‘Serial’ Subject’s Future Now Up to Retired Judge

BALTIMORE (CN) - A criminal defense expert continued to hammer away at a now-deceased attorney's representation of Adnan Syed, who was convicted and given a life sentence in the 1999 murder of his ex-girlfriend.

"[Cristina Gutierrez, Syed's trial attorney] was ineffective and constitutionally so, I am afraid," attorney David Erwin said under cross-examination by Deputy Attorney General Thiru Vignarajah.

Erwin's statement points to the heart of the post-conviction hearings as Syed's current attorney C. Justin Brown must convince retired Judge Martin Welch, who was called up to hear the testimony, that Gutierrez did not just make decisions on the basis of strategy but was that Syed's original team made "questionable" decisions" and was "constitutionally deficient."

Syed is currently serving life for the 1999 murder of his ex-girlfriend, Hae Min Lee. Syed's first trial in 1999 ended in mistrial after the jury overheard an incriminating exchange between the judge and Gutierrez.

Syed's story came into the national limelight after the podcast "Serial" called into question several aspects of the case, including Gutierrez's failure to investigate potential alibi witness Asia McClain. "Serial" has been downloaded more than 70 million times since its release in the fall of 2014.

McClain, who testified during the first two days of the hearings, wrote two letters to Syed following his arrest offering to testify she had seen him at a public library at the time prosecutors claimed Lee was strangled.

"Not investigating Asia McClain was a mistake," Erwin testified, adding that Gutierrez's team "had a constitutional obligation" to look into McClain's claim.

Also returning to the stand on Monday was state witness and FBI Special Agent Chad Fitzgerald, who under cross-examination by Brown said that the analysis of cellphone expert Abraham Waranowitz was "very good, and thorough."

Brown questioned Fitzgerald's analysis of Waranowitz's work, since Waranowitz has signed an affidavit saying that he had concerns about his own work after seeing a fax cover sheet sent from AT&T that warned of the reliability of incoming calls. The calls were used to place Syed at the site where Lee was found buried in northwest Baltimore's Leakin Park.

Brown also pointed out that Gutierrez's files contained incomplete cellphone call records and that it was possible the prosecutor withheld some documents from the defense that would have helped Syed's case.

"If you can't understand it, how in the world could Cristina Gutierrez have understood it?" Brown asked.

The final witness to take the stand was a security officer referred to only by his initials due to cyberbulling concerns. He told prosecutors there were no cameras in the library where McClain said she saw Syed, and that he didn't remember seeing Syed there that day.

During cross-examination, the officer admitted that he "can't remember clearly" who he saw and that there could have been security cameras that he didn't know about.

Both the state and defense rested at the conclusion of testimony Monday afternoon. Welch did not indicate when he might issue his ruling.

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