EvidenceProf Blog

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

Thursday, August 11, 2016

An Analysis of the Conditional Application for Leave to Cross Appeal in the Adnan Syed Case

Today, Justin Brown filed a Conditional Application for Leave to Cross Appeal in the Adnan Syed case. This application is "conditional" because it is conditioned on the Court of Special Appeals (COSA) granting the State leave to appeal Judge Welch's opinion granting Adnan a new trial. If COSA denies the State leave to appeal, Judge Welch's opinion granting Adnan a new trial becomes final, and there would be no appeal, meaning that there would be no need for a cross-appeal.

This application is also not a response to the State's Application for Leave to Appeal (ALA). That will come later this week or early next week and argue that the State should not review Judge Welch's conclusion that Cristina Gutierrez was ineffective (IAC) in her handling of the cell tower pings. Instead, this Conditional Application is saying that, if COSA grants the State leave to appeal Judge Welch's opinion granting Adnan a new trial on the IAC/cell tower issue, it should grant the defense leave to (cross)appeal Judge Welch's opinion granting Adnan a new trial on the IAC/alibi witness issue.

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August 11, 2016 | Permalink | Comments (5)

Wednesday, August 10, 2016

The Maryland AG Has Consistently Used Curtis to Prevent Defendants From Making IAC Claims on Direct Appeal

In his opinion granting Adnan a new trial, Judge Martin Welch noted that, pursuant to the opinion of the Court of Appeals of Maryland in Curtis v. State, fundamental rights like the right to the effective assistance of counsel cannot be waived by defendants unless the waiver was knowing and intelligent.  Judge Welch then found that Adnan had not knowingly and intelligently waived his claim that trial counsel was ineffective by failing to use the AT&T disclaimer to challenge the cell tower evidence.

In its Application for Leave to Appeal (ALA), the Maryland Attorney General claimed that "the standard for 'intelligent and knowing' waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided." As I noted on Monday, this claim is incorrect because the Court of Appeals of Maryland did just that in State v. Adams, 958 A.2d 295 (Md. 2008). What seems more troubling is that the Maryland Attorney General itself has claimed 8 times from 2007-2014 that Curtis' "intelligent and knowing" waiver standard applies to ineffective of counsel claims, and it has done so to prevent defendants from making such claims on direct appeal.

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August 10, 2016 | Permalink | Comments (13)

Tuesday, August 9, 2016

South Carolina vs. Federal Rules of Evidence, Take 2: No Delayed Objection to Judicial Interrogation

Yesterday, I noted how South Carolina Rule of Evidence 605 does not contain the "automatic" objection feature of Federal Rule of Evidence 605 when a judge "testifies" at trial. We can see a similar difference between Federal Rule of Evidence 614 and South Carolina Rule of Evidence 614.

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August 9, 2016 | Permalink | Comments (0)

Monday, August 8, 2016

Another Case Where Maryland Found the "Knowing & Intelligent" Waiver Standard Applies to an IAC Claim

In his opinion granting Adnan a new trial, Judge Martin Welch noted that, pursuant to the opinion of the Court of Appeals of Maryland in Curtis v. State, fundamental rights like the right to the effective assistance of counsel cannot be waived by defendants unless the waiver was knowing and intelligent.  Judge Welch then found that Adnan had not knowingly and intelligently waived his claim that trial counsel was ineffective by failing to use the AT&T disclaimer to challenge the cell tower evidence.

In its Application for Leave to Appeal (ALA), the State claimed that "the standard for 'intelligent and knowing' waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided." Later, the State claimed that, "it is not surprising that the State has not found, after conducting a preliminary review, a single Maryland appellate case since Curtis that has applied that standard to an ineffective assistance of counsel claim."

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August 8, 2016 | Permalink | Comments (1)

South Carolina vs. Federal Rules of Evidence, Take 1: No "Automatic" Objection to Judicial Testimony

Recently, South Carolina decided to adopt the Uniform Bar Exam. As such, law school graduates will no longer need to pass a South Carolina component of the South Carolina bar exam to be admitted to the bar. In place of a South Carolina component, there will be lectures by various people on the differences between South Carolina law and federal law in various practice areas. I will be doing the lecture on South Carolina evidence, so I will be spending the next several posts detailing some of the differences between the Federal Rules of Evidence and the South Carolina Rules of Evidence

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August 8, 2016 | Permalink | Comments (4)

Thursday, August 4, 2016

The State's Application for Leave to Appeal in the Adnan Syed Case, Take 2

According to the State's Application for Leave to Appeal (ALA) in the Adnan Syed case, Judge Welch erred in three ways by finding that Adnan did not waive his ineffective assistance/cell tower claim:

First, the standard for “intelligent and knowing” waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided. Second, even if it were proper to continue to apply Curtis’s holding to an ineffective assistance of counsel claim, Syed’s claim is readily distinguishable from the claim in Curtis, and application of the Curtis standard should have led the post-conviction court to the conclusion that Syed’s claim was waived. Finally, even if Syed’s claim were the kind of claim that required “intelligent and knowing” waiver, Syed has offered no evidence to rebut the statutory presumption that he “intelligently and knowingly failed” to raise the claim in a prior proceeding.

I will address each of these arguments in this second post on the State's ALA.

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August 4, 2016 | Permalink | Comments (4)

Tuesday, August 2, 2016

The State's Application for Leave to Appeal in the Adnan Syed Case, Take 1

Yesterday, the State of Maryland filed its Application for Leave to Appeal (ALA) in the Adnan Syed case. I will have limited time to write about the ALA this week, so expect posts (and responses to comments) to be scattershot. Here's take one:

The State fell into the prejudice trap.

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August 2, 2016 | Permalink | Comments (28)

Wednesday, July 27, 2016

What to Expect From the State's Application for Leave to Appeal in the Adnan Syed Case

As I noted yesterday, the State has until Monday, August 1st to file its Application for Leave to Appeal (ALA) to the Court of Special Appeals of Maryland in Adnan's case. According to Maryland Rule 8-204(b)(3),

The application shall contain a concise statement of the reasons why the judgment should be reversed or modified and shall specify the errors allegedly committed by the lower court. 

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July 27, 2016 | Permalink | Comments (13)

Tuesday, July 26, 2016

Explaining the State's Latest Filing in the Adnan Syed Appeal

As reported by Justin Fenton reported yesterday,

Maryland's attorney general intends to fight the ruling that granted a new trial for "Serial" podcast subject Adnan Syed, according to a document filed last week in the case.

The state formally notified the court of its intentions Thursday and asked that any new trial proceedings be halted as that process plays out. An appeal could push the possibility of a retrial back several months or longer, experts have said.

A spokeswoman for the attorney general's office declined to comment on the new filing, which is not the appeal itself. The office had previously hinted at its intent to appeal and has until next Monday to file it.

So, what does this mean?

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July 26, 2016 | Permalink | Comments (10)

Thursday, July 21, 2016

Stealing Thunder: Ohler v. United States & Last Week's Undisclosed Addendum

In last week's Addendum episode of the Undisclosed Podcast, I mentioned the Supreme Court's opinion in Ohler v. United States, 529 U.S. 753 (2000), which creates a sort-of Hobson's Choice for defense counsel. So, what's the significance of the Ohler opinion? 

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July 21, 2016 | Permalink | Comments (5)

Tuesday, July 19, 2016

When in Rome: Our Trip to Rome, Batson Claims, and the More Perfect Podcast

Last night, we premiered the second episode of our second season of the Undisclosed Podcast: "In Situ," which is Latin for "on site" or "in position." It was about the trip that Susan, Rabia, and I took to Rome, Georgia to investigate the Joey Watkins case. As Rabia said in our first episode, Rome, Georgia is a "little big town." It has a population of about 36,000, and it is basically due west of Columbia, South Carolina, where I live and teach. 

Rome has a cool little downtown area that it describes as "[t]he Largest Victorian Era District in the state...filled with antiques, collectibles, gifts, furniture, books, jewelry and much more!" We had a couple of great meals there, at the Harvest Moon Cafe and Jamwich, which finds unique ways to work jam into all of its menu options.

Rome also plays a part in an important recent Supreme Court case.

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July 19, 2016 | Permalink | Comments (4)

'Serial': How Adnan Syed Could Win His Retrial

Yesterday, Amelia McDonell-Parry published a great article in Rolling Stone titled, "'Serial': How Adnan Syed Could Win His Retrial." She interviewed me for the article, which covers a number of topics such as CrimeStopppers and lividity.

-CM

July 19, 2016 | Permalink | Comments (11)

Friday, July 15, 2016

"[A]s a matter of law, the house is haunted" -- The Ghostbusters Case & Caveat Emptor

"Ghostbusters" was one of the defining movies of my childhood. I can still remember gong to a drive-in movie theater to see it in 1984. Bill Murray was rightfully the best part of the movie for most people, but, ever since Boba Fett, I always liked the bad guy. So, in "Ghostbusters", it was William Atherton's EPA agent I loved to hate. It was the first in a series of classic heels turns by Atherton.*

Soon thereafter, I got the video game for my Commodore 64. I often spent my Saturday mornings playing the game and watching "The Real Ghostbusters" animated series on TV. In 1989, Ghostbusters II was released. It wasn't as good as the original, but it still had some great scenes, including this one in the courtroom. 

Now, 27 years later, Paul Feig, who captured childhood in the '80s so well in "Freaks and Geeks," has created an entirely new version of "Ghostbusters," with the terrific cast of Kristen Wiig, Melissa McCarthy, Kate McKinnon, and Leslie Jones. If this reboot is successful, we can expect to the ghostbusters being part of the conversation for generations to come. Interestingly, they are already part of the conversation for many law students and judges. 

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July 15, 2016 | Permalink | Comments (4)

Thursday, July 14, 2016

Interesting Study on the Illusion of Truth Effect and Eyewitness Suggestibility

For those of you interested by the discussion of the illusion of truth effect in Episode 1 of Season 2 of Undisclosed, here's an interesting study about the illusion of truth effect and eyewitness suggestibility: (Download Illusion of Truth Study). Here is the abstract:

The purpose of the present study was to extend research on repetition and illusory truth to the domain of eyewitness suggestibility. Specifically, we assessed whether repeated exposure to suggestion, relative to a single exposure, facilitates the creation of false memory for suggested events. After viewing a video of a burglary, subjects were asked questions containing misleading suggestions, some of which were repeated. Their memory for the source of the suggestions was tested. The results show that following repeated (relative to a single) exposure to suggestion, subjects were more likely to (a) claim with high confidence that they remembered the suggested events from the video (Experiment 1) and (b) claim that they consciously recollected witnessing the suggested events (Experiment 2). The effects of repeated exposure were highly reliable and were observed over retention intervals as long as 1 week.

-CM

July 14, 2016 | Permalink | Comments (4)

The Cliffs Notes Version of Yesterday's Post on Excusing Waiver in the Adnan Syed Appeal

Last night's post seems to have caused some confusion, so here's the Cliffs Notes version:

1. Adnan had until June 6, 2010 to bring a claim that he received ineffective assistance of counsel based upon his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert;

2. In his initial PCR petition, filed on May 28, 2010, Adnan did not raise a claim of ineffective assistance of counsel based upon his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert;

3. Adnan first raised the cell tower claim in a Supplement filed on August 24, 2015;

4. Judge Welch could have ruled that Adnan's failure to raise the cell tower claim by June 6, 2010 2000 resulted in waiver of that claim, meaning that Judge Welch would not consider the merits of that claim;

5. Instead, Judge Welch ruled that Adnan did not knowingly and intelligently waive the cell tower claim, meaning that (a) there was no actual waiver; (b) Judge Welch could consider the merits of the cell tower claim; (c) Judge Welch was able to grant Adnan a new trial based on the cell tower issue;

6. If the State appeals to the Court of Special Appeals of Maryland, that court could agree that Adnan did not waive the cell tower issue and affirm Judge Welch's order granting Adnan a new trial;

7. Alternatively, and this was the point of yesterday's post, the Court of Special Appeals of Maryland could disagree with Judge Welch, conclude that Adnan did waive his cell tower claim, and yet, pursuant to Maryland Court Rule 8-131(a), excuse Adnan's waiver, and affirm Judge Welch's order granting Adnan a new trial.

Put more simply, the Court of Special Appeals can affirm Judge Welch's order granting Adnan a new trial on the cell tower claim by either (1) agreeing with Judge Welch that Adnan did not waive the cell tower claim; or (2) finding that Adnan did waive the cell tower claim but excusing this waiver.

-CM

July 14, 2016 | Permalink | Comments (9)

Wednesday, July 13, 2016

The Court of Special Appeals Has Authority to Excuse Any Possible Waiver of Adnan's IAC/Cell Tower Claim

Maryland Court Rule 8-131(a) provides that

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

So, what does this Rule mean? It means that the Court of Special Appeals of Maryland can affirm Judge Welch's order granting Adnan a new trial even if it finds that he waived his ineffective assistance of counsel claim regarding the AT&T disclaimer. 

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July 13, 2016 | Permalink | Comments (3)

Tuesday, July 12, 2016

Undisclosed, S2, E1: The Illusion of Truth Effect & The Rule Against Hearsay

Last night, we premiered the first episode of the Second Season of Undisclosed: "The Panama City Incident." In the episode, we talked about the illusion of truth effect and how it led the residents of Rome, Georgia to believe that Joey Watkins had shot at Isaac Dawkins in July 1999. According to Wikipedia, the illusion of truth (or illusory truth effect is)

the tendency to believe information to be correct because we are exposed to it more often. It was first discovered in 1977 at Villanova University and Temple University. We see some misconceptions or exaggerations frequently in our daily lives, and thus have a tendency to believe them to be true because of our recurrent exposure.

This effect has an important relationship to the rule against hearsay.

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July 12, 2016 | Permalink | Comments (13)

Monday, July 11, 2016

Does Court of Appeals Precedent Imply It's Futile to Reverse Judge Welch's Waiver Ruling?

The opinion of the Court of Appeals of Maryland in Jourdan v. State, 341 A.2d 388 (Md. 1975), is another important one on the issue of knowing and intelligent waiver of fundamental rights. As I noted last week, Judge Welch found that Adnan did not knowingly and intelligently waive his IAC/cell tower claim by failing to raise it in his first postconviction relief petitions. Jourdan seems to stand for the proposition that there would be no point in the Court of Special Appeals or Court of Appeals reversing this ruling.

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July 11, 2016 | Permalink | Comments (7)

Friday, July 8, 2016

Was Judge Welch Correct That the Brady Right is Not a Fundamental Right?

In Judge's Welch's opinion granting Adnan a new trial, he noted the dichotomy between fundamental and non-fundamental rights:

Screen Shot 2016-07-08 at 8.56.44 AM

Because Maryland has found that the right to the effective assistance of counsel is "fundamental," Judge Welch was able to find that Adnan's prior failure to raise the AT&T disclaimer issue was not waived because Adnan did not "intelligently and knowingly" fail to raise the issue in his first PCR petition. Conversely, because Judge Welch concluded that an alleged Brady violation does not relate to a fundamental right, he also concluded that Adnan had waived his Brady claim because he had the opportunity to raise the claim in his first PCR petition; under this analysis, it was irrelevant that Adnan didn't "intelligently and knowingly" fail to raise the Brady claim. But is this conclusion correct? 

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July 8, 2016 | Permalink | Comments (17)

Thursday, July 7, 2016

Assessing Judge Welch's Conclusion That Adnan Didn't Waive His Cell Tower/IAC Claim

In discussing Judge Welch's opinion granting Adnan a new trial, I have placed a lot of emphasis on substantive caselaw regarding ineffective assistance of counsel, alibi witnesses, and cell tower pings. But a trial that ended three days before the Doors appeared on "The Ed Sullivan Show" might be more important than any of that.

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July 7, 2016 | Permalink | Comments (26)