Adnan Syed asks Maryland appellate court to reconsider decision to reinstate murder conviction

BALTIMORE – Adnan Syed is asking the Appellate Court of Maryland to reconsider its decision to reinstate his murder conviction and life sentence, saying the judges who rendered the opinion last month failed to apply an important legal analysis.

In an opinion March 28, two of the three judges on the state’s second highest court presiding over an appeal from the brother of Hae Min Lee, whom Syed was found guilty of killing in 1999, determined that a Baltimore judge violated her brother’s rights by neglecting to give him enough time to appear in-person at the hearing last September that set Syed free. Young Lee, the brother, spoke in court that day by video call from California.

In a six-page motion filed Wednesday morning, attorneys for Syed said the judges who decided to reinstate Syed’s conviction gave Young Lee something he didn’t ask for: A do-over of the hearing to vacate Syed’s conviction where he could attend in person, rather than by video, but not necessarily participate. Young Lee’s lawyers had asked not only that he be able to speak, but to put on evidence and question witnesses.

Syed’s lawyers, Erica Suter and Brian Zavin, head of the public defender’s appellate division, said the appellate judges failed to examine whether the mistake they identified from the circuit court was harmless.

While the appellate court judges found that Young Lee had a right to physically attend the Sept. 19 proceeding in Baltimore, they made clear that the law doesn’t establish that a victim or their advocate has the right to speak at a hearing to vacate a conviction.

Syed’s lawyers argue Baltimore Circuit Judge Melissa Phinn wouldn’t have upheld the murder conviction, rather than overturn it, if Young Lee had spoken in the courtroom rather than over Zoom, or if Phinn decided not to allow him to speak. Therefore, the error was harmless, Syed’s lawyers argued, quoting from an appeals case where the Maryland appellate court said “it is the policy of this Court not to reverse for harmless error.”

In a statement, Zavin said “acknowledging that the outcome would not have been different does not diminish the importance of victims’ rights.”

“Even a criminal defendant generally is not entitled to reversal of a conviction for the violation of their constitutional rights if the appellate court finds that the result would have been the same despite the error,” Zavin continued. “Likewise, here, any violation of a right to appear in person that Mr. Lee possessed would not have changed the outcome of the vacatur proceeding.”

Many legal observers expected Syed to appeal the ruling to the Supreme Court of Maryland, and his legal team’s request that the lower court reconsider its decision doesn’t preclude them from asking the state’s high court to take up the case, said Andrew D. Levy, a veteran appellate lawyer.

Levy said motions like Syed’s are rarely granted. In Syed’s case, one of two judges who decided his conviction should be reinstated – Judges E. Gregory Wells and Kathryn G. Graeff – would have to change their position.

The three-judge panel could deny the motion without hearing from Young Lee’s lawyers, but the judges won’t grant the motion without requesting a response, Levy said.

Convicted of murder in 2000 and sentenced to life in prison, Syed spent 23 years behind bars before he walked free in September. The Sept. 19 hearing considered a motion to throw out his conviction filed by city prosecutors, which was the product of a year-long probe into his case conducted alongside Suter, after she approached the Baltimore State’s Attorney’s Office with hopes of modifying Syed’s sentence.

Prosecutors cited the revelation of two men considered suspects in Lee’s killing two decades ago, who they said were known to their predecessors but not disclosed to Syed’s defense lawyers – a violation of Syed’s constitutional rights, they said, that prevented him from getting a fair trial.

Faced with an uncontested request to throw out Syed’s conviction, Phinn ordered him freed and gave prosecutors 30 days to decide whether to retry him or dismiss his charges. Within that window, attorneys for Young Lee noted their intent to appeal Phinn’s ruling. But before the appellate court responded, then-Baltimore State’s Attorney Marilyn Mosby dropped Syed’s charges.

A three-judge panel on the appellate court allowed Young Lee’s appeal to continue despite Syed’s charges being dismissed. Oral argument in the case was in February.

Graeff authored the March 28 opinion, which ignited a longstanding debate about crime victims’ roles in the criminal legal system.

The third member of the appellate panel, Judge Stuart R. Berger, argued in a dissenting opinion that clarifying crime victims’ rights in vacatur hearings is a policy matter suited for lawmakers, not the courts.

In their motion Wednesday, Zavin and Suter argued that the appellate court’s opinion opened the door for scores of legal decisions to be reversed if victims or lawyers or defendants can’t attend hearings in person.

They noted that courts in Maryland and across the country have rejected defendants’ claims that attending a hearing via video violates their right to attend, highlighting that courts operated largely remotely during much of the coronavirus pandemic. The Supreme Court of Maryland last week adopted rules that allow trial judges to require remote appearances in some types of proceedings, even if lawyers object.

“Tellingly, even when the consent of the parties is required to allow for remote participation, the new rules make no provision for objections by non-parties, including victims and victims’ representatives,” Syed’s lawyers wrote.