UPDATE: This article was originally published in July 2016 and addresses the decision by Judge Welch to vacate Syed’s conviction. The State of Maryland ultimately appealed the ruling to the Maryland Court of Appeals and won in March 2019. Syed’s conviction was reinstated and he was not granted a new trial. The U.S. Supreme Court declined to take his case in November 2019.
In March 2022, a new Maryland law was introduced that gave prosecutors the discretion to modify the sentences of offenders who were under 18 at the time of the crime and had served at least 20 years in prison. Syed’s case was finally reviewed, leading prosecutors to request the conviction be overturned.
Adnan Syed walked free on September 19, 2022, after serving 23 years in prison. He always maintained his innocence.
Serial, a multi-episode nonfiction podcast hosted by investigative journalist Sarah Koenig, featured Syed’s case in its inaugural season in 2014. Since then, the episodes discussing Syed’s case have been downloaded over 80 million times. Thus making Serial one of the most listened-to podcasts of all time.
Public attention aside, what may be interesting to the legal community is why the court granted Syed a new trial. The reasoning centers on inadequate cross-examination of a key expert witness by Syed’s defense attorney Cristina Gutierrez.
At the time of Syed’s trial, Gutierrez was a widely respected criminal defense attorney who had represented numerous high-profile defendants. However, just over a year after she represented Syed, Guitierrez agreed to her disbarment by the Maryland Court of Appeals. In a 2001 Baltimore Sun article, she cited health concerns and stated, “I am not physically able to keep practicing.”
Questions about the efficacy of Gutierrez’s defense were the main focus of Serial’s tenth episode.
In his decision to grant Syed a new trial, Judge Martin P. Welch found that the defense attorney’s oversight in cross-examining the expert witness fell short of the standard of reasonable professional judgment, and constituted ineffective assistance in violation of the defendant’s Sixth Amendment rights. On these grounds, the judge granted Syed relief and his conviction for the murder of Hae Min Lee—his ex-girlfriend—was set aside.
On January 13, 1999, the family of Hae Min Lee, a Baltimore high school senior, reported her missing. Nearly a month later, in February of 1999, a passerby discovered Lee’s body in Leakin Park. She died from manual strangulation.
After the passerby discovered Lee’s body, Baltimore police received an anonymous call that implicated Adnan Syed in her murder. Police investigated call records for Syed’s cell phone and questioned a woman, Jen Pusateri. Pusateri had received repeated calls on the day of Lee’s disappearance. Jen claimed that a friend, Jay Wilds, had called her and told her that Syed had killed Lee.
Police subsequently questioned Wilds, who said he had assisted Syed in disposing of Lee’s body and her car. Police then arrested and charged Syed with first degree murder, second degree murder, kidnapping, robbery, and false imprisonment.
At trial, the prosecution argued that the Syed killed Lee out of jealousy over Lee’s new relationship. Wilds testified that on the morning of January 13, Syed called Wilds, picked him up in his car, and drove to the mall for an hour. They then drove to Syed’s school, whereupon Syed left his car and his cell phone with Wilds. Syed told Wilds he would call him later for a ride. Wild then drove to Pusateri’s.
At some point in the afternoon, Wilds received a call from Syed from a pay phone in a Best Buy parking lot. Wilds drove Syed’s car to the Best Buy parking lot. Syed opened the trunk of Lee’s car and showed Wilds Lee’s body. He told Wilds that he had strangled Lee.
Syed and Wilds abandoned Lee’s car, with her body inside, at a Park & Ride. Syed and Wilds received a couple of calls from Lee’s family and from the police regarding Lee’s whereabouts. They then decided to return to Lee’s car to dispose of the body and the car more thoroughly. They obtained shovels and buried Lee’s body in Leakin Park. Wilds testified that Syed received two incoming phone calls at around 7 p.m. while burying Lee’s body in the park.
The Expert Witness
To corroborate Wilds’ testimony, the prosecution presented the call records from Syed’s cell phone. The prosecution also brought in an expert witness, Abraham Waranowitz, to present testimony on call records and cell phone sites.
Waranowitz was an impressive expert witness. He was a senior radio frequency engineer who worked for AT&T in the Baltimore area. Additionally, he had extensive experience analyzing wireless communication networks.
The prosecution presented several call records for Syed’s phone, but the critical evidence was two incoming calls at 7 p.m. This was when Syed was alleged to have been in Leakin Park burying Lee’s body. The prosecution’s cell tower expert, Waranowitz, testified that the two 7 p.m. calls were connected to a cell site that covered Leakin Park. From the expert’s testimony, the jury could infer that Syed was at the burial scene at the time Wilds specified.
Here’s where Syed’s case gets interesting for trial lawyers.
This case was, notably, one of the first to use cell phone records to geographically locate individuals in a criminal case.
At the time, the technology for geographically locating individuals via cell sites was new and unreliable. In fact, the cell phone records provided for the case came with an explicit disclaimer on a cover sheet. It stated that incoming calls should not be considered reliable information for location. The cover sheet also included instructions on how to read the “subscriber activity report.”
This cover sheet and disclaimer were available to both the prosecution and the defense, but the defense never cross-examined the state’s cell tower expert about the disclaimer of unreliability. The defense’s failure to challenge the expert’s testimony on these grounds left a major pillar of the case against Syed intact; that he was in Leakin Park the night that Lee was killed.
The court found that this failure was enough to render Gutierrez’s performance as Syed’s defense counsel deficient. In its decision, the court said, “Under these circumstances, a reasonable attorney would have carefully reviewed the documents disclosed as part of pretrial discovery, including the set of instructions and disclaimer provided by AT&T on how to correctly interpret cell phone records. If the State advanced a theory that contradicted the instructions or disclaimer, a reasonable attorney would have undermined the State’s theory through adequate cross-examination.”
Gutierrez’s focused the cross-examination of the state’s cell tower expert primarily on discrediting his testing methodology. She asked the expert about the tests he conducted from the burial site in Leakin Park. Whether he tested the calls under the same weather conditions, and whether he conducted the tests with the same kind of cell phone. Defense counsel also cross-examined the expert about Syed’s subscriber activity report, but only asked about call times and duration. There was no mention of the disclaimer.
By failing to confront the cell tower expert about the disclaimer, the court said that trial counsel “allowed the jury to deliberate with the misleading impression that the State used reliable information to approximate the general location of Petitioner’s cell phone at the time of burial.” Since a reasonable attorney would subject a misleading theory to an adversarial challenge, Syed’s trial counsel fell short of the standard of reasonable professional judgment.
The Court’s Decision
The court also found that Gutierrez’s failure to cross-examine the expert prejudiced Syed’s defense. Prejudice can be shown if there is a reasonable probability that the result of the trial would have been different but for trial counsel’s inadequate performance. The court stressed that the focus, however, is not on whether Syed can show that the jury would not have convicted him, but whether his trial was fundamentally unfair or reliable.
The crux of the State’s case against Syed was proving that he was at Leakin Park when he received the 7 p.m. phone calls. The prosecution stated this in their opening statement, closing statement, and rebuttal. In its decision, the court pointed to repeated references by the prosecution to demonstrate how central this theory was to the case against Syed.
The court also noted how much influence scientific expert testimony can have on a jury of laypersons. The testimony of the cell tower expert Waranowitz was likely given substantial weight by the jury, especially in light of his impressive credentials.
As it turns out, Waranowitz was unaware of the disclaimer himself when he testified. In pursuing post-conviction relief, Syed’s attorneys submitted an affidavit from Waranowitz in 2015. Waranowitz stated that he never saw the disclaimer before he testified, and that had he known, he would’ve looked further into the issue. He stated that the disclaimer would have affected his testimony if he had known about it. He further stated that he would not have “affirmed the interpretation of a phone’s possible geographical location until I could ascertain the reasons and details for the disclaimer.”
The Importance of the Cross-Examination of Expert Witnesses
Syed’s case highlights how critical a thorough cross-examination of expert witnesses can be. The issue centers around a disclaimer that is merely one sentence long. One sentence, however, that proved essential to the case because it directly controverts the prosecution’s theory and the testimony of the expert witness.
It remains to be seen how Syed’s case will develop. The state has 30 days to appeal the court’s June 30 decision to vacate Syed’s conviction and grant a new trial. An appeal could drag out the process and push back a retrial another year. The Maryland Attorney General’s office has said that it will defend the conviction and has suggested that it will appeal the decision, but the state could also move forward with the new trial and file new charges.
Until the state makes a move, however, Syed’s attorneys are currently working towards releasing him on bail.
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