Mimesis Law
2 June 2020

Why Does Adnan Syed Get a New Trial?

July 1, 2016 (Fault Lines) — Adnan Syed has won himself a rare new trial based on the ineffective assistance of his trial counsel, Cristina Gutierrez. For those of our readership unfamiliar with ineffective assistance of counsel, it is a damn difficult basis to win an appeal on.

Syed, whose case was popularized through Sarah Koenig’s “Serial” podcast, was convicted fifteen years ago for the strangulation death of his high school ex-girlfriend, Hae Min Lee. The evidence against him was pretty straightforward: Jay Wilds, an acquaintance of his, claimed that Syed had called him from a Best Buy parking lot at 2:36 pm to pick him up. When Wilds got there, Syed showed him Lee’s body and then asked to be dropped off at track practice so he could be seen. Later that evening, they disposed of the body at Leakin Park and dumped Lee’s possessions in a dumpster. Cell phone tower data corroborated Wilds’ account of their locations.

Which would all be well and good, except Syed’s lawyer dropped the ball in several respects. For one thing, she failed to look into the testimony of an alibi witness, Asia McClain, who would have testified that she saw Syed at the school library at around the time he was supposed to be murdering Hae Min Lee and asking Wilds to pick him up. Her letter arrived only two days after Syed was arrested.

For another, cell phone tower evidence used at trial was not nearly so precise as the State’s expert tried to make it sound. But Syed’s lawyer hardly bothered to challenge it.

Even with all these potential problems, it is still damn hard to win on ineffective assistance.  To prevail, you have to show that your attorney messed up. And it can’t just be an ordinary kind of mistake, like doing a bad job cross-examining a witness or not spending enough time talking to a client leading up to a trial. You have to prove that the lawyer did something that no reasonable lawyer could possibly have done. If the trial lawyer can think of any strategic reason at all for why he made a particular decision, he generally can’t be found ineffective.

But there’s an exception. Failure to investigate claims are great, as far as ineffective assistance of counsel goes. There are tons of great reasons why a lawyer might not call a particular witness, or challenge the State’s evidence in a particular way. But even without Gutierrez’s testimony that she made a mistake, it’s hard to come up with a possible strategy for not looking into an alibi in a murder case.[1] That’s why Syed’s focus on his lawyer’s failure to contact Asia McClain was so clever. It made deficiency a foregone conclusion.

That didn’t stop the State from trying, of course. It argued that Asia McClain’s letter was obviously “coached” because she had Syed’s accurate booking number on it, knew a lot of details about the crime, and because some other witness, named Gordon, claimed that she had been put up to being his alibi. But, as the trial court noted, that’s not a very persuasive argument when defense counsel failed to ever speak to her at all. It certainly makes it a lot less likely that she was going through potential problems with her testimony with a fine-toothed comb.

As for the State’s argument that she knew too many details to not have been coached by Syed, the trial court noted that it was “contrary to the facts.” (Judges always find creative ways to call lawyers out for lying). Everything the State pointed out had been published in newspapers by the time Asia wrote the letter.

So, easy call, the trial court found Gutierrez deficient. Unfortunately, just because your lawyer messed up doesn’t mean that you get a new trial. You have to show that the lawyer’s mistake undermined the “reasonable possibility” of a different result (this is a typical vague-ass Supreme Court term. It means less than more likely than not, but not “meaningfully” less.) And the court found that it didn’t much matter when the killing happened, so long as the cell phone data matched up with Wild’s story.

Unfortunately for the State of Maryland, it didn’t match up all that closely. See, a big deal in the State’s case was that two calls made to Syed’s cell phone around 7:00 pm hit a particular tower, L689B. When the State’s “expert” went to the park to place a call, it reportedly hit the same tower. This supported Wilds’ testimony that Syed and he were burying the body in Leakin Park around that time. Except… and trial counsel never noticed this, AT&T specifically noted that incoming calls, like the ones that hit Syed’s cell phone, aren’t reliable for a damn thing where location is concerned.

And trial counsel never bothered to cross-examine the expert about it. How heavily did the State rely on this evidence? Well, it was the first thing they mentioned in their opening statement, and they brought it up twice more in their closing.

The State tried to get around this problem by bringing in an agent to say that the disclaimer didn’t apply. The court stated that it was “perplexed” by the agent’s testimony because it didn’t appear to be true. (There that judge goes again). The State couldn’t get the original expert to come back in and salvage the case because he would have testified that, had he known about the disclaimer, he wouldn’t have told the jury that they could use the incoming cell phone calls to tell where Syed was.

That was the final nail in the coffin. With that, the court ruled that Syed would get a new trial, one where competent counsel would challenge the State’s cell phone evidence. That, plus Asia McClain’s alibi testimony and the wide-spread popularity of the podcast, might make a conviction difficult. But hell, when it comes to pre-trial publicity, it’s not so bad to see the shoe on the other foot once in a while.

[1] In a strange way, the defense may have seriously benefitted from Gutierrez’ death. Had she been alive, she might have found a way to salvage her failure to investigate as the result of a thought-out strategy.

4 Comments on this post.

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  • Chris
    1 July 2016 at 11:46 am - Reply

    Well crunk up a jury for round 2.

    • Andrew Fleischman
      1 July 2016 at 11:59 am - Reply

      Assuming the reversal holds up on appeal. The judge’s opinion seemed thoughtful and well-reasoned to me, but IAC is rarely a slam dunk.

  • Steve
    2 July 2016 at 5:55 pm - Reply

    I found the transcript of the state’s expert’s direct and cross examinations online. I am a little confused by a few things relating to the defendant satisfying the prejudice prong for defense counsel’s failure to question the state’s expert witness on the unreliability of determining location based on incoming calls from the cell phone billing record.

    (1) Defense counsel made a motion to strike the expert’s entire testimony on the basis that the expert’s origination test was flawed. The state responded by arguing the expert conducted the test to see if it was possible for the network to respond the same way as indicated on the billing record. The state said its expert could never determine location from a cell phone billing record and the purpose of the test was to corroborate other testimony by showing it was possible the network could respond the way the billing records indicated.

    (2) On cross examination, defense counsel asked the expert about the billing record’s inability to establish location. Her cross examination led to the expert admitting the billing record and origination test could not be used to determine where the cell phone was physically located when it made a call on the date of the crime.

    -> Is the court saying even though defense counsel was able to solicit testimony from the expert showing location could not be determined from the billing record, the defendant still met his burden for the prejudice prong because counsel did not specifically ask about the disclaimer mentioning incoming calls? Based on the transcripts I would assume the jury heard loud and clear that the billing record could not be used to establish location of the defendant’s phone on the date of the crime. Why would an additional question or two about incoming calls create a reasonable probability of a different outcome? I’ll hang up and listen, thanks!

    • Andrew Fleischman
      5 July 2016 at 9:38 am - Reply

      It seems like the affidavit from the expert that he would have never testified that the location was consistent based on his test if he’d known about the disclaimer did a lot of the heavy lifting.