I do not know if Adnan Syed killed Hae Min Lee on Jan. 13, 1999, and neither do you. Syed’s conviction in 2000 for Lee’s murder has been the subject of multiple podcasts and documentaries—including the popular first season of Serial—which can help you decide whether you think he deserves his current sentence of life in prison. We will probably never have definitive evidence either way. But the current legal battle over Syed, which took a new twist last week, does not revolve around this question of guilt or innocence. It centers on Syed’s Sixth Amendment right to effective assistance of counsel. For years, his legal team has fought to obtain a new trial, alleging that his first defense attorney failed to provide constitutionally sufficient representation.
In 2018, it looked like Syed would get that second chance when a Maryland appeals court granted Syed a new trial. On Friday, however, Maryland’s highest court reversed the court’s decision, finding no Sixth Amendment violation. Its 4–3 ruling is grievously wrong—bad for everyone who seeks a clearer picture of Lee’s tragic murder, but more importantly, bad for the Constitution and for criminal justice. It weakens the right to counsel in Maryland and inexplicably dismisses the value of an alibi witness to a defendant charged with first-degree murder. Regardless of whether Syed killed Lee, he deserves much more than the court’s cursory dismissal of his constitutional rights.
Because Syed’s case has dragged on for so long, it might be tempting to dismiss his latest appeal as a frivolous, last-ditch attempt at a do-over. It is nothing of the sort. The Sixth and 14th Amendments guarantee criminal defendants effective assistance of counsel. And although the Maryland Court of Appeals (the state’s highest court) ruled against Syed 4–3, six of seven judges agreed that his first attorney, Cristina Gutierrez, “performed deficiently.” To understand why, it’s necessary to review the centerpiece of Syed’s post-conviction appeals: two letters from a classmate, Asia McClain, asserting that she spoke with Syed in the library at the exact time that prosecutors accused him of strangling Lee.
Serial fans will be familiar with these letters, which McClain wrote to Syed as he awaited trial in jail. In them, McClain discussed chatting with Syed at Woodlawn Public Library after school as she waited for her boyfriend to pick her up. She explained that she had already told Syed’s family about their encounter and was eager to tell his attorney too, recognizing that it might help him at trial. McClain had also called the library and discovered that it had a surveillance system that might have recorded their conversation. She told Syed that her “boyfriend and his best friend remember seeing you there too.” And she gave him a phone number where he could reach her to discuss the matter further.
Syed later testified that he “immediately notified” Gutierrez about the letters, asking her to contact McClain and investigate the surveillance tapes. He also informed Gutierrez that he remembered speaking at the library just after school. Later, Syed asked Gutierrez if she had spoken to McClain. She told him that she had “looked into it and nothing came of it.”
In fact, Gutierrez never reached out to McClain—an astonishing lapse in judgment, given that she was offering an alibi that directly refuted the prosecution’s theory of the case. Prosecutors claimed that Syed killed Lee in a Best Buy parking lot between 2:15 p.m., when school ended, and 2:36 p.m. According to this timeline, Syed called his friend Jay Wilds at 2:36 p.m. from a payphone in the Best Buy parking lot, asking Wilds to pick him up. (Wilds was in possession of Syed’s new cellphone at the time; records indicate that his phone did receive a call at that time, but not from whom.) At that point, prosecutors said, Wilds met Syed, saw Lee’s body, and helped him bury it in Leakin Park.
Wilds served as the state’s star witness, even though his account of these events changed repeatedly, and inconsistencies in his descriptions of that afternoon raise doubts about his candor. At trial, Syed was unable to rebut his testimony with an effective alibi placing him away from the scene of the crime between 2:15 and 2:36 p.m. That’s because Gutierrez had failed to call McClain as a witness or even look into her (credible) account of their library encounter. As a criminal defense expert later testified, McClain was a “a fabulous witness” who “would have … changed the ballgame’s result.” Had she taken the stand, McClain would’ve informed the jury that Syed could not have killed Lee when prosecutors claimed, because he was talking to her at Woodlawn Public Library.
All but one judge on the Maryland Court of Appeals agreed that Gutierrez’s failure to follow up on McClain’s letters constituted deficient assistance of counsel. “At a minimum,” the majority wrote, “due diligence obligated Mr. Syed’s trial counsel to contact Ms. McClain in an effort to explore her potential as an alibi witness.” But under the Supreme Court’s decision in Strickland v. Washington, proof of deficient performance is not enough to secure a new trial under the Sixth Amendment. Instead, a defendant must also prove that his attorney’s negligence resulted in prejudice, rendering the trial “fundamentally unfair” and compelling a new one. Put differently, there must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
It was here, on Strickland’s second prong, that the Court of Appeals splintered. A bare majority found that Gutierrez’s mistake did not prejudice Syed, because the jury might have reasonably concluded that he murdered Lee after speaking with McClain even if she had testified. The dissenters, by contrast, believed that at least one juror could surely have been swayed by McClain’s testimony. “Not only does Ms. McClain’s alibi address the most integral period of time in the case,” Judge Michele D. Hotten wrote in dissent, “it presents direct, not merely circumstantial, evidence of Mr. Syed’s whereabouts during that time. In so far as I could determine, no other evidence was offered by the State that would have refuted Ms. McClain’s testimony and affidavits.”
Hotten’s dissent effectively demolishes the majority’s assertion that there is no “reasonable probability” McClain’s testimony could’ve changed the outcome of the case. Because the prosecution lacked “direct evidence regarding Mr. Syed’s whereabouts during the time of Ms. Lee’s death,” Hotten wrote, it relied on “extensive” circumstantial evidence to place him at the scene of the crime. Most importantly, prosecutors pinned their case on Wilds’ claim—as supported by Syed’s cellphone records—that Syed called him at 2:36 p.m., just after killing Lee. McClain would have contradicted Wilds’ crucial testimony.
Is it true, as the majority speculates, that if the jury heard McClain’s story, it might simply shift the time of the murder forward? Perhaps. But by doing so, the jury would have to reject the prosecution’s entire timeline. Or it would have to believe Wilds’ testimony over McClain’s, even though Wilds was an accomplice to Lee’s burial and McClain a disinterested classmate. Is there really no “reasonable probability” that at least one juror would have changed her mind after hearing from McClain? To Hotten, that is impossible to accept. McClain’s testimony would’ve undoubtedly been “sufficient to establish” reasonable doubt in the minds of one or more jurors.
The majority’s decision has a whiff of impatience; clearly, it is glad to have this controversy off its docket. But Maryland v. Syed will have ramifications beyond this one notorious case. (Syed’s attorneys may appeal to the Supreme Court, but it seems unlikely to take this case.) The Court of Appeals has lowered the standard for competent criminal defense in Maryland, minimizing the often vital role of alibi witnesses. It has bolstered courts’ ability to concoct some fanciful reason why a lawyer’s error didn’t really matter, because a jury surely would’ve found its way to a conviction anyway. In short, the court has put its thumb on the scale of the prosecution at the expense of the Sixth Amendment. The Strickland standard may be stringent, but it does not justify the logical cartwheels that the Court of Appeals performed to prevent Syed from getting a new trial.
What might have happened had Syed been tried again? Maybe, aided by McClain’s testimony, the jury would’ve acquitted him. Or maybe it would’ve convicted him and kept him behind bars for life. The outcome, while important, is nowhere near the central issue. What matters is that the prosecution of Adnan Syed comports with the Constitution—and so far, it plainly has not. We all deserve better than this masquerade of justice.
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