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Adnan Syed hearing: Legal expert says failure to call alibi witness 'changed the ballgame's result'

Defense attorney raised questions about reliability of cell phone evidence key to Syed's conviction.

A veteran Baltimore defense attorney testified Friday that a potential alibi witness for Adnan Syed was "powerfully credible" and "would've made an incredible difference in the outcome of the case."

Meanwhile, the "Serial" podcast subject's attorneys raised questions about the reliability of cellphone location evidence that was key to his conviction.

Those developments occurred during the third day of a hearing to determine whether Syed, who is serving a life sentence for the murder of ex-girlfriend Hae Min Lee in 1999, deserves a new trial. With no end in sight for what was scheduled as a three-day hearing, attorneys were due back in court Monday.

"We have put on some extremely compelling evidence to support our issues," C. Justin Brown, one of Syed's attorneys, said after the hearing. "There've been some distractions along the way, for sure, but we're making progress."

Syed's brother, Yusuf, said his family was "very hopeful and very excited about what's happening." Syed, 34, smiled and waved to cheering supporters as he was escorted from the courthouse.

Attorneys for the state could not be reached for comment. Lee's family has said in a statement that the proceedings have been painful and that she is the "true victim."

Syed lost a previous bid for a new trial in 2012. "Serial" aired two years later, raising fresh questions about the case. The podcast also helped bring forward a former Woodlawn High School classmate, Asia McClain, who said after Syed's arrest that she had seen him in a library during a period when prosecutors say Lee's killing occurred.

Syed's defense team ignored her at the time, and his current lawyers say he deserves a new trial where McClain can be offered as an alibi witness.

Taking the stand Friday as a legal expert for Syed's current defense team, Towson-based attorney David Irwin said McClain's account should have been aggressively pursued by Syed's lawyers after she wrote to him in jail. He said it was the "minimum" level of representation they should have provided.

"She would've changed the ballgame's result," Irwin testified.

The state has countered that Syed's former lawyers considered many avenues and chose not to pursue McClain. They had developed a list of more than 80 potential alibi witnesses and called none of them at trial — though McClain was not on that list.

They've also highlighted memos and testimony that they say shows Syed received an adequate defense. His new lawyers must show that his previous representation was not just "questionable" but "constitutionally deficient."

Next week, the state is expected to counter Irwin's comments with testimony from high-profile attorney William "Billy" Martin, who they say in court filings will testify that the decisions made by Syed's previous lawyers were reasonable.

McClain's testimony is one part of a two-pronged approach by Syed's attorneys; the other involves cellphone records. Prosecutors at his trial used the location of his phone to place him in the area of Leakin Park, where Lee's body was found in a shallow grave. It was an early use of such technology.

Syed's defense says that a fax cover sheet sent by AT&T to accompany Syed's records contained instructions that warned "incoming" calls were not a reliable way to determine a user's location. The original cellphone expert, Abraham Waranowitz, provided an affidavit to Brown saying he had not been shown the fax cover sheet and it would have changed a piece of his testimony.

Waranowitz was not called to testify at this week's hearing, but the defense called another expert, Gerald Grant, who said the fax warning should have been heeded. He told the court that the instructions are crucial in order to accurately read the data.

The state put forward FBI Special Agent Chad Fitzgerald to refute Grant's testimony. The two previously testified on opposite sides at the Boston Marathon bombing trial.

Fitzgerald evaluated Waranowitz's analysis of Syed's records, and said his determination of the phone's location was "very good." The fax sheet warning "doesn't change his analysis one bit," Fitzgerald said.

But Brown, in his cross-examination, maintained that the fax sheet's warning about incoming calls was important.

He pointed to two calls from Syed's log, one made in Woodlawn and another from 27 minutes later — that showed the phone hitting off a tower near Dupont Circle in Washington.

Brown said it was "impossible" to get from Woodlawn to D.C. in 27 minutes, and asked Fitzgerald to explain the discrepancy. Fitzgerald said he would have to do more research.

That exchange was the last before retired Judge Martin Welch called the weekend recess.

"This is our issue, and we stand by it," Brown said in court.

It is not known whether Welch will issue his ruling at the conclusion of the hearing or at a later date.

jfenton@baltsun.com

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