EvidenceProf Blog

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

Wednesday, January 13, 2016

The EDTA Case That May be Even Crazier Than the Steven Avery/"Making a Murderer" Case

This is my third in a series of posts about EDTA testing in the Steven Avery/"Making a Murderer" case (prior posts here and here). As I noted in my last post,

In 2007, another California man sought to introduce evidence of EDTA. His is a fascinating case, deserving of its own podcast or Netflix series.

This post deals with the first of three opinions in that case.

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January 13, 2016 | Permalink | Comments (2)

Tuesday, January 12, 2016

Supreme Court Finds Florida's Death Penalty System Unconstitutional

Today, the United States Supreme Court declared Florida's death penalty system unconstitutional in Hurst v. Florida. According to the Court,

First-degree murder is a capital felony in Florida....Under state law, the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment...."A person who has been convicted of a capital felony shall be punished by death" only if an additional sentencing proceeding "results in findings by the court that such person shall be punished by death."..."[O]therwise such person shall be punished by life imprisonment and shall be ineligible for parole."...

The additional sentencing proceeding Florida employs is a "hybrid" proceeding "in which [a] jury renders an advisory verdict but the judge makes the ultimate sentencing determinations." Ring v. Arizona, 536 U. S. 584, 608, n. 6 (2002). First, the sentencing judge conducts an evidentiary hearing before a jury....Next, the jury renders an "advisory sentence" of life or death without specifying the factual basis of its recommendation. ... "Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death."... If the court imposes death, it must "set forth in writing its findings upon which the sentence of death is based."...Although the judge must give the jury recommendation "great weight,"...the sentencing order must “reflect the trial judge’s independent judgment about the existence of aggravating and mitigating factors."

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January 12, 2016 | Permalink | Comments (1)

The Case Where EDTA Evidence Was Excluded & the EDTA Exhibit in the Steven Avery Case

This post is following up on my prior post (here) about EDTA testing in the Steven Avery/"Making a Murderer" case. A lot has been made of the fact that "Marc LeBeau, head of the chemistry unit at FBI headquarters in Virginia,...used...EDTA testing that the FBI had used only once before — in [O.J.] Simpson's 1995 murder trial." This is literally true. Evidence of EDTA testing had only been used at trial once before. But it wasn't the only attempt to introduce such evidence.

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January 12, 2016 | Permalink | Comments (16)

Monday, January 11, 2016

Supreme Court Oddity: The Use of David Bowie Lyrics in the Recent Hobby Lobby Case

Like many around the world, I was saddened to hear about the passing of David Bowie. Probably may favorite Bowie memory comes from my first year of college at the University of Virginia. In my suite in the Watson dorm, we made a shrine to Bowie and played "Space Oddity" on a loop for 24 hours straight. Why? Probably for the same reason that they got him to judge the "walk-off" in Zoolander: he's David frickin' Bowie.

I'm not exactly sure when I first became aware of Bowie. If I had to guess, it was in 1986, when my nine year-old self watched "Labyrinth." I've read the interpretation that "Labyrinth" "was specifically constructed for mind control purposes." It's not the only strange interpretation of one of Bowie's works, as is made clear by one of the amicus briefs in the recent Hobby Lobby/Supreme Court case.

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January 11, 2016 | Permalink | Comments (5)

Friday, January 8, 2016

An Introductory Post on the EDTA Testing Done in the Steven Avery Case

Several readers have asked me questions about the ethylenediaminetetraacetic acid (EDTA) evidence used in the Steven Avery/"Making a Murderer" case. This is an introductory post, which will focus upon the use of this evidence at Avery's trial.

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January 8, 2016 | Permalink | Comments (49)

Thursday, January 7, 2016

How Did the Detectives Know to Ask for Jenn on February 26th?

Over the last few days, I've done a couple of posts (here and here) about the evidence supporting the theory that the detectives were aware of Jay and possibly interviewed him (multiple times) before they interviewed Jenn on February 26th and 27th. In short, this evidence consists of (1) Jay's Intercept interview, in which he says he was already sick of talking to the police before they ever talked to Jenn; (2) Sis's statement to the defense PI, in which she says that Jay told her that he missed work on February 26th and February 20th, 21st, or 22nd, with Jay saying that at least the earlier interview was about Hae; (3) Neighbor Boy's statement to the defense PI about seeing Jay in a police car about a week after Hae's body was found (e.g., around February 16th); and (4) a police document in which (a) Jay's name is identified next to the account holder for a phone line, but (b) Jenn's name is not. 

There's another piece of evidence that might also support this theory, depending on who you believe.

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January 7, 2016 | Permalink | Comments (20)

Wednesday, January 6, 2016

More Evidence That Jay Talked to the Detectives Before Jenn

A couple of days ago, I posted an entry about the evidence supporting the theory that the police first interviewed Jay (1) before Jenn; and (2) before February 28, 1999. In response, a commenter noted that Detective MacGillivary gave the following testimony about interviewing Jenn:

Q: And at that point you didn't know the name of Jay Wilds, right?

A: No.

Q: So you didn't ask her about Jay Wilds?

A: No.

This is the State's official story: They initially talked to Jenn on January February 26th without any prior awareness of Jay and only sought him out after Jenn mentioned him during an interview. 

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January 6, 2016 | Permalink | Comments (28)

A Legal Analysis of the Juror's Allegations & the White House Petition in the Steven Avery Case

A few people have asked me about yesterday's development in the Steven Avery/"Making a Murderer" case. Specifically, according to co-creator Laura Ricciardi, a juror

"told us that they believe Steven Avery was not proven guilty...." "They believe Steven was framed by law enforcement and that he deserves a new trial, and if he receives a new trial, in their opinion it should take place far away from Wisconsin.

There was behind-the-scenes vote-trading going on during the trial, the juror told the filmmakers, and the verdicts on each count were "a compromise." 

"That was the actual word the juror used and went on to describe the jurors ultimately trading votes in the jury room and explicitly discussing, 'If you vote guilty on this count, I will vote not guilty on this count,'" Ricciardi said....

The juror also said he or she voted to convict, but claimed the decision came under duress.

"They told us really that they were afraid that if they held out for a mistrial that it would be easy to identify which juror had done that and that they were fearful for their own safety,'' [co-creator Moira] Demos said.

These are obviously troubling allegations, but they are not the type of allegations that will lead to a new trial, just as a petition to the President won't lead to a pardon.

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January 6, 2016 | Permalink | Comments (8)

Tuesday, January 5, 2016

The Evidence That Hae Did Not End Up Giving Adnan a Ride on January 13th

In yesterday's bonus episode of the Undisclosed Podcast, I laid out my current best guess for what happened on January 13, 1999. My theory remains similar to the theory that I advanced on the day the final episode of Serial premiered, more than a year ago: (1) Adnan asked Hae for a ride on the morning of January 13th; (2) Hae initially agreed to give him a ride; and (3) something came up for Hae between lunch and the end of school that led to her not being able to give Adnan a ride. In this post, I will lay out all of the reasons we have for believing that Hae did not end up giving Adnan a ride on January 13th.

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January 5, 2016 | Permalink | Comments (28)

Monday, January 4, 2016

The Evidence That Jay Was Interviewed Before February 28th, 1999

According to the official timeline/narrative,

(1) On February 26, 1999, Jenn met the detectives at the police station. Upon questioning (at approximately 11:11 9:11 P.M.), Jenn denied any involvement in the death of Hae Min Lee but seemingly could not account for her actions between 1:00 (or noon or 12:30) and 4:30 P.M. on January 13, 1999:

Screen Shot 2016-01-04 at 6.01.22 AM

(2) On February 27, 1999, Detectives MacGillivary and Ritz interviewed Jenn at approximately 1:00 P.M. at her attorney's house. Thereafter, the detectives took Jenn to the police station and interviewed her from approximately 3:45-5:10 P.M. During this interview, Jenn recounted her version of the events of January 13, 1999 and said that Jay told her that Adnan killed Hae.

(3) On February 27, 1999 at around midnight, Detectives MacGillivary and Ritz picked up Jay from work and took him to the police station, where he signed an explanation of right form at 12:35 A.M. on February 28, 1999. During a pre-interview, Jay said that Jeff G. took him to Woodlawn High school between 2:40 and 3:00 P.M. on January 13th, where he met Stephanie in the parking lot. Then, in his official interview, which started at approximately 1:30 P.M., Jay "came clean" and told the detectives his version of the events of January 13th, including the trunk pop (at Edmondson Avenue) and the burial. The interview ended at 2:21 A.M., at which point Jay led the police to Hae's car.

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January 4, 2016 | Permalink | Comments (29)

Saturday, January 2, 2016

Cream City Chronicles: Episode 6 of Unsolved & The Ability of Police to Lie While Questioning Suspects

I have written four posts (hereherehere, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 6, which deals with all of the issues surrounding the medical examiner and the autopsy she performed in the case. Specifically, it deals with this portion of the episode:

Relying on a 1969 U.S. Supreme Court ruling that allows police to lie to a suspect to get a confession, [Detective Kent] Schoonover doctored the state crime lab's report to make it look as if [Michael] Uporsky's DNA had, in fact, been found on John's body.

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January 2, 2016 | Permalink | Comments (6)

Friday, January 1, 2016

More Information About Hae Possibly Coming From Drama Tryouts on January 13th

In an entry last week, I posted about how Hae could have been coming from Drama when Becky saw her tell Adnan that she couldn't give him a ride because something had come up and she had "something else" to do. In a comment to that post, a reader asked whether Hae would have had time to make it to Drama after class ended (about 2:15 P.M.) and before Becky saw her (about 2:20 P.M.). In response to that comment, the same former Woodlawn student sent me the following:

Reading the comments on that post, I can clarify that the psychology class was in the 3rd floor pretty close to the stairwell by the gym. Just past the gym is the auditorium. It wouldn't have taken more than about 2 minutes to get from A to B. I had time to leave my last class and drive to Wendy's and back and get to drama before 2:30. Woodlawn was pretty small back then. They've added to it a lot since I graduated. 

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January 1, 2016 | Permalink | Comments (9)

Thursday, December 31, 2015

Cream City Chronicles: Episode 5 of Unsolved and the Admissibility of Fetish Evidence

I've written three posts about (herehere, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 5 of the podcast, which addresses another suspect in the case, Michael Uporsky a full-time substitute teacher and hall monitor who helped coach girls basketball.* Specifically, this post is about the admissibility of fetish evidence.


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December 31, 2015 | Permalink | Comments (1)

Wednesday, December 30, 2015

Cream City Chronicles: Episodes 3-4 of Unsolved & the Aphorism That a Criminal Always Returns to the Scene of the Crime

I've written two posts (here and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episodes 3-4, which deal with Daniel Acker, a swim coach who was viewed as a possible suspect in the case based in part upon a chilling tableau found in his basement which reminded me of a similar scene from the excellent/disturbing movie, "Prisoners."


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December 30, 2015 | Permalink | Comments (6)

Tuesday, December 29, 2015

Cristina Gutierrez's Overuse of Law Student Summaries of Witness Statements in Adnan's Case

I've remarked before about Cristina Gutierrez's overuse of law clerks/students in her representation of Adnan Syed. Among other tasks that Gutierrez delegated to these law students, she assigned the task of reviewing many of the witness statements in the case and providing summaries. The implication is that Gutierrez did not herself read these witness statements and instead relied upon secondhand accounts by law students who might have missed key facts or misstated what a witness said. In this entry, I will post one of these summaries.

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December 29, 2015 | Permalink | Comments (27)

The Refusal to Indict in the Tamir Rice Case & the Self-Defense Standard in Ohio

Yesterday, an Ohio grand jury decided not to indict the officers involved in the death of Tamir Rice: Timothy Loehmann, the officer-in-training who shot him, and Frank Garmback, who was training him. The charges against Loehmann were murder, involuntary manslaughter, reckless homicide, negligent homicide and dereliction of duty. These latter two charges contained negligent mens reas. Negligent homicide is a first-degree misdemeanor, and, according to the Ohio Code,

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.

Like other jurisdictions, the burden of proof before the grand jury is the low "probable cause" standard, which is why it is "incredibly rare" for grand jurors not to indict defendants.

What makes the decision not to indict especially odd in this case is Ohio's aberrational self-defense standard. In 49 states,* the prosecution must disprove a defendant's claim of self-defense beyond a reasonable doubt. In other words, a juror could think that it is highly unlikely that the defendant was acting is self-defense and still return a "not guilty" verdict as long as the juror had reasonable doubt about whether the defendant was acting in self-defense.

By way of contrast, in Ohio, the defendant affirmatively has to prove by a preponderance of the evidence (more likely than not) that he was acting in self-defense in order to receive an acquittal. Section 2901.05(A) of the Ohio Code reads as follows:

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Therefore, for the grand jurors to refuse to return an indictment in the Tamir Rice case, they must have found that there wasn't probable cause to believe (1) that Loehmann was acting negligently; and/or (2) that Loehmann would be unable to prove by a preponderance of the evidence that he was acting in self-defense.


*I might need to fact check that number, but it's safe to say that the vast majority of states apply this standard.


December 29, 2015 | Permalink | Comments (2)

Monday, December 28, 2015

Why Adnan's Reopened PCR Proceeding is Not About "Legal Technicalities"

We are now just a little over a month away from Adnan's reopened PCR proceeding. At the hearing, Adnan will present evidence and testimony on two claims: (1) he received the ineffective assistance of counsel based upon his trial attorney failing to contact a prospective alibi witness; and (2) the State violated Brady by failing to disclose to the defense (and its own expert) that Exhibit #31 was a Subscriber Activity Report governed by the disclaimer indicating that "[a]ny incoming calls will NOT be considered reliable information for location."

I've seen some label these issues as "legal technicalities" that don't go toward the issues of actual innocence and even the jury's finding of guilt beyond a reasonable doubt. In this post, I will counter these assertions.

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December 28, 2015 | Permalink | Comments (23)

Sunday, December 27, 2015

"Making a Murderer" and the "Legitimate Tendency" Test for Admitting Evidence of Alternate Suspects

In a prior post, I talked about how the Steven Avery case from "Making a Murderer" was one of the cases that led the ABA to amend its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor." In the comments to that post, a reader asked about the (in)ability of Avery to present evidence of possible alternate suspects. I still haven't watched "Making a Murderer," but the question of whether and when a defendant can present evidence of alternate suspects is an important one. In this post, I will look at the Wisconsin test.

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December 27, 2015 | Permalink | Comments (5)

Saturday, December 26, 2015

Cream City Chronicles: Episode 2 of Unsolved & The History of Lie Detector Evidence in Wisconsin

On Tuesday, I posted an entry about the first episode of the Unsolved Podcast, a deep dive into the unsolved 1976 death and disappearance of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episode 2 and the (in)admissibility of polygraph evidence in Wisconsin.



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December 26, 2015 | Permalink | Comments (0)

Friday, December 25, 2015

Nevada Man Gets Chance to Argue Innocence Before State Supreme Court Based on New Evidence

A conviction that started with an anonymous tip might soon be overturned.

DeMarlo Berry was convicted of killing Charles Burkes, a Carl's Jr. restaurant manager, during a robbery in 1994. 

But in an opinion issued on Christmas Eve, a three-member panel of justices [of the Supreme Court of Nevada] said District Judge Michael Villani erred last year when he denied Berry's petition for a hearing to review new evidence that defense lawyers claim prove he was not the killer.

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December 25, 2015 | Permalink | Comments (0)