SPOTLIGHT CLE: THE MURDER CASE OF STATE v. ADNAN SYED

CLE Credit: 1.0 Wednesday, June 21, 2017

2:25 p.m. - 3:25 p.m. Exhibit Hall 2

Owensboro Convention Center Owensboro, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenter .................................................................................................................. i The State v. Adnan Syed ................................................................................................ 1

Hae's Disappearance........................................................................................... 1 Adnan's Arrest and Trial ...................................................................................... 4 Petition for Post-conviction Review ...................................................................... 8 Sarah Koenig, Serial, and Undisclosed ................................................................ 9 Re-opening the PCR Proceedings ..................................................................... 14 So, Where Do Things Stand Now? .................................................................... 18

THE PRESENTER

Rabia Chaudry c/o MacMillan Speakers Bureau

175 Fifth Avenue New York, New York 10010

(646) 307-5544

RABIA CHAUDRY is an attorney, a Jennings Randolph Senior Fellow at the U.S. Institute of Peace, where she researches the intersection of religion, violent extremism, and CVE (countering violent extremism), and an International Security Fellow with New America. She is the founder of the Safe Nation Collaborative, a CVE training firm which works on two fronts: providing CVE and cultural competency training to law enforcement, correctional, and homeland security officials, and providing national security and CVE training to Muslim communities and institutions. Ms. Chaudry is a 2016 Aspen Ideas Scholar, Fellow of the Truman National Security Project, a Fellow of the American Muslim Civic Leadership Institute, and a Fellow of the Shalom Hartman Institute. She is the public advocate of Adnan Syed, the wrongfully convicted man at the center of the most popular podcast in history, Serial, and is the co-producer and co-host of the podcast Undisclosed, with over 80 million downloads. Ms. Chaudry is a frequent public speaker on CVE, criminal justice, advocacy, new media, faith, and gender. She has addressed dozens of national and international conferences, including the private sector, government (State Department and National Counter Terror Center), and nonprofit organizations. Her writing appears in many outlets, including Time, Guardian and others. Her book, Adnan’s Story, was published in August 2016 by Saint Martin’s Press

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THE STATE V. ADNAN SYED Lori J. Alvey

Season one of the podcast Serial, "a season-long exploration of a single story, unfolding over a series of episodes," held the number one position at the top of the Apple iTunes charts even before its debut on October 3, 2014.1 By mid-November 2014, episodes of the podcast had been "downloaded or streamed more than 5[million] times from the iTunes store alone,"2 making it the first podcast to ever reach that number of downloads so quickly.3 As of December 23, 2014, the estimated number of downloads had reached 40 million,4 and people and media outlets across the country were buzzing about the story of Adnan Syed, a Maryland teenager sentenced to life in prison for the 1999 murder of his ex-girlfriend, Hae Min Lee. On June 20, 2016, the Circuit Court for Baltimore City granted Syed's petition for post-conviction relief, vacated his conviction, and granted his request for a new trial. This paper will briefly outline Syed's case for those who have not had the opportunity to listen to Serial or Undisclosed: The State vs. Adnan Syed, an investigative podcast launched in 2015 by Rabia Chaudry, a lawyer and friend of the Syed family, and lawyers Susan Simpson and Colin Miller. It will also provide an update of where the case currently stands following the State of Maryland's appeal of the Circuit Court's order granting Syed a new trial. For those who are interested in a much more detailed, in-depth discussion of this case5 and its effect on Mr. Syed and his family, I recommend that you read Ms. Chaudry's recent book, Adnan's Story, which I will reference throughout this paper. I. HAE'S DISAPPEARANCE

In January 1999, Adnan Syed and Hae Min Lee were both seniors at Woodlawn High School in Woodlawn, Maryland, a suburb of Baltimore. Both students were popular, athletic, and part of the school's academic magnet program.6 They had

1 Larson, Sarah, "Serial: The Podcast We've Been Waiting for," The New Yorker, Oct. 9, 2014, available at http://www.newyorker.com/culture/sarah-larson/serial-podcast-weve-waiting. Last accessed May 11, 2017. 2 Dredge, Stuart, "Serial podcast breaks iTunes records as it passes 5m downloads and streams," The Guardian, Nov. 18, 2014, available at https://www.theguardian.com/technology/ 2014/nov/18/serial-podcast-itunes-apple-downloads-streams. Last accessed May 11, 2017. 3 Roberts, Amy, "The 'Serial' podcast: By the numbers," CNN.com, Dec. 23, 2014, available at http://www.cnn.com/2014/12/18/showbiz/feat-serial-podcast-btn/. Last accessed May 11, 2017. 4 Ibid. 5 There are many details, inconsistencies, and theories regarding Adnan's case that I could not include in this paper due to space limitations. I have tried to stick to the details and information most pertinent to the Circuit Court's order granting his petition for a new trial. However, there is a wealth of information that has been uncovered in this case by the Undisclosed team that raises serious questions regarding the conduct of the police and state prosecutors in this case. This information is discussed in its entirety in Ms. Chaudry's book, Adnan's Story and in the podcast Undisclosed. 6 Chaudry, Rabia, Adnan's Story, (St. Martin's Press 2016), at 13.

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begun dating the previous year after their junior prom,7 but Hae had recently ended the relationship in December 1998.8 Both had experienced stress throughout the relationship stemming from their families' opposition due to religious and cultural differences. Hae was born in South Korea and moved with her family to the United States during middle school.9 Adnan's parents are from Pakistan, and Adnan was an active member of his local mosque, the Islamic Society of Baltimore.10 As Ms. Chaudry describes in her book, Muslim families in America typically maintain rules for their children that prohibit dating, alcohol, parties, drugs, and for some, opposite-gender friends.11 "[O]f all sins, the one they most worried about was getting involved in a relationship before marriage. It was love. And it was sex."12 Both teenagers attempted to hide their relationship from their families with limited success, but the strain became too much. Hae also expressed guilt in her diary that she felt she was coming between Adnan and his religion.13 Following the breakup, Adnan and Hae remained close friends, even after she began dating a co-worker named Don Clinedinst in early January 1999.14 Hae went missing on January 13, 1999. According to witness reports, she left school around dismissal time at 2:15 p.m. and was supposed to pick up her cousin at a nearby early learning center by 3:15 p.m. Her family discovered she was missing when the learning center called her home at 3:30 p.m. to request someone come pick up the child.15 Hae's family contacted police two hours later when they could not locate her at work or through her friends.16 Over the next few weeks, police made attempts to locate Hae's car, which was also missing, and spoke with her friends and family in an attempt to establish a timeline of her day on January 13th. Police first called Adnan on the day Hae disappeared, and he stated he had seen Hae during school but not afterward.17 Police were unable to reach her new boyfriend, Don, until 1:30 a.m. on January 14th.18 He stated he had not talked to Hae since January 12th. There are no details in the

7 Id. at 14. 8 Id. at 21. 9 Id. at 13. 10 Id. at 11. 11 Id. at 75. 12 Id. at 76. 13 Id. at 18. 14 Id. at 22. 15 Id. at 14. 16 Id. 17 Id. at 27. 18 Id. at 29.

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police notes at this time regarding Don's whereabouts on January 13th, and officers did not go meet with him.19 In a telephone conversation on January 22, 1999, Don told police Hae had spent the night with him on January 12th, the day before she disappeared.20 He also stated he had spent January 13th working from 9:00 a.m.-6:00 p.m. at a LensCrafters store in Hunt Valley on loan from the Owings Mill store where he worked with Hae.21 Police verified Don's alibi by calling his manager at the Owings Mill store on February 1st. They did not visit the Hunt Valley Store or obtain his timesheets or pay stubs to verify he was working there on January 13th.22 After the first week of February 1999, police did not call or visit Don again.23 Meanwhile, Adnan and Hae's mutual friends told police that there was nothing unusual about Adnan's behavior in the week following her disappearance.24 Police first interviewed Adnan on January 25, 1999. He told them he had last seen Hae during school hours on January 13th, that he went to track practice after school, and he did not remember seeing Hae leave school that day.25 Police also asked Adnan if he requested a ride from Hae after school on the 13th.26 Based on their reports of their January 13th phone conversation with Adnan, he had requested the ride. Adnan denied asking Hae for a ride that day, stating he had his own car and would not have needed a ride.27 However, Adnan had loaned his car and his cell phone that day to Jay Wilds,28 who would later become the State's star witness. On February 8th, almost one month after Hae's disappearance, police obtained Hae's laptop from her family and subpoenaed America Online for access to her email account records.29 Hae Min Lee's body was discovered buried in Leakin Park on February 9, 1999.30 Her body was found partially buried approximately 100 feet from a road that runs through Leakin Park by Alonzo Sellers, who told police he had gone into the

19 Id. 20 Id. at 36. 21 Id. 22 Id. at 36-37. 23 Id. at 36. 24 Id. at 32. 25 Id. at 36-37. 26 Id. at 37. 27 Id. 28 Id. 29 Id. at 40. 30 Id.

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woods on his way back to work to urinate.31 Following two polygraph tests, Sellers was eliminated as a suspect on February 24th.32 Although Hae's clothing at the burial site was disheveled, swabs taken from her body showed no trace of sperm, indicating she was not assaulted sexually.33 The body showed blunt force trauma to the head, and the official cause of death was listed as strangulation.34 Police interviewed Adnan at home on February 26th, asking him questions regarding his romantic relationship with Hae.35 He denied being in her car on January 13th. Police then contacted a friend of Jay Wilds, Jennifer Pusateri, who was the person most called and paged from Adnan's phone on January 13th.36 During an interview on February 27, 1999, Jennifer told police Jay had told her Adnan strangled Hae and had shown him the body in the trunk of a car on January 13th.37 According to their reports, police first interviewed Jay on February 27th, at which time he provided them with a timeline of events for the crime.38 He also took the police to Hae's car, which was parked in a housing development less than three miles from the area of Leakin Park where her body was found.39

II. ADNAN'S ARREST AND TRIAL

Police arrested Adnan Syed for the first-degree murder of Hae Min Lee at 5:20 a.m. at his home on February 28, 1999.40 He was seventeen years old. Adnan initially agreed to talk to detectives without his parents or an attorney present at 7:55 a.m.41 However, police knew as early as 7:10 a.m. that he was represented by an attorney, Doug Colbert, who arrived at the police station and requested that the interview be terminated.42 "Having held Adnan for six hours of interrogation, the police did not record or videotape any of it and did not inform Adnan about his attorneys until it was over."43 Adnan did not assert his right to

31 Id. at 42-43. 32 Id. at 49-50. 33 Id. at 58. 34 Id. at 47. 35 Id. at 61. 36 Id. 37 Id. at 64-66. 38 Id. at 69-71. 39 Id. at 71. 40 Id. 41 Id. at 92. 42 Id. 43 Id. at 93.

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an attorney until police showed him his charging document, which stated he was arrested for first-degree, pre-meditated murder.44 At that time, the interrogation concluded. The court subsequently denied Adnan's request for bail,45 and the grand jury indicted him for the murder of Hae Min Lee on April 14, 1999.46 Based on the recommendation of his current defense attorneys and the advice of Bilal Ahmed, a family friend, the Syed family hired Cristina Gutierrez, a high-profile Baltimore criminal defense attorney, to represent Adnan on April 18, 1999, for an initial fee of $50,000.47 What the family did not know, however, was at that time, Ms. Gutierrez was battling mental decline associated with several illnesses.48 "In 1999, by the time she was hired to represent Adnan, the effects of her multiple illnesses had long impaired her work in ways that in many cases would not be discovered for a few more years."49 On May 24, 2001, the Maryland Court of Appeals "ordered her 'disbarred by consent'… after Gutierrez agreed to resign rather than fight complaints filed against her with the state Attorney Grievance Commission."50 Ms. Gutierrez suffered a heart attack after being ill with multiple sclerosis and passed away in 2004 .51 Arguably, the most egregious lapse in Ms. Gutierrez's representation of Adnan was her failure to investigate a possible alibi witness, Asia McClain. In letters to Adnan dated March 1 and 2, 1999, Asia stated she remembered seeing Adnan in the Woodlawn Public Library after school on January 13th before he left for track practice at 3:30 p.m.52 Notes by Gutierrez's law clerk in her files show Adnan discussed contacting Asia.53 However, "Gutierrez told him that she had checked with Asia, but Asia had her dates wrong; she hadn't seen Adnan on January 13 after all."54 Without Asia's testimony, Adnan had no alibi for the period of time immediately following the end of the school day when Hae went missing. However, Asia McClain provided Rabia Chaudry with an affidavit in 2000 following Adnan's conviction that stated no one had contacted her after she sent

44 Id. at 92. 45 Id. at 97. 46 Id. at 100. 47 Id. at 103. 48 Id. at 106. 49 Id. 50 Koenig, Sarah, "Lawyer Gutierrez agrees to disbarment," Baltimore Sun, Jun. 2, 2001, available online at http://articles.baltimoresun.com/2001-06-02/news/0106020237_1_lawyer-gutierrez-clients. Last accessed on May 11, 2017. 51 Adnan's Story, supra note 5 at 201. 52 Id. at 101-102. 53 Id. at 118-119. 54 Id. at 120.

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those letters.55 She told Ms. Chaudry, "No one, not a lawyer, not his family, not Adnan, not the police, NO ONE contacted me after I sent those letters."56 Ms. Gutierrez's failure to contact Asia McClain would figure prominently in Adnan Syed's petition for post-conviction review, discussed infra. Adnan's trial for first-degree murder and related charges began on December 8, 1999.57 Despite repeated pre-trial motions by defense counsel, the State did not turn over Jay Wilds' statements to police on February 28 or March 15 until the first day of trial.58 Jay testified on December 14, 1999,59 and his testimony at trial varied significantly from the information he previously provided to police.60 During re-direct, the prosecutor, Kevin Urick, attempted to present cell phone records into evidence. When the judge asked Gutierrez if she'd seen the records, she said no. Ms. Chaudry writes "Urick counters, saying she has seen it and that it was entered into evidence by stipulation, meaning the consent of both parties. Gutierrez again says she has not seen the exhibit Urick is referring to, even when the judge also reminds her she agreed to the exhibit being entered into evidence."61 During a bench conference, the following exchange occurred:

THE COURT: That was a lie. You told a lie. I'm not going to permit you to do that. MS. GUTIERREZ: That's not a lie, Judge, and I resent the implication. THE COURT: It's a lie because it was by agreement. MS. GUTIERREZ: By agreement doesn't mean that I have seen it, and so it is not a lie. THE COURT: I assume – MS. GUTIERREZ: And so I resent that implication. THE COURT: I assume – I assume that you didn't agree – that you've seen what you agreed –

55 Id. at 178. 56 Id. 57 Id.at 133. 58 Id. 59 Id. at 143. 60 Id. at 144-45. 61 Id. at 146.

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MS. GUTIERREZ: I agreed to the admission of cell phone records because I did not care.62

Gutierrez replied to the judge's requests that she be quiet with "It's very hard to be quiet when a court is accusing me of lying."63 The Court subsequently granted Gutierrez's motion for a mistrial on December 15, 1999, after a juror sent him a note asking "In view of the fact that you've determined that Ms. Gutierrez is a liar, will she be removed? Will we start over?"64 Adnan's second trial began on January 27, 2000.65 In addition to Jay's testimony establishing the State's timeline for the murder and naming Adnan as the killer, the State offered testimony from Abe Waranowitz, an AT&T RF engineer, who explained how cell towers in different locations pick up cell signals.66 Waranowitz testified that the cell towers pinged by Adnan's phone are consistent with Jay's testimony, showing it was possible that Adnan's phone was in Leakin Park at the time Jay said Hae was buried.67 This evidence will also figure prominently in Adnan's petition for post-conviction relief. Adnan's father testifies that Adnan went to the mosque with him every night during Ramadan, including the night of January 13, 1999.68 Ms. Chaudry writes "[W]ithout having presented a single expert witness or establishing where Adnan was after school the day Hae disappeared, Gutierrez rests her case."69 She then describes Gutierrez's subsequent closing argument as "a storm of hundreds of different points that should have connected, but instead were thrown randomly in no certain order."70 The jury took two hours to reach their verdict,71 convicting Adnan Syed of first-degree murder, kidnapping, robbery, and false imprisonment on February 25, 2000.72 Rabia Chaudry writes that when exiting the courthouse elevator, Cristina Gutierrez stunned her and Adnan's mother by stating, "'I'll need $50,000 for the appeal,'" before walking away.73 After Ms. Chaudry and Adnan's family learned

62 Id. at 147. 63 Id. 64 Id. at 149. 65 Id. at 150. 66 Id. at 151. 67 Id. 68 Id. at 161. 69 Id. at 165. 70 Id. at 168. 71 Id. at 171. 72 Id. at 173. 73 Id.

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of Gutierrez's failure to contact Asia McClain in March 2000, they dismissed Gutierrez as his attorney. He was represented by a public defender at his sentencing hearing. The court sentenced Adnan to life in prison plus thirty years, to run consecutively.74 He was eighteen years old. The Maryland Court of Special Appeals denied Adnan's direct appeal on March 19, 2003, and the Court of Appeals, Maryland's highest court, denied his petition for a writ of cert on June 25, 2003.75

III. PETITION FOR POST-CONVICTION REVIEW

Adnan Syed hired attorney Justin Brown in 2009 to represent him in his petition for post-conviction review (PCR) with the Circuit Court of Baltimore.76 Mr. Brown filed the petition on May 28, 2010, just shy of Maryland's ten-year deadline.77 Rather than calling Asia McClain to appear at the hearing, Brown decided to rely on her letters and affidavit during the PCR hearing. "The documents alone sufficed, he believed, to prove that Gutierrez failed in a basic duty to call an alibi witness, prima facie ineffective assistance of counsel."78 Due to multiple continuances and delays,79 the hearing date was not scheduled until October 2012.80 Kevin Urick, the prosecutor at Adnan's trials, testified Asia McClain had contacted him and stated "[s]he was concerned, because she was being asked questions about an affidavit she had written back at the time of the trial. She told me she had only written it because she was getting pressure from the family. And basically wrote it to please them and get them off her back."81 The Circuit Court denied Adnan's petition for post-conviction relief in a memorandum opinion on January 6, 2014.82 The Circuit Court held Gutierrez's failure to ask the state for a plea "did not rise to the level of incompetence, and that there was no guarantee the State would have offered a plea or that Adnan would have taken one…"83 In addition, the Court found Gutierrez "had 'several reasonable strategic grounds' for not pursuing [Asia] as an alibi witness," and that "Asia's letters 'did not clearly show [her] potential to provide a reliable alibi.'"84 Justin Brown filed an

74 Id. at 183. 75 Id. at 201. 76 Id. at 214. 77 Id. at 215. 78 Id. at 214. 79 Id. at 215. 80 Id. at 216. 81 Id. at 217. 82 Memorandum Opinion II, Syed v. State of Maryland, Case No. 199103042-046, Circuit Court of Baltimore City, June 30, 2016 at 1. 83 Adnan's Story, supra note 5 at 237. 84 Id.

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Application for Leave to Appeal the court's denial of post-conviction relief on Adnan's behalf on January 27, 2014.85

IV. SARAH KOENIG, SERIAL, AND UNDISCLOSED

A few months following the filing of Adnan's PRC petition, Rabia Chaudry reached out via email to Sarah Koenig, a former reporter for the Baltimore Sun who currently works as a producer at This American Life.86 Ms. Chaudry writes,

Over the years, as appeals came and went, every so often I'd float the idea to Adnan of taking the case to a journalist. I pointed out that numerous wrongful convictions were revisited and reopened when public scrutiny came to bear on the State. But time and time again, often after arguing, we made the calculation to wait until the post-conviction, when Asia could be presented along with a claim of ineffective assistance of counsel.87

After Sarah Koenig agreed to begin investigating the case, she attempted in vain to reach Asia McClain until Asia returned her call in mid-January 2014.88 Asia told Sarah that when Adnan's attorney attempted to contact her after so many years, she "freaked out"89 and called the State's Attorney's office, where she was connected to former prosecutor Kevin Urick.90 However, "Asia told Sarah that she still remembered seeing Adnan at the library after school, around 2:30 p.m., on January 13, 1999."91 Sarah did not question Asia regarding Urick's testimony during the PCR hearing for fear of scaring Asia out of talking entirely.92 Sarah Koenig and her team continued investigating the case through most of 2014. Ms. Chaudry writes that she expected the efforts to yield an hour-long radio broadcast of This American Life,93 and Sarah informed her in summer 2014 the story would likely be told in six to ten episodes.94 On October 1, 2014, Sarah told Rabia that the show would instead be a twelve-part podcast.95 The first episode

85 Memorandum Opinion II, supra note 81 at 1. 86 Id. at 229-30. 87 Id. at 228-29. 88 Id. at 238. 89 Id. at 239. 90 Id. 91 Id. 92 Id. 93 Id. at 256. 94 Id. 95 Id. at 258.

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of Serial, "The Alibi," debuted on October 3, 2014.96 In it, "Asia McClain's conversation with Sarah made it clear, despite what prosecutor Kevin Urick had testified to, that she was not pressured into making her statements."97 Following the podcast's first two episodes, "media coverage was fast and furious; social media buzzed with millions of Tweets and shared Facebook statuses; Serial was an instant hit, and people could not wait for the following Thursday, when the next episodes would air."98 One of those listeners was Asia McClain, who reached out again to Sarah Koenig in November 2014.99 "After listening to Serial, not only did she realize how shaky the case was, and that Urick had lied to her about the veracity of the evidence against Adnan, but he had also lied to the court about their conversation."100 Sarah put Asia in touch with Adnan's attorney, Justin Brown, and Asia agreed to sign a new affidavit "refuting Urick's testimony and reconfirming her recollection of January 13, 1999."101 On January 20, 2015, Justin Brown filed Asia McClain's new affidavit as a supplement to the application for leave to appeal.102 The Court of Special Appeals granted Adnan's application to appeal the denial of his post-conviction petition on February 6, 2015.103 It was also in late 2014 that Rabia Chaudry connected with Susan Simpson104 and Colin Miller,105 two attorneys who were posting about Adnan's case in their respective blogs. After having conducted extensive research on their own, both agreed to begin helping Ms. Chaudry research the case in November 2014.106 It was Ms. Simpson who discovered a fax cover sheet from AT&T in the case files that accompanied the cell phone records provided to police in 1999.107 The fax cover sheet contained a disclaimer stating "'Outgoing calls only are reliable for

96 Id. at 259. 97 Id. at 260. 98 Id. at 261. 99 Id. at 280. 100 Id. 101 Id. at 281. 102 Id. at 299. 103 Id. at 300. 104 Susan Simpson is an associate attorney with the Volkov Law Group in Washington, D.C. and blogs at The View from LL2. 105 Colin Miller is a criminal law and evidence professor at the University of South Carolina School of Law, and the writer/editor of The EvidenceProf blog. 106 Adnan's Story, supra note 5, at 287-88. 107 Id. at 301.

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location status. Any incoming calls will NOT be reliable information for location.'"108 Ms. Simpson then outlined in a blog post how,

of the twenty-two calls made for which the State had identified cell site towers and locations, only four matched Jay's story: the 10:45 a.m. call by Adnan himself to Jay's house, the 6:07 p.m. call where Jay says he was with Adnan at Krista Vinson's apartment, and the Leakin Park calls at 7:09 and 7:16 p.m. The other calls did not match Jay's story. Of the four calls that did, three were incoming and by AT&T's fax cover sheet, unreliable for location anyway.109

In addition, Ms. Simpson reached out to a forensic pathologist to discuss the presence of livor mortis found in Hae's body. "Livor mortis… is the process by which blood in a deceased body becomes settled in the portions closest to, or touching, the ground, pulled by gravity."110 Forensic pathologists can determine if a body is moved after death by following the pattern of lividity.

Hae's autopsy showed fixed full anterior lividity, from her face downward to her chest, stomach, and the front of her legs….. In order for full, fixed anterior lividity to occur, Hae had to have been lying facedown and stretched flat for at least eight hours before she was moved to the burial site. If Hae had been buried at 7:00 p.m. on her side, the lividity would have been on the right side of her body, not on the front.111

In light of this information, Ms. Chaudry states "[t]here was no way that any of Jay's testimony, or the State's timeline of the murder, was true anymore."112 Interestingly, on December 29, 2014, The Intercept published an article outlining an interview with Jay Wilds in which he changed the story he told police in 1999.113 Rabia notes "[t]he new burial time Jay gave in The Intercept interview of around midnight was probably close to the truth, and I wondered if something signaled him to change his story."114

108 Memorandum Opinion II, supra note 81, at 40. 109 Id. at 302. 110 Id. at 304. 111 Id. at 305. 112 Id. 113 Id. at 293-294. See also, Vargas-Cooper, Natasha, "Exclusive: Jay, Key Witness from 'Serial' Tells His Story for the First Time, Part 1," (December 29, 2014), available at https://theintercept.com/2014/12/29/exclusive-interview-jay-wilds-star-witness-adnan-syed-serial-case-pt-1/. Last accessed on May 19, 2017. 114 Adnan's Story, supra note 5, at 306.

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Colin Miller and Susan Simpson also further investigated the events of Hae's last day in an attempt to find out what actually occurred. In the process, they discovered information that cast great doubt on the alibi of Don Clinedinst, Hae's new boyfriend in January 1999. Don's manager at the LensCrafters store in Owing Mills mall, where he worked with Hae, confirmed with police that Don had been working at the Hunt Valley store on January 13th.115 However, police did not realize that the manager at the Hunt Valley store was actually Don's mother.116 Gutierrez was unaware of this fact "because the records she was sent from the store don't mention it, while the records sent to the State do note the relationship."117 "When LensCrafters produced records to both Gutierrez and Urick with no evidence of Don working on January 13th, Urick gave them a call. Two days later a January 13 timecard was 'discovered' and sent to Gutierrez…"118 When Susan Simpson compared the January 13 timecard with Don's regular timecards from the Owing Mills store, she found that the Hunt Valley timecard used a different employee number for Don than the one he was assigned at Owing Mills.119 In addition, "while Don said he worked at Hunt Valley from 9:00 a.m. to 6:00 p.m. to fill in for another lab technician that day, there was no such shift for any other lab tech at the store. So who was Don filling in for?"120 Finally, Susan noted that Don was not paid any overtime for the week of January 13th even though he worked 45.9 hours including the Hunt Valley hours, "which seems to suggest that the extra hours noted on the timecard were never actually entered into the pay system."121 Neither the police nor Gutierrez caught any of these discrepancies prior to Adnan's trial.122 In her book, Ms. Chaudry also outlines the prosecution's efforts to hinder Ms. Gutierrez's investigation, noting that when Gutierrez contacted the medical examiner's office to retrieve Hae's autopsy reports following the State's request for an extension of time to comply with her discovery request, the medical examiner's office "told her that they had been directed not to release it until the prosecutor gave permission"123 (emphasis in original). As of July 1, 1999, "Gutierrez hasn't seen a single police statement given by the State's witness and has no idea what the details are of the case against her client."124 She did not

115 Id. at 317. 116 Id. 117 Id. 118 Id. 119 Id. 120 Id. 121 Id. 122 Id. 123 Id. at 318. 124 Id.

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receive notice of the State's plan to use an expert to determine cell phone location until October 9th, five days before the originally scheduled trial date of October 14, 1999.125 The State did issue a Brady disclosure to Gutierrez on the morning of October 14th, informing her that State's witness Bilal Ahmed had been arrested that day and charged with a fourth degree offense.126 Mr. Ahmed had testified during the grand jury proceedings in March 1999 that he had seen Adnan at the mosque the evening of January 13th, and that Adnan had asked him to review his notes to help him prepare to lead prayers the next day during Ramadan.127 "Ahmed was the only person identifiable to the State who could place Adnan anywhere other than where Jay said he may have been – at the mosque instead of in Leakin Park."128 However, Susan Simpson discovered that "Ahmed was never actually charged with any crime, as a memo in Gutierrez's files shows…"129 Ahmed disappeared, failing to attend either trial or to respond to the subpoenas Gutierrez issued for him.130 Ms. Chaudry writes "This pieced-together discovery by Susan seems to indicate something sinister: either Ahmed had some serious charges dropped in exchange for skipping out on Adnan's defense, OR the State found a way to frame him to pressure him."131 In early March 2015, Rabia Chaudry, Susan Simpson, and Colin Miller decided to start their own podcast, Undisclosed: The State vs. Adnan Syed, in an attempt to take the information they'd found in their research "and make it easier to get to people who were interested in the case."132 The first episode debuted on April 13, 2015.133 Additional details regarding the case came to light following Undisclosed's debut due to the efforts of the podcast's listeners. Bob Ruff, a Michigan fire chief134 interested in finding out what really happened to Hae Min Lee,135 contacted a LensCrafters HR manager to discuss the discrepancies in Don's timecard from January 13, 1999.136 The manager stated that employee numbers do not change

125 Id. at 318-319. 126 Id. at 320. 127 Id. at 319. 128 Id. 129 Id. at 320. 130 Id. 131 Id. at 320-21. 132 Id. at 325-26. 133 Id. at 328. 134 Id. at 335. 135 Id. at 336. 136 Id. at 349.

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if an employee moves store to store, "even if an employee is moved to a store in a different state."137 When asked why Don would possibly have two ID numbers, the manager responded, "'If you're looking at two different timesheets for the same employee with two different associate ID numbers on them, one of them has been falsified.'"138 In regard to the overtime hours missing from Don's timesheet, "the manager stated that one of the timesheets was falsified because if it was authentic, those hours would all appear on the same timesheet regardless of working at different stores. And that single timesheet would certainly contain the overtime hours."139 Ms. Chaudry notes "the only time Don ever appears to have used two different ID numbers in his employment was the week that Hae went missing."140 This independent investigation also discovered that the manager of the Hunt Valley store where Don was allegedly working on the day Hae disappeared, Cathy Michel, was Don's mother's girlfriend, who lived in the same home as Don and his mother.141

V. RE-OPENING THE PCR PROCEEDINGS

On May 18, 2015, the Maryland Court of Special Appeals issued an order remanding Adnan's application to appeal the denial of his PCR petition back to the Circuit Court "to afford Petitioner the opportunity to file a request to re-open the previously concluded post-conviction proceedings and supplement the record, in light of the potential alibi witness's January 13, 2015 affidavit."142 "Although the subject of the Remand Order is limited to the alibi issued, the Maryland Court of Special Appeals gave the Court discretion to 'conduct any further proceedings it deem[ed] appropriate.'"143 Justin Brown filed Adnan's Motion to Re-Open Post-Conviction Proceedings on June 30, 2015.144 On August 24, 2015, he filed a supplement to the motion requesting the circuit court "consider additional allegations concerning the reliability of cell tower location evidence that the State used at trial."145 The Circuit Court granted Adnan's motion to re-open on November 6, 2015, limiting the scope of the proceedings to the following issues: "1) trial counsel's failure to contact a potential alibi witness,

137 Id. at 350. 138 Id. 139 Id. 140 Id. 141 Id. at 351-52. 142 Memorandum Opinion II, supra note 81 at 2. 143 Id. 144 Id. 145 Id.

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Asia McClain… and 2) the reliability of the cell tower location evidence."146 A five-day hearing on the matter was held on February 3-9, 2016.147 At the hearing, Justin Brown argued Gutierrez's failure to contact Asia McClain and investigate her as a potential alibi witness constituted ineffective assistance of counsel.148 The State argued Gutierrez's decision to not contact Ms. McClain was a strategic choice because her testimony "would have been inconsistent with [Adnan]'s own stated alibi that he remained on the high school campus from 2:15-3:30 p.m."149 Brown also argued the State committed a Brady violation when it 1) omitted the fax cover sheet with instructions on how to read subscriber activity reports that contained the disclaimer regarding the unreliability of using incoming calls for location; and 2) by presenting the cell phone records without the subject page identifying the records as an excerpt of a subscriber activity report.150 He also argued Gutierrez rendered ineffective assistance of counsel when she failed to use the disclaimer contained on the fax cover sheet to cross-examine the State's cell tower expert regarding the reliability of the cell tower location evidence at trial.151 The State argued no Brady violation occurred because defense counsel had the fax cover sheet in her files prior to trial. The State also argued Adnan waived his right to challenge defense counsel's representation because he could have raised the issue in a prior proceeding.152 The State managed to keep out most evidence regarding Gutierrez's "declining health and the financial issues that led to her disbarment…including her record with the Attorney Grievance Commission."153 Judge Martin P. Welch's Memorandum Opinion for the Circuit Court of Baltimore City granting Adnan's petition for post-conviction relief, vacating his convictions, and granting his request for a new trial was released on June 30, 2016.154 The Court held "trial counsel's failure to investigate McClain as a potential alibi witness fell below the standard of reasonable professional judgment" as outlined in Strickland v. Washington, 466 U.S. 668 (1984).

As the Court has explained, reasonable professional judgment under the facts of the present case required trial counsel to

146 Id. at 2-3. 147 Id. at 3. 148 Memorandum Opinion II, supra note 81, at 10. 149 Id. at 21. 150 Id. at 30. 151 Id. at 34. 152 Id. 153 Adnan's Story, supra note 5, at 369. 154 Memorandum Opinion II, supra note 81, at 59.

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contact the potential alibi witness and investigate whether her testimony would aid Petitioner's defense. The facts in the present matter are clear; trial counsel made no effort to contact McClain in order to investigate the alibi and thus, trial counsel's omission fell below the standard of reasonable professional judgment.155

However, the Court found Gutierrez's failure to investigate Asia McClain's alibi failed to satisfy the second prong in Strickland,156 which states "counsel's deficient performance 'must be prejudicial to the defense' to warrant relief."157 "[T]rial counsel's failure to investigate…did not prejudice the defense because the crux of the State's case did not rest on the time of the murder."158

The potential alibi witness… would not have undermined the crux of the State's case: that Petitioner buried the victim's body in Leakin Park at approximately 7:00 p.m. on January 13, 1999. The Leakin Park burial marked the convergence point between Wilds' testimony and Petitioner's cell phone records…. The State corroborated Wilds' testimony with Petitioner's cell phone records, which showed that his cell phone received two incoming calls at 7:09 p.m. and 7:16 p.m. The cell phone records also reflected that the two incoming calls connected with cell site "L689B," which the State's cell tower expert identified as the cell site that provided coverage to an area that encompassed Leakin Park.159

The Court stated that even if Gutierrez had contacted Asia McClain, she still "would not have been able to sever this crucial link."160 As such, "Petitioner failed to establish a substantial possibility that, but for trial counsel's deficient performance, the result of the trial would have been different."161 The Court also held Adnan waived his right to raise the Brady claim because he had the opportunity to challenge the alleged violation in an earlier proceeding.162 "As trial counsel had both [the disclaimer and the subject page] in her possession at least since the time of trial, Petitioner had the factual basis and the opportunity to raise the issue at trial, on direct appeal, in his first post-conviction petition, and in the

155 Id. at 22. 156 Id. at 24. 157 Id. at 10. See also, Strickland v. Washington, 466 U.S. 668, 691 (1984). 158 Id. at 24. 159 Id. at 25. 160 Id. at 26. 161 Id. 162 Id. at 30.

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application for leave to appeal."163 The Court noted that even if the Brady issue had not been waived, "Petitioner failed to establish that the State suppressed the evidence at issue."164 The Court held, however, that "trial counsel rendered deficient performance when she failed to properly cross-examine [the state's cell tower expert] about the disclaimer"165 located on the fax coversheet that stated "[o]utgoing calls only are reliable for location status."166

Whether Petitioner's cell phone records revealed an incriminating link between Petitioner and the murder was an issue of crucial importance. Under these circumstances, a reasonable attorney would have carefully reviewed the documents disclosed as part of pre-trial discovery, including the set of instructions and disclaimer provided by AT&T on how to correctly interpret the cell phone records. If the State advanced a theory that contradicted the instructions or disclaimer, a reasonable attorney would have undermined the State's theory through adequate cross-examination.167

The Court stated "even under the highly deferential standard of Strickland, the failure to cross-examine the State's expert witness regarding evidence that contradicted the State's theory of the case can hardly be considered a strategic decision made within the range of reasonable professional judgment."168 The Court also held "that trial counsel's deficient performance in failing to confront the State's cell tower expert regarding the disclaimer created a substantial possibility that the result of the trial was fundamentally unfair."169 Having found Adnan established both the deficient performance and prejudice prongs in Strickland, Judge Welch granted his petition for post-conviction relief. Interestingly, Judge Welch addressed the potential impact of Serial on the case in the conclusion to his opinion, stating:

This case represents a unique juncture between the criminal justice system and a phenomenally strong public interest created by social media. Throughout the proceedings, the parties made repeated efforts to direct the Court's attention to the Serial podcast . . . Serial has attracted millions of active listeners worldwide and

163 Id. 164 Id. at 32. 165 Id. at 40. 166 Id. 167 Id. at 42. 168 Id. at 43. 169 Id. at 55.

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inspired many, through social media, to support or advocate against Petitioner's request for post-conviction relief. Regardless of the public interest surrounding this case, the Court used its best efforts to address the merits of Petitioner's petition for post-conviction relief like it would in any other case that comes before the Court; unfettered by sympathy, prejudice, or public opinion.

VI. SO, WHERE DO THINGS STAND NOW?

In an opinion released on December 28, 2016, Judge Welch denied Adnan's request to be released on bail while awaiting a new trial.170 "'The circuit court finds that the nature and circumstances of the offenses are the most serious in nature and there is still compelling evidence against Petitioner.'"171 Judge Welch noted that he considered whether Mr. Syed would be a danger to the community or a flight risk before making his decision.172 He also denied Adnan's request for a hearing on his request to be released on bail.173 In August 2016, the State filed leave to appeal the court's decision granting Adnan a new trial.174 On January 18, 2017, the Maryland Court of Special Appeals granted the parties' applications for leave to appeal and cross appeal.175 For those interested in analysis of both the State's arguments and those of Justin Brown on Adnan's behalf in the appeal, please visit Professor Colin Miller's EvidenceProf Blog, available at http://lawprofessors.typepad.com/evidenceprof/. Professor Miller's blog contains links to complete copies of each of the parties' briefs filed in the appeal. He also offers discussion and opinions regarding the issues addressed therein. In October 2016, prosecutors across Maryland filed an amicus brief opposing the circuit court's decision to grant Adnan Syed a new trial.176 "The brief calls Syed's successful post-conviction appeal

170 Anderson, Jessica. "Judge denies 'Serial' subject Adnan Syed's release on bail," Baltimore-Sun, Dec. 29, 2016, available at http://www.baltimoresun.com/news/maryland/crime/. Last accessed on May 20, 2017. 171 Id. 172 Id. 173 Id. 174 Brief of Appellant, State of Maryland v. Adnan Syed, Appeal from the Circuit Court for Baltimore City, Maryland, No. 1396 (February 27, 2017), at 2, available online at https://www.documentcloud.org/documents/3475879-Brief-of-Appellant-State-v-Adnan-Syed.html. Last accessed May 20, 2017. 175 Fenton, Justin, "Appeals court takes up 'Serial' case, could extend resolution by a year or more," Baltimore Sun, January 18, 2017, available online at http://www.baltimoresun.com/news/maryland/bs-md-syed-appeals-20170118-story.html. Last accessed on May 20, 2017. 176 Fenton, Justin. "Maryland prosecutors oppose ruling that overturned 'Serial' subject Adnan Syed's conviction," Baltimore Sun, October 7, 2016, available online at

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'meritless,' and says 'sensationalized attention' surrounding the case was 'fueled by supporters of a convicted murderer' and 'should not bear on the just and proper resolution of this appeal.'"177 The National Association of Criminal Defense Lawyers and Maryland Criminal Defense Attorneys' Association filed an amicus brief in September, 2016, in favor of the defense, "urging that a new trial was the 'only satisfactory way to resolve the debate between the believers and doubters' and would restore confidence in the state justice system.'"178 Oral arguments in the appeal will take place on June 9, 2017.179

http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-syed-prosecutors-oppose-20161007-story.html. Last accessed on May 20, 2017. 177 Id. 178 Id. 179 "Arguments in Adnan Syed Appeal to be Heard June 1," CBS Baltimore, April 26, 2017, available online at http://baltimore.cbslocal.com/2017/04/26/arguments-in-adnan-syed-appeal-to-be-heard-june-1/. Last accessed on May 20, 2017.

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