EvidenceProf Blog

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

Thursday, March 2, 2017

Refuting the State's Claim That Gutierrez's Strategy Was to Undermine All Cell Records

According to the State's Brief of Appellant in the Adnan Syed case:

Screen Shot 2017-03-02 at 11.36.55 AM

This is probably the most facially compelling argument in the State's brief. It is well established that appellate courts will find ineffective assistance based upon omissions and not based upon choices, assuming that those choices involve some modicum of strategy. Judge Welch found that Cristina Gutierrez's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert was an omission warranting a new trial.

Conversely, in its brief, the State tries to recharacterize Gutierrez's decision as a choice based upon strategy. The AT&T disclaimer, of course, stated that

Screen Shot 2017-03-02 at 11.41.22 AM

The State's contention, then, is that Gutierrez's strategy was to attack the reliability of all pings and that use of the AT&T disclaimer would have tended to confirm the reliability of incoming pings. But there's a huge problem with this argument.

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March 2, 2017 | Permalink | Comments (7)

Why Adnan's Cell Tower Amendment is Not Governed by the "Extraordinary Cause" Test

Yesterday, I posted an entry about Poole v. State, 203 Md.App. 1 (Md.App. 2012), which might be the most important case for Adnan's appeal. The heart of the State's Brief of Appellant is the claim that Adnan had to demonstrate "extraordinary cause" for failure to raise his ineffective assistance/cell tower claim within the ten-year statute of limitations in order to raise it in his reopened PCR proceeding. If you're wondering how difficult it is to establish "extraordinary cause," consider this tweet by Erica Suter, an expert in Maryland appellate law:

Screen Shot 2017-03-02 at 7.24.59 AM
 

Simply put, if the Court of Special Appeals (COSA) applies the "extraordinary cause" test, the State wins its cell tower appeal, unless COSA decides to excuse the waiver. But one thing now seems abundantly clear: COSA won't apply the "extraordinary cause" test.

 

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March 2, 2017 | Permalink | Comments (4)

Wednesday, March 1, 2017

Why the State Might Have Just Lost the Waiver Argument in the Adnan Syed Appeal

In his opinion granting Adnan a new trial, Judge Welch found that the right to counsel is a "fundamental right," meaning that a claim of ineffective assistance of counsel cannot be waived pursuant to Curtis v. State unless that waiver was "intelligent and knowing." By way of contrast, claims that are not fundamental are waived if they are not brought within the ten year statute of limitations unless the defendant can establish "extraordinary cause" for late filing. In its Brief of Appellant, the State claimed that Judge Welch erred in his opinion and that Adnan needed to establish "extraordinary cause" for Judge Welch to be able to hear his ineffective assistance/cell tower claim. But, in doing so, the State pointed to a precedent that strongly suggests that Adnan should have been "freely allowed" to add his ineffective assistance/cell tower claim without having to comply with Curtis v. State or establish "extraordinary cause." 

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March 1, 2017 | Permalink | Comments (3)

Tuesday, February 28, 2017

The State Missed a Hugely Important Case in its Brief in the Adnan Syed Case

In my opinion, the State's best chance at winning it's appeal on the ineffective assistance/cell tower issue is the argument that Adnan waived his claim on this issue by not bringing it within the 10 year statute of limitations. In its Brief of Appellant, however, the State has ignored a hugely important opinion of the Court of Appeals of Maryland on the issue.

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February 28, 2017 | Permalink | Comments (13)

Clearly Erroneous?: Why COSA is Especially Unlikely to Reverse Judge Welch's Factual Findings on the AT&T Disclaimer

As I've noted in my last three posts, the State cited three cases in its Brief of Appellant in the Adnan Syed case on the substantive issue of whether Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert: (1) Maryland. v. Kulbicki (post); (2) United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991) (post); and (3) Henry v. State, 772 S.E.2d 678 (Ga. 2015) (post). As I noted in each of those posts, I don't think any of these cases actually help the State's argument. That said, they are all legal precedents, and the Court of Special Appeals of Maryland will engage in a de novo/clean slate review of the legal question regarding whether Adnan received the ineffective assistance of counsel.

The State, however, spent the bulk of its Brief of Appellant claiming that Judge Welch made factual errors in his assessment of the credibility of the cell tower experts at the PCR proceeding. In this post, I will address the legal standard that the Court of Special Appeals will apply to these arguments.

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February 28, 2017 | Permalink | Comments (8)

My 2nd Take on the State's Brief of Appellant in the Adnan Syed Case

Following up on yesterday's post, the second case cited by the State in its Brief of Appellant in the Adnan Syed case in the ineffective assistance/cell tower claim was Henry v. State, 772 S.E.2d 678 (Ga. 2015). Let's start with the obvious: This is a Georgia state case, so it is persuasive precedent, which the Court of Special Appeals of Maryland could apply or ignore. So, why did the State cite the Henry case? 

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February 28, 2017 | Permalink | Comments (4)

Monday, February 27, 2017

My 1st Take on the State's Brief of Appellant in the Adnan Syed Case

Today, the State filed its Brief of Appellant in the Adnan Syed case. As I noted in my post last Wednesday, my biggest question was whether the State would cite to any cases other than Maryland. v. Kulbicki on the issue of whether Cristina Gutierrez was ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert. In this post, I will discuss one of the two cases that the State cited.

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February 27, 2017 | Permalink | Comments (9)

Wednesday, February 22, 2017

A Preview of the State's Appellate Brief in the Adnan Syed Case

It's currently five days before the State's first brief is due in the Adnan Syed appeal. The State is appealing the portion of Judge Welch's order concluding that

Syed's trial counsel's failure to challenge the State's cell phone location data evidence, based on the cell phone provider's "disclaimer," violated Syed's Sixth Amendment right to the effective assistance of counsel

My biggest question is whether the State will be able to cite to any case other than Maryland. v. Kulbicki to support its position. And that's because I don't think Kulbicki is especially helpful to the State's case.

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February 22, 2017 | Permalink | Comments (9)

Monday, February 20, 2017

In My Opinion: My Review of "The Good Fight" Premiere

Early in the first episode of "The Good Fight," Maia Rindell (Rose Leslie) asks Diane Lockhart (Christine Baranski), "Are we on the right side of this?" The two are defending Cook County in a lawsuit alleging police brutality against an African-American man. Rindell's career is just starting; Baranski's career is just ending. But when Rindell's hedge fund father is busted for facilitating a Ponzi scheme, both find themselves beginning anew at the African-American law firm they had just been fighting against. And, as the first episode makes clear, the question for both women is suggested by the series title: What does it mean to fight the good fight?

Good Fight

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February 20, 2017 | Permalink | Comments (1)

Friday, February 17, 2017

Article of Interest: Julia Simon-Kerr's "Credibility by Proxy"

Back in November 2014, Julia Simon-Kerr, an Associate Professor at the University of Connecticut School of Law, did a series of guest posts on this blog (see here). Those posts were about one of my favorite subjects covered by the rules of evidence: impeachment, the process by which a party calls into question the credibility of a witness. Part of what makes this subject so intriguing is that it requires judgment calls over what acts of a person bear upon that person's honesty, integrity, and credibility. Is a person with a violent past less credible than a person who has never harmed a fly? And what about a history or drug abuse? Prostitution? Gambling?

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February 17, 2017 | Permalink | Comments (1)

Thursday, February 9, 2017

My Short Podcast on the Court of Appeals of Maryland's Landmark Bail Ruling

I did a short podcast about the Court of Appeals of Maryland's landmark bail ruling:

[Note: To prevent the audio from glitching, you'll have to right click on the link below and download or open it in iTunes.]

Download Maryland Bail Decision

-CM

February 9, 2017 | Permalink | Comments (2)

Wednesday, February 8, 2017

My Short Podcast About the Michael Peterson/"The Staircase" Case

I did a short podcast about yesterday's news in the Michael Peterson/"The Staircase" case

[Note: To prevent the audio from glitching, you'll have to right click on the link below and download or open it in iTunes.]

Download Staircase

-CM

February 8, 2017 | Permalink | Comments (3)

Monday, January 30, 2017

A Quick Look at the Application for Leave to Appeal the Bail Decision in the Adnan Syed Case

On Friday, Justin Brown filed an application seeking leave to appeal Judge Welch's denial of the defense's motion for release pending appeal in the Adnan Syed case. I'm in the process of finalizing the first in a series of Undisclosed episodes about a South Carolina case, so my analysis of this application will be briefer than usual.

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January 30, 2017 | Permalink | Comments (5)

Friday, January 20, 2017

Possibly the Two Most Important Parts of COSA's upcoming opinion in the Adnan Syed Case

As I noted on Wednesday, the Court of Special Appeals of Maryland (COSA) will consider five or six issue in the Adnan Syed case:

1.    Did Judge Welch abuse his discretion in hearing the cell tower claim;

2.    Did Adnan waive the cell tower claim;

3.    If Adnan waived the cell tower claim, should the court excuse the waiver;

4.    Did Judge Welch err in finding ineffective assistance of counsel on the cell tower claim;

5.    Did Judge Welch err in finding no ineffective assistance/prejudice on the Asia/alibi claim; and

6.    Did Judge Welch err in not doing a cumulative prejudice analysis?

If we're operating under the assumption that the Court of Appeals of Maryland (Maryland's highest court) will allow the losing party to appeal COSA's opinion, then COSA's opinion on issues #1 and #3 might be he most important. Why?

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January 20, 2017 | Permalink | Comments (16)

Thursday, January 19, 2017

Watkins v. State and Jury Impeachment in Georgia

In yesterday's Undisclosed episode, we noted how the defense team filed an application for writ of habeas corpus in the Joey Watkins case. We also noted how, amazingly, the case that most strongly supports Joey's appeal is actually another Georgia case by the name of Watkins v. State. We discussed this case a bit in the episode, but I thought I'd flesh out that discussion in this post (Note: don't read past the fold if you haven't yet listened to the episode).

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January 19, 2017 | Permalink | Comments (5)

Wednesday, January 18, 2017

The Court of Special Appeals Grants the State & Adnan Leave to Appeal

Today, the Court of Special Appeals of Maryland issued an order that mainly did two things:

(1) granted the State leave to appeal the portion of Judge Martin Welch's order granting Adnan Syed a new trial based upon his cell tower/ineffective assistance of counsel claim; and

(2) granted the defense cross-leave to appeal the portion of Judge Welch's order denying Adnan a new trial based upon his alibi/ineffective assistance claim.

So, what does all this mean? 

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January 18, 2017 | Permalink | Comments (12)

Tuesday, January 10, 2017

The Allen Charge Project: Kansas

The key Kansas case on the Allen Charge is State v. Salts, 200 P.3d 464 (Kan. 2009).

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January 10, 2017 | Permalink | Comments (0)

Friday, January 6, 2017

The Allen Charge Project: Iowa

They key Iowa case on the Allen Charge is State v. Campbell, 294 N.W.2d 803 (Iowa 1980).

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January 6, 2017 | Permalink | Comments (0)

Wednesday, January 4, 2017

The Allen Charge Project: Indiana

The key Indiana case regarding the Allen Charge is Lewis v. State, 424 N.E.2d 107 (Ind. 1981).

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January 4, 2017 | Permalink | Comments (0)

Friday, December 30, 2016

What it Means to Say That There Still is "Compelling" Evidence Against Adnan Syed

One portion of Judge Welch's opinion that has caught the eyes and ears of readers and listeners is this one:

The circuit court finds that the nature and circumstances of the offenses are the most serious in nature and there still is compelling evidence against Petitioner.[FN5]

FN5 Although the State characterizes the cell phone evidence against Petitioner as strong, the circuit court notes that this evidence was the basis of the circuit court's grant of post-conviction relief and likely would be offered and attacked differently at a new trial.

So, what should we take away from Judge Welch's statement that "there still is compelling evidence against Petitioner"? 

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December 30, 2016 | Permalink | Comments (14)