A few weeks ago, the state of Maryland granted Baltimore County Assistant State Attorney Marilyn Mosby's motion to vacate Adnan Syed's murder conviction. If you are unfamiliar with Syed, his criminal case was the subject of the first season of the Serial podcast. The Serial reporters investigated Syed's case by reviewing evidence and interviewing witnesses, including people who knew the victim (his ex-girlfriend) and Syed. Not surprisingly, the reporters highlighted issues with his case and presented their findings in a compelling way. The podcast was extremely popular generating over 40 million downloads in December 2014 as per CNN Entertainment. Given its popularity, it is likely that the podcast may have influenced Ms. Mosby's decision to file the motion to vacate Syed's conviction based partly on Brady violation concerns.

One legal issue that kept rearing its head in the show was whether Syed's attorney, Christina Gutierrez, provided ineffective assistance of counsel. After his conviction, Syed's subsequent attorneys argued on appeal that Gutierrez mishandled the case by not interviewing a potential alibi witness who stated she was with Syed around the time when the murder allegedly took place. Syed told Gutierrez about the witness and she said she looked into it but that nothing came of it. The alibi witness later stated in two affidavits that no attorney ever contacted her. The same witness testified at a post-conviction hearing that she was with Syed on the day of the murder during a time that conflicted with the state's timeline.

Alibi witnesses can serve as game-changers in a criminal case. Additionally, lawyers should "pursue a matter on behalf of a client … and take whatever lawful and ethical measures … required to vindicate a client's case" as per the Model Rules of Professional Conduct 1.3. At the very least, a criminal defense attorney should speak to potential alibi witnesses to assess whether they might be helpful. It seems that in this instance, Gutierrez's conduct may have met the Strickland test for ineffective assistance of counsel. (To establish ineffective assistance of counsel, the movant must show "(1) that their trial lawyer's performance fell below an 'objective standard of reasonableness and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687 (1984).)