Monday, May 4, 2015
Two things. First, look for the Addendum to the second episode of the Undisclosed Podcast later today. Just like I did two weeks ago, I will have an "Addendum to the Addendum," exploring one of the issues from the Addendum in more detail.
Second, I have been getting a few e-mails from people questioning whether the prosecution claimed in its closing argument at the trial of Adnan Syed that Hae Min Lee had been killed between 2:15 and 2:36 P.M. on January 13, 1999. Given that this claim was a huge part of the Serial Podcast and Adnan's current argument that he received the ineffective assistance of counsel based on failure to contact Asia McClain, I thought it made sense to do a quick post proving that the prosecution did, in fact, make this claim.
Thursday, April 30, 2015
At the trial of Adnan Syed for murdering Hae Min Lee, the prosecution introduced into evidence a note that Hae had written for her new boyfriend that referenced (1) Hae filming an interview; and (2) Hae attending a wrestling match at Randallstown High. At trial, the prosecution claimed that this note was written on January 13, 1999, the day that Hae disappeared. In the second episode of the Undisclosed Podcast, we argued that this note was actually written on January 5, 1999 because (1) Woodlawn had a reported wrestling match at Randallstown High School on January 5, 1999; (2) Woodlawn had no reported wrestling match on January 13, 1999; and (3) Randallstown had a reported wrestling match against another school (Carver) on January 13, 1999.
Yesterday, an astute reader pointed something else out to me: Randallstown had a home basketball game on January 13, 1999.
Wednesday, April 29, 2015
In the wake of the second episode of the Undisclosed Podcast, I've received many e-mails speculating that there might have been a Woodlawn wrestling match on January 13, 1999, despite the fact that no such game was reported in the newspaper. Maybe, for instance, it was a re-scheduled match after an earlier match was cancelled due to poor weather. Maybe it was a junior varsity match, despite the Woodlawn yearbook making no mention of a JV wrestling team in 1999. Maybe Hae was the one who was supposed to report the score to the newspaper. My best guess is still that there was no Woodlawn wrestling match on January 13, 1999, as originally asserted by Susan Simpson in this blog post.
That said, if there were a Woodlawn wrestling match on January 13, 1999, guess whose recollection of that day becomes much more important? Debbie. You might recall that, in her statement on March 26, 1999, she recalls talking to Adnan about going to track practice at about 2:45 and then talking with Hae Min Lee some time between 2:45 and 3:15. In the conversation with Hae, "Takera" asks Hae for a ride, and Hae turns her down because she has to pick up her cousin and has no time to give a ride.
I've noted before that I think Debbie had the wrong day, but, if Woodlawn did have a wrestling match on January 13, 1999, there's a very good chance that Debbie had the right day. You see, in her statement, Debbie makes reference to Hae having to go to a game on January 13th, but her statement about the game is pretty garbled:
Most people assume that "rustling" means wrestling, and I'm inclined to agree. So, if Woodlawn indeed had a wrestling match on January 13th, that would make it the only day in early January 1999 that Woodlawn had both track practice and a wrestling match. Therefore, Debbie would likely be remembering the right day. And, if Debbie was remembering the right day, I think the case against Adnan Syed is actually weaker.
[Update: I'm already getting questions about what effect hypothetical new information about a wrestling match on 1/13 would have on Adnan's claim of ineffective assistance of counsel based on failure to contact Asia McClain. My response is as follows: What actually happened is irrelevant to the ineffective assistance claim. What matters is what was presented at trial. At trial, both a witness for the prosecution (Inez) and a witness for the defense (Becky) said they saw Hae leaving school in a hurry between 2:15 and 2:20; the prosecution also claimed that Hae was dead within 21 minutes of leaving school and that the Best Buy call was at 2:36. Asia saying she left Adnan behind in the library at 2:40 has all of the legal relevance in the world based upon the evidence/argument presented at trial. If Summer and/or Debbie are right about date and time, Asia is factually irrelevant but legally still very relevant].
Tuesday, April 28, 2015
Evidence Codification Intrigue in Virginia: A New(?) Hearsay Exception for Statements Made for Medical Treatment
One of the most highly regarded hearsay exceptions in American jurisprudence is the exception for “Statements Made for Medical Diagnosis or Treatment,” Fed. R. Ev. 803(4). The basic idea of the exception is that we expect people to honestly tell their doctor they got shot in the leg, because when you tell the doctor your gunshot wound is a bug bite, you get useless ointment instead of life-saving surgery.
It is no surprise, then, that we find this exception – copied verbatim from the unrestyled federal rule – in the recently codified Virginia Rules of Evidence, Rule 2:803(4):
"Statements for Purposes of Medical Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
Interestingly, however, the "codified" rule does not track Virginia case law. From my book:
. . . Virginia case law seems significantly narrower than the codified rule. In the most recent case, the Court explained:
“We have acknowledged that “a physician [may] testify to a patient’s statements concerning his ‘past pain, suffering and subjective symptoms’ to show ‘the basis of the physician’s opinion as to the nature of the injuries or illness.’” Cartera v. Com., 219 Va. 516, 518, 248 S.E.2d 784, 785–86 (1978); accord Jenkins v. Com., 254 Va. 333, 339, 492 S.E.2d 131, 134 (1997).” Lawlor v. Com., 285 Va. 187, 243 (2013).
Lawlor and the two cases cited by Lawlor in the above excerpt are the three cases cited in the Virginia codification commentary to support Rule 2:803(4). But note that the Lawlor Court’s description of the “exception” does not suggest that qualifying statements are admissible as substantive evidence, the normal effect of a hearsay exception. Instead, the Virginia Supreme Court explains that such statements to a physician are admissible to “show the basis of the physician’s opinion” – a nonhearsay use that would not necessitate a hearsay exception. Further, one of the cited cases, Jenkins, contains the following passage, which is far from an endorsement of the exception:
“The Commonwealth contends that we should apply the hearsay exception extended in some jurisdictions to statements made by a patient to a treating physician. As the Commonwealth recognized on brief, ‘many of these out-of-state cases are partially based on their state’s adoption of rules equivalent to Federal Rule of Evidence 803(4).’ Neither this Court nor the General Assembly has adopted any such rule.” Jenkins v. Com., 254 Va. 333, 339, 492 S.E.2d 131, 134 (1997).
. . .
Virginia has not adopted Rule 803(4), eh? Tell that to the codifiers!
Rule 2:803(4) is one of a handful of places in the codified rules where the codifiers stretched the Virginia evidence rules beyond their pre-codification bounds.
Monday, April 27, 2015
Today's second episode of the Undisclosed Podcast focused on Hae's day on January 13, 1999 and tried to answer the question: Who was the last (innocent) person to see Hae alive? In the episode, we narrowed down the likely choices to Becky/Aisha and "Takera." But what if none of these people turned out to be the last (innocent) person to see Hae alive? And what if the last (innocent) person to see Hae alive were in fact the last person to speak with Adnan on his cell phone on the 13th?
Saturday, April 25, 2015
Adnan Syed's Postconviction Hearing & Why the Court Could & Should Remand to Allow Asia McClain to Testify
Yesterday, somebody released the transcript from Adnan Syed's Postconviction Review Hearing. Here is the heart of prosecutor Kathleen Murphy's argument from that hearing about why the court should deny Adnan's claim that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain:
Simply put, this argument has me more convinced than ever that the Court of Special Appeals of Maryland can and should remand to the Circuit Court to allow Asia McClain to testify.
Friday, April 24, 2015
Earlier this month, I did a post about "Takera," who was mentioned in Debbie's police interview and who was quite possibly the last person to see Hae Min Lee alive (besides her murderer). I did the post because (a) I was pretty convinced that "Takera" wasn't this person's actual name; and (b) there seemed to be no other reference to "Takera" in either the prosecution or defense files. As a result of that post, I was given information that led me to believe that I had tracked down the real "Takera."
Well, two days ago, Susan Simpson was able to locate a second reference to "Takera" in the prosecution files. This reference, however, was not to "Takera." This reference was a reference to Takera's real name, spelled correctly. So, what does this all mean?
Thursday, April 23, 2015
No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by...Lifting the Order
At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute or rule to be present.
So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You'd expect there to be severe consequences for that witness, right? So why wasn't that the case in Koller Concrete, Inc. v. Tube City IMS, LLC, 2015 WL 1788772 (Pa.Super. 2015)?
Wednesday, April 22, 2015
Medical Examiner & Pathology Professor Leigh Hlavaty, M.D. on Livor Mortis, Rigor Mortis & Skin Slippage for Hae Min Lee
Last week, I forwarded the autopsy report for Hae Min Lee as well as her autopsy photos to Leigh Hlavaty, M.D., who is (1) the Deputy Chief Medical Examiner for the Wayne County Medical Examiner's Office in Detroit, Michigan; and (2) a Clinical Assistant Professor of Pathology at the University of Michigan. After she reviewed these materials, I asked for her thoughts about the evidence and arguments by the State regarding livor mortis, rigor mortis, and skin slippage at the trial of Adnan Syed for murdering Hae. In this post, I will set forth what I told and asked her, followed by her complete response.
Tuesday, April 21, 2015
Virginia’s “Trap for the Unwary”: Loopholes in State Evidence Rules Protecting Settlement Discussions
Modern litigation tactics revolve as much around settling a case as winning it at trial. One critical aspect of these tactics is settlement discussions. In an effort to “promot[e] the public policy favoring the compromise and settlement of disputes,” the federal rules of evidence go to great lengths to prohibit the admission of settlement discussions. The idea is that parties will be more willing to engage in settlement discussions if they know that nothing they say in those discussions can hurt their overall litigation position, should they fail to reach agreement.
For this reason, Congress and the federal rules’ drafters rejected common law exceptions to the inadmissibility of settlement communications (e.g., exceptions for “factual admissions”), explaining:
The exception for factual admissions was believed by the Advisory Committee to hamper free communication between parties and thus to constitute an unjustifiable restraint upon efforts to negotiate settlements--the encouragement of which is the purpose of the rule. Further, by protecting hypothetically phrased statements, it constituted a preference for the sophisticated, and a trap for the unwary.
Now take a look at Virginia Rule of Evidence 2:408:
Evidence of offers and responses concerning settlement or compromise of any claim which is disputed as to liability or amount is inadmissible regarding such issues. However, an express admission of liability, or an admission concerning an independent fact pertinent to a question in issue, is admissible even if made during settlement negotiations. . . . .
Notice that Virginia retains the “trap for the unwary.” Attorneys who fail to couch their (and their clients’) settlement-related statements in hypothetical-ese or qualifying language like “without prejudice,” risk their statements being classified as an “admission concerning an independent fact” or an “express admission of liability” and coming back to bite them in a Virginia trial. Here is further discussion of the issue from my book:
Monday, April 20, 2015
Today, we released the Addendum to the first episode of the Undisclosed Podcast. The Addendum deals with a pretty essential part of the prosecution's narrative presented at the trial of Adnan Syed for murdering Hae Min Lee on January 13, 1999. You can tell just how essential this part was by looking at this portion of the prosecution's closing argument:
Friday, April 17, 2015
I Read the News Today, Oh Boy: Indiana Murder Conviction Tossed Due to Juror Reading News Articles About Case
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) any juror's drug or alcohol use;*
(B) extraneous prejudicial information was improperly brought to the jury's attention;
(C) an outside influence was improperly brought to bear on any juror; or
(D) a mistake was made in entering the verdict on the verdict form.
There has been a lot of talk recently about so-called Google mistrial based upon the slew of recent cases in which jurors have looked up information on the internet rather than relying solely upon the evidence admitted at trial. That said, there are still plenty of cases in which mistrials are granted based upon jury misconduct of the more traditional variety.
Thursday, April 16, 2015
While researching the Adnan Syed case, I became curious about why he was absent on January 19, 1999 due to "Observation of Religious Holiday." In 1999, Ramadan ended on January 17th, prompting me to wonder what religious holiday was observed on January 19th. It turns out the January 19th was Eid al-Fitr.
Eid al-Fitr is a Muslim holiday that marks the end of Ramadan, the Islamic holy month of fasting (sawm). Eid is an Arabic word meaning "festivity", while Fiṭr means "to break fast"; and so the holiday symbolizes the breaking of the fasting period. It is celebrated after the end of the Islamic month of Ramadan, on the first day of Shawwal.
The observance of both Ramadan and Ei al-Fitr have led to some interesting First Amendment prison lawsuits, as is made clear by the opinion by the United States District Court for the Western District of Wisconsin in Perez v. Frank, 2007 WL 1101285 (W.D.Wis. 2007).
Wednesday, April 15, 2015
Judgy: 7th Circuit Finds No Problem With Judge's 11 Minute Interrogation of Defense Expert During Sentencing
Federal Rule of Evidence 614(b) provides that
The court may examine a witness regardless of who calls the witness.
That said, such examination is improper if the judge abandons neutrality and becomes something in the way of an advocate for one of the parties. If a judge engages in a 11 minute interrogation of the defendant's expert witness in a way that mimics a cross-examination, has this line been crossed? Let's take a look at the recent opinion of the Seventh Circuit in United States v. Modjewski, 2015 WL 1610497 (7th Cir. 2015).
Tuesday, April 14, 2015
This is the second in a series of posts reporting a few findings from my just-published book, “The Virginia and Federal Rules of Evidence: A Concise Comparison with Commentary”
The first post is here. This second post focuses on some of Virginia’s unique credibility impeachment rules, and particularly Rule 2:608(e). In all the Virginia evidence code, this is the rule most in need of rethinking.
In the wake of all the recent national media attention regarding sexual assault prosecutions, Virginia’s Rule 2:608(e) may be of general interest. The provision reads:
(e) Prior false accusations in sexual assault cases. Except as otherwise provided by other evidentiary principles, statutes or Rules of Court, a complaining witness in a sexual assault case may be cross-examined about prior false accusations of sexual misconduct.
As the Virginia rule departs from its federal analogue, I discuss it my commentary section, noting its direct derivation from case law:
[U]nder Rule 2:608(e), a complaining witness in a sexual assault case can be cross-examined about prior false accusations of sexual misconduct; and extrinsic evidence is permitted to substantiate a charge that a past accusation was false. See Clinebell v. Com., 235 Va. 319, 325, 368 S.E.2d 263, 266 (Va. 1988) (“in a sex crime case, the complaining witness may be cross-examined about prior false accusations, and if the witness denies making the statement, the defense may submit proof of such charges”).
As I further explain, allowing cross-examination with prior false allegations is not itself noteworthy. In fact, the federal rules permit just that in Rule 608(b). And it is widely recognized that inquiry into prior false allegations of sexual misconduct is not barred by Rape Shield provisions. But Virginia law is different in an important, if largely unheralded way.
The federal rules (and most state analogues) permit impeachment of any witness with specific instances of conduct that is “probative of the character for truthfulness.” Thus, in most jurisdictions any witness can be cross-examined about prior false allegations they have made. Virginia’s rules, however, do not permit this kind of cross-examination except when it comes to one specific type of witness: “a complaining witness in a sexual assault case.” Rule 2:608(e); 2:608(b).
That’s right you don’t need a time machine to see a special rule of credibility impeachment that only applies to sexual assault victims. You can find it in Virginia’s recently codified evidence rules. As I write this, I am a stone’s throw away from Colonial Williamsburg working at the country’s first law school -- founded by Thomas Jefferson. History is nice. But this rule is from the wrong side of history.
Yesterday was the premiere of the first episode of "Undisclosed: The State v. Adnan Syed." We had some recording difficulties while doing the group recording of Rabia, Susan, and myself, so we each ended up having to record individual parts that were stitched together. As a result, the final recording has some varying volumes, not enough free flowing conversation, and what I regard as some stilted delivery on my part (it's a lot tougher to talk to a computer screen than someone else). That said, I'm very proud of the finished product and the hard work that was put into creating it. If you enjoyed the first episode, be sure to check out the second episode on April 27th. And, if you're not sold after the first episode, I feel like I can guarantee that the quality of the second episode will be much higher for a variety of reasons.
I've already been getting some good feedback about my comments about Debbie's testimony at the first and second trials and the difference between guilt and innocence. Given that feedback, I thought I'd expand upon my comments from the podcast in a blog post.
Monday, April 13, 2015
This is the introduction to a short series of posts reporting selected findings from my most recent project, a concise reference volume comparing the Virginia and Federal Rules of Evidence. Book-length federal-to-state evidence rule comparisons exist for most major United States jurisdictions, including California (Miguel Mendez), Florida, New York and Texas (Peter Nicolas). Until now, Virginia has been a notable omission.
Not coincidentally, Virginia codified its evidence rules in 2012 – yes, only three years ago! (Kent Sinclair of the University of Virginia headed the codification project.) Prior to codification, Virginia’s evidence rules consisted of a judge-made common law of evidence supplemented by sporadic (often clumsy) statutory interventions. If you wanted to make an evidence objection in a Virginia court, your best bet was to reference the dominant treatise. Everyone could then consult their copy of the 1000+ page behemoth and argue vociferously. It was like practicing in Colonial times, only with air conditioning.
The 2012 codification project sought to put an end to the evidentiary chaos. A side benefit of the codification is that by crystalizing its own evidence rules, Virginia allowed those rules to be contrasted with other codified evidence rules, such as the Federal Rules of Evidence, in a concise volume. Three years later (I had some other things to do as well!) my book arrived.
The most obvious utility of this series, and my book, is for attorneys or law students who learned evidence with the federal rules (as most do), but practice in Virginia courts. (Virginia policymakers should take a look as well.) But don’t feel left out if you don’t fall in those categories. The book’s exploration of distinctions between two longstanding, deeply considered evidence codes also highlights important policy choices made by the evidence rule makers in the respective jurisdictions. I learned as much about the Federal Rules as I did about the Virginia Rules in taking on this project.
Today at 2:00 P.M., Rabia Chaudry, Susan Simpson, and I will be posting the first episode of our new podcast, "Undisclosed," at http://undisclosed-podcast.com. The podcast will deal with the legal intricacies of the prosecution of Adnan Syed for murdering Hae Min Lee and new discoveries that have been made in the case since the Serial Podcast last aired. To tide you over until that episode is posted, here is a post about some interesting new medical discoveries in the case:
At both of the trials of Adnan Syed for murdering Hae Min Lee, Assistant Medical Examiner Margarita Korell gave testimony indicating why she believed that Hae had been dead for weeks before she was discovered. Here is part of her testimony from Adnan's first trial (pages 27-28):
Meanwhile, here is part of her testimony from the second trial (page 42):
Given what I know about rigor mortis, I was confused by this testimony about Hae's body still having "some rigor" that "was easily broken." This is because I could point to any number of cases in which experts have testified that the presence of "some rigor" that was "easily broken" was consistent with death less than 36 hours or so before discovery. For example, according to the Report of Cyril H. Wecht, M.D., J.D., in Schilling v. Baldwin, 2002 WL 33004188 (E.D.Wis. 2002),
as long as rigor is present, even if “easily broken”,...the decedent has been dead less than 36 hours.
Dr. Korell's testimony led me to consult with a medical examiner and some pathology residents, and they concluded the following: Either (1) Dr. Korell was wrong; or (2) Hae was dead at most a few days before she was discovered. This post will explain why I think Dr. Korell must be wrong and how it led to two conclusions: (1) Hae was in a face down position for at least 24 hours after death; and (2) the "right side" burial described in Hae's autopsy report was actually a back/right burial.
Friday, April 10, 2015
Fair Warning, Take 2: When Is It Feasible to Give Some Warning Before Using Lethal Force Against a Suspect?
I've gotten some good feedback and questions in response to my post yesterday regarding the shooting of Walter Scott. The point of that post was to note that, even if it was otherwise reasonable for the officer to shoot Scott, this use of lethal force was still unreasonable if (1) the officer failed to give a warning prior to shooting; and (2) such a warning was feasible. The main question I have gotten is: When is such a warning not feasible?
Let's take a look at the opinion of the United States District Court for the District of Arizona in Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972 (D. Ariz. 2012).
Thursday, April 9, 2015
I've been asked a lot today about the shooting of Walter Scott. The topic that always comes up is the so-called "fleeing felon" rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott. In a later portion of the Garner opinion, the Court noted that
if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
In other words, even if the police officer who shot Scott could establish probable cause, he had to give some warning (e.g., "Stop or I'll shoot) before using lethal force...if such a warning was feasible. Given that the video of the shooting seems to show no such warning, the question becomes whether a warning was feasible.
The clear answer seems to be "yes." As far as we can tell, Scott did not have a weapon. He was in a small park off a dirt road, not a crowded intersection. Moreover, Scott was a 50 year-old man who seemed to be lumbering in the wake of an altercation with the officer, not a spry young man sprinting away. Given these circumstances, it seems likely that some warning was feasible, meaning that the officer's use of lethal force was unreasonable even if he somehow did have probable cause to believe that Scott posed "a significant threat of death or serious physical injury to the officer or others." See, e.g., Pablo Hernandez v. City of Miami, 302 F.Supp.2d 1373, 1377 (S.D.Fla. 2004).