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'Serial' podcast subject Syed makes his case for a new trial

Syed attorney files 31-page briefing arguing for a new trial.

Adnan Syed, the imprisoned subject of the "Serial" podcast series, said his trial lawyer's failure to interview an alibi witness was worse than many other cases in which new trials were granted.

"The errors by trial counsel were of such a fundamental nature that Syed must be given a new trial," his current attorney C. Justin Brown argued in a 31-page briefing filed Monday in the Maryland Court of Special Appeals. "The circumstances here are worse than the circumstances of any other case in which a court has found ineffective assistance of counsel relating to an alibi issue."

The brief is the first step for Syed in his effort to overturn his life sentence since the Court of Special Appeals last month granted his request to reopen his appeal after two unsuccessful attempts in the last dozen years.

Syed's main argument was that his attorney in 2000, M. Cristina Gutierrez, was ineffective because she failed to investigate an alibi witness that could have cleared him. Syed also argues that Gutierrez didn't look into a plea deal, which he said he could have considered knowing that his lawyer was ignoring his strongest defense -- the alibi.

The court filing alleges that Gutierrez's "complete failure to investigate was not an innocent mistake; it was a complete failure to follow her client's wishes, a decision to lie, and a decision that any reasonable attorney would know could very well cost the defendant his case — precisely what happened."

Gutierrez died 12 years ago amid health and legal problems.

The Maryland Attorney General's Office can now contest Syed's claims in an official response that's due April 30. Syed has an opportunity to reply in a filing 20 days after the state's response. In June, the Court of Special Appeals could hear oral arguments.

No case in recent memory has generated as much public debate as Syed's because of the worldwide popularity of "Serial," a podcast that was downloaded more than 76 million times. In 12 episodes,"This American Life" radio producer Sarah Koenig, a former Baltimore Sun reporter, parsed over hundreds of pages of court documents, hours of police interrogations and court testimony and conducted fresh interviews to re-examine the 1999 fatal strangling of Syed's ex-girlfriend and Woodlawn High School classmate Hae Min Lee, 18.

Prosecutors alleged that Syed, then 17, killed her because he was jealous and ashamed that she was dating someone else.

Syed, who had no prior criminal record, was found guilty of first-degree murder, robbery, kidnapping and false imprisonment, despite a lack of physical evidence on or near Lee's body that matched him. No eyewitness saw the killing, and a medical examiner could not determine where or when Lee had been killed.

Key to Syed's conviction was the testimony of his former classmate Jay Wilds, who said he helped Syed bury Lee's body in Leakin Park.

Syed's filing pointed out that Wilds repeatedly gave inconsistent testimony to investigators and even acknowledged lying about details.

Syed argues that another Woodlawn classmate, Asia McClain, has never wavered from her account that she saw him at the public library next to campus after school on Jan. 13, 1999, the same time prosecutors say Syed killed Lee.

McClain has maintained her story in two letters she wrote to Syed after his arrest, two sworn affidavits and an interview she did with "Serial."

Syed's court filing said "there is a reasonable probability that the jury would have believed that person over Wilds. At the very least, there would have been reasonable doubt."

McClain first stepped forward with her alibi the day after Syed was arrested. She wrote him a letter in jail that said "I'm not sure if you remember talking to me in the library on Jan. 13th, but I remember chatting with you."

She wrote him another letter the next day along the same lines. Syed told Gutierrez and her law clerk about the letters and, in a later meeting, asked if Gutierrez had contacted McClain.

The attorney told him "I looked into it and nothing came out of it," the filing said.

But McClain has said in two affidavits that no one ever called her. In January, McClain offered in a sworn statement that she is willing to testify for Syed if she is called.

Worried about his prospects without an alibi, Syed said in the filing that he asked Gutierrez to get him a plea offer. In Maryland, Syed could have accepted what's known as an "Alford plea," which allows a defendant to accept a plea offer without acknowledging guilt.

Syed said Gutierrez agreed and later told him, "they're not offering you a plea deal," he said in his brief.

Prosecutors have said in previous court hearings that Gutierrez never asked for a plea deal.

"Did he want to go to trial or did he want to accept the State's offer?" Syed's filing said. "The injustice here is that this choice was taken away from Syed by his own attorney."

The reason Gutierrez did not check out McClain's accounts or negotiate a plea offer is unknown. The attorney died in 2003 of a heart attack and was disbarred by consent two years before she died.

"There are several examples of cases where trial counsel's failure to investigate or call alibi witnesses were far less egregious than this case" and judges granted those cases new trials, Syed's court filing said.

A Baltimore Circuit judge rejected these arguments in 2013, when he ruled in Syed's post-conviction that McClain's letters were not a clear alibi and that Gutierrez may have made a "strategic" decision to focus her defense elsewhere.

The Maryland Attorney General's Office, which is fighting Syed's appeal, declined to comment on Monday, a spokesman said. But its attorneys have written in court records that Syed's claim of ineffective counsel is moot because there is no evidence that prosecutors would have given him a plea deal. State attorneys also say Syed has so staunchly defended his innocence before and after his conviction that there is no evidence that he would have even accepted one if one had been offered.

But Brown, Syed's current attorney, said in the filing that past case law shows that attorneys are obligated to at least contact possible alibis and must see if prosecutors would offer a plea deal if a client asks for one.

Syed's brief does not mention multiple discrepancies that have surfaced since "Serial" was released. In late December, Wilds, prosecutors' key witness, gave a three-part interview with the "Intercept" online news site. In it, he provided a new timeline that differed from the one prosecutors used of when he said he saw Lee's body and when he said he and Syed buried it.

Those issues cannot be raised as Syed's appeal only encompasses the performance of his trial attorney and what she did or didn't do — not any new evidence "Serial" may have shaken loose.

jgeorge@baltsun.com

Twitter.com/justingeorge

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