Don't appeal Syed's new trial

Op-ed: Here's why Maryland shouldn't appeal a ruling granting Adnan Syed a new trial.

Baltimore City Circuit Court Judge Martin Welch ruled last week that Adnan Syed, the subject of the blockbuster first season of the podcast "Serial," is entitled to a new trial on charges that he murdered fellow Baltimore County High School student Hae Min Lee in 1999. Within hours, the Maryland attorney general's office issued a statement indicating it saw "at least one ground that will need to be resolved by the appellate courts." But the ultimate decision whether to press an appeal rests with Attorney General Brian Frosh. Although it's likely that Mr. Syed would win any such appeal, I hope that Mr. Frosh will accept Judge Welch's ruling and step aside.

The strongest reason for the state to pursue an appeal is obvious: the Lee family's belief in Mr. Syed's guilt and their desire that he stay in prison, where he's been since his conviction in 2000. The interests of victims and their families are strong; a new trial would likely reopen old wounds for the Lees.

Recognizing this, I do not lightly suggest that Mr. Frosh forego an appeal. The key consideration here is time. The first level of appeal, undertaken before the Court of Special Appeals, is likely to take a year or more. The losing side can then petition the state's highest court, the Court of Appeals, for further review. A high-profile case like this one would likely have significant chances for such review. (Normally, in such a case, the Court of Appeals can bypass the Court of Special Appeals and take the appeal immediately. Unfortunately, under a 2010 decision of the Court of Appeals, bypass is unavailable for post-conviction cases like Mr. Syed's.)

The most likely result from that multi-year process will be a ruling affirming that Mr. Syed is entitled to a new trial. Judge Welch's decision to hold a new hearing will be entitled to great deference, as will his factual findings from that hearing.

If there is going to be a new trial, it is better for it to happen now rather than a few years from now. Last year, Mr. Frosh's office won a significant victory in Jones v. State, persuading the Court of Appeals that a defendant's delay can bar his right to seek a new trial. The idea is that, as time goes by, witnesses may die or move out of state, or their memories may fade, making prosecution difficult. As the most recent Adnan Syed hearing showed, the key witnesses are still available to testify; that may not be the case two years from now.

Even if the state were to overturn Judge Welch's decision on appeal, that would not be the end of the case. Judge Welch's ruling addresses only the narrow question of whether Mr. Syed's former trial counsel, the late Cristina Gutierrez, provided constitutionally ineffective assistance of counsel. Mr. Syed would still be entitled to request a new trial based on newly discovered evidence. Searching for evidence of Mr. Syed's innocence has become a cottage industry. Suffice it to say, Mr. Syed will have an unusually strong petition on that ground.

Let's say, however, that the state wins every remaining round. The Lees still will have been put through the wringer many more times in additional hearings. If the state does get that far, it likely will have proved its central thesis from the hearing — that the evidence against Mr. Syed was so strong that a new trial would inevitably lead to another conviction.

I, like Judge Welch, happen to disagree. But if the state wishes to press its "overwhelming evidence" theory, the best way to test it will be to hold a new trial as soon as possible. Mr. Frosh's decision whether to appeal will be among the most watched decisions of his career. I understand if he decides to appeal, but I urge him not to do so.

Steven M. Klepper is an appellate attorney and the editor-in-chief of the Maryland Appellate Blog. His email is sklepper@kg-law.com; Twitter: @MDAppeal.

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