Thursday, July 19, 2018
The pertinent portion of Arkansas's postconviction DNA testing statute, Ark.Code Ann. § 16-112-202(7), provides in relevant part that:
Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid (DNA) testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence if:....
(7) The identity of the perpetrator was at issue during the investigation or prosecution of the offense being challenged under § 16-112-201.
So, where does that leave pleading defendants?
Wednesday, July 18, 2018
The pertinent portion of Arizona's postconviction DNA testing statute, § 13-4240(C)(1)(a) & (b), provides in relevant part that:
After notice to the prosecutor and an opportunity to respond, the court may order deoxyribonucleic acid testing if the court finds that all of the following apply:
1. A reasonable probability exists that either:
(a) The petitioner's verdict or sentence would have been more favorable if the results of deoxyribonucleic acid testing had been available at the trial leading to the judgment of conviction.
(b) Deoxyribonucleic acid testing will produce exculpatory evidence.
So, where does that leave pleading defendants?
Tuesday, July 17, 2018
The pertinent portion of Alaska's postconviction DNA testing statute, AK Stat § 12.73.020 provides in relevant part that
The court shall order post-conviction DNA testing of specific evidence if....
(3) the applicant did not admit or concede guilt under oath in an official proceeding for the offense that was the basis of the conviction or a lesser included offense, except that the court, in the interest of justice, may waive this requirement; for the purposes of this paragraph, the entry of a guilty or nolo contendere plea is not an admission or concession of guilt;....
(8) the applicant was convicted after a trial and the identity of the perpetrator was a disputed issue in the trial;
Monday, July 16, 2018
Introducing Project DNA: a 50 State Survey on Whether Pleading Defendants Can Seek Postconviction DNA Testing
Today, I'm starting a new series of 51 posts that I'm calling "Project DNA." It relates to an article I've been writing titled, "A Right to Prove Innocence After Pleading Guilty." The article addresses the fact that many states have statutes that preclude pleading defendants from seeking postconviction DNA testing.* To set up this series of posts, consider the following hypotheticals:
1. An African-American defendant is charged with sexual assaulting and murdering a brunette woman, convicted after a jury trial, and given a life sentence. Later, the State finds evidence that it had misplaced: four blond hairs with hair follicles recovered from the victim's underwear. The defendant seeks postconviction DNA testing of the hairs.
2. An African-American defendant is charged sexual assaulting and murdering a brunette woman, pleads guilty, and given a life sentence. Later, the State finds evidence that it had misplaced: four blond hairs with hair follicles recovered from the victim's underwear. The defendant seeks postconviction DNA testing of the hairs.
In hypothetical 1, every state and the District of Columbia is going to allow the defendant to seek postconviction DNA testing. Conversely, several states will not allow the defendant in hypothetical 2 to seek DNA testing. This is despite the fact that (1) this country's first DNA exoneration involved a pleading defendant;** and (2) 65 out of 149 DNA and non-DNA exonorees (44%) in 2015 had been convicted after guilty pleas.
In this series of posts, I will look at who can apply for postconviction DNA testing in each of the fifty states and the District of Columbia.
Thursday, July 12, 2018
Monday, July 2, 2018
The second season of "In the Dark" by APM Reports/Madeleine Baran has been terrific. It covers the case of Curtis Flowers, who has been prosecuted (a record) six times in connection with the shooting deaths of four people inside Tardy Furniture store in downtown Winona, Mississippi. Flowers's first five trials results in hung juries or convictions that were later thrown out due to Constitutional violations. And now, there's reason to believe that Flowers's latest conviction will be reversed based upon evidence discovered by Baran and her team. Interestingly, that evidence is similar to evidence from one of our recent Undisclosed cases being used to fight for a new trial for Willie "Pee Wee" Veasy.
Wednesday, June 20, 2018
Steve Klepper (@MDAppeal) has a great mega-thread on the appeal in the Adnan Syed case that coincides with a significant development in that appeal. So, where do we currently stand, and what can Klepper's thread tell us about the future of Adnan's case?
Friday, June 15, 2018
Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can't Remember Making Them?
The leading cause of wrongful convictions in this country is eyewitness misidentifications. Specifically, "eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions." So, can we square this empirical data with a rule of evidence that applies across this country?
Monday, June 11, 2018
Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror's statements be received in evidence as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the jury deliberations or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.
This rule basically has an external dichotomy. Jurors can testify about non-jurors influencing them (e.g., through threats) or about being exposed to evidence not presented in the courtroom (e.g., the juror in the Joey Watkins case doing a drive test). Conversely, jurors generally can't testify about behavior by other jurors, no matter how offensive. A good example of this can be found in the recent case, Sears v. Sellers, 2018 WL 2364283 (N.D.Ga 2018).
Thursday, June 7, 2018
[F]or any crime regardless of the punishment, the evidence [of a prior conviction] must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
So, does a conviction for evidence tampering qualify as a crime with a dishonest act or false statement? That was the question addressed by the Court of Appeals of Utah in its recent opinion in State v. York, 2018 WL 2276129 (Utah App. 2018).
Wednesday, May 30, 2018
Petitions for writs of certiorari can be funny things. As I noted in yesterday's post,
Certiorari is reserved for issues of "public importance[.]"...Certiorari is generally denied where the "questions presented, the analysis, and the outcome are wholly unremarkable and of interest solely to the litigants."
What this means is that you will often see litigants taking positions in cert petitions (and answers) that are diametrically opposed to the positions that they will take in later cases. We can see a good example of this in the Adnan Syed case.
Tuesday, May 29, 2018
Today, Justin Brown filed the defense's Answer in Opposition to Petition for Writ of Certiorari with Conditional Cross-Petition in the Adnan Syed case. This first post on this filing will explain what it means and discuss one of its key points.
Friday, May 18, 2018
Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. Thus, in order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.As I noted in a prior post, in its petition for writ of certiorari in the Adnan Syed case, the State set up a false dichotomy: that Cristina Gutierrez had the choice to either (1) present an "alibi-by-routine" defense, whereby witnesses would claim that it was Adnan's routine to remain at school between the end of classes and the start of track practice; or (2) present Asia McClain as an alibi witness who would testify that she saw Adnan at the Woodlawn Public library between the end of classes and the start of track practice on January 13, 1999.
I labeled this false dichotomy because it was factually false; Gutierrez presented no witnesses who testified that it was Adnan's routine to remain at school between the end of classes and the start of track practice. Upon thinking about it further, though, this supposed dichotomy is also legally false because the phrase "alibi-by-routine" is an oxymoron. And this isn't just me being didactic; it has significance for the current appeal.
Thursday, May 17, 2018
In a comment on yesterday's post, Jayne asked "Do you see similarities with the Michael Skakel case? Both involve failure to contact an alibi." Jayne is referring to the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018). Having now looked at this case (which cites the Court of Special Appeals's opinion in the Adnan Syed case three times), I can now say that this is a very important opinion for Adnan's case.
Wednesday, May 16, 2018
"Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity." Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).
This single sentence might be the key to the Court of Appeals of Maryland denying certiorari to the State or affirming the opinion of the Court of Special Appeals of Maryland in the Adnan Syed case.
Tuesday, May 15, 2018
I think there are two falsehoods at the center of the State's petition for writ of certiorari in the Adnan Syed case. These apparent falsehoods are significant because I think of them as necessary but not sufficient conditions for the State to win on appeal. So, what are these two likely falsehoods?
Thursday, April 26, 2018
Supreme Court of Utah Finds Mother at Home w/Newborn on Oxygen & a Heart Monitor Wasn't "Unavailable" for Hearsay Purposes
Like its federal counterpart, Utah Rule of Evidence 804(b)(1) allows for the admission of "former testimony" by an unavailable declarant, including a declarant who "cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness."* Clearly a declarant is "unavailable" if she is deceased. Meanwhile, if a declarant has an illness, we have to compare the severity and duration of the illness with the likely duration of the trial (and the the possibility of a continuance).
Tuesday, April 17, 2018
Seventh Circuit Finds That Failure to Disclose Inadmissible Recording of Loan Officer Was a Brady Violation
Pursuant to Brady v. Maryland, the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defendant. Since the Supreme Court's opinion in Wood v. Bartholomew, a circuit split has developed over whether the failure to disclose inadmissible evidence can ever be the basis for a Brady violation. In my first law review article, I argued that inadmissible evidence can be material for Brady purposes because, inter alia, inadmissible evidence can still sometimes be used at trial, e.g., to impeach a witness. In its recent opinion in United States v. Ballard, 885 F.3d 500 (7th Cir. 2018), the Seventh Circuit reached the same conclusion.
Monday, April 9, 2018
We currently have two judicial findings that Adnan Syed's trial counsel rendered ineffective assistance: (1) Judge Welch's ruling* that she was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) the Court of Special Appeals's ruling that she was ineffective based on failure to contact prospective alibi witness Asia McClain. In response to these rulings, some have claimed that, while there is evidence that defense counsel was ineffective, there is no evidence of State misconduct connected to Adnan's trials.**
This point, however, is simply not true. In this post, I will point to the clearest evidence of State misconduct in the case.