Adnan Syed Case: State’s Expert Says New Disclosure About Cellphone Evidence Might Have Changed His Testimony

Earlier this week, Adnan Syed’s lawyer C. Justin Brown filed a mic drop of a response (read it here!) to the Maryland Attorney General’s Office’s claim that Syed’s request for a new hearing would be “inconsequential theater and not in the interest of justice.” Included in Brown’s lengthy response was not only an explanation for why the court needs to hear from Syed’s alibi witness, Asia McClain, but also a thoroughly detailed takedown of the cellphone evidence which the State relied on to build their case, including the incorrect statements made about that evidence in the State’s response last month. Brown’s filing was bolstered by a new affidavit from, get this, the cellphone expert who testified for the prosecution at trial, who now says that his testimony could have been different if he had been made aware of information that cast doubt upon the cellphone data’s reliability.

Okay, so first, let’s review what’s actually being discussed here, as far as the cellphone evidence goes, minus all the legal lingo. (I always mean to make these Serial-related posts shorter, but this legal shit is complicated!) During Syed’s 1999-2000 trial, the State made its case on two primary pieces of evidence: 1) the testimony of Jay Wilds, who claimed that Syed told him he had killed his girlfriend, Hae Min Lee, and that he had helped Syed dispose of the body in Leakin Park on the evening of January 13; and 2) Adnan’s cellphone data, specifically both incoming and outgoing calls and the cellphone towers they pinged, which were used to determine his location and corroborate the State’s timeline of the murder.

Here’s the problem: recently it came to light that the full subscriber activity report that AT&T sent to the Baltimore police, a small portion of which the prosecution submitted into evidence at trial, included a fax cover sheet specifically warning about the accuracy of such cell tower data for incoming calls. The two calls that allegedly placed Syed’s phone in Leakin Park at the time when prosecutors argued Lee was buried were both incoming calls. The defense is arguing that this evidence was withheld from Syed’s defense counsel at the time — and in this new filing, they’ve also got the prosecution’s cellphone expert, Abraham Waranowitz, on record claiming that this information was withheld from him as well. According to the defense, this amounts to a Brady violation and is grounds for a new trial.

In their initial flailing response, the State said that the fax cover sheet referred to a different set of AT&T documents (which really made no sense), but Brown maintains that his interpretation is correct, and Waranowitz’s sworn affidavit bolsters this claim. Waranowitz’s affidavit says that this information about the inaccuracy of the cell tower data was and is “critical” and had he known about it, 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.”

In other words, Waranowitz would NOT have testified that the cell towers pings on those incoming calls placed Adnan Syed in Leakin Park at the time of Lee’s alleged burial. In fact, it stands to reason that if both Waranowitz and the defense had been aware that this cellphone data was unreliable, it would not have been allowed into evidence in the first place. This is a problem for the prosecution because without that cellphone data, they cannot corroborate the timeline presented in Jay Wilds’ testimony and their case would have been seriously weak, because they had nothing else.

But don’t listen to me, listen to prosecutor Kevin Urick! Earlier this year in his interview with The Intercept’s Natasha Vargas Cooper — which Brown quoted in his filing! — Urick was clear that the case couldn’t stand on Wilds’ testimony alone:

“Jay’s testimony by itself, would that have been proof beyond a reasonable doubt?” Urick asked rhetorically. “Probably not. Cellphone evidence by itself? Probably not.”

But, he said, when you put together cellphone records and Jay’s testimony, “they corroborate and feed off each other–it’s a very strong evidentiary case.”

I had a feeling that hack’s interview with Urick would end up biting him in the ass. (Hmm, can she interview DON next?)

So anyway, what’s next is that the State again has a chance to respond, but Brown is urging the court to rule sooner rather than later on whether to grant Syed a hearing where his alibi witness (McClain) could testify and this additional evidence could be presented. Overall, Syed is seeking a new trial based on ineffective assistance of counsel (his lawyer, Cristina Gutierrez, knew about but did not pursue Asia McClain as an alibi witness), but supplementing that with evidence of a Brady violation further supports the defense’s argument that Syed’s constitutional rights were violated.

“It would be in the interest of justice that Syed be allowed to put on his alibi witness and related evidence,” Brown wrote in his filing. “This would serve the goal that all parties to this case should share: the goal to find the truth.”

[Baltimore Sun]

[CJBrownLaw]