Charges Dropped Against Adnan Syed in 'Serial' Case

A judge ordered say Ed's release after prosecutors said a new investigation uncovered evidence that undermines his conviction. Our reinvestigation revealed that the original prosecutors and the subsequent prosecutors in the Attorney General's Office failed to disclose relevant information about alternative suspects. Wan Aful threatened to kill the victim, and then on Tuesday, prosecutors took the final step and dropped the charges against Sayette. His lawyer, Erica's Suitor, is my guest.

She's an assistant public defender in Maryland and director of the University of Baltimore's Innocence Project Clinic. Erica what was it like for him walking out of the courthouse after spending more than half his life in prison. Well, in the courtroom, you know, he turned to me, a non turned to me and said that he couldn't believe it was real. I think walking out the courtroom was probably

pretty overwhelming, and it was overwhelming to me. There were so many, so many people and so many cameras, so, you know, I think it was overwhelming. And he heard a friend, somebody who had been incarcerated with him, who had been exonerated, called his name, and that's when you see him look up and smile and wave, which was kind of one of the only times that he was, you know, sort of engaged. So how did you become

his attorney? Well, I've been practicing postconviction law in Maryland for about fifteen years, and when his case was sort of last before the court, now I was following it like everyone else, and you know, paying attention because of my interests and sort of the legal and procedural posture.

And then as that process ran down and he had reached sort of the natural conclusion of those things, you know, it was time for him to find another attorney to sort of pursuit whatever might remain and Robbia Chaudhry, who has been a longtime advocate of his and a family friend of his, you know, thought me out and approached me about taking the case and correct me if I'm wrong, But you were looking to overturn the case as much as get him out under another law. So no, we

were always looking to overturn the case. We've always believed in his innocence. He's always maintained his innocence, and so as a post conviction lawyer, you're sort of looking at what are all the potential tools and the tool kit to try to achieve relief for this client. And so one possible way to do that was to seek release through sentencing modification um through the recently past Juvenal Restoration Act.

So this particular path that we're on now did in fact begin with a conversation with the Sentencing Review Unit. But we were always looking at sort of all of our options. But yes, this particular sort of peace and a very long journey began with with having this conversation with an Assistant States Attorney, Bucky Seltman. So he had several appeals and at one point and appeals court vacated his conviction, but then it was reinstated. Yeah, so his

sort of procedural history is interesting and long. And what happened was in terms of the post conviction is that he had filed a post conviction so you know, after your sentence, you have the right to go back and alleged an effective assistance of counsel, and Maryland particular has very clear procedure. You're guaranteed of hearing. It has to be filed within ten years, and you're sort of attacking

the process. So he did that impost conviction and laws and then filed what we call an application for leave to appeal, so you don't have a direct right of appeal, you have the right to request permission to appeal. And it got remanded back and then he did what we call in Maryland emotion to reopen. So he's basically in post conviction posture again. And he won a new trial based on this cell phone evidence that incoming calls were

not reliable for location. Because the cell phone evidence corroborated really the only evidence against him, which was the testimony of the cooperating co defendant, So co defendance testimony evolves he's an incentivized witness. It contradicts, you know, in various points. So they've got this alleged forensic evidence and in that post conviction post conviction council demonstrated that that evidence wasn't reliable.

The state then appealed to the Court of Special Appeals, which is our intermediate appellate court, and they reversed on the cell phone saying that issue was waived because it wasn't raised in the initial post conviction, and then they granted relief on the alibi issue, saying that Christina Gutierrez trial counsel was ineffective for failing to investigate this alibi witness who said that she was with him at the

library in the relevant time period. So he twice won a new trial and these two different levels of court, and then the state appealed again to our highest court Maryland essentially Supreme Court, and then they reversed and said that although it was ineffective or post conviction council to not have investigated the alibi given all of the evidence, there was no prejudice. So there was a mistake, but it wasn't significant enough two show, you know that the

result would have been different. And then he filed start with the Supreme Court. Supreme Court didn't grant start, and that's where that process ended. A real roller coaster for him,

up and down with these appears. Who are I mean, I think it was incredibly difficult to go through actually winning a new trial instead of having I mean, if you're always against the odds in this procedural posture, you necessarily lose more than you win, just because of the emphasis fund finality and the fact that the burden is on the moving parties is on the defendant in this case, so you always lose that when you win, it is It's incredible and to have that taken back was extraordinarily

difficult for him for sure. Tell us about the recent investigation which you took part in, where prosecutors found in the trial folder evidence documents that were never turned over

to his prior attorneys. So the investigation that happened over the past year was really a collaborative effort between the defense and the state and Assistant States Attorney Becky Feldman went and looked through every trial box and copied a whole lot of documents and handed them over to the defense, and you know, we both reviewed them and that's where we found this this note that had not been turned over to trial council, that had not been turned over

to prior post conviction council, and it was pretty startling to see it. Tell us about the note, So it is a handwritten note that Um, because it's an ongoing investigation, you know, I don't want to go into too much detail. But what is part of the public record is the fact that it contained a threat against the victim. That the person about whom this note was talking said the suspect that he would make her disappear, the victim, he

would kill her. And under our system of laws, under the obligation of the state, that is information that the defense is entitled to use to defend themselves and non never had it for twenty years, for twenty three years, three years, and there is saying that there are two possible alternative suspects and they also have been alternative suspects for twenty three years. Um. So with well, yes, I guess that's fair to say. Um, they are people who

are involved in this case. They're not brand new people that nobody's ever heard of. They are people who are connected to this case in some way. Exactly how much attention the investigators at the time or the prosecution of the time, we're paying to them. I don't know whether or not the prosecution believe they were viable suspects at the time. I don't know. I certainly think this prosecution should have looked at them closer, examined them further, you know,

at least developed them further. But they were known to the state for sure. The prosecutors asked that his conviction be vacated, but didn't say that your client is innocent. So, you know, the public often looks at innocence cases and thinks that they're sort of, you know, a straight line. You find the thing, the smoking gun, and then your person is exonerated. The reality is, exonerations are incredibly difficult

because they require a particular kind of evidence. So someone may very well be innocent, but for example, if they were convinced based on one person's word, it can be very difficult to actually exonerate that person. You know, you're not going to necessarily have the thing that points to the other person. You know, this law, the ability for

the state to move to vacate is relatively new. It got passed in two thousand and nineteen, actually with support of the State's Attorney's office, and it was created in part because we had in in Baltimore City, specifically the Gun Trace Task Force, which we now know was a group of very corrupt police officers who were planting evidence, who were robbing people, selling drugs, all all sorts of

nefarious things. So with the Gun Traced Task Force cases, there was such an obvious problem that convictions based on the testimony of these extraordinarily corrupt officers ought not to stand. And so what the statute requires is evidence or information that is new to the state that causes them to lose faith in the integrity of the verdict. And that's really important that you know, the state is looking at whether this was a fair opportunity, whether the state, you know,

played fair as they were supposed to. And in a non's case, for sure, the evidence is overwhelming that the state did not. There was a DNA analysis done, yes, So we initially in March filed a joint motion or DNA testing. Testing began and basically in consultation with the scientists, we identified of the evidence what was most likely to yield information that was going to give us information about

whoever the actual assailant. Right, So we looked at all the evidence and based on the facts we know about the case, and under the advisement of scientists, selected the items that we thought were most likely to yield information about a suspect. And we tested all of that and the results were or that none of it came back to it Non. There are a couple of more items remaining, but we triage them, so we sort of identified these are the most important, These are the ones that I

think would yield the most valuable information. We went through all of that, and then there are a couple of more items remaining that we're waiting for the results to come back on. But in the grants scenario, of all of the evidence we've already tested, what we thought was sort of the most significant serial, of course became this pop culture sensation. How did that change the equation for him?

I mean, I think that's a really interesting question that a lot of people want to know about, and it's very difficult to say. What I think in general in a Non's case is that it contextualizes a person and it brings lights to a scenario that is actually common. For example, that prosecutors with hold evidence that they should turn over. So it sort of contextualizes a person as more of a full human being who is more than their conviction, and it educates the public to the extent

that it impacts the judges. I think it's a double edged sword. Judges are serious folks trying to do their job. I don't think they particularly appreciate some of the distractions that can come with the media attention. But it also creates a level of transparency that I think can be helpful in our judicial system because these kinds of cases, they often die in the dark, like all the odds are stacked against you, nobody's paying attention. The court wants

to leave the conviction intact. And now there's sort of a degree of attention and transparency that maybe just the needle a little bit more to a more level playing field. I can't imagine being a post conviction lawyer because it sounds like, you know, it's just such an uphill battle every minute of the day. So what does this mean

to you? You know, his release. You know, the victories are few and far between in this work, but the victories are so incredibly sweet, and it is what sustains you in this work because they are always long fought, battles.

So you know, on a personal level, this is a human being who has been incarcerated since he was a child, taken from his family for twenty three years, who spent his entire adult life in prison, in a fell and to see him, you know, restored to his family is to have the privilege of playing a part in that and being able to give somebody back to their family is is extraordinary. In terms of post conviction, you savor the winds because they're they're few and far between. Thanks

so much for joining us. Erica. That's Erica, suitor and assistant public defender in Maryland and director of the University of Baltimore's Innocence Project Clinic. I'm proud that the Obama Biden administration stood up for Dreamers. My predecessor tried to end DCA, but the Biden Harris administrations working to preserve it and fortify it. I want to make clear to the Dreamers who are here and those who are watching from home, this is your home. This is your home,

and we see you, and you are not alone. Despite promises from the Biden administration, the lives of Dreamers remain in limbo, and a federal appeals court has dealt another blow to their legal status. DACCA, or Deferred Action for Childhood Arrivals, is an Obama error program preventing the deportation of hundreds of thousands of immigrants brought into the United

States as children. It's had a complicated ride through federal court challenges, and now the Fifth Circuit Court of Appeals has ruled that the program contradicts federal immigration law and must go back to a Texas federal judge for a new review of the Biden administration's recent rule condifying the program. Current dreamers will retain their status for now, but the Fifth Circuit ruling highlights the precarious nature of Dreamer's protections,

despite historically bipartisan support for their cause. My guest is immigration law expertly on Fresco, a partnered Honda Knight, start by telling us about this Fifth Circuit decision. Well, the Fifth Circuit decision is very interesting because it mails a lot of different concepts all into one decision. But basically,

what it says is that DOCTA is illegal. But we're not going to end the program immediately because we're going to go back to the district courts to decide whether a new doctor rule that was issued by the federal government while the original doctor case was pending, changes something so that it makes the program converted from being illegal to legal. Tell us about the specifics of the decision.

So the specifics of the decision, there's four basic aspects of the decision, two of which will not change, and two of which will be examined in the district court. So the two that will not change moving forward. Our first that the state of Texas has standing to actually challenge Takas. That was an interesting question with regard to whether they could even do this, and that argument actually

had two parts. One that Texas, even though it claimed that it suffered financial laws from having a documented people in Texas, the government was saying, well, but that lass is outweighed by all of the economic benefits that having these individuals creates the Texas And the court said, no, we don't do this cost benefit analysis. If you show COUST that's the end. That's all you have to show for standing. You don't have to show that the cost

outweigh the benefits. So that's one part of it. But secondly, there had been a decision in the Supreme Court earlier this year which said that you can't ask for injunctive relief in an immigration case unless you are one person in one case. You can't ask as a group or

a state or anybody else for broad injunctive relief. And that came up in the Remain in Mexico case and what the Fifth Circuit hells and we'll see if the Supreme Court agrees with this, is that's not true when all you're trying to do is vacate a memo, like what's happening here where they were trying to vacate the doc a memo that's not an injunction. An injunction is don't do something here they were asking for just vacate the memo, say that the memo is illegal, and so

the courts are going to have to desire. The Supreme Court is gonna have to decide is that true. Is that a distinction without a difference, or is that really a distinction that's real, which is one thing is an injunction that the government is not allowed to do something, and another thing is just vacating a memo for it being illegal. So that's the first thing they decided was this issue of can they get the court they said, yes,

you can get the court. The second thing they decided was was the memo it self illegal because it didn't go through the formal rulemaking process. And they held yes, the memo itself was illegal because they didn't go through the formal rulemaking process. And he said, this memo actually confers benefits on the people in terms of work permits and in terms of the ability to say that you're lawfully here. And so because it does that, you can't just do that with a memo. You have to go

through the formal rulemaking process. And so there the memo was stricken. And so those two things I think are not going to change regardless. So those are the parts of the decision that are over for now. Tell us about what the federal judge is going to be reviewing. Now. The next question is, well, the government now in the middle of this case went through the formal rulemaking process, and so that is now mooting out the issue of the memo. So we're never going to get to this

memo issue ever again. And the issue is going to be whether the formal rules that the government has now put in place with regard to dots, which is basically identical to the memo. It does the same thing. It gives the same people status whether that formal rule is going to be illegal. And here the court previewed what they're likely going to rule in the future by saying, well, there's two points here that we think about the memo that we'll see if we think it about the rule.

We're not gonna say anything yet, but here are two points. Number one, the memo itself contravenes the I and A the Immigration Code by saying that people get scientus that the Immigration Code doesn't say get status, and that people get work benefits that the Immigration Code doesn't say get work benefits. So the second you do that, you're contravening the Immigration Code. And that's the end of it. Now,

there's always been arguments about that. The regular that the that the the statute says that the Attorney General, which is now the Secretary of Homeland Security because I've changed after Night eleven, can confer work authorizations to whoever they want to confer it to and can choose who to

deport or not to deport. But the Fifth Circuit has said no, no, no. Once you start creating a program of you know, a million people or whatever to specifically exempt based on a certain criteria, and specifically give work permits.

You're contravening the statute. So that's the first thing. And then the second thing the court said is based on the new logic of the West Virginia versus e P a decision which just came out also earlier this year, which says there was a huge decision that basically shrank the entire regulatory state dramatically because what it said was, if you're gonna do something of significant economic importance, then the thing you're doing regulatorially had to be something that's

very clear in the statute. It has to be you can't just say here's a provision and it's not inconsistent with this. It's kind of Congress has to kind of be making a very clear signal that they want to to do this. And so they're saying, because of that new West Virginia versus e PA decision, dot is also illegal because there's nothing that Congress said which puts us anywhere near saying create a program like DOTA. And so

those are the four prongs of the decision. And so now what the court said is, but we're not gonna end doctor today, go back District Court and tell us whether we're right about the new rule. Does the new rule do anything different? Or does it fail for the same two reasons, which are that it contravenes the statute and that it regulates in a place where there's that clear regulatory authority. And if it does, will strike it then and then it'll be up to the Supreme Court

to determine what happens. Would you say this is not a good development for the dreamers because it sounds like it's a legal question. The Fifth Circuit is sending to the lower court judge, and this judge already rule once

that data was unconstitutional. Correct. What this means is that they're sending back basically the same legal questions they just answered in the memo case and basically asking the District court does this new regulations the rule do anything different than the memos And if it does something different than the memo, tell us that maybe then the docta recipients win.

But if it doesn't, then the doctor recipients blew. And the truth of the matter is, the whole point of the regulation was just to eliminate the notice and common argument.

It wasn't to change anything else. And so I would say with thirty that the District Court and the Fifth Circuit are going to invalidate the rule, and then what happens It goes to the Supreme Right, then the case will go to the Supreme Courts that the Supreme Court will finally have to decide whether the DOCTA program under the new rule violates the Immigration and Nationality Act, either on its face because you know, you can't give work

authorizations to categories of people that the statute doesn't provide, or whether it violates this new West Virginia versus e Pa doctrine, which says that even is the code basically doesn't this allow it, it doesn't for a question of this major important prompt regulation in this matter, so that you can't actually regulate in this matter because it's a question of such economic importance that Congress would have had to have given some indication that it wanted the agency

to regulate in this area. Leon or any other circuit courts considering DOCTA questions. No, right now, there's nothing else going on. This is the only show in town. Because the original case that was the doctor case that went up to the Supreme Court was the issue of the

Ninth Circuits saying that the Trump DOCTA revocation memos was illegal. Now, there are these challenges in the Second Circuit in New York called Bataiah Vadal, But in the Battaiah Nadal case, the courts have now said, look, we're not going to

invalidate the Fifth Circuit decisions. That's what the litigants wanted there is they wanted basically dueling decisions that would invalidate the Fifth Circuit decision and basically forced the Supreme Court's hand, and the courts in New York did not want to

do that. Basically, the DOCTA program is going to be legal until either the Fifth Circuits says, okay, we're listing to say that currently exists right now for existing DOTA holders to have DOTA, which they haven't done yet all or that the Free Court said, well, we've now looked at this and we've decided for the whole country that DOCCA is illegal. And so now everyone who had doctor

status loses that status as of this decision. So Democratic Senator Dick Durbin, who said before the ruling came out, this could change everything, was wrong. Well, it could change everything, but maybe not at that second, the question is when

it will change everything. So if DOCCA is ultimately ruled to be illegal in one of two forms, either inform one by the Fifth Circuit coming back and ruling it illegal and lifting the stay, which is there's currently a stay from invalidating the DOCTA program nationally, if the Fifth Circuit lifts the say, or if the Supreme Court, even though there was a say, now says, well that we've decided the issues and now there's a lesue of a stay anymore, and we've decided the issue, and upon deciding

the issue, DOCTA is illegal, then yes, that changes everything. That that ends the doctor program and at that point all of the people who had doctor, the seven thousand individuals lose any protections or work authorizations that they had. And at that point we're back in square one, where where nobody was previously undocumented has any status. So let's

just say the Supreme Court declares DOCTA is invalid. Isn't it up to the administration of the time in the Department of Homeland Security to decide whether or not to deport Dreamers? Well, correct, then that will then that will actually link up with another case that's in the Supreme Court right now, which is which is going to be argued in December, And that's the case about prosecutorial description.

And there there actually is an injunction currently in place where the State of Texas has successfully limited the ability of the Immigration and Customs Enforcement Office to have a memo that has prosecutorial discretion. Now, this will be very interesting whether the court actually keeps that. I believe that this will end up like Romaine in Mexico, where once the court actually examined this, they will say, well, wait a second, why are we getting involved in isis prosecutorial

discretion memo writing? You know, aren't we getting a little too detailed into what the agency is and isn't doing. But if they also say that the agency can't have a prosecutorial discretion memo either, then it will actually be tougher because then at that point, individual ICE officers will have the discretion to remove whoever they want, and that

could include DOCTA recipients. At that point. DOC is this issue that supposedly cuts across party lines, but Republicans are holding up any kind of DOCTOR legislation because they want to barter for border security. John Cornyn said, until we get the border under content role, it's not possible to deal with some of these other issues where there is bipartisan consensus. So that's just sort of chit for Chad.

You give us this and we'll give you that. Well, this has been the complication of the issue of the Dreamers for a long time, and that is that when people talk about legalizing the status of the dreamers, the alternative argument is, well, how do we know that ten years from now there won't be another million Dreamers? And that's an interesting question. It's a certainly powerful rhetorical statement.

And so when people say, okay, well, in exchange for legalizing the Dreamers, we have to basically make all of the enforcement changes in the immigration code that Democrats have traditionally insisted could only be made in exchange for legalizing everybody. That's why you never get a deal here, because the proportions of the deal never think in meaning the Democrats want to legalize the Dreamers for some more limited enforcements, knowing that the entire bucket of enforcement should be traded

for the legalization of everybody. But it's the Republicans say, but if you don't do the entire bucket of enforcement, there will even be a million more dreamers, So you don't even solve the dreamer problems. This is why you never get a deal just on the dreamers. What do you mean, you'll be a million more dreamers. Meaning, here's the problem. There are certain things everybody agrees upon that if you do them, they will end undocumented immigration pretty much.

So the first thing you would do is you would make employers when they hired somebody. Now instead of using the current nine system, which is very easy to gain, which is that somebody all they have to do is show you a Social Security card and an identification now you would be able to You would be required, for instance, to take their picture, and then you take the picture of the individual and that picture gets run through all the facial recognition system that the government now has, as

the government can now tell you whether that employee is legal or not. That new kind of employment verification coupled with what would be known as asylum reform, which would basically say that anybody who's seeking asylum through the southern border would have to either wait outside the United States or in some facility or something, but pecifically couldn't wait in the interior of the United States while their case

was spending. If you were to put those two things together, you would basically have a dramatic, if not complete, end

to undocumented immigration the United States. But the point is if you did that and you traded it just for the legalization of the Dreamers, many Democrats say, well, then there will be nothing that ends up getting the other ten million people who are here without statistics, those people will now end up having to be deported or leave because now you put in the whole enforcement framework without legalizing.

Then so what they say is, well, let's do you know, some lesser measures, either on asylum or on something else that don't completely take out the problem, because that trade needs to be made for all eleven million. And so that's why you don't get this agreement is because neither side can agree upon what is the proper trade for

legalizing the dreamers. And so that's the problem, because what the Republicans say is if you don't completely eliminate unlawful work in the United States and this asylum issue where people can come to the border as for asylum and and stay in the country, then you will continue to have ways of undocumented immigration, which will create new dreamers, and so you don't even solve the dreamer problem by

passing the Dream Act. You just create a new wave of merger, but you'll have to address ten years from now. Thanks so much. Lean. That's immigration law expertly on Fresco, a partnered Hollanden Night. And that's it for this edition of The Bloomberg Law Show. Remember you can always get

the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify and at www dot bloomberg dot com slash podcast slash Law, And remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg