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'Serial' podcast subject Adnan Syed gets new trial
01:24 - Source: WJZ

Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney admitted to practice in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.

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A Baltimore judge has ordered a new trial for Adnan Syed

Danny Cevallos: More prisoners out there will be clamoring to be the next Adnan Syed

CNN  — 

“Deference” as a judicial practice runs counter to our traditional notions about what courts do. We envision them in action; stepping in to overturn unconstitutional laws, free the wrongly imprisoned, and defend civil rights. Sometimes the most powerful thing they do is also the quietest: nothing. Staying out. Inaction. Deference. Whether you disagree with this law, the executive branch, or Homeland Security, the court here got it right.

And in the case of Adnan Syed, who was serving a life sentence for the slaying of his ex-girlfriend, Hae Min Lee, there is suddenly more than just a glimmer.

Danny Cevallos

A Baltimore judge this week vacated Syed’s murder conviction and ordered a new trial. Syed’s conviction was the subject of the hit “Serial” podcast, which generated massive attention.

Why is this happening now?

The Sixth Amendment guarantees all criminal defendants the right to the effective assistance of counsel. But alleging ineffective assistance of counsel is not easy: A defendant must establish that his lawyer was 1) constitutionally deficient, and 2) that the deficient performance prejudiced the defense.

Cell tower evidence

According to Syed’s post-conviction lawyer, the prosecution relied on two main pieces of evidence. First, the testimony of Jay Wilds. Wilds was a cooperating witness, which means he received some benefit from the prosecutors to testify – he wasn’t there as a good Samaritan. Syed’s lawyers write that Wilds told multiple inconsistent versions of events, “and later admitted publicly that he had made up parts of his trial testimony against Syed.”

The second prong of the state’s case was cellular tower evidence, a “nascent technology at the time” used to corroborate Wilds’ story, which allegedly tracked Syed’s cell phone location.

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Syed’s new lawyer argued that location evidence generated by the incoming phone calls would not have been admissible because the method wasn’t generally accepted as reliable in the relevant scientific community. The centerpiece of this claim? AT&T had sent a fax to the police warning them: “Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.”

Wow. It doesn’t get much clearer than that. The scientific community specifically said that this particular evidence was NOT reliable. In ALL CAPS, in case there was any ambiguity.

According to documents filed with the court, Syed’s trial lawyer received this information but failed to act on it. She didn’t hire an expert. She didn’t move to exclude it, and ultimately, she failed to cross-examine the state’s expert about it.

That doesn’t sound good. But there’s a big difference between attorney error and a viable “ineffective assistance of counsel” (“IAC”) claim. Attorney error is common. Successful IAC claims are miracles. The law makes it tough for defendants like Syed to prevail.

Constitutionally deficient?

Courts start out aligned against the defendant in IAC claims, by presuming that his lawyer “rendered adequate assistance” and exercised “reasonable professional judgment.”

Because the appellate court is so deferential to the lawyer’s choices, it won’t even consider anything less than objectively unreasonable representation.

Was deficiency prejudicial?

A constitutionally deficient lawyer by itself is, surprisingly, not enough for someone like Adnan. A defendant must additionally show that if not for his lawyer’s unprofessional errors, there’s a reasonable probability the trial would have ended differently. The court looks at whether counsel’s errors were so serious as to deprive the defendant of a fair, reliable trial.

Every lawyer is different, so courts acknowledge it’s hard to come up with any hard rules for evaluating their conduct. Generally, though, an attorney’s decisions must be grounded in adequate investigation and preparation. That includes forensic evidence: A competent lawyer would not fail to investigate forensic evidence.

Courts in Maryland have held that the failure to conduct an adequate cross-examination on a scientific method used to implicate the defendant may be a basis for finding constitutionally deficient performance.

New trial

So, Thursday was a day of miracles for Adnan Syed. On that day, the reviewing judge entered a short order agreeing that Syed’s trial lawyer was ineffective for her failure to cross-examine the state’s cell tower expert about the reliability of cell tower location evidence. It’s a reminder that no matter how slim the chances, it’s worth the cost of a stamp to a defendant if there’s any chance someone out there will listen.

Adnan Syed won the lottery. He became the subject of a breakout hit podcast. That generated a bonanza of attention in his case. Would he have had access to such skilled lawyers for his ineffective assistance claim without that publicity? Would the court have decided differently without the mass scrutiny? Who knows?

One thing is for sure, though – even more prisoners out there will be clamoring to be the next Adnan Syed. But most of them will not succeed.