Adnan Syed’s Freedom Is at Risk Due to Hearing’s Short Notice

Please take everything I say with a grain of salt. Lawyers are supposed to be cynical, and I believe Adnan Syed is innocent.

Syed, who was featured in the 2014 hit podcast “Serial,” saw his murder conviction reinstated on March 28 as murder victim Hae Min Lee’s brother won an appeal that vacated a Baltimore court’s decision to release Syed from prison.

I’ve authored amicus briefs supporting Syed in the past. I also believe in victims’ rights. Vagueness in the statute and rules for vacatur hearings led to undue further trauma to Hae Min Lee’s family—when the Baltimore City Circuit Court vacated Syed’s conviction on notice so short that her brother, Young Lee, could attend only by Zoom, which he argued violated victims’ constitutional and statutory rights.

Let me explain why I’m disheartened that, on Lee’s appeal, the Appellate Court of Maryland has ordered Syed’s conviction reinstated in favor of a new vacatur hearing.

Syed was in jail and prison from age 17 to 41. The state’s only theory of motive was the cultural stereotype of “honor killing” in some Muslim communities. In 2019, the Supreme Court of Maryland held 6-to-1 that Syed’s defense counsel was constitutionally deficient in failing to investigate an alibi. But it also held, 4-to-3, that there was no resulting prejudice to Syed. The state had barely argued that point in its brief and did not raise at oral argument.

When Lee appealed the 2022 vacatur order, the state initially told the appellate court that “the State’s Attorney’s decision to nol pros the charges against Syed while Mr. Lee’s appeal was pending likely renders the appeal moot.” When the court ordered full briefing on mootness, Lee’s brief devoted three pages to mootness doctrine, and the attorney general (who disagreed with the state’s attorney) devoted two.

At oral argument, Lee’s attorney announced he did not intend to argue mootness but would field any questions. Judge Stuart Berger, who headed the Baltimore City Circuit Court’s criminal docket when a trial judge, said, “That’s your choice.” The appellate court rigorously holds appellants to their burden of presenting argument and authority for reversal.

When Judge Berger asked about mootness, Lee’s counsel responded, “Our position is that it’s not moot, but … it essentially makes no difference whether the Court decides whether it is moot or it isn’t.”

Judge Berger followed up: “It makes all the difference in the world, in my view. If the case is moot, and we consider it for public interest anyway, that addresses future cases, but not Mr. Lee’s.” Exceptions to mootness doctrine allow appellate courts to announce principles to guide future cases, even when the appellant no longer has a right to personally vindicate.

Those exceptions usually arise in constitutional cases. But these are problems that rule changes could address. Indeed, there have been several occasions when I’ve proposed rule-changes after my client suffers because of uncertainty in the rules.

But yesterday the appellate court ordered Syed’s conviction reinstated by a vote of two to one, with Judge Berger dissenting. The court devoted 12 pages to finding the appeal was not moot, with far more authority and analysis than the appellant presented for reversal.

I have the greatest respect for the judges in the majority, and still I tend to agree with Judge Berger’s dissent: “In no way do I intend to minimize the pain suffered by Mr. Lee and by all crime victims and their families, and I recognize the important protections granted to victims and victims’ representatives under the Maryland Constitution and by statute.” Still, “the procedure afforded to Mr. Lee in this case was sufficient to satisfy the requirements of the applicable statute.”

It is “for the General Assembly to impose more specific requirements regarding the timing of notice to victims and victims’ representatives for vacatur hearings if it is inclined to do so. Similarly, the Rules Committee could recommend and the Supreme Court could adopt more specific requirements.”

Once again, however, Syed finds himself on the losing end by one vote. Back in 2019, Justice Michele Hotten authored the three-justice dissent, pointing out how much Syed lost when his defense counsel did not investigate a potential alibi witness, Asia McClain: “The State posited that Ms. Lee was killed between 2:15PM and 2:35PM.”

McClain “offered to testify, and offered multiple corresponding affidavits, that she and her boyfriend at the time saw and spoke with Mr. Syed at the Woodlawn Public Library at the time the State contends that Mr. Syed killed Ms. Lee.”

There was no evidence “offered by the State that would have refuted Ms. McClain’s testimony and affidavits.” Instead, the state posited that, had it known of McClain’s alibi testimony, it could have proven a different time of death.

No jury has ever considered the state’s alternate theory of when Lee was killed. Investigation after 2019 revealed several more pieces of evidence, presented in the 2022 motion for vacatur, undermining the state’s theory and pointing to potential alternative suspects.

I’m not asking anyone to agree with me that Syed is innocent, but I’ll still explain why. Back in 2018, the appellate court ordered a new trial for Syed. An HBO documentary, “The Case Against Adnan Syed,” revealed that, while the state’s challenge was pending in the Supreme Court of Maryland, Syed asked for DNA testing.

At that time, he was the prevailing party, and the appellate court is affirmed in about two-thirds of criminal cases. There was no rational reason for Syed to ask for DNA testing if he were guilty. It would either be inconclusive or inculpatory. Guilty defendants, unless they’re completely irrational, ask for DNA testing only after exhausting every other challenge.

Yesterday’s decision is not likely to be the end. Syed still can seek discretionary review in the Supreme Court of Maryland. Or he may well prevail again in a second hearing. And yet the appellate court’s decision remains disheartening.

The case is Lee v. State of Maryland, Md. Ct. Spec. App., No. 1291, 3/28/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Steven Klepper is principal at Kramon & Graham’s appellate practice where he handles civil and criminal cases before federal and state appellate courts.

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