State AG Frosh, Mosby spar over evidence that led to Syed’s release

Baltimore State’s Attorney Marilyn Mosby accused Maryland Attorney General Brian Frosh of hiding evidence to keep Adnan Syed in prison, as a simmering feud between arguably the state’s two most powerful elected lawyers boiled over Wednesday.

Syed, whose case became known internationally after the podcast “Serial” was released in 2014, was convicted of murder in the 1999 killing of Hae Min Lee, his former high school girlfriend. He was behind bars for 23 years until Monday, when a judge vacated his conviction and ordered Syed released on home detention after supposedly new evidence about alternative suspects in the case was brought to light.

“I think Attorney General Brian Frosh needs to speak to his office’s willful decision to sit on exculpatory evidence for the last seven years,” Mosby said in a statement Wednesday. “His inability to uphold this fundamental obligation denied Mr. Syed his right to a fair trial and now forces a family to relive an unimaginable nightmare because of his unconscionable misdeeds.”

The Baltimore prosecutors moved last week to vacate Syed’s conviction after a June review of the original assistant state’s attorney’s handwritten notes revealed two alternative suspects in the homicide, at least one of whom was never disclosed to the defense before Syed’s trial, prosecutors wrote in court documents. One of the suspects, according to prosecutors’ filings, threatened to harm Lee.

Mosby’s strong statement punctuated three days of terse back-and-forths between the two Democrats and comes after Frosh, in a TV interview Wednesday morning, doubled down on a statement he made Monday rebutting the idea his office had done anything wrong.

“The folks who I’ve spoken to and that our office has spoken to say the notes were produced, but more importantly I have to say, we gave them to her. That’s where she got them in the first place. We’re not withholding them from anybody,” Frosh, 75, told the TV station.

The city state’s attorney’s office prosecuted Syed, secured his 2000 murder conviction and stood behind the guilty finding for years as the attorney general’s office represented the state in fighting off Syed’s numerous appeals.

Erica Suter, Syed’s current lawyer, said she had never seen the notes about the alternative suspects until June, when a member of Mosby’s office sent them to her. The failure to disclose evidence that suggests a person’s innocence is known as a “Brady” violation and is particularly serious because it affects a person’s right to a fair trial.

As Mosby spoke at a press conference Monday evening after her office successfully argued for Syed’s conviction to be overturned, she accused the original prosecutors on Syed’s case and the attorney general’s office of misconduct.

“None of that information was provided to defense counsel by the original prosecutor or the attorney general’s office where the original case file still sits,” Mosby said.

Almost immediately after Mosby said that, Frosh issued a statement disputing her claims.

“Among the other serious problems with the motion to vacate, the allegations related to Brady violations are incorrect,” Frosh said then. “Neither State’s Attorney Mosby nor anyone from her office bothered to consult with either the Assistant State’s Attorney who prosecuted the case or with anyone in my office regarding these alleged violations. The file in this case was made available on several occasions to the defense.”

It could be difficult to determine who’s correct between Frosh and Mosby. Syed’s defense attorney at trial, Cristina Gutierrez, died in 2004. A series of lawyers have represented Syed since then in post-conviction matters.

The file for Syed’s case takes up 17 boxes, according to an affidavit in support of overturning Syed’s conviction submitted in court Monday by Assistant State’s Attorney Becky Feldman.

“I understand that many attorneys and advocates have reviewed the file, or portions of the file, over the years,” Feldman wrote. “I do not have personal knowledge as to what parts of the file were made available to them. I also do not know why these documents were not previously discovered.”

Feldman wrote in the affidavit that she does not have “personal knowledge as to how and where the state’s attorney’s trial file was maintained from 1999 through the time it was delivered to the attorney general’s office.”

Mosby, a Democrat who served two terms as state’s attorney, lost her bid for a third term in July. Her office has 30 days to determine whether to retry Syed or to drop his charges, according to the judge’s order Monday.

The Attorney General’s Office has been in possession of the original trial and investigatory files in Syed’s case since 2015 when Syed, now 41, was appealing his conviction. In Maryland, the attorney general’s office acts as the prosecution in the appellate process, and the same rules for disclosing evidence are applied.

Frosh’s office declined further comment about his earlier statements. He did not run for reelection and will leave office in January.

Neither agency is releasing a copy of the notes, but city prosecutors in a court filing said the handwriting is hard to read.

In the affidavit admitted in court Monday, Feldman wrote that “the handwriting was consistent with a significant amount of the other handwritten documents throughout the (state’s attorney’s office) trial file.”

Frosh also suggested Mosby filed the motion to free Syed to distract from her upcoming federal perjury and mortgage fraud trial.

“The timing looks, shall I say, unusual,” Frosh told the TV station.

Mosby has denied her trial had anything to do with the timing of her office’s Syed filing, calling the federal charges against her “bogus” in an appearance on CNN Wednesday morning.

The two-term Democratic state’s attorney is charged with two counts of perjury and two counts of mortgage fraud related to withdrawals she made from her city retirement account in 2020 in order to purchase two Florida vacation homes. Jury selection in Mosby’s case was scheduled to begin last Thursday, a day after the Syed motion was filed. A federal judge ultimately postponed Mosby’s trial until March due to expert witness disclosure issues.