By Madeleine O’Neill
Maryland’s second-highest court reinstated Adnan Syed’s murder conviction in the 1999 killing of Hae Min Lee Tuesday in a surprising new opinion that found Lee’s family had the right to attend in person when a judge freed Syed from prison and vacated his conviction in the killing.
A split three-judge panel found that requiring Lee’s brother, Young Lee, to attend the September hearing via Zoom instead of allowing him to fly in from California and attend in person violated Young Lee’s rights under Maryland laws protecting crime victims.
“In sum, we hold that in the circumstance where, as here, a crime victim or victim’s representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim’s right to attend the proceeding,” Judge Kathryn Grill Graeff wrote.
The panel remanded the case for a “new, legally compliant, and transparent hearing on the motion to vacate, where Mr. Lee is given notice of the hearing that is sufficient to allow him to attend in person.”
A lawyer for Syed said he will appeal the decision to Maryland’s Supreme Court.
David Sanford, an attorney for the Lee family, applauded the court’s decision.
“We are delighted that the Appellate Court of Maryland agrees with Mr. Lee that his right to have reasonable notice of the Syed vacatur hearing and his right to be physically present at that hearing were violated by the trial court,” Sanford said in a written statement.
“We are equally pleased that the Appellate Court is directing the lower court to conduct a transparent hearing where the evidence will be presented in open court and the court’s decision will be based on evidence for the world to see.”
The opinion raises a series of questions about how the case was handled.
Crucially, the appellate court found that Young Lee’s appeal was not moot, even though the Baltimore State’s Attorney’s Office entered a nolle prosequi, or a dismissal, of the charges against Syed a month after the vacatur hearing.
The opinion also suggests that the Baltimore State’s Attorney’s Office, under Marilyn Mosby, intentionally timed the nol pros in an effort to block the Lee family from pursuing an appeal.
The Lee family had already filed a request to stay the case so that they could appeal when Mosby’s office proceeded with the dismissal, opening up the question of mootness in Lee’s appeal.
“Under these circumstances, we conclude that the nol pros was entered with the purpose or ‘necessary effect’ of preventing Mr. Lee from obtaining a ruling on appeal regarding whether his rights as a victim’s representative were violated,” Graeff wrote.
“Allowing a nol pros in this circumstance gives the State a mechanism to insulate a defective proceeding from appellate review, and it prevents victims from receiving the rights to which they are entitled.”
The panel also found that Baltimore Circuit Judge Melissa M. Phinn erred when she found that the Lee family had received adequate notice before proceeding with the vacatur hearing.
The prosecutor who handled the case, Becky Feldman, gave Young Lee one business day’s notice of the vacatur hearing and did not notify Lee that he had the right to attend in person, according to the opinion. That was not “sufficiently reasonable” to allow Lee to attend the hearing, the court found.
The panel concluded that Maryland’s victims rights laws entitle crime victims or their representatives to attend in person when there will be a hearing on a motion to vacate a conviction. Zoom attendance was not adequate in this case because everyone else involved — Syed himself, prosecutors and defense attorneys, members of the public and the media — was able to attend in person.
The appeals court did not find, however, that Lee had a right to be heard at the hearing. Phinn did allow Lee to address the court over Zoom at the vacatur hearing.
Syed, whose case was examined in the popular true-crime podcast “Serial,” was serving a life sentence after being convicted of strangling 18-year-old Lee, whose body was found buried in a Baltimore park. Syed, 17 at the time, has always maintained he did not kill Lee, his ex-girlfriend.
The Baltimore State’s Attorney’s Office asked to vacate Syed’s conviction at the hearing in September, citing newly discovered evidence of a potential alternative suspect and other flaws in the trial evidence.
The request centered on two handwritten notes that were said to reveal an alternative suspect who had reportedly said he would kill Lee. The documents were never turned over to the defense, prosecutors said, creating a Brady violation that raised questions about the legitimacy of Syed’s conviction in Lee’s murder.
Phinn agreed to vacate Syed’s conviction from the bench and ordered Syed be released from the courthouse at the end of the vacatur hearing.
The Lee family quickly appealed, arguing that their rights under Maryland’s victim rights laws were violated when they were not allowed to attend the vacatur hearing.
A month after the hearing, Mosby dropped the charges against Syed entirely, pointing to new testing that eliminated Syed as a contributor to DNA recovered from Hae Min Lee’s shoes.
Mosby has since left office. A spokesperson for Baltimore State’s Attorney Ivan Bates said the case is now in a “holding pattern” because Syed can appeal the decision.
“This office is currently conducting a review of the decision,” said the spokesperson, James Bentley. “We must allow the appeals process to play itself out. Mr. Syed and his legal team may file for an appeal to the Maryland Supreme Court, and we must respect their rights to do so until those rights are either heard or that request is denied.”
The Appellate Court judges stayed their order for 60 days, which likely means Syed will not be returned to prison during that time.
Erica J. Suter, an assistant public defender who represents Syed, emphasized that the appeal was not about Syed’s guilt or innocence, but the procedural question of how much notice crime victims should receive.
“It took over two decades for prosecutors to finally acknowledge what Adnan Syed and his loved ones have been saying since day one: he did not murder Hae Min Lee,” Suter said in a statement.
“There is no basis for re-traumatizing Adnan by returning him to the status of a convicted felon. For the time being, Adnan remains a free man.”
In a dissenting opinion, Judge Stuart R. Berger argued that Zoom attendance was adequate to satisfy Young Lee’s rights as a crime victim’s representative.
The appellate decision is not the first time questions have been raised about the handling of the case. The Maryland Attorney General’s Office, under then-Attorney General Brian E. Frosh, disputed the integrity of the process used to exonerate Syed in a court filing last year.
The office argued that the handwritten notes used to support vacating Syed’s conviction “are subject to multiple interpretations” and that the Baltimore State’s Attorney’s Office selectively quoted one of the notes, leaving out multiple statements that were consistent with the incriminating evidence against Syed.
The office also claimed that Mosby offered no evidence to explain why the new DNA testing in the case exonerated Syed in Lee’s murder. The Attorney General’s Office supported the Lee family’s appeal, though it usually would have represented the State’s Attorney’s Office in a typical appeal.
Attorney General Anthony Brown has since taken over the office. In a statement, a spokesperson for the office said: “We are pleased that the Court in this case has recognized the victim’s right to be provided meaningful notice of a vacatur hearing and the right to attend that hearing in person.”