Earlier this week, the State of Maryland filed its appeal in the Adnan Syed case, meeting the 30-day deadline following Judge Martin Welch’s decision to grant Syed a new trial. Syed was convicted in 2000 for the 1999 murder of his high school girlfriend, Hae Min Lee. In late 2014, his case gained international attention as the subject of the first season of Serial, prompting an alibi witness previously ignored by his trial counsel to come forward; a subsequent podcast, Undisclosed, discovered new evidence in the existing files that undermined the reliability of the cellphone records at the center of the state’s case. Both issues (as well as a Brady violation claim) were raised at an unusual post-conviction relief hearing in February, and on June 30th, Judge Welch vacated Syed’s conviction.
Rolling Stone has noted, the Maryland Attorney General’s decision to appeal Welch’s ruling was to be expected, and very likely kickstarts at least a year delay in any potential retrial proceedings. The Court of Special Appeals has an unlimited amount of time to consider the state’s appeal, as well as any cross-appeal the defence could file.
The state’s appeal focuses on convincing the court to review and overturn Welch’s decision to grant relief on the reliability of the cell phone tower evidence. The damning evidence found by the Undisclosed team was a disclaimer reading “incoming calls are not reliable for location” on a fax cover sheet, meaning that the cell sites listed for incoming calls could not be considered a reliable indicator of what area the phone was in. Two of those incoming calls were used to place Syed in Leakin Park at the time the state’s star witness, Jay Wilds, claimed they were burying Lee’s body.
Welch ruled that Syed’s trial attorney, the late Cristina Gutierrez, failed to thoroughly cross-examine the state’s trial expert about the reliability of the cellphone tower evidence that was the “foundation” of the state’s case – a mistake so egregious that it violated Syed’s right to effective assistance of counsel.
Below, the state’s four reasons why he shouldn’t get another shot at a trial – and our reasons why their evidence isn’t good enough.
State: Just because the trial expert no longer stands by his testimony doesn’t mean Gutierrez was ineffective in her cross-examination of that witness.
The state’s trial expert, Abe Waranowitz, submitted two affidavits on behalf of the defence for the post-conviction relief hearing, stating that his trial testimony would have been different had the state provided him with the cover sheet’s instructions. At the hearing, the defence also called another expert, Gerald Grant, to testify that the instructions did indeed apply to Syed’s subscriber activity report.
The state called a new expert of their own, FBI agent Chad Fitzgerald, to testify that these instructions did not impact the reliability of the incoming call records; he claimed that the instructions applied to another set of documents entirely and that “location” did not refer to the cell sites. He was not convincing, though. In his ruling, Judge Welch wrote that he found Fitzgerald’s testimony to be “perplexing,” adding that he contradicted his own argument multiple times.
Rolling Stone: The state’s witness isn’t going to convince a judge that the cover sheet evidence isn’t a game changer.
At the hearing last February, the defence’s expert was consistent and clear in his testimony, while Fitzgerald’s analysis was evasive and contradictory. The AG’s contention is that the court should overturn Welch’s decision because the experts disagree on how to interpret these instructions, and therefore, Gutierrez’s failure to question Waranowitz on the instructions isn’t proof she was ineffective. However, given how strongly the judge appeared to favor the defence expert’s interpretation of those instructions, which was further supported by Waranowitz recanting his trial testimony, the higher court is likely to defer to Welch’s judgment on this matter.
“I don’t think the Court of Special Appeals wants to revisit the judge’s factual findings,” Erica Suter, an appellate and post-conviction attorney in Washington, DC, told Rolling Stone. “Judge Welch was well within his rights to determine who was more credible, and it’s unlikely the court will take the State’s appeal on this issue.”
The State: The post-conviction court was wrong to conclude that the cell site testimony was the linchpin of the state’s case.
Rather, the state writes, while Waranowitz provided “a valuable layer of additional corroboration… the cell site location testimony cannot be viewed in a vacuum.” They go on to say that the cell records were used to corroborate Wilds’ testimony about his and Syed’s whereabouts throughout the day, as well as the testimony of other witnesses. Their argument is that even if the incoming calls had been determined to be unreliable at trial, it would not have changed the jury’s verdict.
RS: The state fails to mention that none of the other calls can be used to corroborate Wilds’ testimony that Syed was responsible for Lee’s murder.
In fact, the cell site records directly contradict his testimony about the “come and get me” call, when Wilds allegedly picked Syed up from the Best Buy parking lot directly after the murder, and Syed popped the trunk of Hae Min Lee’s car and showed Wilds her dead body. Though Wilds testified that he received this call after 3:40 p.m., the state’s trial timeline necessitated that the call had to have been at 2:36 p.m. But the problem with the call being at 2:36 p.m. is that, according to Asia McClain’s alibi testimony at the recent hearing, she was with Syed in the public library on school grounds.
In that sense, the state lends more credence to the defence’s argument that Gutierrez’s failure to pursue McClain was ineffective and reason for relief as well. The reason Welch didn’t grant relief on this issue is because he didn’t believe McClain’s testimony would have changed the jury’s verdict – it was the cell site evidence that put Syed in Leakin Park during the alleged burial that ultimately convinced the jury. But the State’s contention is that they had a winning case without it. But in that scenario, their best evidence would have been Wilds’ testimony about the trunk pop at Best Buy, as it’s the only other direct link between Syed and Lee’s murder. However, had McClain been called to testify by the defence – instead of ignored – Syed would have had an alibi that made the trunk pop impossible, and the jury could not have found him guilty beyond a reasonable doubt. Therefore Gutierrez’s failure to pursue McClain did have a material impact on the outcome of the trial.
The State: Welch shouldn’t have been considering the defence’s claim about the reliability of the cell site evidence in the first place.
The Court of Special Appeals sent the case back down to Welch at the circuit court solely on the alibi issue, so according to the State’s appeal, Welch shouldn’t have heard the defence’s supplemental claim about the cell site evidence. “The State is arguing Judge Welch was limited to hearing arguments about the alibi claim,” said Suter.
RS: It’s the state’s fault that the defence was allowed to introduce their claim about the cell site evidence’s reliability.
In May 2015, the State filed a brief arguing against hearing McClain’s alibi witness testimony and repeatedly referenced the cell site records as their strongest evidence against Syed. This allowed the defence to file their supplemental motion to introduce proof that this evidence wasn’t reliable. But either way, the state doesn’t get to determine what the court deems relevant, says Suter. “On a motion to reopen, the court can consider whatever they want.”
The State: Syed waived his right to present the cell tower evidence when his attorneys failed to do so at the first post-conviction hearing in 2010.
The state’s best chance at convincing the court to overturn Welch’s conviction is their argument that Syed should have made this claim about the cell site evidence at the first hearing in 2010.
After all, the fax cover sheet was in the defence’s files, and was available to Syed’s attorneys in 2010 when they first argued Gutierrez was ineffective. Post-conviction, defendants – known as petitioners in proceedings like these – have limited appeal and post-conviction relief opportunities; the state contends that Syed waived his right to raise this issue as evidence during his appeals and the last PCR hearing, and Welch should not have allowed him to present the claim, let alone overturned his conviction.
RS: The court could simply excuse the waiver based on how important the evidence is to the case.
As Undisclosed host Colin Miller recently detailed on his blog, the court could agree with the state that Syed waived his right to present this evidence, but still uphold Welch’s decision. If the court strongly agrees with Welch’s ruling that a more thorough cross-examination of Waranowitz would have resulted in testimony that undermined the state’s narrative and changed the trial’s outcome, they could excuse Syed’s waiver in the interests of justice.
The state’s decision to appeal opens the door for the defence to cross-appeal on the alibi issue, and potentially win relief on that as well. The prospect must be making the state nervous, because their appeal includes a highly unusual request for a brief remand to present testimony from two new witnesses, identified as sisters and former classmates of Asia McClain. The state claims they would testify that “shortly after Syed’s arrest, one of the sisters got into a heated argument with McClain who said she was going to lie to help Syed avoid a conviction.” The request is conditional, however, a thinly veiled threat that only applies “if the defence persists with the claim that his attorney was ineffective for failing to pursue McClain.”
“I was so blown away by the state’s suggestion that they should remand to hear from these two witnesses,” said Suter, who said it was very unlikely that the court would send the case back to a lower court again. “It’s so inappropriate to ask to introduce [these witnesses] at this stage – the defence hasn’t even filed a cross appeal yet. You cannot expand the record ad nauseum because new people are popping up — it’s not like there’s any allegation that someone was preventing these two women, whomever they may be, from testifying at the post-conviction relief hearing.”
McClain, a married mother of three who lives in the Pacific Northwest, has faced some criticism in recent months for writing a book about her experience as “an alibi witness,” which some say undermines her credibility. McClain, who wrote the book in a matter of weeks following the February hearing, did not receive an advance and did fairly limited promotion; in interviews, she explained she wanted to set the record straight after having her testimony and motives misconstrued by both prosecutors and a small but persistent group of “guilters” who have pestered her since she testified at the hearing.
McClain’s response to the allegation that she told a classmate she planned to lie to prevent Syed from being convicted was brief. “Calm down everyone,” she tweeted. “Remember I keep EVERYTHING… Proverbs 12:19 says ‘Truthful lips endure forever but a lying tongue lasts only a moment.'”
