Circuit Court for Baltimore County, Maryland
Case No. 199103042-46, Petition No. 10432
New Trial Order and Opinion
here, here, and here. Now, finally, Adnan’s hopes have been realized. In a lengthy opinion issued four months after a week-long evidentiary hearing, retired Baltimore City Circuit Judge Martin P. Welch has vacated Syed’s conviction and granted him a new trial.
Syed had argued three issues in support of his quest for post-conviction relief:
- Trial counsel’s alleged failure to contact potential alibi witness Asia McClain violated Syed’s right to effective assistance of counsel;
- The State committed a Brady violation by withholding potentially exculpatory evidence—the now-notorious fax cover sheet and related documents cautioning that cell-tower evidence relied upon by the State to corroborate Syed’s presence in Leakin Park, where Hae was buried, should “NOT be considered reliable information for location”; and
- Trial counsel’s failure to challenge the reliability of the cell-tower location evidence violated Syed’s right to effective assistance of counsel.
In rejecting Syed’s first ground, regarding potential alibi witness Asia McClain, the court did find trial counsel’s conduct “fell below the standard of reasonable professional judgment.” But, the court concluded, Syed did not “establish a ‘substantial possibility’ that the result of the proceeding would have been different, but for counsel’s unprofessional errors.” The “crux of the State’s case did not rest on the time of the murder,” the court said—noting, for example, the multiple inconsistencies on this issue in the testimony of the State’s star witness, Jay Wilds—and therefore even if a jury had heard and accepted Asia McClain’s alibi testimony regarding one narrow block of time, the State still could have achieved a conviction.
The second ground—the State’s alleged violation of Brady by withholding exculpatory evidence in discovery or by presenting only part of the evidence to the jury (the State had not introduced the cautionary fax disclaimer to the jury, or provided it to the State’s expert witness, with the other cell-tower records)—failed largely because copies of the crucial documents were found in the files of Syed’s trial counsel. Obviously, therefore, the State had produced rather than withheld them. Further, counsel could have used them to attack the State’s allegedly misleading omission of those documents in its presentation to the jury. Her failure to do so constituted waiver on this point, but formed the basis for relief on the final issue.
The State relied heavily on the cell-tower location evidence, including the related testimony of its expert on that issue, both to establish Syed’s presence at the burial site and to corroborate the somewhat shaky testimony of Jay Wilds. The Court had no difficulty concluding counsel’s failure to cross-examine based on the disclaimer constituted ineffective assistance, taking the State to task in the process: “A reasonable attorney would have exposed the misleading nature of the State’s theory by cross-examining [the expert]”—hard to dispute, given that the State’s expert later gave an affidavit saying he would not have testified as he did at trial had he known about the disclaimer. Further, the court explained, “the issue is not whether [Syed] would have obtained a ‘not guilty’ verdict had trial counsel cross-examined [the expert] about the disclaimer. Instead, the pertinent question is whether the result of the trial was ‘fundamentally unfair or unreliable,’ but for [sic] trial counsel’s unprofessional errors.” It was, the court concluded. And so Syed’s conviction was vacated and a new trial awarded.
In concluding, the court acknowledged the significant notoriety the case had achieved through Serial, but said the court “did not listen to the Serial podcast because the audio program is not part of the evidentiary record.”
Three big procedures remain. First, Syed is now eligible to seek release pending the new trial. It’s impossible to predict at this point how such a request would be received. Second, the State has the right to appeal the decision vacating the conviction and granting a new trial, and it has said it will do so. Finally, even if the decision is upheld, Syed has achieved a new trial, not an acquittal. So, there remains the prospect of yet another full trial on the merits—although, given the time that has passed since the murder and the years Syed has already spent in prison, the case seems ripe for some sort of plea arrangement.