Monday, April 18, 2016
Court of Appeals of Texas Distinguishes Between Failure to Call & Failure to Contact Alibi Witnesses
In its recent opinion in Russi v. State, 2016 WL 1444040 (Tex.App. 2016), the Court of Appeals of Texas, Houston did a nice job of distinguishing between when behavior connected with a potential alibi witnesses is and is not unreasonable for purposes of establishing a claim of ineffective assistance of counsel.
Friday, April 15, 2016
In 2014, California enacted a law that I think should serve as a model for legislation in the other 49 states.
“Previously, [California] law allowed a judge to reconsider a conviction if a key eyewitness recanted his or her testimony, but the same standard did not apply to expert witnesses who depend on new and emerging technologies to make their conclusions,” said Senator Leno, D-San Francisco. “This law clarifies that false evidence provided by such an expert witness may be considered when proving a person’s innocence.”
Unsurprisingly, the law came about due to a case with bad bite mark evidence.
Thursday, April 14, 2016
Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for
A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
As the language of this exception makes clear, a "dying declaration" is only admissible if it relates to the cause or circumstances of what the declarant believes to be his imminent death. But is the exception even more limited than that? This seems to be the suggestion of the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Washington, 2016 WL 1276012 (Pa.Super. 2016).
Wednesday, April 13, 2016
A few days ago, the Huffington Post published a piece on the TrueAllele Casework system. According to the piece,
Cybergenetics, developer of computer automated systems and technology research data analysis, claims its TrueAllele Casework system prevents wrongful convictions by accurately matching the DNA of the perpetrator to the DNA evidence. TrueAllele’s computerized DNA interpretation system excels in situations where human forensics fail—when evidence contains a mix of three or more DNA samples. However, Cybergenetics’ refusal to share the source code behind the software proves problematic in courts. This source code, or programming code, is the key to software function. If Cybergenetics releases the code, its competitors could replicate it. But without the programming code, defense attorneys are unable to challenge the accuracy of TrueAllele. Likewise, prosecutors can’t authenticate it.
For $60,000, crime labs can buy TrueAllele software. According to Cybergenetics’ TrueAllele Process Overview Video, an analyst first assays the DNA evidence following a typical procedure such as PCR, a DNA amplification process. This DNA evidence can range from bodily fluids to skin cells. After the evidence is scanned, the computer fitted with the TrueAllele software finds the length and quantity of every data peak. Through complex, undisclosed codes and algorithms, the computer separates DNA mixtures into genotypes, solves kinship and paternity, and calculates match statistics.
Apparently, "[t]his groundbreaking technology helped convict criminals in over 500 cases in the past five years, with the majority of those convictions occurring last year." But is it reliable?
Tuesday, April 12, 2016
Today, I posted my new essay, Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico, on SSRN. Here is the abstract:
On January 13th, the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer this question in the affirmative without overturning precedent holding that the U.S. government can unilaterally impose the Federal Death Penalty Act in Puerto Rico. In other words, the Court cannot deprive Puerto Rican citizens of the protection of the Double Jeopardy Clause unless it adopts the concept of popular sovereignty.
Monday, April 11, 2016
Connecticut Bill Would Give Brady Victims 50% of Exoneration Funds Available to Actually Innocent Defendants
On Friday, I posted an entry about Texas denying exoneration funds to a defendant who had proven a Brady violation but (arguably) failed to prove actual innocence. This led me to revisit the dichotomy that exists in many states, with (1) actually innocent defendants receiving exoneration funds despite the fact that their convictions were by-the-books; but (2) defendants being denied exoneration funds because they can prove government misconduct but can't (quite) prove actual innocence.
Interestingly, Connecticut now has a proposed bill that would create a middle ground.
Friday, April 8, 2016
A piece in the Houston Chronicle touches upon an issue that I discussed in the Labor Day Minisode of the Undisclosed Podcast. In many jurisdictions, exoneration funds are only available to defendants who have proven their actual innocence. This means that, understandably, an actually innocent defendant is entitled to compensation even if he was convicted after a by-the-book prosecution. Conversely, there could be a case in which a defendant is convicted after all sorts of misconduct by the police and the prosecution and yet not entitled to compensation because he can't quite prove his actual innocence (perhaps in part because of evidence that was withheld at the time of his initial prosecution). Such is currently the case for Alfred Dewayne Brown.
Thursday, April 7, 2016
Virginia Attorney General Mark R. Herring (D) on Wednesday asked the state supreme court to declare a former sailor [Keith Allen Harward] innocent in the 1982 rape of a Newport News woman and murder of her husband, saying DNA evidence proved he wasn’t the perpetrator.
Specifically, DNA testing was done of numerous pieces of evidence found at the crime scene, including cigarette butts and a towel the victim wrapped herself in after the attack.
The results exonerated Harward but identified another sailor from the area, Jerry L. Crotty, as the likely perpetrator, according to the attorney general’s brief to the state supreme court. Crotty died in 2006 in an Ohio prison where he was serving time for a 2002 abduction, Herring said in the brief. The chances that the DNA profile belonged to someone other than Crotty were “greater than the world population,” he said.
While good forensic will likely lead to Harward's release 33 years after he was incarcerated, it was likely bad forensics that led to his conviction.
Wednesday, April 6, 2016
Today, I'm recording an interview with Bill Rankin, the host of the Breakdown Podcast. The interview will be a special episode of Undisclosed that will premiere on April 18th. In the interview, we will cover a variety of topics, including Breakdown, Undisclosed, and the death penalty in Georgia. The second season of Breakdown, covering the Justin Ross Harris case, premiered recently. I think the second episode of the new season is the best episode of the podcast's entire run.
In this post, though, I want to focus upon one of the Brady violations found in the case that Breakdown covered in its first season because it is very similar to the Brady violation being alleged in Adnan's case in that it involved a misleading disclosure of a faxed document.
Tuesday, April 5, 2016
In yesterday's episode of Undisclosed, we talked about the questionable nature of the arguments made by Deputy Attorney General Thiru Vignarajah and how similarly questionable arguments he made in the Derrick Toomer case led to Toomer's murder conviction being thrown out. While the Toomer opinion was unpublished, I was able to obtain a copy of it. You can download it here: Download Toomer.
Monday, April 4, 2016
Tonight, we will drop the final Undisclosed episode about the reopened PCR proceedings in the Adnan Syed case. Tomorrow, I will do a post about two of the cases we discussed in the episode. After that, though, I will turn my attention to our Season 2 case and return to blogging about other topics until Judge Welch issues his opinion. At that point, I'm sure I'll have a number of posts about the opinion, and we'll be recording new episodes about it as well.
How do I expect Judge Welch to rule? As I've said during the PCR episodes, my understanding of the reopened PCR proceeding is that the defense presented a very strong case for both the alibi and cell tower claims. That said, it's tough to say anything definitively without being there to see the testimony and exhibits. By way of contrast, once Judge Welch issues his opinion, I will be in exactly the same position as the Court of Special Appeals of Maryland and be able to make a much more conclusive judgment about how that court will rule.
Other than new Undisclosed content related to Judge Welch's ruling, you can expect some new episodes on other criminal justice matters. For instance, later this week, I will be recording an interview with Bill Rankin, the host of the Breakdown Podcast, which just launched its second season. Now, none of this is to say that work isn't still being done on Adnan's case. It is, but none of that work is yet at the stage where it can be presented to the court or the public. In this post, though, I will share two last nuggets.
Friday, April 1, 2016
In the reopened postconviction proceedings in the Adnan Syed case, Judge Welch is deciding whether there was ineffective assistance of counsel and/or a Brady violation. With an IAC claim, the judge needs to determine whether effective performance by defense counsel would have created the reasonable probability of a different outcome of a new outcome at trial. See, e.g., Denisyuk v. State, 30 A.3d 914 (Md. 2011). Similarly, with a Brady claim, the judge needs to determine whether proper disclosure of exculpatory evidence by the State would have created the reasonable probability of a different outcome at trial. So, what exactly is a "reasonable probability"? Interestingly enough, the Court of Appeals of Maryland just clarified this definition last week.
Thursday, March 31, 2016
In response to my recent posts about Nisha's police interview and testimony (here, here, and here), I've gotten a few questions: (1) Where are the notes from Nisha's interview with the defense private investigator; (2) Were Adnan's statements about visiting Jay at the adult video store inadmissible hearsay; and (3) Were the notes from Nisha's police interview inadmissible hearsay? In this post, I will answer these questions.
Wednesday, March 30, 2016
In yesterday's post, I laid out the evidence Nisha was interviewed before Jay's second interview on March 15, 1999. Today, I will approach this argument from a different angle. If the police had not interviewed Nisha before March 15, 1999, the question becomes whether their subsequent actions make any sense.
Tuesday, March 29, 2016
When did the police first interview Nisha? It's one of the great unanswered questions in this case. We have one, and only one, set of notes from a police interview with Nisha. These notes indicate that the interview took place on April 1, 1999 at 6:55:
This would seem consistent with the April 20th Progress Report I previously posted, which indicated that, on April 1st, "interviews were conducted with friends/classmates of the victim Hae Lee and suspect, Adnan Syed" at the Baltimore County Police Department's Woodlawn Precinct.*
As I noted in another post, however, there is an April 17th Progress Report indicating that, on April 9, 1999, the police (and Vickie Wash) interviewed (1) classmates Becky, Peter, and Nina at school; and (2) Nisha at her residence in Silver Spring. So, was Nisha actually interviewed at her home on April 9th instead of at the Woodlawn Precinct on April 1st?** And, if so, why does an August 23rd Amended Disclosure state that Nisha's address is unknown?
On the other hand, did the police actually interview Nisha before April 1st? I've posted before about the following entry on Cristina Gutierrez's April 18th legal services contract with Adnan:
The obvious takeaway from this entry is that Nisha was the Hindu female friend interviewed on March 13th. After all, Nisha is Hindu and we know that the police asked her questions about Islam. We also have no record of any interviews with other Hindu female friends of Adnan.
Of course, there is no record of such a March 13th interview, which means that either (1) Gutierrez got the date wrong; or (2) the notes from this interview somehow disappeared from the State's files. If we look at Adnan's call log from January 13, 1999, option 2 looks a lot more likely than option 1.
Monday, March 28, 2016
Today, someone tweeted me a link to a thread discussing the possibility that Adnan's January 31st call to Nisha was the real "Nisha Call." The argument in the thread is interesting, but another comment in the thread is even more interesting because it greatly increases the chances that the call during which Nisha talked to Jay took place while Jay was working at the adult video store and not on January 13th.
Wednesday, March 23, 2016
Attorney From Maryland AG's Office Tries to Claim Suppressed Statements in Richard Nicolas Case Weren't Favorable
I've written before about the Richard Nicolas case. It's the case in which the State claimed that Richard Nicolas (1) drove his daughter Aja to the mall and got his picture taken with her at a photo booth at 7:00 P.M.; (2) bought tickets to the movie "Pinocchio;" (3) returned to his car with Aja and fatally shot her at about 7:45 P.M.; (4) went to the movie by himself to fabricate an alibi; and then (5) created a story about a road-raged driver fatally shooting Aja at about 10:00 P.M.
It wasn't until years later that the defense learned that (1) witnesses at a hotel close to the site where Nicolas claimed the shooting occurred told detectives, including Detective Massey,* that they had heard a loud sound/gunshot at about 10:00 P.M.; and (2) the prosecutor had sent the medical examiner a letter after trial indicating that the lividity evidence was the whole case and that he had learned from an "unimpeachable source" that defense counsel -- Cristina Gutierrez -- did not spot the significance of the lividity evidence.
Tuesday, March 22, 2016
On March 7th, the United States Court of Appeals for the Federal Circuit issued a groundbreaking opinion: In Re Queen's University at Kingston, 2016 WL 860311 (Fed. Cir. 2016). In that opinion, the Federal Circuit created a brand new privilege: the patent-agent privilege
Touro Law Center
The Jacob D. Fuchsberg Law Center of Touro College invites applications for Visiting Professors to teach one or more of the following courses: Civil Procedure and Torts during the fall 2016 semester and Evidence the spring 2017 semester. Teaching experience in one or more of these three courses is required. The Law Center will entertain expressions of interest for one semester and full-year appointments based on teaching experience and curricular needs.
Touro Law Center is a student-centered school conveniently across the street from the Eastern District of New York courthouse and is located only 45 miles from New York City in Suffolk County, Long Island, New York. We seek candidates with a demonstrated commitment to excellence in teaching and mentoring students, as well as a willingness to engage in the intellectual academic life of the Law Center.
Touro Law is dedicated to the goal of diversity and strongly encourages applications from women and minorities. Applications will be reviewed on a rolling basis. Applications must include a resume and statement of interest and should be mailed to Professor Meredith R. Miller, Chair, Faculty Appointments Committee, at
Monday, March 21, 2016
In today's "Subscriber Activity" episode of the Undisclosed Podcast, we discussed the testimony by FBI Special Agent Chad Fitzgerald. From Susan Simpson's notes, it appears as if Fitzgerald and his friend at AT&T* assumed that the AT&T disclaimer about incoming calls being unreliable for determining location only applied to calls that went to voicemail because the recipient's phone was turned off. Of course, as we also noted, at other points during his testimony, Fitzgerald seemed to indicate that there were other circumstances when incoming calls could be unreliable for determining location, such as the "check-in lag" scenario.
But let's stick for now with Fitzgerald's initial statement about the limited nature of the AT&T disclaimer. Does that testimony survive the "analytical gap" test that I mentioned during the episode?