But factual innocence has little significance under Maryland law. There are innocent defendants in prison cells across the state, but only those who can prove they were deprived of a constitutional right can earn their freedom. What matters in Syed’s case is whether his attorney was so deficient that Syed was, in effect, deprived of his right to counsel.
Soon after Syed was arrested, Asia McClain wrote him letters about seeing him in the library on the afternoon of the murder, and Syed asked his attorney, Cristina Gutierrez, to contact her. But after trial, in March 2000, Syed’s friend and attorney, Rabia Chaudry, tracked McClain down and learned that she’d never been contacted by the defense team. McClain would later testify on appeal that, on the day of the murder, she was with Syed in the library next to the high school until 2:40 p.m. — during the exact time the state claims he was committing the crime.
Syed wasn’t the only client whom Gutierrez failed. In May 2001, just one year after Syed’s sentencing, Gutierrez was disbarred after numerous former clients filed complaints about her conduct with the Attorney Grievance Commission. Gutierrez did not oppose the disbarment order, stating her poor health made it physically impossible for her to continue practicing as an attorney. The misconduct allegations didn’t end there. After Gutierrez’s disbarment, an “all-time record” number of former clients sought, and won, reimbursement from the Maryland Clients’ Security Trust Fund based on her misconduct in their cases.
The Sixth Amendment’s guarantee of assistance of counsel doesn’t provide the right to a great, or even good, attorney, but it does give a defendant the right to an attorney who will at least take basic steps to investigate alibis. As the Court of Criminal Appeals of Alabama ruled in January, in overturning the conviction of a death row inmate whose defense counsel had failed to contact multiple alibi witnesses, “there is nothing as dangerous as a poorly investigated alibi.”
In 2017, the Maryland Court of Special Appeals found misconduct in Syed’s case, concluding that Gutierrez’s failure to contact McClain fell below constitutional requirements for effective assistance. This decision was in no way controversial. In fact, it was expected, as it aligned with rulings from courts across the country, which have universally agreed that the Constitution requires defense counsel to investigate potential alibi witnesses. Last year, in reversing the murder conviction of Michael Skakel, the Supreme Court of Connecticut observed it had been unable to identify a single case in which a court remained confident in a jury’s guilty verdict despite defense counsel’s failure to contact an alibi witness.
There is now one case in the entire United States in which a court has let a conviction stand under those circumstances: Adnan Syed v. State of Maryland. In February, Maryland’s highest court reversed the decisions of two lower courts and reinstated Syed’s conviction. The justices didn’t disturb the lower courts’ findings that Syed’s attorney was constitutionally inadequate when she failed to contact his alibi witness, who could place him at the library until 2:40 p.m., and that, based on the state’s evidence, the murder must have taken place shortly before 2:36 p.m. Yet, shockingly, in a 4-to-3 ruling, Maryland’s highest court held that Gutierrez’s failure to contact McClain didn’t undermine its confidence in the jury’s verdict. The court reached this conclusion through a paradoxical finding: that because the state had presented such a weak and inconsistent theory about the time of the murder, it’s unclear whether the existence of an alibi would have made a difference in Syed’s case.
Now, courts across the country have a ruling they can cite to deny relief to other wrongfully convicted individuals. Indeed, Maryland courts have already cited the Syed opinion to reject previously viable claims by other defendants. If this decision is allowed to stand, it has the potential to undermine the rights of defendants in any state that follows Maryland’s lead.
There is one more avenue for relief. On Aug. 19, Syed’s attorneys filed a petition for writ of certiorari asking the Supreme Court to hear his case. The Supreme Court should agree to hear Syed’s appeal to ensure that defendants in Maryland and across the country who were failed by their attorneys aren’t also failed by the courts. If the Supreme Court does not, the Maryland ruling can and will be used to deny relief to potentially innocent defendants for years to come.