Adnan Syed’s Post-Conviction Hearing, Day 3 (Part 1): Expert Says Asia McClain’s Alibi Testimony Would Have Been “A Game-Changer”

I’m down in Baltimore for Adnan Syed’s post-conviction trial hearing and am posting daily recaps of proceedings. You can also follow me on Twitter at @xoamelia for short updates from the courthouse.

Oh yeah, another two-part recap. I’m on the train back to NYC (I’ll be back in Baltimore to finish covering the hearing next week, since it’s lasting longer than the scheduled three days) and will get the second half up ASAP. For now, here is a recap of three out of the four witnesses who testified today. The fourth was the State’s cell site expert, whose testimony I will tackle in Part 2. Thanks for your patience!

Witness #1: Sean Gordon, investigator for yed’s current defense counsel

Testimony: Gordon was hired by the defense to go through all of the names on Cristina Gutierrez’s alibi notice from 1999, attempt to make contact with those individuals and find out if they ever heard from the defense prior to Adnan Syed’s trial. That alibi list had 86 names on it, but three were duplicates, so Gordon was trying to contact 83 people. He was successful at actually getting 41 of those 83 people on the phone, and of those 41 people, only FOUR of them ever heard from Gutierrez’s defense team. ZERO were called as alibi witnesses. The defense’s goal wth Gordon’s testimony was to illustrate Gutierrez provided Syed with ineffective assistance of counsel.

Some of these names were of particular interest during today’s testimony, namely six of Syed’s fellow track team members. As you might recall, Syed said that he had track practice on January 13, 1999, and his teammates might have been able to affirm that he was indeed at track practice that day. Now, one of those track team members Kelinde Adedoye (my spelling might not be accurate FYI) did receive a subpoena to testify, but he had no idea who the subpoena was sent by, neither the State nor the defense ever contacted him to talk, and when he showed up to testify, he was never called.

The defense asked Gordon to review the transcript of Serial, episode five, in which Sarah Koenig briefly talked to Syed’s “track buddy Will,” which Gordon said he believed to be the William McCray listed on the alibi notice. “Track Buddy Will” told Koenig that he was never contacted by Gutierrez’s defense team or the State. (It’s important to note that part of the main reason for the alibi notice is that the defense is required to disclose to the State who they might be calling as an alibi witness.)

Cross-Examination: Vignarajah started by asking Gordon how long it would take for Gutierrez to call 83 people to vet them as alibi witnesses, as if to suggest that it would take way too long and it was utterly unreasonable to expect her to do so. Then he asked Gordon to look at a bunch of typed memos with handwritten notes from Gutierrez’s files pertaining to some of the names on her alibi notice. His goal was to illustrate that Gutierrez’s office had put effort into contacting and investigating the various names on her alibi notice, except his examples didn’t add up to more than a handful or two out of 83 individuals. Also, as Gordon testified, while the memos were between people on Gutierrez’s defense team, it was unclear who had written the handwritten notes, and whether those notes were actually illustrative of actions taken. For example, a couple of the track team members were listed on a memo with “served” written in handwriting next to them. Vignarajah may WANT that to be evidence that those individuals were actually “served,” but we know they weren’t!

Another example Vignarajah pointed to was a memo to Gutierrez from a member of the defense named Mike Lewis, dated 12/15/99, memorializing a conversation he had with defense investigator Drew Davis, with handwriting that stated, “We need to tell them what to do, when to do it, and where” in reference to, presumably, some of the people on the alibi notice. Vignarajah was trying to show that Gutierrez had been in contact with people on the alibi notice prior to trial. But, as Gordon testified, it’s completely unclear WTF that statement means, for starters, AND, just because the typed memo is dated doesn’t mean the handwritten notes were from the same day.

Redirect: The defense asked Gordon to refer to a 24-page Excel spreadsheet that listed all of the 1999 defense team’s witnesses. (To be clear, it’s not that every single person on this list was called to testify, but these are all of the people the defense alerted the State to as possible trial witnesses.) That list featured not a single person from the alibi witness notice, with the exception of Saad Chaudry, Syed’s best friend, who only testified as a character witness. Both the defense witness list and the defense alibi notice did not include Asia McClain. The defense witness list did, however, include Kevin Urick, who was the Prosecutor in the 1999 trial. So, Gutierrez was “thorough” enough to include the damn PROSECUTOR on her list — who she would obviously never call — but not thorough enough to investigate, contact, or ever list Asia McClain, an actual witness – and an alibi witness at that! – as someone who might take the stand in Syed’s defense.

My Assessment: Vignarajah did not make a particularly great case for Gutierrez doing her job of vetting alibi witnesses if he expects a few memos with notes to justify just FOUR out of 83 actually being contacted, and ZERO being called to testify.

Witness #2: Michelle Hamiel, Woodlawn Public Library General Manager in 1999

Testimony: On Wednesday and Thursday, Asia McClain testified about seeing and conversing with Syed at the Woodlawn Public Library on January 13, 1999. In her letter to Syed on March 2, written just after his arrest for Lee’s murder, McClain referenced the fact that there were security cameras at the library, and perhaps Syed’s lawyers or family could contact them to get those tapes to prove where he was from approximately 2:15-2:40. During cross, Vignarajah, using his go-to lead in, asked McClain, “Would you be surprised to learn that there were no security cameras at the Woodlawn Public Library in 1999?” She said she would be, and that she can only go by what she was told when she called the library shortly after Syed’s arrest.

Well, the defense called Hamiel, the general manager of the library in 1999, to the stand and she testified that there was in fact a security camera inside the library in January 1999. Each day’s tapes were stored for one month before being taped over, so the January 13, 1999 security footage would have been stored until February 13, 1999. Now, Syed was not arrested until February 28, and Asia’s letter which reference the camera was written on March 2, well after the tape would have been erased. But that is not the  defense’s point with this particular testimony. Remember — the defense is trying to prove a couple different things, namely ineffective assistance of counsel. The issue with the library security footage is not that valuable evidence of Syed’s innocence could have been found on that tape at such a late date, but that Cristina Gutierrez’s team never attempted to find out if there was security footage at the library, despite knowing that McClain had said she spoke with Syed at the library during the relevant time period.

(In fact, not only did the defense team never try to vet McClain’s claim – in any way, but specifically by inquiring about the security footage – but the police never contacted the library to view security footage after Lee went missing, which is odd because she was last seen leaving school through the  parking lot located right next to the library.)

Cross-Examination: Vignarajah’s cross was mostly worthless, except that it did illicit some interesting and funny comments Hamiel when she was asked about the library’s security officers. She testified that the security guards were mostly a “deterrent” and were “useless” – one in particular she called “Useless Steve” – and that the Woodlawn students didn’t really respect their authority.

“They called [the library security officers] ‘two-and-a-halfs’,” she said, “you know, because the police are the ‘five-oh.’”

My Assessment: Hamiel offered further solid evidence that the defense did absolutely zip, zero, NADA to even vet anything Asia McClain had to SAY in her letters, let alone investigate her as a potential alibi for Syed. Vignarajah’s cross was completely ineffective.

Witness #3: David Irwin, attorney and expert on criminal defense and Brady disclosure obligations

Testimony: Irwin was called by the defense to assess Asia McClain as an alibi witness and Guttierez’s failure to investigate her. His resume is both lengthy and impressive, and he has worked on both sides of the courtroom as a criminal defense attorney and a prosecutor. In preparation, he reviewed the exhibits that are relevant to both the alibi issues and the cell site issue; the defense’s version of the facts and the State’s version of the facts; and also has been watching witness testimony throughout the hearing.

Irwin testified that defense counsel is mandated to investigate all relevant facts related to their clients cases, including prompt investigation of all lines of possible defense, including an alibi defense. He testified that an attorney could not make a strategic decision about an alibi witness’s worth without first investigating that witness.

“A credible alibi witness is the best possible defense other than a video,” Irwin said.

Irwin watched Asia McClain’s testimony and reviewed both of her letters and both of her affidavits, and concluded that she was essentially the ideal alibi witness. He called her, among other things, “a diamond” in her testimony this week (had she testified at 17, she would have been a “diamond in the rough,” but a diamond no less!), “powerfully credible,” “fabulous,” and “intelligent.”

Now, the State has tried to make the case that Gutierrez might not have contacted McClain because she decided to pursue other avenues of defense or discovered that McClain’s testimony would not have been valuable. But Irwin testified that he could not think of ANY TIME where it would be okay for a defense attorney to not even bother to talk a potential alibi witness. “Without facts, there is no strategy,” he said. There is no method of investigating an alibi witness — including Googling them — that supersedes actually speaking to them.

What about if their alibi claim potentially contradicts the dependent’s own story? For example, Brown suggested, what if Syed had said that he was in Texas on January 13, 1999 — would Asia’s claim that she saw Syed at the library thus become unworthy of followup?

“No,” Irwin said. “Your client might be wrong.”

What about the fact that there are a few inconsistencies in McClain’s claim over the years? Might that be a sign that she’s not a reliable witness? No, Irwin said. In fact, “If there weren’t inconsistencies over 15 years,” he said, “it wouldn’t be true,” because memory is imperfect. Those small inconsistencies actually make her testimony “powerfully credible.”

Referring then to her letters, Irwin said his expert opinion was that they were written by a very intelligent and “observant” teenager, and that they “begged” for a followup investigation and had he been defending Syed, he would have absolutely pursued speaking McClain. He testified that the multiple references she made to the library surveillance tapes lends further credibility to her potential as an alibi witness, because it shows how fully she believes in having seen Syed that day, and if she was making it up, she wouldn’t draw attention to anything that might disprove her claim. Her inclusion of multiple phone numbers where she could be contacted showed that she was “ready, willing and available to put herself on the line to tell the truth.” He also said that McClain’s boyfriend and his friend, who came into the library and saw Syed talking to McClain, should have been promptly pursued by Gutierrez as well.

McClain’s reference in her second letter (March 2) to not knowing Syed or Lee very well showed that she had knowledge of the parties involved, Irwin testified, but that she wasn’t biased. Irwin said that had he been working on Syed’s defense in 1999, he would have “dropped everything” to pursue and investigate McClain, and her boyfriend and his friend, as potential alibi witnesses. He testified that it was “critical” for Gutierrez to do so.

Brown asked Irwin about some of the holes the State attempted to poke in McClain’s testimony the day before, and whether anything about Vignarajah’s cross examination changed his opinion of McClain as a critical potential alibi witness for Syed. His answer was NO. He also testified that regardless of what other avenues of defense Gutierrez was pursuing, they absolutely did not preclude her from investigating and contacting McClain. Irwin said unequivocally that there was NOTHING that would/could/should eliminate the need for Gutierrez to investigate and contact McClain.

Irwin went on to testify that in his expert opinion, McClain’s significance as an alibi witness for Syed in 1999 would have been a “game changer,” that her testimony would have had a “material effect on the trial” and “outcome of this case.”

As for Gutierrez’s performance in regards to her lack of investigation into McClain as an alibi witness? “Her performance, sadly, was well below the minimum required” of a defense attorney.

Cross-Examination: Vignarajah’s cross-examination of Irwin will happen next week. (The State’s cell site expert needed to testify today, though, as you’ll see, he will continue to testify next week as well.

My Assessment: Asia McClain was a fantastic witness, but Irwin’s testimony solidified just how essential her testimony would have been back in 1999, and his expert assessment that Gutierrez failed her client does, I think, more to help Syed’s claim of IAC than any other witness so far. I cannot wait to see how Vignarajah handles cross.