In Serial subject's bid for new trial, an ex-prosecutor endorses the word of a potential witness who was never called

By Jeff Truesdell and Diane Herbst
Updated February 05, 2016 06:05 PM
Credit: Courtesy of Yusuf Syed/AP Photo

Fueling the hopes of Serial subject Adnan Syed to win a new trial after he was found guilty of murdering his ex-girlfriend in 2000, a former prosecutor testified that the failure of Syed’s original lawyer to pursue an alibi witness “takes away the confidence in the verdict.”

Dave B. Irwin, a former U.S. attorney who is now a Maryland criminal defense lawyer, took the stand in a Baltimore courtroom where Syed’s new defense team hopes to convince a judge the verdict that locked Syed in prison 16 years ago was tainted by inept legal representation. (The hearing will continue through at least Monday.)

At issue is an alibi witness, Asia McClain, who says she was with Syed in a library during the time prosecutors contend Syed killed his ex-girlfriend, Hae Min Lee, in 1999, before Syed and a friend allegedly buried her body in a wooded Baltimore park.

McClain has provided letters and affidavits suggesting she offered herself as an alibi witness, but she was never contacted by Syed’s original defense attorney, Christina Guitierrez, who has since died.

Irwin, who took the stand for Syed’s current defense, said McClain’s testimony could have been “game changing” had Gutierrez contacted her.

“If you have a credible alibi witness, that is the best defense you can have,” said Irwin.

Irwin cited earlier testimony that revealed Gutierrez was aware of McClain, and that McClain, along with her then-boyfriend and another friend, all said they had seen Syed at the library on the afternoon that prosecutors contend the murder occurred. Irwin also noted that McClain, in offering herself to Syed as a witness, had said surveillance cameras at the library could back up her statements.

“That is important,” Irwin said. “That adds credibility to Asa McClain’s claims – that she thinks there is a system in place.” (Another witness testified, on behalf of the library, that video surveillance was in place but recordings were erased after 30 days before anyone could have accessed them for use in the case.)

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Syed’s defense attorney C. Justin Brown asked about the fact that, in a letter to Syed offering to help after his arrest, McClain also included phone numbers where she could be reached.

Said Irwin: “It shows she is ready, willing and available to be talked to and put herself on the line to tell what she believes is the truth.”

He called McClain’s statement’s “powerfully credible.”

McClain testified during the current hearing that she did not realize the importance of her observation and timeline until after the Serial podcast aired in 2014. She said she had not pushed to be heard earlier because she assumed the prosecution had a strong case agains Syed. She also said she grew angry when she learned that her later statements to a prosecutor were misinterpreted.

Syed’s current attorneys are counting on McCain’s revived statements, along with criticism of Gutierrez’s defense – testimony suggests her health and abilities were failing at the time she represented Syed – to win a retrial.

Although prosecutors now suggest McClain’s written statements may indeed have been considered and dismissed by Gutierrez, Irwin countered: “I can’t think of a reason not to speak to a live alibi witness.”

“Now we know Asia McClain is a fabulous witness, credible, intelligent,” he said. “She would have changed the result, it’s pretty obvious to me.”

Asked to comment on what he knows of Gutierrez’s investigation and earlier defense, he added: “My opinion is her performance, sadly, was well below the limit required.”

Earlier today, defense witness Sean Gordon, an investigator hired to contact a list of alibi witnesses compiled by Gutierrez, told the court that of 83 names on the list, he was able to speak with 41 of them. And of those 41, Gutierrez or her team had made contact with four. And of those four, asked defense attorney Christopher Nieto, how many were asked to be an alibi witness?

“None,” Gordon said.