Shoot to Kill: Baltimore ranks as most lethal among nation's largest cities

Alibi witness willing to testify in Syed 'Serial' case

Witness in 'Serial' case now willing to testify to Adnan Syed alibi

An alibi witness is willing to testify on behalf of Adnan Syed to help challenge his 15-year-old murder conviction in a case popularized by the "Serial" podcast, according to a court filing made on Tuesday.

In a sworn deposition, Asia McClain stated that she saw Syed in a public library at the time prosecutors said his ex-girlfriend was killed. The deposition was taken by Syed's attorney on the 16th anniversary of the death of Hae Min Lee, an 18-year-old Woodlawn High School student.

McClain said she "came to understand my importance to the case. I realized I needed to step forward and make my story known to the court system," according to the affidavit dated Jan. 13.

The testimony of McClain, a classmate of both Syed and Lee, challenges the timeline Baltimore prosecutors used to prove that Syed strangled Lee to death after school on Jan. 13, 1999. McClain's testimony wasn't heard at Syed's 2000 trial, when a jury found him guilty of first-degree murder, robbery, kidnapping and false imprisonment.

Syed's attorney at the time did not call her as a witness. That attorney, Cristina Gutierrez, died in 2004.

Syed, now 34, is serving a life sentence plus 30 years in a state prison in Cumberland. Prosecutors said he killed Lee out of jealousy after she began dating someone else.

McClain told The Baltimore Sun that she has "no doubt" about when and where she saw Syed. She added that she did not want to speculate on whether he is guilty or innocent.

"I know that across offices and homes in America, and beyond, people have been discussing Adnan's guilt or innocence," she said in an emailed response to questions. "And I almost feel that I am the only person that should not participate in that conversation. If you saw 2 people get into a fight on the other side of the street, I believe your moral obligation is to tell the police what you saw, not to extrapolate from that who is to blame.

"I can only tell you what it is I know. Whether this information means that Adnan is innocent, or deserves a new trial, is a decision for others to make."

Whether McClain's statements will be considered is up to Maryland's Court of Special Appeals, which is reviewing Syed's request for an appeal. His earlier attempts to seek a new trial failed in lower courts.

Byron L. Warnken, a law professor at the University of Baltimore School of Law, said it's rare for that appeals court to consider requests such as Syed's but McClain's sworn account may improve his chances.

"If she is willing to swear under oath to these facts, I think it's a legitimate argument," Warnken said.

The podcast "Serial," a project headed by public radio producer and former Baltimore Sun reporter Sarah Koenig, re-examined the case last year in a 12-episode series that became a national phenomenon and was downloaded by millions of listeners. The series cast doubt on Syed's guilt.

No physical evidence tied Syed to the crime, but a witness testified about helping Syed bury the girl's body.

McClain first surfaced as an alibi witness in the days after Syed's arrest, when she visited his home and wrote to him in jail. She told Syed that she had "reason to believe in your innocence" because of a conversation had at the library near the high school, a letter said.

But she was never called as a witness. Syed said that Gutierrez told him the alibi "did not check out." McClain said Gutierrez never contacted her.

After Syed was convicted, a family friend and then-law student Rabia Chaudry learned about McClain's account and obtained a notarized statement from her, affirming her story.

Syed brought up McClain as an alibi during a 2012 post-conviction hearing, but a judge ruled that Gutierrez made a strategic decision not to call McClain. Kevin Urick, a prosecutor on Syed's case, also testified that McClain had called him before the hearing to gather more information on Syed's appeal.

Urick testified that McClain told him she had written the affidavit "because she was getting pressure" from Syed's family, according to the court filing.

But in McClain's most recent affidavit, she said she didn't testify in the post-conviction hearing because Urick "discussed the evidence of the case in a manner that seemed designed to get me to think Syed was guilty and that I should not bother participating in the case."

After listening to "Serial," McClain said, she was "shocked" by what Koenig had discovered in the case, as well as Urick's testimony that she had been pressured to testify. She said she contacted Syed's current attorney, C. Justin Brown, in mid-December, telling him she was willing to state her account in court.

On Tuesday, Urick, now a private attorney in Cecil County, reaffirmed his testimony. He said he never dissuaded McClain from testifying. He did say he told her that the evidence was "strong" against Syed, who had been convicted.

"She told me that she had written something because Adnan's family had been putting pressure on her and she wrote it to get them off her back," Urick said, recalling the conversation.

He said he never testified that McClain had recanted her account. "I said it sounded to me like she was wavering in her support for that statement or was reluctant to testify as to that statement," Urick said.

McClain said Tuesday that no one had influenced her to come forward at any time.

"At no point has anyone connected with Adnan or his legal team pressured me into doing or saying anything," she said.

Brown on Tuesday used McClain's affidavit and prior accounts to supplement the appeal. He is asking the Court of Special Appeals to send Syed's case back to circuit court and allow McClain to testify.

McClain's attorney, Gary Proctor, said his client wants to protect her privacy, but feels it's more important to testify to what she saw.

"She would tell you that she was raised if you see something, say something, and that it's her civic duty to come to court and answer questions truthfully," Proctor said.

Last week, the Maryland Attorney General's Office recommended that Syed's request for an appeal be denied.

Syed has claimed that he received ineffective counsel during his trial, partly because Gutierrez did not ask McClain to testify. According to his appeal, he also asked Gutierrez to see if he was being offered a plea deal and was told that he wasn't — even though she had never asked.

The Court of Special Appeals wanted more information about that argument and asked the state to respond. In a court filing, Assistant Attorney General Edward J. Kelley wrote that "there is nothing in the record indicating that the state was prepared to make a plea offer had trial counsel pursued such negotiations."

The state said Syed was making a "bald assertion," claiming that he would have been offered a plea deal because it was routine in 1999 for the prosecutor's office to offer one to murder defendants. Kelley called the claim "unfounded and inconsistent" in his response.

It's not clear when the Court of Special Appeals will rule on Syed's case.

jgeorge@baltsun.com

Twitter.com/justingeorge

Copyright © 2016, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad
63°