Appealing Adnan Syed’s release, Hae Min Lee’s brother asks appeals court for new hearing

BALTIMORE — After two murder trials, multiple failed appeals, 23 years in prison and a public acquittal, Adnan Syed’s legal saga is not over yet.

The brother of Hae Min Lee, the 18-year-old Woodlawn High School student found killed in Leakin Park in 1999, is asking the Maryland Court of Special Appeals to order a redo of the hearing that set the “Serial” podcast subject free earlier this year.

Specifically, Young Lee, Hae Min Lee’s brother, is asking a three-judge panel to order a new hearing to determine whether Syed’s murder conviction should be overturned, and for the chance to present evidence at such a hearing, according to a brief filed Friday. Steve Kelly, Young Lee’s attorney, is asking for a hearing where he can introduce evidence, call witnesses and argue against whatever evidence the state presents.

“Mr. Lee must be afforded the opportunity to challenge the state’s evidence and witnesses and to present his own,” Kelly wrote in Friday’s filing.

Syed, 41, was convicted in 2000 for the murder of Lee, his high school ex-girlfriend. Baltimore Circuit Judge Melissa Phinn overturned Syed’s conviction Sept. 19 and ordered him released from prison after prosecutors raised doubts about the integrity of the conviction, citing their revelation of “alternative suspects” in the homicide. Baltimore State’s Attorney Marilyn Mosby’s office also used that hearing to discredit much of the original evidence in the case that the jury used to find Syed guilty.

Erica Suter, Syed’s attorney, issued a statement Friday urging the Lee family to stop trying to incarcerate “an innocent man.”

“The grief and pain that Hae Min Lee’s family continues to endure is palpable and deserves our deepest compassion, but the root of that pain, the murder of Hae Min Lee, has been compounded by Kevin Urick’s repeated misconduct,” Suter said, referencing what she believes was the original prosecutor’s failure to turn over information about alternative suspects.

“Prosecutorial misconduct is the most common cause of wrongful convictions,” her statement continued. “Justice for Hae Min Lee means finding the actual killer, not furthering the harm experienced by Adnan Syed and his family.”

Prosecutors said they identified two alternative suspects in Lee’s death, both of whom were not sufficiently investigated at the time. The Baltimore Sun reported previously that both suspects were known to Syed’s defense at the time of trial, and one of them found Lee’s body and testified at trial.

At the Sept. 19 hearing, Assistant State’s Attorney Becky Feldman said in open court she presented evidence suggesting Syed’s innocence to Phinn in a closed hearing the week before. That evidence consisted of a hand-written prosecutor’s note she said she found in the original case file, that Feldman interpreted as someone else making a threat against Lee’s life.

The note was never turned over to Syed’s defense team, and until this year, had remained secret, Feldman and Suter have said.

“He told her that he would make her disappear. He would kill her,” Urick, the note’s author and original prosecutor on Syed’s case, wrote more than two decades ago.

But the note’s actual meaning is up for interpretation. Urick told the attorney general’s office that the “he” refers to Syed. Feldman and others say the “he” refers to the alternative suspect.

Urick has declined all interview requests.

The Sun is not identifying the alternative suspect because he has not been charged with a crime.

Young Lee appealed Phinn’s decision soon afterward, arguing he was not given enough notice about the hearing to either attend or prepare, and that Phinn and Mosby violated his rights as a crime victim under Maryland law. Suter, in her statement, said the Lee family received enough notice about the hearing.

Prosecutors told Young Lee about the hearing less than one full business day before it was set to take place, and Lee, who lives on the West Coast, was not available to attend in person.

Kelly attended in person and asked Phinn to postpone the hearing for one week so Young Lee could attend in person, but Phinn declined. Lee did give brief, unprepared remarks via video call, in which he emotionally asked Phinn to “make the right decision.”

In their own court filing, lawyers for Attorney General Brian Frosh have written that the note is subject to “multiple” interpretations. The Attorney General’s Office represents the state in this appeal, and Frosh’s administration has said it believes Young Lee’s rights were violated.

Complicating matters is the fact that no criminal case against Syed currently exists. When his conviction was overturned in September, the underlying murder charge against Syed remained, leading to the basis for Young Lee’s appeal.

On Oct. 11, Mosby held a news conference announcing her office had dismissed all the remaining charges against Syed, effectively acquitting him. Under Maryland law, she had 30 days from the time Syed’s original conviction was overturned to either dismiss the charges or continue forward with a new prosecution.

“There’s no more appeal,” Mosby said at that news conference, adding that her decision to dismiss the charges made the matter “moot.”

Suter, Syed’s lawyer, said in a statement at the time that the charges being dismissed made her client “a free man.”

“DNA results confirmed what we have already known and what underlies all of the current proceedings: that Adnan is innocent and lost 23 years of his life serving time for a crime he did not commit,” Suter said then.

Although his appeal may be moot considering the lack of underlying criminal charges, Young Lee is asking the court of special appeals to rule anyway, arguing that crime victims will continue to have their rights violated so long as prosecutors can circumvent the appellate process by dismissing charges before a victim’s appeal can be heard.

“If this Court will not hear an appeal once a prosecutor has decided to (dismiss) charges, no appeal will ever be heard, and prosecutors will have plenary power to moot their own cases — a manifest distortion of executive power,” Kelly wrote.

Both the attorney general’s office and Syed’s attorney have until Jan. 9 to file their replies to Kelly’s brief.

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