The attorney for "Serial" podcast subject Adnan Syed says key cellphone evidence used against his client was unreliable — by the phone company's own warning — and should have been excluded from his murder trial.
In a court motion filed Monday, C. Justin Brown said incoming calls to Syed's cellphone were used by prosecutors to place him at Leakin Park when authorities believe the body of his ex-girlfriend was buried. Syed was convicted in 2000 of murder in the death of Hae Min Lee and is serving a life sentence.
But Brown contends that cellular carrier AT&T included a warning about the accuracy of cell tower data on a fax cover sheet to Baltimore police.
"Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location," the note read.
If that warning had been "properly raised at trial" by Syed's previous defense attorney, Brown wrote, "much of, if not all of, the cellular evidence would have been rendered inadmissible."
"We feel that the fax cover sheet from AT&T is an extremely important piece of evidence, and we are bringing it to the court's attention as quickly as possible," Brown told The Baltimore Sun. "We hope the court considers it."
The Maryland attorney general's office, which is handling the case, declined to comment.
Syed, now 35, was convicted of killing Lee, a Woodlawn High School classmate, on Jan. 13, 1999. Prosecutors had no physical evidence or eyewitness tying Syed to the killing. But the testimony of Jay Wilds, an acquaintance who said he helped Syed bury the body in Leakin Park, was the "linchpin" of the state's case, according to Syed's petition.
Questions about Syed's conviction served as the storyline for "Serial," a popular 12-episode podcast that attracted international attention to the case.
The podcast, which was downloaded 76 million times, raised questions about the competence of Syed's defense attorney, the accuracy of cellphone records, crime scene items that might have gone untested and an alibi witness for Syed whom his trial lawyer never approached.
After Syed's arrest, Asia McClain, a Woodlawn classmate, wrote two letters to him in jail in which she wondered how he could be a suspect in the murder when she had seen him in a public library near school on the day prosecutors believe Syed killed Lee.
The Court of Special Appeals agreed in February to hear Syed's appeal of a lower court ruling that denied his request for a new trial. The court said in May that McClain should be allowed to testify so her account could be considered in deliberations on whether Syed deserves a new trial.
The court called on the Baltimore Circuit Court to reopen Syed's post-conviction hearings so McClain's testimony could be taken.
Syed told his first defense attorney, M. Cristina Gutierrez, about McClain. But the lawyer did not interview her.
Brown's filing Monday raises the cellphone issue as another reason to hold a post-conviction hearing.
Prosecutors "argued forcefully, at multiple stages of the proceedings, that [the phone records] corroborated Wilds' story and put Syed at the site where the body was eventually discovered," Brown wrote. They said the AT&T records showed his phone connecting with towers close to Leakin Park when he received calls at 7:09 p.m. and 7:16 p.m.
But those were the types of inbound calls AT&T warned were unreliable, Brown wrote.
At a 2000 post-conviction hearing, prosecutors argued that even if Syed could establish McClain as an alibi, "it wouldn't explain why he's in Leakin Park with Jay Wilds at 7 o'clock on the night that Hae Min Lee is murdered."
Brown wrote Monday that "the credibility of Asia McClain [now] is pitted against the credibility of Jay Wilds."
Brown quotes former prosecutor Kevin Urick, who told the website The Intercept in January that the cellphone tower evidence was crucial.
"What is your explanation for why you either received or made a call from Leakin Park the evening that Hae Min Lee disappeared, the very park that her body was found in five weeks later?" Urick asked rhetorically. "I think that was a stumbling block for the defense. They have no explanation for that."
The fax cover sheet from AT&T was included in Gutierrez's file. Brown said the attorney "simply failed to act on it."
Gutierrez died in 2004.
"If AT&T, the architect and operator of the cell tower network, did not think incoming calls were 'reliable information for location,' it is unfathomable that a Baltimore City Circuit Court judge would have allowed an expert opinion ... under this method," Brown wrote.