Defendant’s trial counsel didn’t interview his sole alibi witness
By Steve Lash
BridgeTower Media Newswires
An international organization of attorneys and investigators who represent the wrongly convicted at no cost is urging the U.S. Supreme Court to review and overturn the Baltimore murder conviction of “Serial” podcast subject Adnan Syed, calling the failure of trial attorneys to investigate alibi witnesses “a prime contributor to wrongful convictions.”
According to the Innocence Network in papers filed last week with the justices, Maryland’s top court, in reinstating Syed’s conviction, became the first judicial body to conclude a defendant was not deprived of a fair trial, or prejudiced, by counsel’s failure to “present testimony from a credible, noncumulative alibi witness.”
The group took umbrage at the Maryland Court of Appeals’ ruling that the jury likely would have considered but discounted Syed’s alibi witness’s testimony -- had she been called to testify -- that he was with her at the time prosecutors said the slaying occurred. The high court said the jury could have concluded that Syed had killed his ex-girlfriend either before or after that time.
“By focusing the prejudice analysis on a hypothetical theory the state never presented to the jury, the Maryland court departed from the approach taken by every federal court of appeals and every other state high court to have analyzed the issue,” wrote Elaine J. Goldenberg and Rachel G. Miller-Ziegler, the group’s attorneys before the high court.
“(T)reating prejudice as a question of whether the result would likely have been different in a hypothetical proceeding favorable to the prosecution, rather than in the actual proceeding that took place in the trial court, erects a nearly insurmountable barrier to such claims” of actual innocence, added the attorneys, who are with Munger, Tolles & Olson LLP in Washington. “If left undisturbed, the approach to prejudice taken by the Maryland Court of Appeals would have substantial ripple effects,
with particularly devastating consequences for actually innocent individuals seeking to obtain justice.”
The group was joined in the brief by the Roderick and Solange MacArthur Justice Center, a nonprofit, public interest law firm in Chicago. The National Association of Criminal Defense Lawyers has also filed a brief urging the justices to review and overturn Syed’s conviction.
The Innocence Network and the MacArthur Justice Center submitted their brief in support of Syed’s bid for Supreme Court review, which his appellate attorneys filed last month. The Maryland Attorney General’s Office has until Oct. 21 to file its response to Syed’s request.
The justices have not set a date for their vote on whether to hear Syed’s appeal of the Maryland high court’s decision.
In its controversial ruling, the Court of Appeals said the failure of Syed’s trial counsel to interview his sole alibi witness was deficient legal representation but had no “prejudicial” effect because her testimony would not have created “a substantial or significant possibility” that the jury’s verdict would have been for acquittal.
The uncontacted alibi witness, Asia McClain, stated in a post-trial affidavit that Syed was at a Woodlawn public library when prosecutors said the 1999 slaying of his ex-girlfriend, Hae Min Lee, occurred.
That testimony, however, would have contradicted Syed’s statements regarding his whereabouts, which did not mention his having been at the library, the Maryland high court held.
The “Serial” podcast examined whether Syed’s case was prejudiced because his trial attorney, M. Cristina Gutierrez, failed to contact McClain. Gutierrez died in 2004.
When post-conviction proceedings were reopened based on the affidavit, Baltimore City Circuit Judge Martin P. Welch ruled in 2016 that Gutierrez’ failure to contact McClain had prejudicial effect and the conviction was vacated, allowing for a retrial.
The Court of Special Appeals upheld that decision.
However, the Court of Appeals reinstated the conviction in March and rejected Syed’s bid for reconsideration in April, prompting his request for Supreme Court review.
