The Straightforward Case For Adnan Syed's Innocence

Oral arguments in the Adnan Syed/Hae Min Lee case are right around the corner (October 5th) in the Supreme Court of Maryland. The case has been dissected and analyzed all across the media, so much so that it gets difficult to see the forest for the trees. When we take a step back, though, things are much more straightforward in this case than a typical case because we had a mistrial at Adnan's first trial. This makes it very easy to see what has always been "the crux" of the State's case against Adnan and why that center could not hold.

Adnan Syed's first trial was in December 1999. That trial ended early when a mistrial was declared after jurors heard the judge call Adnan's attorney -- Cristina Gutierrez -- a liar. At this point, the State had presented its entire case except for (1) the cell tower evidence; and (2) testimony by Jay Wilds's friend, Jennifer Pusateri.

Douglas Colbert, who represented Adnan at his bail hearing, spoke to various jurors after the mistrial was declared. According to his affidavit, (1) four jurors each "stated unequivocally that they would not have returned a guilty verdict based upon the evidence that they had heard up to the moment when the judge declared a mistrial." (2) A fifth juror "indicated that she would have returned a verdict of not guilty based on the State's evidence to that point." (3) Two other jurors indicated "that they had difficulty believing the State's case." As reported on the Serial podcast, the defense team also polled the jury after the mistrial was declared, "and they gave every indication that they were heading toward an acquittal."

Therefore, it's safe to say that the cell tower evidence made the difference between the jurors at Adnan's first trial disbelieving the State's case and then the jurors at Adnan's second trial returning a "guilty" verdict. But there's no need to take my word for it. Trial prosecutor Kevin Urick has said essentially the same thing. His 2015 interview with The Intercept contains the following excerpt:

This then sets the stage for Adnan's reopened PCR proceeding in 2016. That proceeding focused on two things. The first was whether Adnan received ineffective assistance of counsel based upon Gutierrez's failure to contact alibi witness Asia McClain. An ineffective assistance claim requires proof of (1) deficient performance; and (2) prejudice (the reasonable probability of a different outcome). After the hearing, Judge Welch found deficient performance but not prejudice. The Court of Special Appeals of Maryland reversed, with 2/3 judges finding both deficient performance and prejudice. The Court of Appeals of Maryland, however, disagreed. Three judges in the dissent would have found ineffective assistance, but the four judge majority found no prejudice.

Both Judge Welch's opinion and the four judge Court of Appeals majority reflects (1) the weakness of the State's case regarding what happened after school; and (2) the strength of the State's case regarding the 7pm burial. First, Judge Welch held as follows:

The Court finds that trial counsel's failure to investigate McClain's alibi did not prejudice the defense because the crux of the State's case did not rest on the time of the murder. In fact, the State presented a relatively weak theory as to the time of the murder because the State relied upon inconsistent facts to support its theory. 

The Court of Appeals later reached essentially the same conclusion:

Ultimately, the post-conviction court reached the same conclusion as we do here. That court viewed Ms. McClain’s testimony in light of “the crux of the State’s case” which “did not rest on the time of the murder.” The post-conviction court reasoned that the State placed Mr. Syed in Leakin Park at approximately 7:00 p.m. on January 13, 1999 through the testimony of Mr. Wilds and the cell phone location evidence. With this theory in mind, the post-conviction court concluded that Ms. McClain’s testimony “would not have been able to sever this crucial link” between Mr. Syed burying Ms. Lee’s body and the State’s evidence supporting that allegation. 

Overall, then, 5/11 Maryland judges to consider the issue would have reversed Adnan's conviction on the alibi issue, but 6/11, including the four judge majority in the 4-3 ruling, denied him relief. But those judges, and Judge Welch, pretty clearly explained how the State's theory of what happened after school was "relatively weak." And, of course, they reiterated the premise of this post, which is that the cell tower evidence was "the crux" of the State's case.

That takes us to the second issue at the reopened PCR proceeding. That issue was whether Adnan received ineffective assistance of counsel based upon Gutierrez not using the AT&T disclaimer at trial. This was the disclaimer that stated that "[a]ny incoming calls will NOT be considered reliable information for location":

This is critical because the incoming calls on Adnan's call log at 7:09 and 7:16pm were the supposed corroboration for the burial story by Jay Wilds. After hearing expert testimony from experts for the State and the defense, Judge Welch found that Adnan had satisfied both prongs of the ineffective assistance of counsel test. Specifically, Judge Welch rejected the arguments made by the State's expert, Chad Fitzgerald, finding that (1) his interpretation of the critical exhibit was "contrary to the text of Petitioner's cell phone records;" (2) Fitzgerald "contradicted his own testimony;" and (3) "[w]hen Agent Fitzgerald attempted to provide an explanation for this discrepancy, he affirmed that the cell site information reflected in the un-redacted subscriber activity report may not be reliable."

The Court of Special Appeals later reversed this ruling (and the Court of Appeals affirmed), finding that the issue had previously been procedurally waived and thus not reaching the substance/merits of Judge Welch's ruling.

That then takes us to the Motion to Vacate, filed by the office of the State's Attorney (the prosecution). That Motion again coheres with the thesis of this post, which is that (as confirmed by the jurors and Kevin Urick), Jay Wilds's testimony was too unreliable to be the basis for a conviction. Therefore, some corroboration was needed. Not bound by procedural restrictions, the State's Attorney was able to cite Judge Welch's ruling and conclude that the State "cannot rely on the incoming call evidence based on the post-conviction court's filings."

In other words, we're now back to Adnan's first trial, where the jurors were strongly in favor of acquittal before they heard the cell tower evidence. They also hadn't heard from Jennifer Pusateri, but, as the Motion to Vacate noted, (1) all she knew was what Jay told her; and (2) her testimony contained a number of discrepancies. Therefore, her testimony was "insufficient to restore the State's faith" in Jay's story. 

So, now, we have (1) Judge Welch and the Court of Appeals of Maryland saying the State's theory about what happened after school was "relatively weak"; and (2) Judge Welch and the State's Attorney saying "the crux" of the State's case is gone, with no meaningful corroboration of Jay Wilds's changing and unreliable stories. 

Plus, the Motion to Vacate contains other evidence of innocence: (1) the undisclosed evidence of the first alternate suspect with motive, means, and opportunity who said he would kill Hae/make her disappear; (2) evidence regarding the second alternate suspect who attacked another woman in her car and had a connection to the place Hae's car was dumped; (3) the evidence that Adnan Syed did not visit Kristina Vinson's house on January 13th; and (4) evidence of misconduct by the lead detectives in Adnan's case. Finally, the State moved to nolle prosequi Adnan's charges after DNA testing on Hae's shoes excluded him as as the source of the DNA mixture found on Hae's shoes.

Now, sure, there are other things out there that could be construed as either helping or hurting Adnan. For example, I think lividity is a big deal. But we don't know how jurors/judges would have assessed these things. But, when we're talking about the core issues regarding the murder and its immediate aftermath -- like the Nisha call -- these were all things jurors heard at the first trial when they were leaning toward an acquittal, and they are all part of what Judge Welch and the Court of Appeals considered a "relatively weak" theory of what happened after school. And what used to be corroboration for the burial theory -- the incoming pings and Kristina Vinson -- has now been nullified based on the experts, the disclaimer, and a college transcript. And we have alternate suspects. And exculpatory DNA. And police misconduct.

In other words, based solely on what the jurors, the judges, and the prosecution have said, there is no case against Adnan Syed. Instead, this is a straightforward case of innocence. If the Supreme Court of Maryland finds that there was proper notice before Adnan's convictions were vacated, he will be a free man. If not, there will be a new hearing, but, as shown above, the result of that hearing should be the same.

-CM