8/19/2018 ‘Serial’ Subject Adnan Syed: 4 Key Pieces of Evidence, Explained – Rolling Stone

https://www.rollingstone.com/culture/culture-news/serial-subject-adnan-syed-4-key-pieces-of-evidence-explained-240960/ 1/6

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‘Serial’ Subject Adnan Syed: 4 Key Pieces ofEvidence, ExplainedWith his life sentence overturned, Syed could be a free man – but will the state be able to convict him again?

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O�icials escort 'Serial' podcast subject Adnan Syed from the courthouse following the completion of the �irst day of hearings for a retrial inBaltimore on Wednesday, Feb. 3, 2016.Karl Merton Ferron/Baltimore Sun/TNS/Getty Images

Yesterday, Adnan Syed, whose conviction and life sentence for the murder of his high-school girlfriend was the focus of the firstseason of the hit podcast , got the news he had been waiting to hear for over 16 years – Baltimore Circuit Court Judge Martin P.Welch, who presided over Syed’s post-conviction relief hearing in February,  and granted him a new trial.

Judge Welch’s 59-page opinion breaks down his decisions on the issues raised by Syed’s defense attorneys, Justin Brown and ChrisNieto, in their appeal. The short story is this: Welch found that Syed’s trial attorney, the late Cristina Gutierrez, didn’t challenge thereliability of some potentially faulty cell-phone tower evidence – what the judge called the “foundation” of the state’s case – a mistakeso egregious that it violated Syed’s right to effective counsel. Judge Welch also agreed that Gutierrez acted unreasonably by failing tocontact potential alibi Asia McClain, but said this wasn’t the reason he vacated the conviction, writing that Syed did not prove thatcalling McClain to the stand would have created a reasonable probability of a different verdict.

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8/19/2018 ‘Serial’ Subject Adnan Syed: 4 Key Pieces of Evidence, Explained – Rolling Stone

https://www.rollingstone.com/culture/culture-news/serial-subject-adnan-syed-4-key-pieces-of-evidence-explained-240960/ 2/6

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Last night, the state’s Attorney released a short statement about Welch’s decision, and indicated that they intend to appeal the ruling,potentially preventing the new trial from taking place. “It is the continued desire of the Attorney General to seek justice in the murderof Hae Min Lee,” the office said in a statement. “The state’s responsibility remains to pursue justice, and to defend what it believes isa valid conviction.”

Defense attorney Brown has said that he expects the state’s Attorney’s Office to appeal, though he questions why they would want to“draw it out.”

“On one hand, they lost, so their instinct is to appeal. But on the other hand, if they feel like they’ve got the evidence, and they feellike they have a strong case, why don’t they just retry it?” Brown told Rolling Stone. “Do they really want to draw it out for anotheryear, year-and-a-half in the appellate courts? What purpose does that serve?”

If the state appeals and Welch’s decision to vacate Syed’s conviction is upheld by the higher court, the state will then have to decidewhether to go forward with a retrial, or attempt to negotiate a plea deal.

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Regardless of what happens next, Brown said that his team has begun preparing for a retrial. “We have not been resting on ourlaurels,” he said. “We’ve been investigating and looking toward a trial for the last month. We will be 100 percent ready.”

In his opening remarks at the , Deputy District Attorney ThiruVignarajah maintained that a jury convicted Syed because there was “overwhelming evidence” of guilt.With that in mind, let’s review the evidence the state clearly believes will lead a jury to convict Syed asecond time.

1. The cell phone evidence.

The reliability of the cellphone evidence was first called into question in the aftermath of Serial on anunaffiliated follow-up podcast called , which carefully deconstructed the policeinvestigation into Lee’s murder. Along with Syed family friend and lawyer Rabia Chaudry – whobrought the case to Koenig’s attention and appeared on the first episode of Serial – “Undisclosed”featured the investigative efforts of lawyers Susan Simpson and Colin Miller. It was Simpson who firsthoned in on a couple of sentences on a fax cover sheet sent by AT&T along with Syed’s subpoenaed“subscriber activity report,” from which a selected number of pages had been entered into evidence at

trial. Those few sentences were instructions that “incoming calls are not reliable for determining location.”

The two calls used to place Syed in Leakin Park at the time when star witness Jay Wilds said they were burying Lee’s body were bothincoming calls. The state’s cell tower expert at trial was not aware of these instructions during his testimony; if fact, they were onlybrought to his attention in 2015, after which he wrote an affidavit for Syed’s defense counsel essentially retracting his trial testimony. 

In an interview with The Intercept last year, , the prosecutor from Syed’s 2000 trial, said that on their own, neither theWilds’ testimony nor the cellphone evidence would have been enough to prove Syed’s guilt beyond a reasonable doubt. Remember,Wilds never claimed to have seen Syed kill Lee; he merely claimed to have helped Syed bury Lee’s body.

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8/19/2018 ‘Serial’ Subject Adnan Syed: 4 Key Pieces of Evidence, Explained – Rolling Stone

https://www.rollingstone.com/culture/culture-news/serial-subject-adnan-syed-4-key-pieces-of-evidence-explained-240960/ 3/6

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And now, the cell tower evidence which corroborated that story has been determined to be unreliable. If the state wanted to presentthat exact same evidence again – specifically that the incoming calls put Syed in Leakin Park when Wilds says they were buryingLee’s body – they will have to go through a separate hearing in hopes of convincing the judge that the evidence is admissible.This, despite multiple experts, including their own expert from the original trial, having determined that it’s not reliable in themanner in which its being used.

The outgoing cell towers pings, on the other hand, are accurate, but they do not link Syed to Lee’s murder – unless the state tries toargue an entirely different timeline for the crime, which would require their star witness to change his testimony. Speaking ofwhich…

2. Jay Wilds’ testimony.

Jay Wilds – a former classmate of Syed’s and an acquaintance with whom he would sometimes smoke weed – borrowed Syed’s carand cellphone for a period of time on the day Hae Min Lee disappeared. According to Jay, Syed told him he was planning to kill Lee,and would need Jay to pick him up after the murder was done and then somehow roped him into helping bury the body.

How and when that all that went down, however, has not been consistent across Wilds’ multiple police interviews or his testimony atSyed’s two trials (the first was declared a mistrial before the jury began deliberations); in a ,Wilds offered yet another narrative with even more inconsistencies, giving the defense ample material with which to impeach histestimony should the state call him as a witness again. Without the cellphone evidence as corroboration, jurors would be left todecide whether they’re willing to take Wilds at his word. The alternative is that Wilds changes his testimony again to support anarrative that can be corroborated by the outgoing calls, but that would not only further call into question his credibility, but theprosecution’s as well, and that’s unlikely to go over well with a judge or a jury.

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Welch and former Prosecutor Urick are seemingly in agreement that Wilds’ testimony and the cellphone tower evidence “created thenexus” between Syed and Lee’s murder during trial. However, Welch’s opinion has destroyed that nexus. According to Simpson, thestate’s best option doesn’t spell good news for Wilds.

“I think their best option is to go with the theory that Jay [killed Lee] with Adnan,” Simpson told Rolling Stone. “To say ‘Jay is also amurderer, Jay may have done the deed himself,” that’s what they have to do in order to excuse his lies. ‘Yes, Adnan was involved, andguilty and culpable, but Jay is the one who did the deed which is why he lied.’ That’s the state’s only way to explain his lies, but that’sgonna be a hard sell.”

3. Syed’s poor memory and failure to provide an alibi.

During Serial, Koenig expressed frustration with Syed’s inability to remember what he was doing throughout the day of Lee’sdisappearance. While it’s certainly frustrating – for Syed more than anyone – that his memories don’t include something that mighthelp find out who killed Lee, to say Syed has no memory of that day is false. Syed didn’t testify at trial, but a summary of one of hispolice statements was introduced as evidence, and in it, the then-17-year-old is straightforward about what he did on January 13,1999:

“[Adnan] told the police that he and Hae used to date. He said that on January 13, 1999, a Wednesday, he had class with Hae from12:50 to 2:15 p.m. Appellant said he went to track practice that afternoon. He did not see Hae the next two days at school, Thursdayand Friday, because the school was closed for inclement weather.”

Syed gave a second statement on January 26th, and the police notes for this statement do mention that he “doesn’t remember theevents that occurred in school that day.” However, the police notes were not written until seven months later, on September 14, 1999,

2014 interview with The Intercept

8/19/2018 ‘Serial’ Subject Adnan Syed: 4 Key Pieces of Evidence, Explained – Rolling Stone

https://www.rollingstone.com/culture/culture-news/serial-subject-adnan-syed-4-key-pieces-of-evidence-explained-240960/ 4/6

and shouldn’t be considered more reliable than the statement introduced at trial.

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Syed’s vague memory of what was otherwise a normal school day cannot reasonably be considered evidence of guilt, but it hurt hisdefense because he was unable to provide an alibi for his whereabouts when the prosecution alleged the murder occurred. Wilds gavemultiple inconsistent statements to police, but the state eventually settled on a version that could be corroborated (at the time) by thecellphone evidence, which had Syed killing Lee in a Best Buy parking lot just before 2:36 p.m., which is when Wilds testified thatSyed called him to be picked up. 

Except Syed does have and has always had an alibi – Asia McClain. Syed may not have remembered seeing and speaking to McClainat the Woodlawn Public Library at the time that state contends that he was killing Lee, but McClain does. She was never contacted bySyed’s attorney, even after she sent Syed two letters immediately after his arrest saying she – along with her boyfriend and herboyfriend’s friend – remembers seeing him that afternoon. While Judge Welch didn’t think that that McClain’s testimony alonewould have resulted in a different outcome at trial, he did agree that it was unreasonable of Gutierrez not to contact her and, moreimportantly, acknowledged that McClain’s testimony would have hurt the state’s case.

Should the state retry Syed and attempt, once again, to prove that he killed Lee at approximately 2:30-2:35 on January 13, 1999, theyshould expect the defense to call McClain to testify. Without the cellphone evidence as corroboration for Wilds’ testimony, jurors willthen have to decide who they find more credible — Wilds or McClain?

4. Syed had motive to kill because he was possessive during their relationship and angry that Lee had a newboyfriend. 

In his closing statement at Syed’s post-conviction hearing, Assistant District Attorney Vignarajah claimed that Lee’s diary entriesabout Syed suggested textbook “intimate partner violence.” However, the state only presented a tiny fraction of Lee’s diary at trial,and it stands to reason they chose those pages that best supported their case against Syed  — at worst, those entries suggestedthat Syed could be “possessive” in a manner that could be considered typical of high school boys and that he was initially sad abouttheir breakup. Prosecutor Vignarajah’s statement that Lee’s diary entries showed signs of intimate partner violence was neversupported by expert testimony, nor was there any other evidence or witness testimony to support that claim.

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It is true that current and former significant others can reasonably be put at the top of the list of potential suspects in a murder,which means that Lee’s new boyfriend – who Serial listeners will remember as Don, Lee’s coworker at LensCrafters – should havebeen investigated as thoroughly as Syed, which he wasn’t.

There was no physical evidence linking Syed to Lee’s murder, and there are no witnesses who saw them together around the time ofLee’s disappearance or the alleged time of the murder. Everything else the prosecution presented at trial – the words “I want to kill”written on the back of a piece of paper in Syed’s notebook; inconsistent claims that Syed asked Lee for a ride after school; the “Nisha”call – was circumstantial. Unless the state can figure out how to fix the problems with their star witness’s inconsistent statements,establish reliable corroboration for their timeline and successfully impeach the defense’s alibi witness, they will have a very difficulttime convincing a jury of Syed’s guilt. For now, Adnan Syed is once again an innocent man.

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