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‘Serial’ Podcast Subject’s Alibi Appeal Could Get SCOTUS Look

Nov. 18, 2019, 9:53 AM

The briefs are in for “Serial” podcast subject Adnan Syed’s Supreme Court petition, and now the justices will weigh whether to take his case. It’s one that could produce a significant decision for other convicts claiming innocence and for how courts across the country review ineffective assistance of counsel claims.

Though the 2014 hit podcast raised questions about Syed’s guilt, his appeal aims at a more discrete legal issue than the question of whether he killed Baltimore County high school classmate and ex-girlfriend Hae Min Lee in 1999.

Rather, Syed argues that a Maryland state court ruling against him undermines the Sixth Amendment right to counsel, due to the idiosyncratic way that the court analyzed his trial lawyer’s failure to pursue his alibi.

Outside groups have lined up behind Syed’s bid to upend his life sentence and get a new trial, raising wrongful conviction and other concerns.

“Wrongful convictions are often due to ineffective assistance by a defendant’s trial counsel, and so this case could have a really serious effect on claims of actual innocence,” said Elaine J. Goldenberg, a partner at Munger, Tolles & Olson LLP and veteran Supreme Court advocate who’s lead counsel on one of the outside briefs supporting Syed. The state declined comment, citing the ongoing litigation.

The justices are set to discuss the case for the first time at their private conference on Nov. 22. Four of the nine justices need to agree to hear an appeal.

Sixth Amendment Approach

Syed’s appeal deals with the proper standard for evaluating ineffective assistance of counsel claims.

Under the Supreme Court’s landmark 1984 decision Strickland v. Washington, courts take a two-step approach. They ask if a lawyer’s representation was deficient, and, if so, whether the defendant was prejudiced by the deficiency.

Syed says that his trial lawyer’s failure to investigate his alibi fell below that standard on both counts.

The alibi was another classmate, Asia McClain. She said that she talked to Syed at the library near school at the same time that prosecutors said Lee was killed. McClain wrote to Syed, saying she could provide an alibi. Syed told his lawyer, but the lawyer never contacted McClain. The jury never heard from her.

Nonetheless, the Court of Appeals of Maryland ruled against Syed, finding deficiency but not prejudice.

Yet he argues that it did so using a faulty analysis that’s out of step with other courts.

Instead of reviewing the lawyer’s performance in the context of the state’s theory of the case, the Maryland court “hypothesized a different case, one where the jury rejected the State’s theory of the time of Lee’s death in favor of some unpresented and unknown alternative timeline,” Syed says in his petition, filed by a team of lawyers led by noted appellate advocate Catherine E. Stetson of Hogan Lovells US LLP.

Other courts across the country “compare the case that the State actually presented at trial with the case that the defendant would have presented if his attorney had been effective,” he says.

But Maryland officials say the state court didn’t use the wrong analysis—it just reached a result Syed doesn’t like.

The court “correctly concluded that there was no prejudice because the State’s case did not hinge on the time of the victim’s death, and the partial alibi testimony did not rebut any of the circumstantial evidence of Syed’s motive and opportunity to kill Lee,” officials said in their brief opposing Supreme Court review.

Syed “harbored animosity toward Lee” for ending the relationship, they said, citing state witness testimony that he said he was “going to kill that bitch.”

The case is Syed v. Maryland, U.S., 19-227.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at