My First Take on COSA’s Opinion Affirming a New Trial for Adnan Syed

Today, the Court of Special Appeals of Maryland issued an opinion affirming Judge Welch’s order granting Adnan Syed a new trial. It was a split decision, with two judges — Chief Judge Woodward and Judge Wright — affirming Judge Welch’s order and one judge — Judge Graeff — dissenting. Judges Woodward and Wright, however, reversed Judge Welch’s reasoning, finding that (1) the cell tower issue was waived; and (2) Cristina Gutierrez’s failure to contact alibi witness Asia McClain was prejudicial, meaning that contacting her would have created the reasonable probability of a different outcome at trial.

The opinion by Judges Woodward and Wright isn’t a declaration that Adnan is actually innocent, but it does a pretty good job of showing the weakness of the State’s case against him at trial.

Judges Woodward and Wright didn’t reject Judge Welch’s conclusion that evidence connected to Hae’s burial was the crux of the prosecution’s case, but did find that

the State had to establish that Syed “caused the death” of Hae, and the State’s theory of when, where, and how Syed caused Hae’s death was critical to proving this element of the crime.

And, on that front, the judges found the State’s case lacking:

With little forensic evidence, the case was largely dependent on witness testimony of events before and after Hae’s death. Testimony of these witnesses often conflicted with the State’s corroborating evidence, i.e., the cell phone records and the cell tower location testimony by its expert, Waranowitz. The State’s key witness, Wilds, also was problematic; something the State readily admitted during its opening statement. Wilds had given three different statements to police about the events surrounding Hae’s death.

The State’s case was weakest when it came to the time it theorized that Syed killed Hae. As the post-conviction court highlighted in its opinion, Wilds’s own testimony conflicted with the State’s timeline of the murder. Moreover, there was no video surveillance outside the Best Buy parking lot placing Hae and Syed together at the Best Buy parking lot during the afternoon of the murder; no eyewitness testimony placing Syed and Hae together leaving school or at the Best Buy parking lot; no eyewitness testimony, video surveillance, or confession of the actual murder; no forensic evidence linking Syed to the act of strangling Hae or putting Hae’s body in the trunk of her car; and no records from the Best Buy payphone documenting a phone call to Syed’s cell phone. In short, at trial the State adduced no direct evidence of the exact time that Hae was killed, the location where she was killed, the acts of the killer immediately before and after Hae was strangled, and of course, the identity of the person who killed Hae. (emphasis added).

The State’s weaknesses on these fronts therefore allowed the judges to conclude as follows:

It is our opinion that, if McClain’s testimony had been presented to the jury, it would have “alter[ed] the entire evidentiary picture,” because her testimony would have placed Syed at the Woodlawn Public Library at the time the State claimed that Syed murdered Hae….Such testimony would have directly contradicted the State’s theory of when Syed had the opportunity and did murder Hae. The State even implicitly conceded the strength of McClain’s testimony and its potential impact on the jury when it attempted to present a new timeline for the murder at the second hearing. The post-conviction court aptly noted that the new timeline “would [have] negate[d] the relevance of the potential alibi.” 

What’s interesting is that the State’s attempt to shift the “come and get me” call from 2:36 P.M. to 3:15 P.M. came back to bite it again…because the judges found this attempt only underscored the importance of Asia McClain’s alibi testimony and the prejudice caused by Cristina Gutierrez’s failure to contact her.

So, what’s next? As noted by Steve Klepper:

-The State can file a motion for reconsideration with the Court of Special Appeals within 30 days (April 30);

-On April 30, if there has been no motion for reconsideration, the Court of Special Appeals will issue its mandate, which will make its opinion final;

-Within 15 days after the mandate issues, the State can file a petition for certiorari with the Court of Appeals of Maryland, which is the state’s highest court. Assuming the mandate issues on April 30, that deadline will be May 15;

-Syed will have 15 days to file a conditional cross-petition on any issues where he lost;

-There are seven active judges on the Court of Appeals, and it takes three votes to grant cert for the court to allow the State to appeal (or two if multiple judges recuse themselves.

If the Court of Appeals doesn’t grant cert, the order granting a new trial takes effect and there will be a new trial, a decision not to re-prosecute, or a negotiated plea deal.

-CM