Syed’s attorney and Baltimore prosecutors agreed Lee’s clothing and shoes, as well as hairs recovered around her body and other pieces of evidence not specified, should be tested with DNA technology that was not available for Syed’s trials — DNA analysis that’s now regularly used by law enforcement to identify or exclude suspects, according to their motion.
Authorities have maintained that Lee struggled with Syed, her ex-boyfriend, in a car before she was killed. Syed’s attorney argued in the latest motion that strangling someone, and dumping their remains, requires the killer to be near the victim. The motion requests testing the evidentiary items for the presence of DNA.
Syed’s attorney, Erica J. Suter, director of the University of Baltimore Innocence Project Clinic, wrote that the absence of her client’s DNA on items not yet tested — certain clothing, the shoes and hair — would amount to evidence of his innocence and could persuade a judge or jury he was.
Now 41, Syed has maintained his innocence for more than 20 years. Incarcerated at the Patuxent Institution in Jessup, Syed was sentenced in 2000 to life in prison plus 40 years. That penalty was handed down after his second trial on charges stemming from Lee’s killing.
His case rocketed to national and international prominence when it was examined in the “Serial” podcast beginning in 2014. An HBO series brought more attention to his case.
Syed has appealed his conviction repeatedly, with the state’s highest court in 2019 restoring his conviction, which the intermediate appellate court had overturned. The Maryland Court of Appeals found that deficient legal representation at trial hadn’t prejudiced him.
The Maryland Office of the Attorney General in 2018 oversaw a DNA analysis of various evidence in Syed’s case, including fingernail clippings, blood samples and a condom. None tested positive of Syed, and the findings were received to different effects: Syed’s lawyer at the time said it proved his client wasn’t responsible for the death, while state prosecutors contested that it hardly exonerated him.
The joint request from Suter and city prosecutors asks for different items to be examined for what’s known as touch DNA.
That refers to the analysis of trace DNA left behind when someone touches something, like skin cells or bodily fluids, which are more rich with DNA, said Maneka Sinha, an assistant professor at the University of Maryland Francis King Carey School of Law.
The motion also asks items to undergo a more generic test to determine whether a profile can be identified and tests that seek to identify the profiles of people born as men, said Sinha, adding that each has “the potential for exculpatory value.”
In the spring of 2021, Suter contacted prosecutors about Syed’s case, she said in a statement.
The idea for retesting DNA came up as Suter worked with the city prosecutor’s Sentencing Review Unit following Maryland’s passing the Juvenile Restoration Act, which enables those convicted of crimes before they turn 18 to petition the court for a sentence modification, State’s Attorney Marilyn Mosby said in a statement.
“In the process of reviewing this case for a possible resentencing, it became clear that additional forensic testing — which was not available at the time of the original investigation and trial in this case — would be an appropriate avenue to pursue,” said Mosby, who declined to comment further.
Becky Feldman, the prosecutor in charge of the Baltimore State’s Attorney’s Office Sentencing Review Unit, wrote in her portion of the motion calling for more DNA testing that the new tests would “assist greatly in evaluating [Syed’s] post-trial claims.”
Suter’s statement described her client’s more than 20-year legal battle and credited prosecutors for supporting further DNA testing after several months.
“We are eager to finally have access to the forensic tools to establish Mr. Syed’s innocence,” Suter said.
Colin Starger, law professor and associate dean at the University of Baltimore, said it’s significant that prosecutors signed on to the motion.
“That tends to support that both sides involved in this litigation understand that this could provide a factual basis that could be very strong,” Starger said.
However, if the tests turn up no DNA at all, it would be hard for the defense to make a case, he said.
“Absence of evidence is not evidence of absence,” Starger said. “I would imagine if it comes back with nothing at all then it means nothing; it doesn’t change the picture.”