Overturning a murder trial: The Serial case of Adnan Syed

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l-r: Steve Barley, Justin Brown, T. Weymouth

In 1999 Hae Min Lee, a Baltimore high-school student, disappeared after school. Her body was later found buried in a local park and her boyfriend Adnan Syed was arrested.

Syed has been in jail for 16 years but there are many people who believe he is innocent.

If this story sounds familiar, it probably is. The case has been well-documented by the hugely successful Serial podcast, which has cast doubt on much of the evidence that was used against Syed.

SerialEvidence collected as part of the podcast, as well as by Syed’s friends and relatives, has cast his conviction in a new light. After nearly 20 years in prison the trial that put Syed behind bars has now been overturned and the courts have ordered a retrial.

But despite the conviction being overturned, Syed is still in prison.

Now a retrial has been ordered a team of pro bono lawyers from Hogan Lovells has stepped in to represent Syed and work as co-counsel with his existing lawyer Justin Brown. On the team is Hogan Lovells’ chief pro bono partner T. Weymouth who is working alongside Baltimore managing partner Steve Barley.

Doubts over the original lawyer

When asked about the retrial Weymouth is nothing if not confident.

“Syed needs to be found guilty beyond a reasonable doubt,” he says. “We think there’s a lot of doubt out there.

“When you listen to the various podcasts and you see what’s on the internet, I struggle to see how the state can make a credible case of guilt against Adnan.”

Serial has done a lot of work to highlight flaws in the state’s original case against Syed. Although the podcast left the question of Syed’s guilt unanswered, much of the evidence it examined will be picked up by Weymouth and his team.

The same evidence was also used to ‘vacate’ Syed’s conviction.

The retrial was granted on the basis of “ineffectual assistance of counsel”. Cutting out the legalese, this means Syed’s lawyer at the time did not do a good enough job of addressing certain aspects of the state’s case.

The first issue surrounded the state’s use of mobile phone towers to track Syed’s location on the night of the murder. The evidence was used to show that Syed was in Leakin Park, where Lee’s body was found, on the night of the murder. Now it has been proved that the prosecution did not use the mobile phone tower evidence correctly and it has been discredited.

“If [this witness] had been called to the stand there is a good chance the jury would have said he could not have done it”  T. Weymouth

The second issue relates to a potential alibi witness that was never brought up in court. The witness’s name is Asia McClain and although she signed an affidavit saying she was with Syed at their school’s library at the time of the murder she never took the witness stand.

“There is an alibi witness who says she said she was with Adnan at the time the state alleges he committed the murder,” says Weymouth.

“The allegation there was that Adnan’s prior lawyer never followed up the alibi witness.

“If she had been called to the stand there is a very good chance the jury would have said he could not have done it as he was with her at the time.”

The challenges

While Weymouth is confident about the retrial he is painfully aware of the difficulties his team are facing.

“Syed’s been in jail almost 20 years,” says Weymouth. “If you go on the internet and listen to the various podcasts there is a lot of evidence suggesting he didn’t do it. Yet the criminal justice system in the US does not make it easy, once someone has been convicted and incarcerated, for them to be released.

“The court vacated his conviction so the principle that put him in jail is no longer in place, yet he still sits in jail.”

Revisiting a case that is nearly 20 years old comes with a wave of problems. Authenticating witness testimonies can be difficult even in recent cases as remembering exactly what you were doing at specific times is a lot harder than it seems. Age those memories 17 years and things become a lot more difficult.

While this will definitely be a challenge for the defence it will also be a major hurdle the state will have to overcome.

“That’s going to be one of the challenges not only for the defence team but particularly for the state, which relied on questionable testimony by at least one witness,” says Weymouth. “The witness has now flip-flopped his testimony several times, including recently.”

Although he never says the name of the witness, Weymouth is undoubtedly talking about Jay, Syed’s school friend and small time drug dealer. In the original trial Jay admitted to helping Syed bury Lee’s body and mobile phone evidence was used to corroborate his story.

Before the case made it to court Jay changed his story multiple times. Without the mobile evidence to back up his final version the state is likely to have a hard time proving he is telling the truth.

Evidence from the media

Syed’s conviction may never have been overturned had it not been for the evidence and support Serial’s journalists helped uncover. With the show’s listeners critically examining every element of the case a lot of new information has been brought to light.

“One of the challenges in preparing for the new trial is going through the vast amount of information that is out there,” says Weymouth. “Not just the transcripts from the earlier proceedings and looking for the weaknesses in the state’s case against Syed but also all the other information that has been deduced from thousands, if not tens of thousands, of people who have become interested in the case.”

The media attention the case has received means Hogan Lovells can benefit from a host of new information, but this in itself can be problematic. The new information can all be viewed as potential new evidence so the legal team must take it seriously – but the likelihood is that a lot of the information will not be useful. The team must now focus on distinguishing between the helpful new information and the details that are either irrelevant or inaccurate.

“That’s the real challenge,” adds Weymouth. “I liken it to looking for a needle in a haystack. You have to spend a lot of time looking for things and eventually you find something that’s helpful but it takes a significant amount of time to get there.”

Will the high-profile nature of the case make it more difficult in court during the retrial?

“It’s hard to say,” Weymouth says. “It depends on how the trial is conducted. I think there will be a lot of interest in the case and hopefully that interest will stay outside the courtroom. We are focused on the legal case, not the media aspects.

“It’s just like any other trial, except that outside the courtroom there is a lot going on.”

Pro bono in BigLaw

With the backing of Hogan Lovells’ pro bono team Syed’s defence has been given a significant boost. The firm is still working in co-counsel with Justin Brown, who has represented Syed for the past seven years, but now the defence can benefit from the legal muscle that comes from working with one of the world’s biggest law firms.

“We have people in seven offices working on different aspects of the case, says Weymouth. “One team is handling the appellant side, another is preparing for the new trial and we have other lawyers working on ancillary issues as they arise.”

Most of the work will be run by Hogan Lovells’ local Baltimore office. The team also benefits from having a range of experience dealing with innocence and post-conviction work.

Hogan Lovells represented one of the ‘Norfolk Four’, a group of navy sailors wrongly imprisoned for the rape and murder of a woman in Virginia in 1997. The pro bono team cleared their client after it was discovered he had been coerced into giving a false confession.

And there are other similar cases being handled by the firm. It does not take much pressing to find out how passionate Weymouth is about the pro bono work his team is involved in.

“We have two other cases pending,” he says. “One in Mississippi involving an inmate called Curtis Flowers who was convicted of a murder he didn’t commit. He had six trials. I commend that case to you, as it was a travesty of justice.

“He was alleged to have gone into a store and shot people, and we are convinced he didn’t do it.”

This passion is one of the key factors Hogan Lovells considers when it agrees to take on a pro bono case, although before the work can officially commence it must qualify through the firm’s own procedures.

First, as with any case, the team must make sure the firm is not conflicted if it takes on the case and then it must check that the work qualifies for pro bono status under US ethical guidelines. The team must also make sure it has the resources to carry out the work at the same quality it can for its billable clients.

And after all this you have to know the lawyers want to work on the case.

“One other factor is the interest of people at the firm,” clarifies Weymouth. “A lot of people approach us to see if we can help out but in other instances colleagues have a particular interest or passion for a mission. They will ask us themselves if they can do the work for a particular
organisation.”

A long way to go

Although Syed has been in jail for 17 years there is still a long way to go before he is released. Before the retrial begins Weymouth’s legal team need to fight the state’s appeal against the vacated conviction.

Hogan Lovells has a dedicated team of lawyers working on the appeal process and another working on the retrial. But despite Weymouth’s optimism, a retrial may never happen.

Despite Weymouth’s optimism, a retrial may never happen

“A retrial would not happen in one of two circumstances,” says Weymouth. “One is the that the state is allowed to appeal the decision to vacate the conviction and they win that appeal. So they, through the appellant process, say the judge who vacated the conviction was wrong. If an appellant court upholds the original decision the conviction is reinstated.”

This would be the worst possible outcome for the defence but the appellant process could also work in Syed’s favour.

“The other opportunity is that the court doesn’t allow the state to repeal or we win,” adds Weymouth. “If the appellant court says ‘the conviction remains vacated’ the state could decide not to retry him.”

As it stands, however, a retrial is on the cards and that decision is unlikely to change. Hogan Lovells’ second pro bono team is focusing solely on the retrial and is already working to predict what the state’s case will be. To do this the lawyers are working their way through all transcripts from the case to find the weaknesses in the prosecution’s arguments. They are also conducting new investigations to try and discredit any new evidence that is used.

No matter what the outcome of the case Syed’s life has been fundamentally changed by the trial that took place in 2000. Due to the technicalities of the US legal system overturning the conviction may not even change how Syed is seen in the eyes of the law.

“It’s one thing to have the person removed from jail after the conviction is overturned,” says Weymouth, “but that’s not the same as saying the person was innocent.

“I didn’t work on the Norfolk Four case but I do remember that even after his conviction was overturned it took quite some time and effort to get the state to confirm that he did not commit the crime.”

We may never truly find out how Lee was murdered 17 years ago and it may never be clear who the culprit is. Suspects in the case have included Lee’s new boyfriend Don, Jay, a streaker, and there is even the possibility that a serial killer was working in the area.

The other painful possibility is that Syed did murder his ex-girlfriend. After all, it is not Syed’s innocence that has been proved – only that his previous legal counsel was not up to the job.

The truth will once again be decided by a jury of his peers.