5 Things I Learned From Reporting On Adnan Syed’s Post-Conviction Hearing

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Like millions of others, I became utterly hooked on the Serial podcast almost immediately after it made its first-season debut in October 2014. Over the course of 12 episodes, host Sarah Koenig told the story of Adnan Syed, a then-17-year-old Baltimore high school student who was convicted of murdering his ex-girlfriend, Hae Min Lee, in 1999. Syed has never wavered in maintaining his innocence as he participated in the podcast and Koenig reexamined the evidence against him. In the end, Koenig — and some listeners — were torn about whether he was innocent or guilty.

I, admittedly, was not. My gut told me Syed was innocent, but more than that, I was unimpressed with the alleged “evidence” against him, and my wariness of the criminal justice system had me doubting its authenticity altogether. My obsession with the case only grew after I began listening to an unaffiliated followup podcast called Undisclosedhosted by Rabia Chaudry, a family friend of Syed’s who has been his biggest advocate, as well as two accomplished lawyers, Susan Simpson and Colin Miller, who became obsessed with the case through Serial. Working their way through the actual police, prosecution and defense files, Undisclosed investigated the investigation into Lee’s death and Syed’s eventual arrest, and discovered new evidence that finally, at long last, helped Syed get a shot at winning a retrial.

On February 3, 2016, Syed and his defense team appeared before Judge Martin Welch in a Baltimore Circuit Courtroom for the first of what would be a five-day post-conviction hearing. Facing off against Maryland Deputy District Attorney Thiru Vinarajah representing the prosecution, the defense was allowed to present two key pieces of new evidence — testimony from an alibi witness named Asia McClain and documentation that indicated the cellphone analysis used in his 2000 trial was unreliable — in hopes of having his conviction overturned and a retrial granted.

I was lucky to be able to go down to Baltimore to report on the hearing for The Frisky, posting exhaustive daily recaps of the proceedings. I made no secret of my “bias” – if that’s what you want to call “examining the facts and concluding that there was no reliable evidence of guilt” – which made the whole experience a unique one for me, and unusual within the genre of court reporting. It was a fascinating, exhausting, overall incredible experience. Here are some things that I learned:

1. “Objections” are annoying – even when they have a point. One of the reasons I’ve never been a football fan is because of the constant interruptions throughout the game. Things are just starting to get into a good groove, the action is becoming more exciting and then BAM! Someone calls a timeout or there’s a flag or a false start.

The same can be said for when an attorney gets objection-happy during a court proceeding. Some background: The first day of Syed’s post-conviction hearing featured testimony from Phil Dantes and Bill Kanwisher, who had professional and personal relationships with Syed’s defense attorney from his 1999-2000 trials, Cristina Gutierrez. Syed’s current defense team — C. Justin Brown and Chris Nieto — called them to testify about their impressions of Gutierrez’s failing health from MS and its impact on her abilities as a lawyer, to provide context for their argument that she provided Syed ineffective assistance of counsel.

Well, Maryland Deputy District Attorney Thiru Vignarajah really did not want this kind of background information to be taken into consideration and objected constantly to Brown’s questions for both of these witnesses. It was maddening because, frankly, I wanted to hear their answers, but unfortunately, Judge Martin Welch sustained many of them, which meant that Brown had to rephrase or move on. Now, it turns out that there were some decent legal reasons for that — asking a witness to speculate about someone’s health or state of mind, for example, is a no-no. While Vignarajah still objected, Judge Welch did permit Brown to ask Dantes and Kanwisher what they observed about Gutierrez’s behavior.

So yeah, on that first day of the hearing, I thought I would go insane if I heard the word “objection” one more time — but I also learned that objections often serve a purpose beyond just driving me bonkers.

2. Mobile phone tracking is basically garbage evidence. And yet, analysis of cell phone records in determining locations and tracking a suspect is widely used by prosecutors and has contributed to a countless number of convictions (and who knows how many of those are wrongful). This continues despite many experts and newspaper articles calling it “junk science.” The State’s case against Syed, for example, used cell tower analysis to corroborate a timeline for the day of the murder outlined by their star witness, Jay Wilds, who claimed to have helped bury Hae Min Lee’s body. The method used in Syed’s case involved looking at which cell tower was pinged every time Syed’s phone made or received a call on that day, and confirming that the area that tower served matched Wilds’ testimony about where he and Syed were at that time. Two incoming calls received shortly after 7pm were used to corroborate Wilds’ claim that he and Syed were in Baltimore’s Leakin Park burying Lee’s body — the park was indeed within the area that particular cell tower served.

However, Syed was granted this post-conviction hearing because new evidence had been discovered – by Susan Simpson of Undisclosed, in fact – that indicated that analysis was unreliable. See, just before he testified, the prosecution had given their cell site expert, Abe Waranowitz, just a few pages from Syed’s subscriber activity report showing his call activity on the day of the murder; one of the columns on that document listed the code for the tower pinged. But he was not given one very important document – when AT&T sent the prosecution the full subscriber activity report from which those pages were culled, they included a fax coversheet which had very specific instructions for how to read the report. Those instructions included the following:

Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.

The defense’s argument was that the cell tower pinged by those two incoming calls should and could not be considered reliable information, and had Waranowitz been given the instructions before his testimony, he would not have testified to the phone’s location when those two calls were received. The State would not have been able to corroborate Wilds’ story (which had changed multiple times throughout his police interviews and testimony) and their case would have been significantly weaker. In fact, Waranowitz himself submitted not one, but two affidavits saying exactly that, both of which were entered into evidence at the hearing.

During the hearing, both sides called their own experts to the stand. The defense’s expert, Gerald Grant, testified that the instructions were essential for Waranowitz to give accurate testimony, and that they make it clear that the cell towers pinged by incoming calls cannot be considered reliable. Meanwhile, the State stuck to its guns, and brought in FBI agent Chad Fitzgerald to testify that Waranowitz’s original testimony was correct (no matter what he says now!), and that those instructions were for a different version of the records and not the ones testified to at trial, which he said were not from a subscriber activity report. Fitzgerald also testified that the reference to “location” in those instructions had nothing to do with the cell towers.

To prove Fitzgerald wrong, defense attorney Brown pointed to two consecutive incoming calls on a different day. The two calls were separated by 27 minutes, but the towers they pinged were at least an hour away from each other, with one in Baltimore and the other in Washington, DC’s Dupont Circle. How could Syed (and his phone) have covered that much distance in such a short period of time? He either had to have a helicopter or the incoming call locations were not accurate. Fitzgerald scrambled to explain, saying that he knew there were some cell towers that served entire routes of DC’s Metro system — the call the tower pinged was in Dupont, but Syed’s phone must have really been near the Metro location that was closest to Baltimore. No biggie! Except this is a major biggie because this perfectly illustrates that the incoming call data is off and it’s not accurate.

Regardless, this type of cell tower analysis does not actually determine a phone’s exact location – it just tells you that it’s within the range of that tower’s signal. So, hypothetically speaking, let’s say your phone places you within the same area as a bank that’s just been robbed. There are still countless other places where you might also be, like the McDonald’s around the corner, or a hair salon five blocks away. While this kind of evidence might not be used to charge you at random, what if you were already considered a suspect in that bank robbery? What if someone had it out for you and decided to tell the police you were the bank robber? What if you vaguely resemble the person who did rob the bank and an eye witness picks you out of a lineup? This kind of thing happens! Would you be comfortable with something as vague and broad as this type of “evidence” being used to corroborate a theory of your guilt?

I wouldn’t. But that’s exactly what happened to Adnan Syed. And he’s been in prison for 17 years.

3. Just because someone is in the FBI does not mean they’re a credible or honest witness. Chad Fitzgerald, the State’s cell tower expert at this hearing, works for a division in the FBI called CAST, which stands for Cellular Analysis Survey Team. He spends a lot of his time flying around the country and testifying in cases like these, and recently appeared on the stand in the Boston Bomber trial. (So did Gerald Grant, for what it’s worth.) Fitzgerald loves mobile phone tracking and cell tower analysis so much, I think he would marry it if he could.

What Fitzgerald did not love so much was answering direct questions where an honest answer would reveal a weakness in the State’s use of cell tower analysis in this case. He was all too happy to answer every carefully worded question from prosecutor Vignarajah; however, when defense attorney Brown put a page from Syed’s call records in front of him and asked him to acknowledge that the very top of the page indicated it was indeed a subscriber activity report, Fitzgerald would not do it. If he did acknowledge that the top of the page read “SUBSCRIBER ACTIVITY,” he would be all but admitting that the fax coversheet instructions did indeed apply to those records. Why would admitting to something so damn simple be a problem? Because it would hurt the State’s argument. So he contorted himself into a verbal pretzel for no less than five minutes, with Brown asking the same question over and over again, reminding him he was under oath. Finally, FINALLLLLLY, after the judge started to get irritated, Fitzgerald hedged:

“Okay, it says subscriber activity,” he said. “It’s a version of a subscriber activity report, but it’s not THE subscriber activity report.”

It was thrilling to watch Brown successfully cross-examine such a hostile witness, but it was also incredibly depressing. Of all the witnesses who took the stand over the course of five days, he was the only one who had difficulty or downright refused to answer pretty simple questions — and it was because he was trying to shape his answers to benefit the State’s case. That’s disconcerting, because that is not what a witness is supposed to do. A witness is supposed to be honest.

4. It’s all in (the misinterpretation of) the details. Unlike many of the other reporters who regularly do court and crime reporting, I did not have a very big understanding of the law in advance of Syed’s hearing. But one thing I did have to my advantage was a pretty thorough understanding of the case itself, including the police investigation, the 1999 and 2000 trials (the first ended in a mistrial, FYI), the developments in the case pre-Serial and what has happened since the podcast ended.

Though this hearing was focused on the two pieces of new evidence — Asia McClain’s alibi witness testimony and the cell site reliability — other aspects of the case were referred to, often in misleading ways through the prosecutor’s questions and statements. While both sides present their version and interpretation of the facts, the prosecution is afforded a higher level of credibility that they don’t necessarily live up to and, frankly, are happy to exploit. During Syed’s hearing, I was struck by how frequently and casually the prosecution offered up various details about the case, but in really misleading ways, and almost entirely with impunity.

This was especially the case during Deputy Attorney General Vignarajah’s closing statement. Having only called two witnesses, neither of which were slam dunks for the State, Vignarajah’s closing first argued against a retrial by “reminding” the judge about the “overwhelming evidence” that was used to convict Syed in the first place – by cherry-picking certain details and presenting them in misleading ways that were either disproven during trial or were otherwise totally innocuous.

Vignarajah also claimed that Syed had asked his pre-trial attorney (who was in the courtroom, BTW) how mail was scrutinized, which he held up as evidence that Syed and McClain were in cahoots to obstruct justice by concocting a false alibi. But the reality is that Vignarajah’s highly inflammatory claim is based entirely on a willful misinterpretation of handful of words on his attorney’s to-do list — which means Vignarajah was also accusing that attorney of being an accessory to this nefarious plan.

Here’s one more example (though there are LOTS more): since March 1, 1999 – the day after Syed’s arrest – McClain has maintained that she saw and conversed with Syed at the Woodlawn Public Library on the day of Lee’s murder. She finally got her chance to testify at this hearing (17 years later!) and by all accounts came across as a highly credible witness. Vignarajah’s cross-examination zeroed in on the March 2 letter McClain wrote to Syed, which he argued had to have been written much later in the month as part of their fake alibi scheme. He questioned how McClain could have possibly known certain details about the crime referenced in the letter, which he said were not public knowledge as of March 2 and thus had to have been cribbed from the search warrant affidavit that was executed later that month.

McClain vehemently denied those allegations, and the defense ably refuted them by presenting pre-March 2 news reports containing those exact details. Yet during his closing statement, Vignarajah was still beating the same drum, stating with certitude that the only place McClain could have gotten that information was from the search warrant affidavit. But guess what? That search warrant affidavit doesn’t actually contain the majority of the case facts Vignarajah claimed it did. Frankly, where I come from, that’s not just misleading, it’s a straight-up LIE.

5. Justice sometimes (often?) takes forever. So, where do things with Syed stand now that the post-conviction hearing is over? Judge Welch could take weeks, months, even more than a year to make a decision on whether to grant Syed a new trial, though the buzz is that his decision shouldn’t take that long. If Syed’s request for a retrial is granted, the State will still have 30 days to appeal the decision. (If Syed’s request is denied, he’ll most certainly appeal as well.) In other words, no matter what the judge’s decision is, there will very likely be additional proceedings through the Court of Special Appeals and the Court of Appeals. A retrial wouldn’t occur until those proceedings are exhausted and have decided in Syed’s favor. The best case scenario for Syed, while unlikely, is that his retrial request is granted, the State doesn’t appeal, and the interested parties then decide whether to proceed with a new trial — in which case, Syed’s attorneys will likely request that he be granted bail – or work out some sort of post-conviction plea deal. The likelihood that the District Attorney’s office will actually drop the charges against Syed is all but nil. As for justice for Hae Min Lee and her family? The investigation into her death would only be reopened if the charges against Syed were dropped, if he was acquitted during a retrial or if he was exonerated through some other means. No matter how many doubts surround Syed’s conviction, Baltimore’s justice system considers this an open and shut case.

SOURCES: The FriskyThe View From LL2

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