Lawyers for Syed file separate appeal over alibi witness Asia McClain

By Diane Herbst
Updated August 12, 2016 02:15 PM
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Credit: Karl Merton Ferron/Baltimore Sun/TNS/Getty

Defense attorneys for Serial podcast subject Adnan Syed are fighting the Maryland attorney general’s appeal of a ruling that vacated Syed’s 2000 murder conviction for the murder of his ex-girlfriend and ordered him a new trial.

In an application for a cross appeal filed Thursday, Syed’s defense attorneys also say that if the Court of Special Appeals decides to hear the state’s appeal, they want to appeal a separate aspect of the ruling by Judge Martin Welch concerning an alibi witness, Asia McClain.

McClain testified at a February 2016 hearing that she was with Syed at a library during the time prosecutors allege Syed murdered Hae Min Lee on Jan. 13, 1999.

The defense team argues that the failure of Syed’s original defense attorney, Maria Gutierrez, to contact McClain before Syed’s trial should have been a reason for Welch to grant Syed a new trial.

Welch said in his June 30 ruling that McClain’s testimony – while it could have contradicted the state’s theory that Syed murdered Lee between 2:15 and 2:36 p.m. – was not reason enough to vacate his sentence.

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Instead, Welch granted Syed a retrial based solely on Gutierrez’s failure to cross-examine the prosecution’s cell tower expert about a fax cover sheet, supplied by AT&T, which stated that cell tower records are unreliable for tracking incoming calls.

Prosecutors have used those incoming-call records to allegedly place Syed at a Baltimore park around 7 p.m. on the day of Lee’s disappearance – and around the time that prosecution witness Jay Wilds said Syed was burying Lee. (Her body was found in the park about a month later.)

“The state wants to appeal the cell tower issue, upon which the new trial was granted, and we would want to appeal the alibi issue,” Syed’s lead attorney, Justin Brown, writes on his website, where he posted a copy of the cross appeal.

There is no timetable for a decision on the appeal requests.