Serial’s Adnan Syed: doubts over cellphone evidence central to retrial

The decision to grant a new trial to Adnan Syed, the subject of the podcast Serial, centres on an unearthed document that casts doubt on cellphone evidence used by the state of Maryland to secure his murder conviction 16 years ago.

At the time, prosecutors said records from the telecoms corporation AT&T placed Syed’s cellphone in or around Baltimore’s Leakin Park on the evening his ex-girlfriend, Hae Min Lee, disappeared. Her body was discovered in the park almost a month later.

Those AT&T records said Syed’s phone “pinged” a cellphone tower covering the park and nearby areas during calls he received at 7.09pm and 7.16pm on 13 January 1999. They were described by Syed’s current attorney as “the pillar of the state’s case” against him.

But the cover sheet on the records faxed to Baltimore police by AT&T contained an important warning in small type. “Outgoing calls only are reliable for location status,” it said. “Any incoming calls will NOT be considered reliable information for location.”

In a court motion filed last August, Syed’s attorney, C Justin Brown, said the disclaimer should have barred prosecutors from using the cellphone records. Brown said the misuse of the records in the face of the “unambiguous warning” on AT&T’s cover sheet – and the failure of Syed’s original lawyer to do anything about this – amounted to prosecutorial misconduct and a denial of Syed’s right to due process.

“It would be a miscarriage of justice, furthermore, to allow Syed’s conviction to stand when this evidence was used to obtain the conviction,” said Brown, requesting that the case be reopened. Syed, now 35, is serving a life sentence.

In his ruling on Thursday, judge Martin Welch denied the Syed team’s claim that prosecutors committed misconduct in their use of the cellphone records. But Welch agreed that a failure to cross-examine a government expert on the reliability of the records meant Syed’s original lawyer, Christina Gutierrez, had not represented him adequately. Welch scrapped Syed’s conviction and ordered a new trial.

The critical fax cover sheet was discovered by Susan Simpson, a Washington-based attorney and contributor to Undisclosed, a second podcast about Syed’s case that advocates for his innocence. Prosecutors tried to dismiss its relevance by calling as a witness an FBI agent who said phone records were still used in the same way today.

But Syed’s team argued that the AT&T disclaimer undermining the cellphone tower records was doubly important because prosecutors had also used the records to dismiss the relevance of a second key piece of new evidence that he wanted considered.

A contemporary of Syed’s, Asia McClain, told the producers of Serial that she remembered being with Syed in a public library at the time prosecutors said the murder took place. This alibi was brought to the attention of Gutierrez, Syed’s original lawyer, but McClain was never contacted. Gutierrez was later disbarred and died in 2004.

The value of McClain’s testimony was shot down by prosecutors during Syed’s original appeals, his attorney noted in last August’s motion. Even if McClain gave him the alibi, they said, “it wouldn’t explain why he’s in Leakin Park … at 7.00 on the night that Hae Min Lee is murdered. That is the strength of the case.”

Prosecutors have long argued that Gutierrez, Syed’s original attorney, made a strategic decision not to call McClain as a witness because it did not fit her wider defence of Syed. In his ruling on Thursday, Welch sided with the prosecutors on this issue, denying Syed’s motion that Gutierrez’s failure to use McClain amounted to ineffective assistance of counsel.

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