EvidenceProf Blog

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

Monday, October 26, 2015

More Turnover at Cristina Gutierrez's Law Firm in 1999

Following up on my post from Friday, it looks like there was additional turnover at Cristina Gutierrez's law firm in 1999. In this case, the turnover seems like it might have had a greater detrimental effect on Adnan's case.

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October 26, 2015 | Permalink | Comments (7)

Friday, October 23, 2015

The Departure of a Named Partner From Cristina Gutierrez's Law Firm in Fall 1999

I've started preparing a draft for the "Cristina Gutierrez" episode of the Undisclosed Podcast. In doing so, I stumbled upon something interesting but not important enough to include in the episode (I think). Here's a discovery letter, sent by Gutierrez on September 7, 1999. As you can see, the name of the law firm at the time is Redmond, Burgin & Gutierrez, P.A., indicating the three named partners at the firm. Next, here's Adnan's alibi notice, submitted less than a month later, on October 4, 1999. Now, the name of the law firm is Redmond & Gutierrez, P.A. Burgin is still listed as an attorney, but he's no longer a named partner.

Finally, here's the top of a letter dated November 24, 1999, in which Gutierrez is sending Mr. S's polygraph results to an expert:

Screen Shot 2015-10-23 at 4.55.13 PM

So, now, about a month and a half later, Burgin is no longer working at the law firm, and a new attorney has been hired. 

I don't think that this has any huge bearing on Adnan's case, but I'm always interested in getting as much context as possible. Burgin was a named partner when Gutierrez joined the law firm in 1995 and one of only six attorneys at the firm. It's not an insignificant thing for a named partner to leave a firm, especially a firm this small. I have little doubt that Gutierrez was spending a good deal of time in the fall of 1999 on the departure of Burgin* and the hiring of his replacement. What I don't know is whether Burgin had any role in Adnan's case and whether his departure might have had any direct or indirect effect on its outcome. 



*For example, the departure could have meant that Gutierrez was picking up new clients/work from Burgin. It also could have meant that Gutierrez was working hard to keep clients who had a good working relationship with Burgin.

October 23, 2015 | Permalink | Comments (12)

Wednesday, October 21, 2015

Back to the Future Day and the Effect of Pop Culture on Legal Proceedings

Happy Back to the Future Day. After traveling back in time from 1985 to 1955 in Back to the Future, Marty McFly traveled from 1985 to October 21, 2015 in Back to the Future Part II. There have been any number of articles about what BTTF2 got right and wrong about the future and at least one case on the same subject. That case deals with one of my favorite intersections: the intersection between law and pop culture.

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October 21, 2015 | Permalink | Comments (10)

Tuesday, October 20, 2015

Professor Colbert's Affidavit About the Thoughts of the Jurors After Adnan's Mistrial

In the Addendum to the 11th Episode of the Undisclosed Podcast, we made the argument that the State's misleading disclosures in connection with Exhibit 31 and the cell tower evidence was a Brady violation because the cell tower evidence could very well have been the difference between a "guilty" and a "not guilty" verdict. As support, we cited to Professor Colbert's affidavit, in which he noted that the majority of jurors were prepared to return a "not guilty" verdict when the first trial ended in a mistrial. That mistrial was after the State had presented most of its case and the defense had presented none of its case. At the time of the mistrial, the only State's witnesses who had not testified were Jennifer Pusateri and the AT&T cell tower expert. Therefore, there is strong evidence that the cell tower expert was the key to the State's case. 

In response to the Addendum episode, however, I got a few e-mails asking about Professor Colbert's affidavit and realized that we hadn't posted it to the Undisclosed website. Here is his affidavit:


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October 20, 2015 | Permalink | Comments (25)

Monday, October 19, 2015

Guardian Lawsuit Shines a Light on Homan Square Detention Facility in Chicago

The Good Wife is my favorite legal TV show ever. I've written about it before at least a few times (see, e.g., here and here). I feel like one of the most important posts I've written on this blog was prompted by the show: The Good Wife, The Alford Plea, The Jewish Ban On Confessions, & The Times Of Emergency Necessity Exception. Part of what makes The Good Wife great is its focus on the current legal milieu. A big chunk of last season's finale, Wanna Partner?, was based upon something that is very much part of the Chicago legal milieu: Homan Sqaure.

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October 19, 2015 | Permalink | Comments (4)

Thursday, October 15, 2015

Exhibit 31 Was the Cause of the Mistrial at Adnan's First Trial

Last night, we premiered "Exhibit 31," the Addendum to the 12th episode of the Undisclosed Podcast. The episode's title is based upon the key cell tower exhibit that now forms the basis for Adnan's claim that there was a Brady violation. Exhibit 31 was also the exhibit that led to the mistrial at Adnan's first trial. It is also further evidence of Gutierrez's ineffective assistance.

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October 15, 2015 | Permalink | Comments (25)

Wednesday, October 14, 2015

Ware v. State & Misleading Disclosures as Brady Violations in Maryland

Yesterday, Adnan's attorney filed his reply brief. That brief was accompanied by some very interesting exhibits. You can hear my thoughts about the reply brief when this week's Addendum episode of the Undisclosed Podcast premieres tonight at around 6:00 P.M. In this post, I will address something that we didn't discuss on the episode.

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October 14, 2015 | Permalink | Comments (22)

Tuesday, October 13, 2015

Cristina Gutierrez's 1999 Maine Murder Case & Adnan's Library Alibi

Previously, I've written about how Cristina Gutierrez was involved in 6 first-degree murder cases in 4 different jurisdictions back in 1999/2000. Well, it turns out that she was actually involved in a seventh murder case in a fifth jurisdiction back in 1999. This one took place in Maine, and it possibly answers one of the biggest questions I have about this case.

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October 13, 2015 | Permalink | Comments (20)

Monday, October 12, 2015

The Chain of Custody Form For the Windshield Wiper Lever in Hae's Sentra

I have written before about the chain of custody issues involving the windshield wiper lever in Hae Min Lee's Nissan Sentra. Now that I have seen the chain of custody form for the lever, the evidentiary problem has come into sharper focus.

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October 12, 2015 | Permalink | Comments (13)

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 (22)

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 (10)

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 (23)

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 (28)

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 (16)

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)