EvidenceProf Blog

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

Thursday, November 26, 2015

Did the Deputy AG Handling Adnan's Appeal Withhold Key Brady Evidence in Another Murder Case?

In Brady v. Maryland, the Supreme Court declared that the State has an affirmative obligation under the Due Process Clause to disclose material exculpatory evidence to the defense. Sometimes impeachment evidence can be material, such as when there is key evidence that could have been used to call into question the credibility of the key witness for the prosecution. It is more typical, however, for substantive evidence to be material. When I teach Brady, the primary example I give is the prosecution failing to turn over the fact that someone told the police that somebody other than the defendant committed the crime. Amazingly, just this scenario might have played out in a murder case in Baltimore involving the Deputy Attorney General handling Adnan's appeal.

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November 26, 2015 | Permalink | Comments (8)

EvidenceProf Selected For the ABA Blawg 100

Each year for the past nine years, the ABA Journal has published the ABA Blawg 100, which consists of "the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal." Last year I was honored to make the list for the first time. This year, I am thrilled to make the list for the second straight year. Here is the full ABA 9th Annual ABA Blawg 100.


November 26, 2015 | Permalink | Comments (6)

Tuesday, November 24, 2015

The Hairs That Came From Neither Hae Nor Adnan: The Most Exculpatory Physical Evidence in the Case?

In yesterday's Addendum Episode of the Undisclosed Podcast, we discussed an important piece of physical evidence: the two hairs recovered from Hae's body and/or clothes that were determined not to be the hairs of either Adnan or Hae:

Screen Shot 2015-11-24 at 6.29.58 AM 

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November 24, 2015 | Permalink | Comments (22)

Monday, November 23, 2015

Lividity Evidence Contradicts State's Timeline in Clearwater Murder Case

Lividity evidence might be the key to securing the exoneration of Major Roman Izzo, who is accused of murdering Vincent Lee. The State's theory of the case is as follows:

On the evening of Nov. 15, Izzo left Columbus, Ga. sometime after 7 p.m. He drove 6½ hours to Clearwater [Florida] and killed Lee sometime around 2:30 a.m. Then he drove another 6½ hours back to Georgia, making it in time for work at Fort Benning by about 9 a.m.

There's just one problem with this theory, and it comes in the form of lividity evidence.

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November 23, 2015 | Permalink | Comments (0)

Friday, November 20, 2015

Adding Context to the Defense's Failure to Call a Medical Examiner at Adnan's Trial

On an episode of Undisclosed, we mentioned how we'd found a stray notebook page in the defense files:

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November 20, 2015 | Permalink | Comments (13)

Thursday, November 19, 2015

"The Man in the High Castle" & Plausible Allegations

"The Man in the High Castle," a TV series based upon Philip K. Dick's same named novel will premiere on Amazon Prime tomorrow. It's already receiving rapturous reviews. The plot of Dick's story is summed up nicely in a reply brief in Peters v. Murdoch, 2013 WL 11073510 (C.D.Cal. 2013):

In order to survive a motion to dismiss, a complaint must plead plausible allegations....The Plaintiff's obligation is to plead factual content which allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged....Plaintiff's Complaint tells a fairy tale in which the Attorney General of the State of California, virtually all the civil judges assigned to the Riverside Superior Court, and Judge Cohn of the San Bernardino Superior Court all conspired to assist Rupert Murdoch prevail in a case about a teenager creating a fake MySpace account. They went to all this trouble even though Plaintiff's complaint against Mr. Murdoch failed as a matter of law....Plaintiff's Complaint is as plausible as waking up in a world where the United States is jointly occupied by Nazi Germany and Imperial Japan and the I-Ching is the path to truth. Dick, Phillip, The Man In The High Castle, Putnam's Sons, New York (1962)....The liberal pleading rules and understandable latitude given to pro se litigants does not require this Court to accept such preposterous canard. In truth, Plaintiff has no case and her lawsuit should be dismissed. 

Given that this is my favorite work by Dick, I'm definitely looking forward to the series. Frank Spotnitz ("The X-Files") adapted the book, and Ridley Scott is one of the producers. 


November 19, 2015 | Permalink | Comments (3)

Wednesday, November 18, 2015

Who Made the Decision to Mail Subpoenas to Witnesses in the Adnan Syed Case?

In a post two days ago, I noted how a mistake by one of Cristina Gutierrez's law clerks led to the subpoena for track teammate Will being sent to Woodlawn High School despite the fact that Will had graduated earlier in the year. You might wonder why the defense mailed a subpoena to Will instead of personally serving him. I've posted the memo that Gutierrez's clerk sent to her about the track team members before, but I had never noticed the language at the bottom of that memo. Susan Simpson, however, pointed it out to me a few days ago.

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November 18, 2015 | Permalink | Comments (16)

Tuesday, November 17, 2015

An Accounting of How Gutierrez Handled All of the Alibi Witnesses at Adnan's Trial(s)

Following up on yesterday's post, this post will explore how Cristina Gutierrez handled all of the potential alibi witnesses at B  trial.

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November 17, 2015 | Permalink | Comments (17)

Monday, November 16, 2015

Solving the Mystery of the Defense's Failure to Contact Adnan's Track Teammate Will

I have written before about issues that the defense had with subpoenas in the Adnan Syed case. Cristina Gutierrez and her team apparently refused/failed to talk to five witnesses the defense had subpoenaed (despite asking these witnesses to call Gutierrez). In a document containing a list of the first set of witnesses to be subpoenaed, the name of Hae's best friend -- Aisha -- was written as "Asia," suggesting that the defense might have confused Hae's best friend with Adnan's crucial alibi witness. A law student/clerk was put in charge of subpoenaing Don's work records and misidentified him as an employee of the Hunt Valley LensCrafters.

Additionally, (1) the defense tried to subpoena an assistant track coach at Woodlawn High School despite the fact that he had begun working at Randallstown High School; and (2) the defense unsuccessfully tried to subpoena Krista, getting both her city and zip code wrong. 

For months, I've been wondering how the defense failed to contact Adnan's track teammate Will. I think that I now have the answer, and it's much like these latter two examples.

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November 16, 2015 | Permalink | Comments (11)

Saturday, November 14, 2015

Did the Investigation Into Adnan's Track Alibi Consist Solely of a Law Student Looking at a Yearbook Page?

I've done a couple of posts about the indoor track team at Woodlawn High School back in 1999 (here and here). My initial thinking was that this memo from Gutierrez's law clerk/student was a list of all of the indoor track team members:


Later, I thought that this memo was a list of sprinters on the indoor track team who likely would have been practicing with Adnan on January 13, 1999. Now, I'm pretty sure that I was wrong both times.

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November 14, 2015 | Permalink | Comments (8)

Wednesday, November 11, 2015

Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?

Back in 2008, I saw saw a segment on 60 Minutes about Alton Logan. In 1982, Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald‘s. What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem for Logan was that Wilson made that confession to two public defenders, who felt duty-bound not to disclose this client confidence pursuant to the Illinois version of Model Rule of Professional Conduct 1.6, which, in its present form, states that

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; 

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 

(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

That said, the public defenders did get Wilson to sign an affidavit to this effect along with permission to present it to a court after his death. When Wilson did in fact pass away, the public defenders came forward with the affidavit, and Logan was exonerated and released 26 years after he was wrongfully convicted.

In response to the case, I felt compelled to write an essay, Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. The central argument in the article is that an attorney who comes forward with a client confidence to correct or prevent a wrongful execution or incarceration is doing so "to prevent reasonably certain death or substantial bodily harm." You can see my arguments in the essay; I think they are bolstered by newish evidence that, "For every year spent behind bars, a person’s overall life expectancy decreases by two years."

My exception was modeled after an actual wrongful execution/incarceration exception contained in Massachusetts Rule of Professional Conduct 1.6(b)(1). Since my essay, a similar exception has been created in Alaska. New York and New Jersey (and possibly other states) have also proposed similar exceptions, although they have not been adopted.

I'm raising this issue because, for the second year in a row, a will Skyping into Andrew George's "Wrongful Convictions" Seminar at the George Washington School of Law. I will be very interested to hear the students' thoughts.

But what about readers? Should an attorney be allowed to testify that her client confessed to the crime that led to the conviction of another man? Does it change things if it was a capital offense? And what if the client confidence is not about a confession? What if the client told his attorney that some third party committed the crime? What if the client testified at the defendant's trial, and the attorney knows that some portion of that testimony was untruthful? And what if the confidential information is more damaging to the prosecution than the client?

The fascinating thing about the subject is that there are no clear answers. After I wrote my essay, we invited the two public defenders from the Alton Logan case to talk at my law school. They steadfastly defended their decision to remain silent for 26 years. Many agreed with them. Many disagreed. The only thing that was clear is that their decision not to come forward weighed on them for decades. 

November 11, 2015 | Permalink | Comments (10)

Tuesday, November 10, 2015

More on the Recommendation of Cristina Gutierrez as Adnan's Attorney

In last night's Addendum Episode of the Undisclosed Podcast, I interviewed Chris Flohr after finding one of the documents in which he recommended Cristina Gutierrez as Adnan's attorney. Importantly, Flohr did not recommend Gutierrez by herself; instead, as this excerpt makes clear, Flohr recommended her as part of a team along with her associate, Mark Martin:

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This team, of course, fell apart when Martin left Gutierrez's firm in July 1999 after doing some important work on the case. After initially speaking with Flohr, I actually tracked down a couple of other documents in which he was recommending attorneys for Adnan.

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November 10, 2015 | Permalink | Comments (17)

Monday, November 9, 2015

Notes From the Brink of the Atomic Age: A Review of the TV Series "Manhattan"

"Sometimes the most crucial elements in a reaction are pretty much invisible. Sometimes they're barely allowed in the building." Theodore Sinclair, "Manhattan," Season 1, Episode 7.

Last summer, my colleague Alex Ruskell told me I should check out the new show "Manhattan," which was created by Sam Shaw, whom he had known from their time at the Iowa Writers' Workshop (Shaw's wife Lila Byock is also an Iowa alum and writer on the show). Unfortunately, as is probably the case for many people, I didn't have WGN America, the station that carries the show. Luckily, I recently got WGN America and was able to record a season 1 marathon that aired before Season 2 premiered on October 13th. It's quickly become my favorite show on TV.


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November 9, 2015 | Permalink | Comments (3)

Friday, November 6, 2015

The Bad Idea of Handling More Than Two Death Penalty Cases at a Time

A couple of days ago, Robert J. Smith published a terrific article in the Slate entitled The Worst Lawyers. Rob is currently a senior fellow at Harvard Law School's Charles Hamilton Houston Institute and a visiting scholar at the University of Texas at Austin School of Law. I remember corresponding with Rob when he was first starting as a legal academic in 2012 and discussing teaching methodology. I've been impressed by a number of pieces of legal scholarship he's written and would recommend them to anyone.

The Slate piece is excellent. This pull-quote pretty much sums it up:

Defendants get both the deadliest prosecutors in America and some of the country’s very worst defense lawyers.

Here's another interesting paragraph:

Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row. (emphasis added).

This quote gives good additional context to one of the points of discussion in our most recent episode of Undisclosed. While representing Adnan, Cristina Gutierrez was not only involved with eight murder cases in five different jurisdictions; four of these were also death penalty cases. In fact, three of them involved the issue of whether the Federal Death Penalty Act applied in Puerto Rico.


November 6, 2015 | Permalink | Comments (8)

Thursday, November 5, 2015

Adnan's Inmate ID# & Location Remained the Same From March 1999 Through January 2000

I've gotten a lot of questions over the last few months about when Adnan got his inmate ID# and whether that ID# or his location changed at some point in time. This isn't a groundbreaking post, but I found what I think is the earliest documentation of Adnan's inmate ID# and location. It comes from a cover letter that one of Adnan's initial attorneys sent to the Chief of Security on March 4th:

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So, as of March 4th, Adnan's inmate ID# was 992005477, and his location was R35. This then stayed the same, at least until January 2000, as is made clear by this portion of the cover letter in which Gutierrez was scheduling her law clerk/student to visit Adnan on January 15, 2000 (referenced in yesterday's post):

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November 5, 2015 | Permalink | Comments (5)

Wednesday, November 4, 2015

Cristina Gutierrez Picked Up An Attempted Murder Case 11 Days Before Adnan's Second Trial

As we noted on Monday's episode of the Undisclosed Podcast, during her representation of Adnan, Cristina Gutierrez was involved in eight murder cases in five different jurisdictions. In addition to these cases, Gutirrez was also involved in an attempted murder case.

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November 4, 2015 | Permalink | Comments (11)

Tuesday, November 3, 2015

What Happened in the Death Penalty Case Cristina Gutierrez Handled in Puerto Rico?

On last night's episode of the Undisclosed Podcast, we discussed the Acosta Martinez case, in which the U.S. government argued that The Federal Death Penalty Act applied in Puerto Rico, despite the territory prohibiting capital punishment in its Bill of Rights. Specifically, the Puerto Rican Bill of Rights simply states that "the death penalty shall not exist." We discussed the thumbnail of what happened in that case: (1) Gutierrez initially successfully argued that The Federal Death Penalty Act doesn't apply in Puerto Rico; (2) the government appealed; (3) Gutierrez failed to file a responsive brief, and her replacement was also unable to file a brief; and (4) the First Circuit later found that The Federal Death Penalty Act does apply in Puerto Rico. 

In this post, I will look at the case with a bit of a wider lens.

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November 3, 2015 | Permalink | Comments (10)

Monday, November 2, 2015

Was Gutierrez Trying to Get Involved in a South Carolina Case a Week Before Adnan's Scheduled Trial?

Today, we will premiere the Cristina Gutierrez episode of the Undisclosed Podcast. This is just a quick post about something we didn't include in the episode. Adnan's initial trial was scheduled to start on October 13, 1999. Here is a portion of Gutierrez's motion for a continuance, filed on October 11, 1999:

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We will delve into this motion for a continuance and the motion mentioned in this excerpt much more in our pretrial/discovery episode in two weeks. 

I left this South Carolina trip out of the episode because it is a question, not an answer. Was Gutierrez trying to get involved in a case in a sixth jurisdiction* in the days before Adnan's originally scheduled trial? I don't know, but I do know this: Gutierrez was (1) in South Carolina from October 1-4; (2) in court for a trial on October 5-6; (3) in court in connection with another case in another jurisdiction on October 7-8; and (4) in court for a trial on October 12th. That's a hell of a schedule leading up to a scheduled first-degree murder trial. More on this in the Addendum.


*The other jurisdictions were Maryland, Pennsylvania, Puerto Rico, Alabama, and Maine.



November 2, 2015 | Permalink | Comments (15)

Friday, October 30, 2015

A Law Student Was in Charge of Subpoenaing Don's Work Records From LensCrafters

A commenter on my post yesterday asked the following question: "Can you please clarify by what you mean that the clerk was 'in charge' of his alibi defense?" I'm glad the question was asked because it caused me to re-examine a defense file for the first time in a while. That file has a chart with the following columns:

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In the chart, the alibi task was assigned to a law student. That same law student was assigned with the following task, among other tasks:

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October 30, 2015 | Permalink | Comments (26)

Thursday, October 29, 2015

The Clerks With Primary Responsibilities in Adnan's Murder Case Were Law Students

I've recently been talking with a couple of students who have offers to work as either prosecutors or defense attorneys upon their graduation from law school. They're both interning/externing and working on misdemeanor cases. This is great experience for when they graduate and will be working on felony cases, including murder cases. Talking with one of these students yesterday made me realize something that I should have realized a long time ago: The people given the primary responsibilities in preparing Adnan's murder trial were law students.

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October 29, 2015 | Permalink | Comments (28)