State files response to Adnan Syed's request for new trial

The state says Adnan Syed, known from “Serial,” did not have an ineffective trial lawyer.

The Maryland attorney general's office filed a response to Adnan Syed's latest effort to get his murder conviction overthrown, writing that the imprisoned "Serial" podcast star does not deserve a new trial because his attorney made "tactical" decisions to defend him the way she did.

Attorneys for the state also say they uncovered a letter that Syed wrote before his 2000 trial, suggesting he was satisfied with his lawyer, M. Cristina Gutierrez. Syed now contends that Gutierrez was ineffective.

The nearly 40-page brief filed Wednesday in the state Court of Special Appeals comes in response to the court's decision in February to reopen Syed's appeal, giving him a third attempt for a new trial 15 years after he was convicted of killing his high school ex-girlfriend.

Syed's current attorney, C. Justin Brown, is expected to file a reply to the state's brief in about 20 days. Judges on the Court of Special Appeals, the state's second-highest court, will review the brief. Oral arguments are scheduled for June 9.

"We look forward to responding to the state's memorandum in our reply brief," Brown said Wednesday.

Syed is serving a life sentence in the 1999 strangling of Hae Min Lee, a Woodlawn High School classmate. Prosecutors say Syed killed her out of jealousy when she began dating someone else.

Evidence against Syed included cellphone records and the testimony of an acquaintance who said he helped Syed bury Lee's body in Baltimore's Leakin Park. There was no physical evidence or eyewitness linking him to the killing.

The Syed case drew worldwide interest last year with "Serial," a podcast that re-examined the case. It was created by "This American Life" radio program producer Sarah Koenig, a former Baltimore Sun reporter, and downloaded a record 76 million times.

The questions "Serial" raised were issues Syed and Brown cited in their appeal brief, which preceded the attorney general office's response.

Syed argues that Gutierrez was ineffective because she failed to speak with an alibi witness who could have cleared him. He also said Gutierrez didn't follow his instructions and lied to him after he asked her to inquire about a plea agreement so he could consider it.

Gutierrez died in 2004 of a heart attack and complications from multiple sclerosis, and lawyers on both sides are left to speculate whether it was strategy or incompetence that led her to defend Syed the way she did.

Among new evidence the state uncovered and included in its response Wednesday was a letter Syed wrote to a judge in 1999 when state prosecutors had filed a motion to remove Gutierrez from the case.

"Professionally, M. Gutierrez's reputation [precedes] her," Syed wrote. "Her presentations in court are remarkable, as is her success rate. Personally, she has a warm, caring, even motherly atmosphere that offers me a great deal of comfort. It is not her winning record, however, that compels me to retain her. It is her hard work, determination and belief in my innocence that assures I am in the best hands."

Syed was 19 when he wrote the letter and had not faced criminal charges before. Gutierrez was a respected Baltimore criminal defense lawyer at the time.

But in four years, she would be disbarred by consent after allegations that money from clients meant for a trust fund had disappeared.

The attorney general's office also wrote that Syed's claim of ineffective counsel "is not an invitation to second guess tactical decisions and trial strategy, nor does it give license to smear the reputation of defense attorneys from the comfortable perch of history and hindsight."

The state made the same argument to contest the reopening of Syed's appeal last year, along with its assertion that there is no evidence suggesting prosecutors would have offered Syed a plea deal had Gutierrez asked about one. Syed argues that nearly all criminal defendants in Baltimore City were offered plea deals in 2000.

The state argued the court can't operate under the premise that Syed would have been offered a plea because that "would require the court to pile speculation upon speculation in order to determine what offer the state may have made, what offer the defendant may have accepted, and how those negotiations would have unfolded during the pendency of a criminal case."

While a classmate named Asia McClain has sworn in two affidavits that she saw Syed at a public library at the time prosecutors allege that he killed Lee, the attorney general's office said Gutierrez must have had a reason not to call her as an alibi witness.

The state said Gutierrez's legal team identified 80 potential alibi witnesses, and they would not have forgotten to talk to McClain if they believed her statements could have helped.

jgeorge@baltsun.com

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