Yesterday, a Baltimore City judge ordered a new trial for Adnan Syed, who was convicted of murdering 17-year-old Hae Min Lee in 1999. Syed’s case was popularized by the hit podcast Serial which raised questions about the case against him.
Adnan Syed has been granted a new trial. Judge Welch's order: https://t.co/Io4HRRNWLt pic.twitter.com/CzT4LK2w79
— Serial (@serial) June 30, 2016
Despite the judge’s order, however, it is unlikely there will ever be a new trial.
The prosecution said it will appeal the judge’s order for a new trial. But assuming that appeal is unsuccessful, the prosecution will have three options: 1. Put on an entirely new trial, 2. Negotiate a plea agreement with Syed, or 3. Dismiss the case.
The memorandum by Judge Martin P. Welch explaining his decision, however, reveals why successfully convicting Syed in a new trial will be difficult, if not impossible.
The original conviction of Syed in 2000 was based on two main factors: 1. The testimony of Syed’s friend, Jay Wilds, who says he helped Syed bury the body, 2. Evidence from cell phone records the prosecution argued supported Wilds story.
The new trial was granted based on the failure of Syed’s original attorney, Christina Gutierrez, to cross-examine the state’s cell phone expert about a fax cover sheet that warned the data could not be used to accurately pinpoint the location of a cell phone.
The fax cover sheet would make it difficult for the state to persuasively introduce the cell phone evidence at a new trial. That leaves prosecutors with Wilds’ testimony. But Wilds’ testimony is a mess and, as Judge Welch points out, completely inconsistent with the timeline prosecutors presented at trial or a new timeline that prosecutors suggested during the appeal.
Wilds testimony, from the beginning, contradicted itself. And, in interviews he gave after the Serial podcast, has changed his story again.
In other words, a retrial would have to rely even more heavily on Wilds’ testimony, which is inconsistent with both the state’s timeline and with his own prior and subsequent accounts of the night in question.
The prosecutors have said they would appeal the order granting a new trial. If they were to win that appeal there would be no new trial. If they lose, they would face a decision to put on a trial where Wilds’ testimony and the cell phone evidence could likely be discredited.
The defense could also present Asia McClain, who is an alibi witness. Judge Welch rejected the argument that the failure of Syed’s attorney to contact McClain justified a new trial. But now that a new trial has been granted on other grounds, McClain could be called to testify.
None of this really speaks to whether Syed is actually innocent or guilty. But it seems unlikely that prosecutors would want to put on a new trial with these challenges.
Alternatively, prosecutors could seek a plea deal in exchange for the 16 years that Syed has already served. If Syed did not want to admit some guilt, one possibility is an Alford plea, where the defendant maintains his innocence but admits there is enough evidence for a jury to find him guilty. The benefit of such a plea in exchange for time served is that it would remove the possibility of Syed being convicted again.
Beyond the specific legal machinations of this case, the fact that a judge found serious errors in Syed’s original defense after he has already spent 16 years in jail is significant.
Syed was not represented by a well-respected private defense attorney. Still it took 16 years and two hit podcasts to help him get a new trial. The fax cover sheet was not covered in Serial but by another podcast inspired by Serial, Undisclosed, which was produced by Syed’s legal team and other advocates.
Ultimately, Syed may win his freedom.
But most people behind bars don’t have the benefit of a podcast that captures the national imagination, much less two. How many people are behind bars right now who received an inadequate defense but do not have the ear of Sarah Koenig, talented attorneys and millions of Americans?