The brother of the woman Adnan Syed once was convicted of killing is filing his own appeal to the Maryland Supreme Court, arguing that a lower court’s ruling in his favor didn’t go far enough for victim’s rights.
The court filing Thursday by Young Lee, brother of Hae Min Lee, who was killed in 1999, adds complexity to the already dizzying legal saga profiled in the hit podcast “Serial.” It means there are now a pair of Syed-related petitions pending before the state’s highest court.
In his appeal last month, Syed, 43, argued that the Appellate Court of Maryland was mistaken when it reversed the decision by a Baltimore Circuit Court judge to throw out his conviction in September and release him from prison for the first time in 23 years.
Lee, meanwhile, contends that the appeals court should have given him the right to speak and challenge evidence at the September hearing that set Syed free, not just to attend in person, as the appellate opinion determined.
At issue in both appeals is exactly what role victims or their representatives should have in proceedings to vacate a defendant’s conviction for legal reasons.
David Sanford, an attorney for Young Lee, said in a statement Thursday that the legal team was filing an appeal so that the high court can clarify victims rights in such proceedings “once and for all.”
“The Maryland Declaration of Rights requires that state agents treat crime victims with dignity, respect and sensitivity,” Sanford said. “That right to dignity means here that Young Lee should have the right to meaningfully participate in a hearing that could potentially vacate a murder conviction.”
Young Lee filed what’s known as a “cross-petition” for appellate review, according to Steve Klepper, a veteran appellate attorney at Kramon & Graham.
“The cross petition is a way of saying ‘I too disagree with the appellate court’s opinion,’” Klepper said. “The Supreme Court of Maryland can choose to hear some, all or none of the questions that both sides have asked the court to decide.”
Klepper said the case bears the “hallmarks” of cases the state Supreme Court has accepted, and the odds of it taking up the case are bolstered by the fact that both sides are requesting further appellate review.
The Maryland Office of the Attorney General, which represents prosecutors in the state on appellate matters, has mostly supported Young Lee’s arguments in the appeal stemming from Syed’s conviction being overturned.
In a one-paragraph filing Thursday afternoon, Assistant Attorney General Daniel Jawor said he believed the appellate court was correct in its March decision. However, Jawor wrote, lawyers for Young Lee and Syed “both raise novel questions of broad public importance, thus satisfying the test” for the state Supreme Court to take up the appeal.
Syed’s lawyer, Erica Suter, issued a statement through the Office of the Public Defender following Thursday’s pleadings.
“In their filings, Mr. Lee and the Attorney General agree with us that this case presents important issues that the Supreme Court should take up,” Suter said. “We are hopeful that the justices will vote to hear the issues Mr. Syed raised in his petition, and we intend to file a response to Mr. Lee’s cross-petition.”
Though the appellate court ordered Syed’s convictions and life-sentence reinstated, the Supreme Court agreed to postpone that while it considers whether to accept Syed’s appeal.
[ A timeline of Adnan Syed’s journey through Baltimore’s criminal justice system ]
Last year, Baltimore Circuit Judge Melissa Phinn met with the prosecution and Syed’s lawyer in her chambers on Sept. 16, a Friday, and scheduled a hearing for the following Monday, Sept. 19. By the time attorneys on the case met with Phinn, they had presented her with a joint legal argument for why Syed’s 2000 convictions were flawed and should be thrown out “in the interest of justice.”
Prosecutors had told Young Lee they would be filing court papers to withdraw Syed’s guilty finding in his sister’s killing, but they didn’t notify him of the hearing date until shortly after it was scheduled.
Prosecutors told him he could watch the proceedings by video call, but Young Lee, who lived in California at the time, wanted to be there in person. He hired an attorney over that weekend to show up in court and ask for a weeklong postponement.
In court, Phinn told Young Lee’s attorney she would delay the proceedings only long enough so that Young Lee could join a video call. Thirty minutes later, Young Lee, by video, told her how he felt betrayed by prosecutors who’d led him to believe for more than 20 years the right man was held culpable for his sister’s strangulation death. When he was finished speaking, Phinn said she appreciated his comments and continued with the proceeding.
At the direction of then-State’s Attorney Marilyn Mosby, prosecutors dropped Syed’s charges in October. But by then, Young Lee had filed a notice of an appeal.
In the appeal, Young Lee argued that prosecutors and Phinn trampled on his rights as a crime victim representative by providing short notice of the September hearing and not allowing him time to attend in person, or to challenge evidence.
Crime victims law provides only that victims or their representatives be given “reasonable” notice of legal proceedings, without specifying a time frame. While lawmakers have expressly provided victims or their representatives with the right to speak at certain hearings, like sentencing, they did not specify as much in the state’s nascent vacatur law. Typically, victims don’t get to weigh in on legal questions.
A three-judge panel from the appellate court allowed the appeal to progress, hearing oral arguments from Young Lee’s and Syed’s lawyers in February, before rendering their opinion in March. In the split ruling, the appellate judges ordered Syed’s convictions and life sentence reinstated, and mandated a do-over of the September hearing that set him free.
The appellate opinion provided a 60-day window before its mandates took effect. In that time, Syed’s lawyers unsuccessfully argued the appellate court should reconsider its ruling, and then asked the state Supreme Court to take up the case.
Syed’s attorneys argued that prosecutors’ decision to drop Syed’s charges nullified Young Lee’s appeal, that Young Lee got ample notice of the September hearing according to the law. They also said that Young Lee appearing at the hearing by video call satisfied his right to attend.
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Most importantly, Syed’s lawyers said, the appellate court failed to consider whether Young Lee attending in person would have changed the decision to vacate Syed’s conviction — a legal consideration. They said Young Lee being in the courtroom wouldn’t have changed Phinn’s mind, so the appellate court shouldn’t have ordered a redo.
Appellate courts in Maryland and across the country regularly reject appeals when they find legal errors made by a lower courts wouldn’t change the ultimate outcomes of the proceedings. Legal experts say the modern legal system would grind to a halt without that concept, which is known as the “harmless error doctrine.”
In their latest filing, Young Lee’s lawyers argue the appellate court should have granted victims the ability to speak and challenge evidence at vacatur hearings, saying it is “necessary and appropriate” for the state Supreme Court to weigh in on a question “of crucial import.”
“The Appellate Court’s failure to recognize a right to speak, if left standing, will permanently damage future applications of the Statute and how courts treat victims as a general matter,” the filing says.
In a dissenting opinion for the appellate court panel in March, Judge Stuart R. Berger wrote that policy-oriented questions would be better answered by the legislature or judiciary’s rules committee than the courts. Berger also said the court could issue guidance without taking the dramatic step of reimposing a conviction and sentence.
A maintenance worker discovered Lee’s body in a shallow grave in Baltimore’s Leakin Park in February 1999. Homicide detectives soon focused on Syed, who was 17 at the time, arresting him the same year. During trial, prosecutors postulated that Syed, a popular honors student, couldn’t handle it when Lee broke up with him. She was strangled to death and investigators found evidence of a struggle in her car.
Convicted of murder, kidnapping, robbery and false imprisonment in 2000, Syed was sentenced to life plus 30 years in prison.