Adnan Syed’s Post-Conviction Hearing, Day 1: Asia McClain Finally Takes The Stand

Amelia McDonell-Parry | February 3, 2016 - 7:34 pm

I’m down in Baltimore for Adnan Syed’s post-conviction trial hearing and will be posting daily recaps of proceedings. You can also follow me on Twitter at @xoamelia for short updates from the courthouse. For background on this case, so I don’t have to explain it all from the beginning, please refer back to previous posts on the subject

Today’s proceedings were focused on building a foundation for the two pieces of evidence that weren’t previously presented before the court, with Adnan Syed’s defense attorney, C. Justin Brown, arguing that his client deserves a new trial. Brown said that Syed’s previous attorney, Cristina Gutierrez, was too ill and overloaded with cases to provide Syed with effective assistance of counsel during his 2000 trial. (Gutierrez passed away in 2004 after a battle with multiple sclerosis and diabetes.) While that argument has been presented before the court before, this new evidence, the defense argues, serves to further illustrate that Gutierrez failed her client, not to mention raises serious questions about whether Syed received a fair trial.

In his opening statement, Brown gave an overview of the two pieces of new evidence:

  1. Alibi witness Asia McClain: Gutierrez never contacted a potential alibi witness named Asia McClain, despite being aware of McClain’s claim that she had seen Syed at the library on Woodlawn High School’s campus for 15-20 minutes after school let out on the day Hae Min Lee disappeared.
  2. The reliability of the cellphone tower evidence: In 2000, when Syed was first tried, the State used cellphone records for Syed’s phone to chart his location at key points throughout the day on January 13, 1999, based on what cellphone towers were pinged when Syed both made and received phone calls that day. The defense is presenting evidence that these records were used improperly by the State, pointing to a fax cover sheet from AT&T (Syed’s provider) which explicitly states that incoming calls cannot be used to determine location. In addition, they are arguing that the State was aware of this coversheet and did not provide it to their own cellphone expert or the jury, so neither knew how to properly read the cellphone tower evidence. This fax coversheet was also not found in any of the defense’s files, which means either the State didn’t provide it to Gutierrez (which would constitute a Brady violation, the defense argues), or Gutierrez did know and failed to question the veracity of that evidence, which would support their claim of ineffective assistance of counsel.

Maryland Deputy Attorney General Thiruvendran Vignarajah is representing the State at this hearing. In his opening statement, Vignarajah focused primarily on disregarding the defense’s claims of ineffective assistance of counsel, suggesting that Gutierrez did not contact McClain because she decided to “pursue other avenues” in her defense and that McClain’s testimony would “not be relevant,” that not pursuing her as a witness was a “tactical decision” so as to not undermine her other efforts. He maintained that Syed was convicted because there was “overwhelming evidence.”

“Mr. Syed was convicted because he did it,” Vignarajah said.

Speaking of Syed, he was also at the hearing. This was the first time most people outside of a few family members have seen him beyond the high school photos and few more recent pictures online. Now 35 years old, Syed has a full beard and is noticeably broader than he was at 17. He was dressed in blue prison garb, a skull cap that I assume is religious given that hats typically aren’t allowed in the courtroom a kufi, and was in handcuffs with his feet shackled. He smiled warmly at his family as he walked into the courtroom. He is pictured above, leaving the courthouse after today’s hearing.

Witness #1: Phillip Dantes (lawyer, law professor, and a friend and colleague of Gutierrez’s for 20+years)

Testimony: The defense tried their best to question him about his assessment of Gutierrez as a lawyer, both early on in her career and later on, when her health started to decline. (I say “tried their best,” because the State kept objecting every 10 seconds and, for the most part, the judge sustained those objections.) Dante testified that, starting in the late-‘90s, he observed that the once “zealous” and “very successful” Gutierrez was clearly physically uncomfortable and in pain because of her MS, that he once observed her in court and that she needed to eat every hour and had to brace herself again the podium, which he called “disconcerting.”

My Assessment: It was frustrating watching Dantes testify, mostly because the State kept objecting to every damn question Brown asked, and the Judge kept sustaining those objections, so Dantes was not allowed to answer. This mostly seems to be because the judge has already heard a lot of this stuff before at the last post-conviction hearing where the defense argued IAC. I don’t think his rulings today in regards to Dantes testimony means that he’s not considering how Gutierrez’s dwindling health might have impacted her ability to do her job, just that it’s territory that’s already been covered.

Witness #2: William Kanwisher (Gutierrez’s associate from 1997-1999)

Testimony: Kanwisher testified that Gutierrez had a “legendary,” “accomplished” and “fierce” reputation, but that her abilities went downhill as her health worsened. He said that while Gutierrez did not like to acknowledge her condition, she was clearly having physical issue and that he observed her wincing and her energy decreasing. He cited one case that they worked on together where she was given a time limit for closing arguments and when the judge alerted her that she only had 10 minutes left, she had only made it through half of what she had prepared, and appeared “flustered and disjointed.”

Kanwisher testified that Gutierrez’s waning health had a big impact on her practice, as he found himself being handed more and more of her cases, often at the last minute, because she couldn’t handle the workload. He also testified that her practice was having financial issues and that there was one pay period where her staff was not paid on time. He said that Gutierrez became harder and harder to work for, that she was “a yeller” and “erratic,” and that her demands became more difficult to accomplish. Kanwisher testified that he stopped working for Gutierrez’s practice because things had become so “problematic.”

Kanwisher was then questioned about an affidavit he submitted in 2015, which attested to Gutierrez’s philosophy in regards to alibi witnesses. He testified that she liked to “keep doors open so she didn’t pin herself down,” that she would sometimes put a long list of names on an alibi notice as a “red herring,” that she was “overly inclusive” so the State would exert effort and resources investigating those potential witnesses. Gutierrez’s alibi notice in the Syed case, entered into evidence, did have a long list of names on it, but one name in particular was missing: Asia McClain. A note found in Gutierrez’s files explicitly mentioning Asia McClain as someone who saw Syed on January 13 was also presented as evidence during today’s hearing, to show that Gutierrez was aware of McClain and her potential relevance to the case.

On cross examination, Vignarajah questioned Kanwisher about valid reasons Gutierrez might have had to not contact McClain, by implying that she might have found out information that contradicted McClain’s claim, or a belief that McClain’s claim about Syed’s whereabouts contradicted her clients, etc. Kanwisher refuted that, however, saying that there are frequently changes in chronology during a trial, and that it would be “circumspect to ever rule out an alibi witness.”

My Assessment: I thought Kanwisher did an especially good job of explaining how abnormal and out of character it was for Gutierrez not to contact McClain. He also was very clear about the ways in which Gutierrez’s health had a negative impact on her ability to represent her clients and run her practice in general. Overall, I thought he was a really solid witness for the exam, including under cross examination.

Witness #3: Asia McClain, a former classmate of Syed’s at Woodlawn High School

Testimony: Now married with two kids and another on the way, McClain got up on the stand and testified to what she has maintained since the day Syed was arrested on February 28, 1999 — on January 13, 1999, shortly after 2:15 when school let out, she saw Syed at the public library — “Oh yeah!” was McClain’s reply when Brown asked if the library was considered part of the school’s campus – and spent 15-20 minutes talking to him before her boyfriend arrived to pick her up.

McClain said that she remembers speaking to Syed on that day because it was an unusual one for her — in the latter half of her senior year at the time, she had permission to leave school every day at 10:40 am and would usually head to work, to her boyfriend’s house, or home. However, on that day, her boyfriend was supposed to pick her up and he was late — very late — so she was stuck waiting for him for hours at the library. She said when Syed walked in, she sighed with relief because finally she had someone she knew to talk to. She testified that she was sure this was just after 2:15 when school let out because the school buses were waiting out front to take students home. She said that Syed seemed “totally normal,” and that when her boyfriend and his friend finally arrived to pick her up, they also Syed and that her boyfriend even asked her whether Syed was hitting on her. McClain also testified that she was sure that she saw Syed on January 13 because she ended up staying at her boyfriend’s house later than usual that night due to the bad weather, and that the following two days of school were canceled.

On February 28, Syed was arrested for Lee’s murder and McClain contacted her ex-boyfriend, a friend of Syed’s, about seeing him at the library on the day Lee went missing. She said she trusted her ex’s opinion and wanted his advice on what to do with this information, and the two of them ended up driving over to the Syed family’s house on March 1st to tell them what she knew. She said that the family told her Syed was having a difficult time remembering what he did after school let out that day up until he went to the mosque that evening. McClain told them she could at least attest to his whereabouts for that short period of time between 2:15-2:45. Later that night, McClain wrote Syed a letter reminding him of their encounter and included two phone numbers where she could be reached.

“I thought it was the best way for someone to contact me if what I remembered was important,” she said. She testified that her boyfriend and his friend also both remembered seeing Syed that afternoon. McClain wrote a second letter to Syed the following day, March 2, reiterating what she said in the first, and also mentioning that she had told her Spanish teacher about seeing Syed on the day of Lee’s disappearance.

Asked whether she knew at that time what the police and/or prosecution contended was the timeline for the day of the murder, and McClain said she had no idea. She testified that no one from Gutierrez’s office ever contacted her and that if she had been asked to testify then, she “definitely” would have.

Brown then moved on to McClain’s March 25, 2000 affidavit, which was written after Rabia Chaudry contacted her. She said she was not pressured into writing it, that Chaudry was “very nice,” and that she readily agreed to get the affidavit notarized to make it more official.

Next, Brown asked McClain about an occasion in 2010 when a member of the defense team (Brown, to be specific) showed up at her house and, when her husband answered the door, asked for her by her maiden name. Her husband called her and told her he thought it “had something to do with the girl who got killed at your school,” taking down Brown’s contact info. McClain testified that she decided to do a little internet research about the case to see if there was any particular reason why she was being contacted now, but couldn’t find anything other than an old news article that mentioned Prosecutor Kevin Urick, who represented the State during Syed’s trial.

McClain said she decided to contact Urick directly because, as a member of the prosecution, “I thought he was one of the good guys and that he would have non-biased information about the case.” She took notes during their conversation, which the defense submitted into evidence. (“I tend to be meticulous at times,” she said, laughing.)

On the stand, McClain went through her notes as she explained the content of her conversation with Urick.  Urick told her that “Brown is BS,” that the defense was trying to “play” and “manipulate” the court system in order to get an appeal. McClain testified that Urick said that the State had cellphone records to corroborate their case, in particular their contention that Syed was in Leakin Park burying Lee around 7 p.m. on January 13, and that this evidence led all of those who claimed they saw Syed at the mosque that evening to “back down.”

“He killed that girl,” Urick told her, McClain said, going on to say that their conversation convinced her not to respond to Brown.

McClain was contacted by Sarah Koenig for an interview for Serial in early 2014 and said she thought the interview was for a magazine or newspaper, not the radio, because she didn’t know what NPR was. In late-2014, she started getting messages from people saying they heard her on the radio, and that’s when she and her husband listened to Serial all the way through. What she heard “confused” her and “weighed heavy on [her] heart.” She had assumed her recollection of January 13, 1999 was not important based on what Urick had told her.

But through Serial she learned that Urick had testified about her at the post-conviction hearing in 2012 and that he had told the court that she had written her 2000 affidavit under pressure from the Syed family and that she did not stand by her claims. (This is also what he said in his interview with The Intercept.) Asked about the length of their conversation, McClain said she knows it lasted 34 minutes exactly because she decided to request her phone records after finding out that Urick had said that their conversation was five minutes long. (These phone records were entered into evidence.) She also said that Urick’s testimony that she was “being pressured by Syed’s family” and that she did not stand by her earlier statements was completely FALSE.

“I don’t like people putting words in my mouth,” McClain said today, explaining that she decided to retain a lawyer because she did not want to be working with the defense OR the prosecution.

“In order for their to be justice, everything needs to be on the table,” she said, going on to explain that although she was subpoenaed by the defense, she would have testified on her own because “it’s the right thing to do.”

My Assessment: As I said on Twitter, I think Asia McClain absolutely KILLED IT on the stand today. She was poised, endearing, funny, smart, and very, very clear about what she has known and SAID for the last 15+ years. She was incredibly believable and it took everything I had not to stand up and cheer when she said she took notes during her conversation with Urick AND had cellphone records to prove the length of their conversation. This makes it all the more heartbreaking that McClain was never contacted back in 1999. Because I have no doubt that it sure as hell would have made a difference.

The State started their cross-examination of McClain shortly before the court recessed for the day, so she will be on the stand again tomorrow, and I’m going to hold off on writing more until then so all of her cross-examination testimony is together.

Odds and Ends:

  • Sarah Koenig is here and is sitting with the rest of us in the media. She was very nice for the two seconds we spent talking in the bathroom!
  • Rabia Chaudry, Syed’s fiercest advocate and the sister of his best friend, was sequestered from the courtroom because the State says they “may” end up calling her to testify about her involvement in McClain’s first affidavit.
  • THIS IS REALLY HARD AND INTERESTING.