellphone tower evidence “created the nexus” between Syed and Lee’s murder during trial. However, Welch’s opinion has destroyed that nexus. According to Simpson, the state’s best option doesn’t spell good news for Wilds.
“I think their best option is to go with the theory that Jay [killed Lee] with Adnan,” Simpson told Rolling Stone. “To say ‘Jay is also a murderer, Jay may have done the deed himself,” that’s what they have to do in order to excuse his lies. ‘Yes, Adnan was involved, and guilty and culpable, but Jay is the one who did the deed which is why he lied.’ That’s the state’s only way to explain his lies, but that’s gonna be a hard sell.”
3. Syed’s poor memory and failure to provide an alibi
During Serial, Koenig expressed frustration with Syed’s inability to remember what he was doing throughout the day of Lee’s disappearance. While it’s certainly frustrating – for Syed more than anyone – that his memories don’t include something that might help find out who killed Lee, to say Syed has no memory of that day is false. Syed didn’t testify at trial, but a summary of one of his police statements was introduced as evidence, and in it, the then-17-year-old is straightforward about what he did on January 13, 1999:
“[Adnan] told the police that he and Hae used to date. He said that on January 13, 1999, a Wednesday, he had class with Hae from 12:50 to 2:15 p.m. Appellant said he went to track practice that afternoon. He did not see Hae the next two days at school, Thursday and Friday, because the school was closed for inclement weather.”
Syed gave a second statement on January 26th, and the police notes for this statement do mention that he “doesn’t remember the events that occurred in school that day.” However, the police notes were not written until seven months later, on September 14, 1999, and shouldn’t be considered more reliable than the statement introduced at trial.
Syed’s vague memory of what was otherwise a normal school day cannot reasonably be considered evidence of guilt, but it hurt his defence because he was unable to provide an alibi for his whereabouts when the prosecution alleged the murder occurred. Wilds gave multiple inconsistent statements to police, but the state eventually settled on a version that could be corroborated (at the time) by the cellphone evidence, which had Syed killing Lee in a Best Buy parking lot just before 2:36 p.m., which is when Wilds testified that Syed called him to be picked up.
Except Syed does have and has always had an alibi – Asia McClain. Syed may not have remembered seeing and speaking to McClain at the Woodlawn Public Library at the time that state contends that he was killing Lee, but McClain does. She was never contacted by Syed’s attorney, even after she sent Syed two letters immediately after his arrest saying she – along with her boyfriend and her boyfriend’s friend – remembers seeing him that afternoon. While Judge Welch didn’t think that that McClain’s testimony alone would have resulted in a different outcome at trial, he did agree that it was unreasonable of Gutierrez not to contact her and, more importantly, acknowledged that McClain’s testimony would have hurt the state’s case.
Should the state retry Syed and attempt, once again, to prove that he killed Lee at approximately 2:30-2:35 on January 13, 1999, they should expect the defence to call McClain to testify. Without the cellphone evidence as corroboration for Wilds’ testimony, jurors will then have to decide who they find more credible — Wilds or McClain?
4. Syed had motive to kill because he was possessive during their relationship and angry that Lee had a new boyfriend
In his closing statement at Syed’s post-conviction hearing, Assistant District Attorney Vignarajah claimed that Lee’s diary entries about Syed suggested textbook “intimate partner violence.” However, the state only presented a tiny fraction of Lee’s diary at trial, and it stands to reason they chose those pages that best supported their case against Syed — at worst, those entries suggested that Syed could be “possessive” in a manner that could be considered typical of high school boys and that he was initially sad about their breakup. Prosecutor Vignarajah’s statement that Lee’s diary entries showed signs of intimate partner violence was never supported by expert testimony, nor was there any other evidence or witness testimony to support that claim.
It is true that current and former significant others can reasonably be put at the top of the list of potential suspects in a murder, which means that Lee’s new boyfriend – who Serial listeners will remember as Don, Lee’s coworker at LensCrafters – should have been investigated as thoroughly as Syed, which he wasn’t.
There was no physical evidence linking Syed to Lee’s murder, and there are no witnesses who saw them together around the time of Lee’s disappearance or the alleged time of the murder. Everything else the prosecution presented at trial – the words “I want to kill” written on the back of a piece of paper in Syed’s notebook; inconsistent claims that Syed asked Lee for a ride after school; the “Nisha” call – was circumstantial. Unless the state can figure out how to fix the problems with their star witness’s inconsistent statements, establish reliable corroboration for their timeline and successfully impeach the defence’s alibi witness, they will have a very difficult time convincing a jury of Syed’s guilt. For now, Adnan Syed is once again an innocent man.