Exclusive: Potential Alibi Witness for Convicted Murderer in ‘Serial’ Breaks Silence With New Affidavit

The former classmate of Adnan Syed’s who could hold the key to unraveling his conviction in the murder of Hae Min Lee has written a new affidavit reasserting that she was with Syed at the exact time the state argued that he killed his ex-girlfriend in 1999, and alleging that the original prosecutor in the case essentially convinced her not to participate in the appeals process.

Image source: serialpodcast.org
Image via serialpodcast.org

In her affidavit, provided exclusively to TheBlaze, Asia McClain says she has “c[o]me to understand [her] importance to the case” and realized she “needed to step forward and make [her] story known to the court system.”

Syed’s case became something of a national obsession when it was chronicled in the 12-episode podcast “Serial,” which concluded in December. Syed was convicted of strangling Lee when they both were seniors at Woodlawn High School in Baltimore County, but “Serial” raised questions about whether he received a fair trial and is, in fact, even guilty.

One of the biggest revelations was about McClain, also a Woodlawn student at the time, who wrote Syed two letters after he was arrested saying she saw him in the public library the day Lee disappeared. She was never heard from at trial, even though her timeline of seeing him contradicts with when the state argued that he killed Lee.

Prosecutors said Lee was dead by 2:36 p.m., but in an affidavit written after Syed was convicted of first-degree murder, McClain stated that she had been talking with him from about 2:20 p.m. to 2:40 p.m. (school let out at 2:15). McClain said no attorney ever reached out to her about her contact with Syed that day. It was only when a Syed family friend approached her after the trial that she wrote out her first affidavit.

McClain says she didn’t question the lack of attention paid to her during the trial because she assumed the evidence against Syed must have been much stronger than anything her after-school chat could have toppled. Syed was convicted based on cellphone records showing his location and the testimony of a witness, Jay Wilds, who said Syed told him he killed Lee and that he helped Syed bury her body. But as “Serial” laid out, Wilds’ story shifted over the course of multiple interviews with investigators, and host Sarah Koenig called into question the accuracy of the cell tower records.

Syed’s petition for appeal raised multiple issues, including a claim that his first lawyer, Cristina Gutierrez, had been ineffective because she didn’t interview McClain as a potential alibi witness (Gutierrez died in 2004). His new defense team attempted to contact McClain in 2010, but she did not speak to them; she did, however, contact the former trial prosecutor, Kevin Urick. The podcast’s first episode featured audio from one of those appeal proceedings in which Urick testified that McClain told him that “she was being asked questions about an affidavit she’d written back at the time of the trial.

“She told me that she’d only written it because she was getting pressure from the family, and she basically wrote it to please them and get them off her back,” Urick testified.

For “Serial” listeners, this was a roller coaster: a new witness who could say Syed was with her at the time of the murder, but then undermined herself by saying — according to the former prosecutor — that she’d only said so because of pressure from Syed’s family.

But McClain says that never happened.

[sharequote align=”right”]”I never told Urick that I recanted my story or affidavit about January 13, 1999.” — Asia McClain[/sharequote]

“I never told Urick that I recanted my story or affidavit about January 13, 1999,” the new affidavit states. “In addition, I did not write the March 1999 letters or the affidavit because of pressure from Syed’s family. I did not write them to please Syed’s family or to get them off my back. What actually happened is that I wrote the affidavit because I wanted to provide the truth about what I remembered. My only goal has always been to provide the truth about what I remembered.”

McClain, now 33 and living in Washington state, said that when Syed’s defense team contacted her in 2010, she was wary.

“I was under the impression that there was a tremendous amount of evidence that convicted Adnan and that for whatever reason, his team was reaching out to me as a Hail Mary, so to speak,” McClain told TheBlaze in an interview. “I really didn’t realize how, I guess you could say how weak the state’s case was, the information, the evidence that they had and the testimony that they had.”

So she contacted Urick — by then in private practice in Maryland and no longer a Baltimore prosecutor — and asked him why Syed’s team was reaching out. In her new affidavit, she not only says she wasn’t pressured to tell her story — at odds with his testimony — but alleges he essentially convinced her not to participate in any of the proceedings:

25. In the late spring of 2010, I learned that members of the Syed defense team were attempting to contact me. I was initially caught off guard by this and I did not talk to them.

26. After encountering the Syed defense team, I began to have many case questions that I did not want to ask the Syed defense team. After not knowing who else to contact, I made telephone contact with one of the State prosecutors from the case, Kevin Urick.

27. I had a telephone conversation with Urick in which I asked him why I was being contacted and what was going on in the case.

28. He told me there was no merit to any claims that Syed did not get a fair trial. Urick discussed the evidence of the case in a manner that seemed designed to get me to think Syed was guilty and that I should not bother participating in the case, by telling what I knew about January 13, 1999. Urick convinced me into believing that I should not participate in any ongoing proceedings. Based on my conversation with Kevin Urick, the comments made by him and what he conveyed to me during that conversation, I determined that I wished to have no further involvement with the Syed defense team, at that time.

29. Urick and I discussed the affidavit that I had previously provided to Chaudry. I wanted to know why I was being contacted if they already had the affidavit on file and what the ramifications of that document were. I never told Urick that I recanted my story or affidavit about January 13, 1999. In, addition I did not write the March 1999 letters or the affidavit because of pressure from Syed’s family. I did not write them to please Syed’s family or to get them off my back. What actually happened is that I wrote the affidavit because I wanted to provide the truth about what I remembered. My only goal has always been, to provide the truth about what I remembered.

30. I took, and retained, contemporaneous notations of the telephone conversation with Urick.

McClain’s new affidavit is expected to be part of a filing by Syed’s defense team Tuesday morning, according to her Baltimore-based attorney, Gary Proctor. Proctor said McClain contacted Syed’s lawyer, C. Justin Brown, last month and that he asked whether she would be willing to write a new affidavit.

“The last paragraph of the affidavit says we have provided this to Adnan’s lawyer. Where he chooses to go with that, what he wants to allege [against Urick] is his business,” Proctor said. “All we can tell you is what happened, if it doesn’t square with what [Urick] said — we’re not changing our story.”

Reached by TheBlaze, Brown declined to comment on the active case.

But Urick in an interview denied any assertion that he somehow dissuaded McClain from testifying.

“Absolutely false,” he told TheBlaze. “I was not the one that brought up anything about evidence. She asked me, was it a strong case? I said yes. That was about the extent of my response.”

He said McClain had contacted him because she was concerned about having to testify at Syed’s post-conviction hearing. He estimated the call lasted about five minutes. He did not take notes.

“She definitely told me that she wrote what she wrote, was to appease the family, to get them off her back … that’s what I recall, the gist of the conversation, that she wrote something to get the family off her back, which can be interpreted that she was getting pressure.”

♦ ♦ ♦

In January 2014, a Baltimore City Circuit Court denied Syed’s petition for post-conviction relief, the appeal for which Urick testified. The judge ruled that Gutierrez’s decision not to use McClain as a potential alibi witness “was the result of a sound and reasonable defense strategy” for two main reasons: her letters after his arrest never specified the time that she saw him in the library; and, in fact, they contradicted Syed’s own version of events that day — that he had been on the school campus at that time.

“In the letter sent on March 2, 1999, the following day, Ms. McClain again told [Syed] that she saw [Syed] in the public library on January 13th and conjectured, ‘maybe if I would have stayed with you or something this entire situation could have been avoided.” … [T]rial counsel could have reasonably concluded that Ms. McClain was offering to lie in order to help [Syed] avoid conviction,” the judge wrote.

Syed has appealed the circuit court’s decision to the Maryland Court of Special Appeals, the state’s intermediate-level appellate court.

His team is still arguing that he received ineffective counsel because Guitierrez did not pursue McClain, and also that she did not pursue a plea deal for him. The circuit court dismissed the plea argument last year as well, ruling: “There is nothing in the record indicating that the State was prepared to make a plea offer had trial counsel pursued such negotiations. … Second, even if trial counsel had gone ahead and negotiated a plea offer with the State, it is impossible to determine with certainty whether [Syed] would have agreed to accept a plea. … [Syed’s] own statements at sentencing indicate the contrary; that [Syed] intended to maintain his innocence throughout.”

Urick told TheBlaze that “it became obvious from the day Cristina Gutierrez got in the case that it was going to be a trial.” She had a reputation as a tough criminal defense lawyer, but agreed to be disbarred in 2001 amid multiple client complaints about funds going missing from a trust account. She died three years later.

Urick said his office would always be willing to discuss a plea, though it doesn’t mean one would have been offered or agreed to; there was also no indication from Syed that he wanted to plead.

“He even stood up in sentencing — this was after he fired Ms. Guttierez — and said, I have consistently maintained my innocence and I will continue to maintain it. It was clear she was following his direction,” Urick said.

Last Wednesday, Baltimore prosecutors filed their response to Syed’s latest appeal, reiterating that he never wanted a plea deal. The Court of Special Appeals instructed them to focus only on the plea aspect — not on the issue of using Asia McClain. That could mean the court doesn’t consider Syed’s claim about Gutierrez not interviewing her to be a valid line of inquiry, or it could mean they’ve already decided to accept it and only want to be briefed about the plea issue.

“It doesn’t surprise me that the court said we want additional briefing on this [plea] issue … that doesn’t mean they’re not going to rule on the [McClain] issue, it probably just means they’re already aware of what the law is in that area,” Proctor, McClain’s attorney, told TheBlaze. “It’s always divination and reading tea leaves to decide where an appellate court is going. Asking for briefing on one issue in my opinion does not mean that the second issue is, you know, DOA.”

There is no timeline for when the Maryland Court of Special Appeals could decide on Syed’s petition; a statement from the court last week said a decision would be made “after the court reviews Syed’s application and the state’s response.”

♦ ♦ ♦

While Asia McClain says she’s come to realize the importance of her timeline, that wasn’t always the case. She didn’t attend Syed’s trial or any of the hearings; she said she didn’t realize that the prosecution contended that Lee was dead by 2:36 p.m. — in the middle of when she says she was speaking with Syed — until she heard it on “Serial.”

Instead, she says, her first reaction when she realized she’d spoken to him on Jan. 13, the day Lee disappeared, was shock: they’d talked about Syed and Lee’s recent breakup. As McClain said on the podcast and states in her new affidavit, Syed “seemed extremely calm and caring. He explained that he wanted her to be happy and that he had no ill will towards her”; about a month and a half later, he was arrested for her murder.

McClain’s affidavit states that she didn’t think much of her conversation with Syed until he was arrested, which happened Feb. 28, 1999. She wrote him two letters in jail, dated March 1 and March 2, stating that she saw him in the library; in the second one, she refers to visiting his family in their home.

“When I first recalled the conversation, it blew me away. Because I wasn’t a friend of Adnan’s, and he got arrested, it was all over the news, and it hit me like a ton of bricks,” McClain told TheBlaze. “I didn’t know when they suspected he killed her, so when I first remembered it, my first thought was initially, Oh God, did we talk about something that made him upset and, you know, did he kill her? I didn’t know.”

“Think about it, if you were to have a conversation with someone and then all of a sudden they’re suspected of killing a person that day and you don’t know if that was before you talked to them, or was it after you talked to them? All you can think is, I hope I didn’t say anything.”

It raises the question: how did she recall exactly when her conversation with Syed took place? As McClain told “Serial,” she remembered the day was Jan. 13 because it was “the first snow of the year”; she got snowed in at her boyfriend’s, then the next two days of school were canceled. But “Serial” producers went back and checked: The Baltimore area was hit by an ice storm in the early hours of Jan. 14 and schools were indeed closed Jan. 14 and 15 — but it was ice, not snow, and the weather didn’t get bad until the early hours of Jan. 14, making it seem unlikely that McClain would have gotten stuck the evening before. Moreover, the actual first snow had taken place a week prior, in the early hours of Friday, Jan. 8, and school was canceled that day, so they likely wouldn’t have been in the library in the afternoon.

McClain’s new affidavit makes no reference to getting snowed in at her boyfriend’s and doesn’t specify “the first snow,” only “hazardous winter weather” that canceled the next two days of school.

“She used snow as a loose term for school was closed, it was bad weather,” Proctor said. “I can tell you what day last year my kids were off school because I know I had to cover for them or take them to their grandmother’s or call in late to court. As I sit here today, I can’t tell you if it was snow, the building was cold, the sidewalks weren’t salted … [it] could be closed for eight different reasons, but in terms of Hae going missing, everyone knowing that, we are certain that conversation in the library occurred on the day she went missing, there is zero doubt about that.”

And as far as the actual contents of a conversation that now took place 16 years ago, she is adamant.

“I’ve had to remember it so many times, I mean — one of those things that keeps playing back in your head over and over and over again,” she said. “First of all, telling Adnan’s family, writing it down in a letter, telling people throughout my life about that experience. Even my husband — it’s something that [I’ve] spoken about many times over the 16 years.”

Now, she says she’s willing to appear in a Maryland court to testify to what she knows. She says she has no allegiance to Syed; she hasn’t spoken to him since that day in the library. She wants her story to come out. “I want people to understand as it pertains to my involvement in this case, that it is as simple as it can be. You see something, you say something.”

“All I can say is if the state is arguing that he was somewhere murdering her when I know he was somewhere talking to me, logic says that’s impossible.”

Read Asia McClain’s new affidavit, signed Jan. 13, 2015:

Asia McClain Affidavit 1/13/2015

Follow Madeleine Morgenstern (@MadeleineBlaze) on Twitter

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