Adnan Syed, Subject of 'Serial,' Asks for Another Appeal

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By Mark Wilson, Esq. on January 14, 2015 3:39 PM

Adnan Syed, the subject of "Serial" -- the podcast that took the world by storm last fall -- might get some relief from the Maryland Court of Special Appeals.

Even though Syed was convicted of the murder of fellow high school student and ex-girlfriend Hae Min Lee in 2000, and long ago exhausted his appeals, the podcast -- which reached the milestone of 5 million downloads faster than any other in iTunes history -- reignited interest in the case.

Ineffective Assistance of Counsel

Syed's application was actually filed last January. It alleges that his trial attorney Christina Gutierrez provided ineffective assistance of counsel (IAC) by telling Syed that she'd passed along his request for a plea agreement, when she never had. It also claims that Gutierrez failed to investigate a witness who said she saw Syed in the local library at about the time the prosecution said he was murdering Lee.

The Maryland Special Court of Appeals asked the state attorney general to respond to the claim that Gutierrez never communicated Syed's request for a plea agreement. The state's response, filed yesterday: He never asked for a plea agreement and never considered pleading guilty. Kevin Urick, the prosecutor in the original case, testified in a 2010 hearing that he never offered a plea deal and Gutierrez never asked for one. Nor was there ever any indication that Syed wanted to do anything but go to trial and prove his innocence, he said.

IAC is extremely difficult to prove. Defense lawyers are given a lot of latitude in making strategic decisions for their clients, and courts are wary of second-guessing them. Proving IAC requires showing not only that a lawyer's conduct fell to a constitutionally low standard, but also that, if the lawyer hadn't acted that way, there's a "reasonable probability" the outcome would have been different.

It's this second prong that stands in Syed's way, as it does for many defendants. The state pointed out in its response that Syed can't show that, even if Gutierrez had asked for a plea bargain, the state would have offered one, or that Syed would have agreed, given his insistence the entire time that he was innocent.

Also Some DNA Testing

At the same time, the popularity of "Serial" garnered the involvement of the Innocence Project at the University of Virginia School of Law. Professor Deirdre Enright is set to petition the Maryland State's Attorney's Office to analyze crime scene evidence that wasn't DNA-tested back in 1999. This includes hairs not belonging to the victim, some fingernail clippings, and a rope found next to Lee's remains. Enright posited on the final episode of "Serial" that DNA testing of this evidence could reveal alternate suspects.

There's no indication when either the appeal or the DNA testing application will be resolved.

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