"SERIAL" LIVES ON: ADNAN’S APPEAL BRIEF

Adnan Syed v. State of Maryland
Maryland Court of Special Appeals, No. 2519 (March 23, 2015)
NPR’s wildly popular podcast, Serial, ended its first season late last year. But those captivated by the story it told, of Adnan Syed’s prosecution and conviction, now have the opportunity to read along in real time as that story continues to play out in the courts. Last month, the Maryland Court of Special Appeals granted Adnan’s application for leave to appeal. And today, Adnan’s counsel filed his opening brief, found here, in support of that appeal.

Adnan Syed was convicted of first-degree murder in 2000. His direct appeal was denied in 2003. Years later, however, Adnan pursued a Petition for Post-Conviction Relief. That, too, was denied by the trial court in December 2013. Adnan now appeals the denial of that Petition.

The appeal raises only two questions: (1) Was Adnan’s trial counsel, Cristina Gutierrez (now deceased), “constitutionally ineffective” because she failed even to interview a disinterested alibi witness, Asia McClain, and then purportedly lied to Adnan, saying she’d done so; and (2) was Gutierrez also “constitutionally ineffective” for failing to solicit a plea offer from the State (after Adnan asked her to) and, again, purportedly lying to Adnan about not having done so? Given Adnan’s continued insistence that he’s innocent, the second issue always was, and remains in this opening brief, an uphill struggle—even if Gutierrez did, and failed to do, exactly what’s alleged. But the first issue, Gutierrez’s failure to explore the disinterested alibi witness, may have legs. It is supported by two affidavits from the witness, McClain, one from the time of Adnan’s arrest and a current one; they affirm her alibi testimony, the potential availability of corroborating witnesses and evidence, and the lack of any contact at all from Gutierrez or her office—even though it’s undisputed Gutierrez knew of McClain and her story. The issue is well briefed, supported by several appellate decisions vacating convictions because of failures to explore alibi evidence arguably less egregious than here. And Gutierrez’s lapse here arguably presents “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”—i.e., “a probability sufficient to undermine confidence in the outcome.”

Under the order granting leave to appeal, the State’s response brief is due April 16. But Adnan’s counsel was granted a one-week extension to file his brief, and the State likely will get at least the same. As they say on the radio, stay tuned.

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