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A defense lawyer’s failure to call an alibi witness was a key point of contention as a convicted murderer returned to court Wednesday to argue he deserves a new trial in a case that gained fresh notoriety through the podcast Serial.
A three-day hearing began in Baltimore for 35-year-old Adnan Syed, who is serving a life sentence for the murder of his high school girlfriend, Hae Min Lee, in 1999.
Syed’s attorney Justin Brown told Judge Martin Welch that previous defense attorney Cristina Gutierrez made a mistake in failing to call Asia McClain, who claimed to have seen Syed at a library during the time of the killing. But prosecutor Thiru Vignarajah with the Maryland attorney general’s office said there were reasons to think McClain might be unreliable.
Vignarajah argued that Gutierrez was a dedicated and effective attorney, and that Syed was convicted not because his lawyer was incompetent, “but because he did it.” Vignarajah added that Gutierrez made a decision not to pursue McClain as a witness.
“There were all sorts of reasons that this was not a reliable witness, and perhaps a risky witness,” Vignarajah said.
But Brown linked the decision to personal problems that were plaguing Gutierrez, who was later disbarred in connection with other cases.
“At the time of the Syed case (Gutierrez) was unable to handle her cases,” he said. “Her health was failing, her family was in turmoil. What was happening at her business, it was becoming unwound. As a result of the wheels coming off the bus, the single most important piece of evidence, an alibi witness, slipped through the cracks.”
Syed was present in court, dressed in light blue prison garb, wearing a long beard and a knit cap. His hands were shackled. Spectators filled a row reserved for the public, including friends, supporters and members of Syed’s family.
The case had been closed for years when producer Sarah Koenig, a former Baltimore Sun reporter, began examining it in the podcast in 2014, drawing millions of listeners each week — so many that the public radio podcast shattered Apple’s iTunes store’s record for downloads.
The podcast raised questions about the fairness of Syed’s trial, gained a cult following and uncovered evidence that helped prompt a Maryland appeals court to grant a hearing on the possibility of a new trial.
Syed’s motion for a new trial centers on the alibi witness who was never called to testify and cell tower data that defense attorneys argue is inaccurate, misleading and should never have been entered into evidence.
McClain has said she spotted Syed at a library the day Lee was strangled. Last year, McClain filed an affidavit saying she’d be willing to testify on Syed’s behalf. McClain said that she contacted Syed in jail while he was awaiting trial, and Syed told Gutierrez to contact her. But the attorney never did.
In a letter to Syed after he was arrested, McClain suggests that there could be surveillance footage from the library that could help prove that he was there.
A pair of defense witnesses testified Wednesday that Gutierrez’s health was in decline during the time she represented Syed, impairing her ability to adequately advocate for her clients.
“During that period of time she was hard to work for,” said William Kanwisher, an attorney who worked for Gutierrez. “Cases were handed off late in the process to be litigated, there were money issues, there was a pay period where we didn’t get paid. The practices at the firm were extremely problematic.”
Kanwisher testified that there is “no tactical reason” to leave a potential alibi witness such as McClain off a witness list, even if her account of what happened differed from other potential witnesses. He said it’s a defense attorney’s job to keep all avenues and options open.
But Vignarajah suggested that McClain’s alibi claims were indeed investigated by Gutierrez and her team, and that McClain wasn’t called because other more reliable witnesses contradicted her claims.
“What if you had a witness who would undermine witnesses you thought were good for the case?” Vignarajah asked Kanwisher. Vignarajah later added, “If there’s a lack of surveillance cameras or footage that shows your client isn’t there, would you want to tell the state about that witness?”
McClain is expected to testify during the hearing. The state, too, will have a chance to call witnesses.
A motion filed Tuesday shows that prosecutors intend to call the original lead prosecutor in Syed’s case, Kevin Urick, and other members of the prosecution team. An FBI agent who specializes in cell tower data is also on the state’s potential witness list, as is an expert in criminal defense practices.
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