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State: 'Serial' murder case should not be reopened

State says Adnan Syed's presumption of innocence makes his appeal argument moot in 'Serial' case.

The State of Maryland has recommended that a judge deny Adnan Syed's latest request for an appeal, saying that the subject of the popular "Serial" podcast cannot claim that he should have been offered a plea deal when he so strongly maintains his innocence.

The state Attorney General's Office filed a response in court Wednesday to Syed's argument that he received ineffective counsel when he was convicted of first-degree murder in 2000 in the death of his ex-girlfriend and Woodlawn High School classmate Hae Min Lee.

The response comes almost 16 years to the day investigators say Lee was strangled and nearly a month after "Serial" completed a 12-episode re-examination of the case that became the most downloaded podcast in history, drawing millions of fans across the world.

Lee, 18, disappeared after school on Jan. 13, 1999, and was not seen again until her body was found nearly a month later in a shallow grave in Leakin Park. Syed was linked to the death by cell phone records and a witness who testified that he helped Syed bury the body, and received a life sentence plus 30 years on charges of first-degree murder, robbery, kidnapping and false imprisonment. No physical evidence tied him to the murder and no eyewitness saw it.

"Serial" was a project headed by Sarah Koenig, a producer for the "This American Life" public radio program and a former Baltimore Sun reporter. She spent nearly a year and a half re-investigating the case, turning it into a true-life whodunit that became so popular that it was featured on the "Today" show and "The Colbert Report," while parodies of the podcast appeared on YouTube and "Saturday Night Live." Each week during the series, listeners weighed new evidence Koenig dug up and debated Syed's guilt or innocence on social media.

The series has been so popular that even an incremental legal step, such as Wednesday's court filing, became a trending topic on Facebook.

Syed originally appealed his conviction in 2003, but the Maryland Court of Appeals rejected his claims that same year. In 2010, he filed for "post-conviction relief," saying his attorney had been ineffective. But Baltimore's Circuit Court denied his request on Jan. 6, 2014.

With his legal options dwindling, Syed appealed that rejection early last year, and in September Court of Special Appeals Chief Judge Peter B. Krauser took interest in one of Syed's claims. The judge asked the state to weigh in on Syed's belief that his attorney had been "ineffective" because she didn't ask prosecutors for a plea offer. That led to the written response from the state Attorney General's Office on Wednesday.

Syed's lawyer, C. Justin Brown, has called the appeal his client's best final chance to overturn his conviction, while attorneys say the entire second appeal process is so unusual that it's unclear what actions Krauser could take.

Brown and the Attorney General's Office said Wednesday they could not discuss the state's response because it was a continuing case.

But Rabia Chaudry, an immigration attorney and friend of Syed's who first took the case to "Serial" producers, said the state's arguments are similar to those its lawyers made two years ago when Syed's appeal was denied.

"It was expected," she said. "I hope the court does not buy this very weak argument."

Silent in much of the discussion about Syed's legal case, as well as "Serial," has been Lee's family. They could not be reached by "Serial" or The Sun last year despite weeks of phone calls, emails and social media messages.

Syed has argued he didn't get a fair trial because his trial attorney, M. Cristina Gutierrez, didn't check out a classmate's account that she saw him at a public library near Woodlawn High during the time investigators say Lee was killed. The claim was part of Syed's post-conviction appeal, which included his belief that Gutierrez didn't establish a timeline that could have disproved the state's case. He asserted in his appeal that she should have investigated the key witness who testified against him to see if his credibility could be impeached; he also said Gutierrez should have better questioned the credibility of an expert who testified for the prosecution.

Syed said that he asked Gutierrez to see what prosecutors would offer as a plea deal, and that she told him there was none when she had never asked prosecutors about it. A prosecutor testified in a post-conviction hearing that Gutierrez never approached him about a plea deal.

In 2001, Gutierrez resigned from the bar after the state Court of Appeals ordered her "disbarred by consent." A lawyer had found that clients' money meant for a trust account had gone missing. Gutierrez died of a heart attack in 2004.

The claims Syed is making are similar to those of at least one other Gutierrez client. Questions about whether she told a convicted sex offender about a plea offer almost led to his release, but the U.S. 4th Circuit Court of Appeals in 2013 reversed a decision that would have set him free.

Had Syed been offered a plea deal, Chaudry said, he could have seen the odds stacked against him in court and taken what's known as an Alford plea — without admitting any guilt.

"Adnan can absolutely maintain innocence and want to know if there is a plea," she said.

Just as the state did two years ago in prior court filings, it disputed Syed's claim to ineffective counsel in a 23-page response filed Wednesday in the Court of Special Appeals.

The response is one of the first notable actions from the Attorney General's Office since Brian E. Frosh was elected in November to the office.

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."

While a Baltimore criminal defense lawyer testified as an expert witness for Syed that the Baltimore State's Attorney's Office routinely discussed plea deals in murder cases, the state said that's a "bald assertion." To say that prosecutors routinely offered murder defendants pleas is "unfounded and inconsistent," Kelley wrote.

The Attorney General's Office said it's also "impossible to determine with certainty whether" Syed would have even taken a plea.

"In fact, petitioner's own statements at sentencing indicate the contrary; that the petitioner intended to maintain his innocence throughout," Kelley said.

The state believed Gutierrez chose not to seek a plea offer because it was not part of her strategy, and the response said there was no proof Syed asked her for one. His answers on a polygraph were ruled inadmissible by a judge.

"The only evidence supporting this claim is the petitioner's own, self-serving post-conviction testimony that the post-conviction court did not credit," the Attorney General's Office said. "In simple terms, petitioner's post-conviction testimony that he would have considered a plea offer in the case was not credible."

It's not known when Krauser, the Court of Special Appeals chief judge, will act. Lawyers say he could reject the appeal, call for formal briefings on the case or remand the case to Circuit Court for an evidentiary hearing.

Meanwhile, Chaudry and other Syed supporters have been working on multiple fronts to pressure the Attorney General's Office to reopen his case. After the state filed its response, Syed's supporters tweeted Frosh's state email address and phone number so people could pressure the attorney general.

"Brian Frosh, the new Atty Gen of MD, has opposed the petition in their filing today," Syed's younger brother Yusuf posted on Facebook. "He's on twitter. Ask him why."

A petition asking for a "Fair Trial for Adnan" has received more than 21,000 signatures while a fund to help cover Syed's legal costs has collected nearly $70,000, Chaudry said.

The Innocence Project based at the University of Virginia is also re-examining the case and hopes to test DNA in the case.

Contradictory testimony in Syed's case became even more difficult to decipher late last month when an Internet news site posted a three-part interview with Jay Wilds, the man who testified to helping Syed bury Lee's body. In the interviews, Wilds revealed details that prompted even more questions about the timeline prosecutors used at Syed's trial. But when questioned whether Syed had killed Lee, he did not waver.

"I killed Hae" were the words Syed uttered to him, Wilds told "The Intercept."

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