EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 8, 2015

Analyzing the Progress Report on Jay's Third Police Interview

Yesterday, I posted an entry about a document in the defense files in which a clerk or associate was alerting Cristina Gutierrez ("Tina") to the existence of Jay's third statement to detectives on April 13, 1999, right after Adnan was indicted by the grand jury. That document referenced an attachment, making me think that there might be a transcription of Jay's interview or at least notes of what he said. With an assist from Susan Simpson, I now think I have a better understanding of what was going on.

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October 8, 2015 | Permalink | Comments (12)

Wednesday, October 7, 2015

Are There Notes of Jay's April 13th Interview With Detectives?

As I've noted before, Jay was officially interviewed* three times by detectives: (1) on February 28, 1999; (2) on March 15, 1999; and (3) on April 13, 1999, after Adnan was indicted by the grand jury. I had always been under the impression that the State never turned over anything to the defense regarding this third interview, with the defense's only knowledge of it coming from Jay's testimony at trial. During a deep dive into the defense files, however, I found this document:

Screen Shot 2015-10-07 at 7.35.06 AM

As you can see, this document, presumably written by a clerk or fellow attorney, states: "See attached -- this is a 3rd interview in which the detect cleared up more 'inconsistencies' -- on 4/13/99." Unfortunately, I haven't been able to locate this attachment, and Gutierrez seemingly referenced no such attachment at trial. 

I hope that I'm able to track it down at some point. Jay's trial narrative was very different from the narrative in either his March 15th interview or March 18th ride along. Thus, his April 13th interview is the key missing link that could explain the evolution of his story. We now have some indication that there is some documentation of this interview, but we still lack that documentation.


*Of course, there was also the ride along that Jay did with detectives on March 18, 1999.


October 7, 2015 | Permalink | Comments (12)

Tuesday, October 6, 2015

Undisclosed Episode 12 & the Prisoners' Dilemma in the American Criminal Justice System

Last night, we premiered Episode 12 of the Undisclosed Podcast: "Prisoners' Dilemma." I suggested the title in part because of the classic prisoners' dilemma problem from game theory. The prisoners' dilemma, however, is not something merely relegated the realm of the theoretical. It is something that plays out every day in a criminal justice system dominated by plea bargaining.

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October 6, 2015 | Permalink | Comments (8)

Friday, October 2, 2015

Recent Court of Special Appeals of Maryland Case Deals with Authentication & Cell Phone/Tower Issues

In today's post, I will talk about the recent opinion of the Court of Special Appeals of Maryland in Baker v. State, 117 A.3d 676 (Md. 2015). The case discusses a couple of the topics we've been discussing on the Undisclosed Podcast: cell phone/tower evidence and authentication.

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October 2, 2015 | Permalink | Comments (21)

Thursday, October 1, 2015

An Addendum to Susan's Post About Crime Scene Photos & Lividity

Yesterday, Susan Simpson did a post about the crime scene photos and lividity. I write to join Susan in hoping that nobody attempts to post the crime scene photos for obvious reasons. As far as I understand things, (1) we have received 8 crime scene photos that were authenticated and admitted at trial; and (2) other people have obtained 22 crime scene photos, which may be (a) 22 entirely separate photos that were not authenticated or admitted into evidence; or (b) 14 unauthenticated photos and the 8 photos that were authenticated and admitted into evidence. 

Those who have viewed the 8 authenticated photos believe that Hae's upper chest and face were less prone. Those who have viewed the 22 photos believe that Hae's upper body and chest were more prone. There are also other points of disagreement, such as the positioning of Hae's arms and whether her hand was visible before excavation had begun. 

There doesn't, however, appear to be any disagreement about Hae's abdomen. In both of the diagrams above, Hae's abdominal area is clearly not parallel to the ground. This is significant because, after seeing the crime scene photos, Dr. Hlavaty was able to detect anterior abdominal lividity: "There is red fluid on the face that came from the nose and mouth and is decomposition fluid, and there is a pink color to the skin on the exposed abdomen that is lividity." This is confirmed by the poster claiming the alternate positioning of the body, with the poster even noting that this pink coloration is at the center of the abdomen: "The center of the abdomen is a light pink color, somewhat darker than the white skin running down the midline of the chest." It also is consistent with the autopsy report, which stated that "[l]ividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure." 

The only way that this front/center abdominal lividity would make sense is if Hae's abdomen were parallel to the ground. Under both renderings, it isn't. One rendering must be closer to reality than the other, but this seems like a distinction without a meaning. In either case, the abdominal lividity is inconsistent with the body's position, and I hope that everyone involved leaves it at that.



October 1, 2015 | Permalink | Comments (26)

Wednesday, September 30, 2015

New Information About the Woodlawn Track Team & Practices: Harmful or Helpful to Adnan?

Back in May, I did a post about Coach Sye ostensibly telling the defense private investigator that track practice started at 3:30 P.M. In that entry, I posted a memo with a track team roster from the defense files, which indicated that (1) there were eight members of the Woodlawn boy's indoor track team; and (2) there were two seniors on the Woodlawn indoor track team, with Will not being one of them. This roster came from Coach Sye himself, who provided copies to both the State and the defense.

Screen Shot 2015-09-30 at 6.28.06 AM

Coach Sye also told the police that he only had two seniors on his team. Now, based upon new documentation, it's possible that Coach Sye was incorrect on a couple of fronts.

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September 30, 2015 | Permalink | Comments (15)

Tuesday, September 29, 2015

Another Thought on the State's Response to Adnan's Motion to Reopen: Affidavit vs. Testimony


Strickland’s first prong is not concerned with what a witness claims she would have said with the benefit of hindsight, but rather with what the attorney knew at the time of the contested decision....Thus, the flaw in Syed’s motion to reopen is not just that the information supplied by McClain’s 2015 affidavit is materially identical to what was already before this Court based on her earlier affidavit, but also that because McClain cannot offer any new information about what Gutierrez knew before trial, Syed is unable to present a reason to change this Court’s decision on deficient performance. Under these circumstances, it would be a futile exercise to reopen these proceedings in order to receive testimony from McClain only to render the same result on the basis of the same evidence, never reaching the new evidence, which at best would only bear on the prejudice prong of Strickland and not on deficient performance. 

As with other arguments made in the State's RESPONSE, this argument is not supported by any on point precedent. That's probably because on point precedent directly contradicts this argument.

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September 29, 2015 | Permalink | Comments (10)

Monday, September 28, 2015

Authentication and More Thoughts on the State's Response to Adnan's Motion to Reopen


The flaw in Syed’s argument is that the cellphone records relied upon by the State’s expert and entered into evidence at trial were not Subscriber Activity reports. They had no blacked out columns; they had none of the codes discussed in the boilerplate legend; they lacked a column titled "location." See State’s Exhibit 31. Accordingly, it is flatly erroneous to say that the statement about the reliability of incoming calls — which relates to Subscriber Activity reports — applies to the altogether different records used by the State. Indeed, the "Subscriber Activity" reports were neither identified as exhibits nor admitted into evidence. What was admitted into evidence were cellphone records accompanied by a certification of authenticity, signed by an AT&T security analyst, and relied upon by the State’s expert who himself was employed by AT&T as a radio frequency engineer. 

In this post, I will discuss the concept of authenticity/authentication as it relates to the cell tower and forensic evidence in the case.

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September 28, 2015 | Permalink | Comments (18)

Friday, September 25, 2015

Additional Thoughts on the State's Response to Adnan's Motion to Reopen

In yesterday's post, I did an initial analysis of the State's CONSOLIDATED RESPONSE IN OPPOSITION TO PETITIONER’S MOTION AND SUPPLEMENT TO REOPEN POST-CONVICTION PROCEEDINGS in the Adnan Syed case. In this post, I am going to focus on the portion of the State's RESPONSE that has me more convinced than ever that the court will grant Adnan's motion to reopen.

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September 25, 2015 | Permalink | Comments (29)

Thursday, September 24, 2015

Some Quick Thoughts on the State's Response to Adnan's Motion to Reopen

Yesterday, the State filed its CONSOLIDATED RESPONSE IN OPPOSITION TO PETITIONER’S MOTION AND SUPPLEMENT TO REOPEN POST-CONVICTION PROCEEDINGS in the Adnan Syed case. In this post, I will give a quick take on the RESPONSE.

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September 24, 2015 | Permalink | Comments (28)

Tuesday, September 22, 2015

Oregon Murder Case Involves Livor Mortis & Bruton Doctrine Issues

According to an article from earlier this year,

When emergency responders arrived at Dorothy Wing’s home in Seaside Dec. 20, they found her 2-year-old daughter in full rigor mortis with bruises and injuries all over her body....

The girl was found laying on her side on a bed in her mother and Roden’s room but with livor mortis on her back, inconsistent with how she was found.

This is obviously a disturbing case, and it will lead to two separate trials next year as a result of the Bruton doctrine.

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September 22, 2015 | Permalink | Comments (0)

Monday, September 21, 2015

Litigant Uses Doctor Who & the Tardis to Explain the "Time of Filing" Rule

There is a rule in the law known as the "time of filing" rule. Simply put, the rule provides that the legal status of a claim is determined at the time the lawsuit involving that claim is filed. This rule is most commonly cited in cases in which a plaintiff tries to create diversity jurisdiction by moving to a different state after filing a lawsuit. Under the "time of filing" rule, such a move doesn't work because a lawsuit by, say, a California resident against a California resident fails to qualify for diversity jurisdiction simply because the plaintiff subsequently moves to another state (e.g., Oregon).

Sometimes legal concepts are best explained by reference to science fiction. For instance, I teach my Criminal Law students about proximate causation by discussing the classic Ray Bradbury short story, "A Sound of Thunder." The defendants' brief in Righthaven, LLC v. Newsblaze, LLC, 2011 WL 5143472 (D.Nev. 2011), does the same thing for the "time of filing" rule by citing to the timeless BBC show "Doctor Who," which just returned for its new season.

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September 21, 2015 | Permalink | Comments (5)

Friday, September 18, 2015

Court of Appeals of Maryland Finds Protective Housing for a Witness Wasn't a "Benefit"

Witnesses in criminal trials have typically a variety of interactions with the State prior to testifying under oath before a judge and/or jury. Usually, a witness is interviewed initially by a police officer or detective after the commission of a crime. Witnesses might be offered a monetary reward in exchange for coming forward with information pertaining to a crime. Witnesses "with a past" might exchange their testimony for a favorable plea deal arising from the case in which they are to testify or a related matter, or qualified or absolute immunity. In some cases, a witness might fear for his or her life, or for the safety of an immediate family member, and be placed in some form of witness protection program prior to and/or after trial to ensure his or her safety. In the present case, a witness was placed in protective housing for several months leading up to a murder trial after she claimed that the defendant showed up on her doorstep, causing her to be in fear of retaliation for talking with the police. We consider here whether her placement in reasonable protective housing constitutes a "benefit" that would compel the trial judge, upon request by the defendant, to give a particularized jury instruction pertaining to that witness's credibility (Maryland Criminal Pattern Jury Instruction (2nd ed.2012, 2013 Supp.) 3:13, "Witness Promised Benefit"). We conclude that it does not. Preston v. State, 118 A.3d 902 (Md. 2015).

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September 18, 2015 | Permalink | Comments (4)

Thursday, September 17, 2015

Maryland Public Defender Trying to Get Juvenile Life Without Parole Sentences Tossed

According to a recent article,

The Maryland Office of the Public Defender's post-conviction division has adopted a strategy to help ensure juveniles convicted of crimes and serving life sentences without the possibility of parole are resentenced following a U.S. Supreme Court ruling that such punishments are cruel and unusual.

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September 17, 2015 | Permalink | Comments (11)

Wednesday, September 16, 2015

A Legal Analysis of the Stay of Execution Entered in the Richard Glossip Case

Just three hours before Richard Glossip was scheduled to be executed, the Oklahoma Court of Criminal Appeals granted him a stay of the execution until September 30th. The Glossip case initially garnered a lot of attention when the Supreme Court denied Glossip's claim that Oklahoma's use of midazolam as the first drug in its lethal injection protocol violated the Eight Amendment earlier this year. 

Glossip was convicted of the murder of motel owner Barry Van Treese in large part due to the testimony of Justin Sneed, who claimed that Glossip hired him to murder Van Treese. The stay of execution was granted based upon a "successor petition" filed by Glossip, which was based upon an affidavit by a fellow inmate, who indicated that "among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river."

A "successor petition" earns its name because the petition is a "successor" to prior postconviction petitions. The standard used by federal and state courts is similar. 28 U.S.C. Section 2244(b) provides that

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—...


(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

In other words, a successor petition can only be brought if it tends to establish actual innocence and could not have previously been discovered. Given that the other inmate only came forward in the last few weeks and tends to establish Glossip's actual innocence, it made sense for the court to grant a stay. It also makes sense given that courts generally require only a prima facie showing of actual innocence to grant successor petitions (although this standard is rarely met).

So, what happens next? According to the court, it granted the stay to "give fair consideration to the materials included" in the successor petition. We'll see what that means in the next two weeks.


September 16, 2015 | Permalink | Comments (5)

The Law Behind the Possible Transfer of Jay's Case to Baltimore County

In Monday's eleventh episode of the Undisclosed Podcast, we noted how Jay's defense counsel believed that, if he did not plead guilty to accessory after the fact to murder in Baltimore City, his case would have been transferred to Baltimore County, where he would have been charged with murder and faced the death penalty. Given time limitations, I just briefly touched upon why such a transfer would have been possible. In this post, I will flesh out this analysis.

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September 16, 2015 | Permalink | Comments (15)

Tuesday, September 15, 2015

Harris v. State: The Most Important Case for Adnan Syed?

I've written about a lot of Maryland precedent on this blog in connection with the Adnan Syed case. Perhaps no Maryland case, however, is as important as the case we discussed in last night's eleventh episode of the Undisclosed Podcast: Harris v. State. In this post, I will discuss that case in more depth.

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September 15, 2015 | Permalink | Comments (27)

Monday, September 14, 2015

The Maryland State Police Aviation Unit Declined a Request to Search For Hae's Sentra Via Helicopter

This is neither here nor there, but I came across this document in the MPIA files from the Adnan Syed case:

Screen Shot 2015-09-14 at 11.17.47 AM

I wonder why the request was denied. It seems like a murder case is pretty high priority, and Hae's Sentra was eventually found pretty close to Leakin Park. According to the Aviation Unit/Command,

The Maryland State Police Aviation Command is a public safety organization. Its mission is to protect and improve the quality of life through the airborne delivery of emergency medical transportation, law enforcement, search and rescue, homeland security and disaster assessment services to citizens of the State of Maryland and its neighbors 24 hours a day.


September 14, 2015 | Permalink | Comments (17)

Thursday, September 10, 2015

The Multiple Sclerosis Fraud Case Handled by Cristina Gutierrez in 1999/2000

In prior posts, I've discussed several other first-degree murder cases handled by Cristina Gutierrez while she was representing Adnan Syed in 1999-2000. In addition to these murder cases, Gutierrez also handled another case with a connection to Adnan's case and Gutierrez's own condition.


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September 10, 2015 | Permalink | Comments (17)

Tuesday, September 8, 2015

Another First-Degree Murder Case Handled by Cristina Gutierrez in 1999

I have written before about some of the other first-degree murder cases that Cristina Gutierrez was handling at the same time that she was handling the Adnan Syed case. We can now add another to the roster: State v. Matthews.

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September 8, 2015 | Permalink | Comments (23)