EvidenceProf Blog

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

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Thursday, June 11, 2015

The "Two Hour Lividity" Case Handled by Gutierrez is Much Worse Than I Imagined

Yesterday, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), the "two hour lividity" case handled by Cristina Gutierrez, the same attorney who handled the Adnan Syed case. It turns out that the Nicolas is much more troubling than I initially imagined for a few reasons.

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June 11, 2015 | Permalink | Comments (28)

Wednesday, June 10, 2015

Cristina Gutierrez Was the Attorney Who Failed to Question the ME About the 2 Hour Lividity Claim

A couple of hours ago, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), in which the United States District Court for the District of Maryland found that trial counsel was not ineffective, despite her failure to contradict a medical examiner's claim that lividity could become fixed within two hours after death by either (1) cross-examining the expert on the issue; or (2) calling her own expert. Unfortunately, that opinion didn't list the defendant's trial counsel, and I couldn't find any of the opinions from the Maryland courts on the case. A few minutes ago, a commenter on my prior post noted how it might have been asking too much for Gutierrez to realize the importance of lividity evidence.

In response to that post, I figured I'd look again to see if I could find the attorney from the Nicolas case to see if she could explain how she missed the importance of the lividity evidence. After searching for a few minutes, I was able to find the defendant's brief in the case: Nichols v. State of Maryland, 1998 WL 35222540 (D.Md. 1998). Here's the relevant language from the brief:

In fact, this issue has been preserved for appeal. Initially, Mr. Nicolas's trial counsel proposed a dual inferences instruction based upon Robinson v. State, 18 Md. App 678, 308 A.2d 734 (1973). See Affidavit of M. Cristina Gutierrez, attached as Exhibit A.

Yes, that's right: The attorney in the case was Cristina Gutierrez, the same attorney who represented Adnan. Furthermore, the final opinion of the Maryland courts on this claim came on April 16, 1999, two days before Gutierrez started representing Adnan. So, in response to the comment: Yes, Gutierrez should have been uniquely aware of lividity evidence and importance case.


June 10, 2015 | Permalink | Comments (18)

Did Gutierrez Give Ineffective Assistance of Counsel to Adnan on the Lividity Issue?

I just got the following question from Alison Sweeney:

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It's a very good question and one that has an answer I recently uncovered.

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June 10, 2015 | Permalink | Comments (9)

Will Livor Mortis Evidence Prove the Innocence of a Death Row Inmate?

I've been writing a good deal about livor motis/fixed lividity evidence as it relates to the prosecution of Adnan Syed for the murder of Hae Min Lee. It turns out that it's is also a big part of the current appeal by Norfolk "Fuzzy" Best. Best was convicted of the 1991 murders of Leslie and Gertrude Baldwin and is currently on death row. The State's theory of the case was that the Baldwins were killed on a Saturday night, 64 hours before their bodies were found. The lividity evidence, however, seems to suggest otherwise.

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June 10, 2015 | Permalink | Comments (0)

Tuesday, June 9, 2015

Autoptēs: More About Dual Lividity & The Impossibility of Hae Being in the Trunk for 4-5 Hours

Yesterday, we posted the fifth episode of the Undisclosed Podcast: Autoptēs. For those of you wondering, Autoptēs is the Greek work that provides the origin for the English word autopsy. Autoptēs means eyewitness/to witness with ones own eyes.

I again want to thank Dr. Leigh Hlavaty for the time she put into reviewing the medical evidence in the case and rendering her expert opinion. Obviously, her biggest finding was that Hae could not have been buried on her right side in Leakin Park in the 7:00 hour given the lividity evidence. That said, I think her conclusion that Hae couldn't have been "pretzeled up" in the trunk of her Nissan Sentra for 4-5 hours after death is of near equal importance.

While lividity becomes fully fixed approximately 8-12 hours after death, it partially fixes within hours after death. Assume that Hae was on her side (or anything other than fully prone) in the Sentra for 4-5 hours, then put face down for another 4-5 hours, and then buried on her right side in Leakin Park. In that case, there would be what is known as "mixed lividity," "dual lividity," or "second lividity." In other words, there would be some lividity on the side and some on the front. This is described a bit in the Report of Lee Ann Grossberg, M.D. in Kiniun v. Minnesota Life Insurance Company, 2011 WL 7266761 (N.D.Fla. 2011):

6. At 10:07 am, approximately 3 1/2 hours after Ms. Strickland was found deceased, the livor mortis was noted to remain fixed when manual pressure was applied.

a. Lividity generally takes 30 minutes to 2 hours to become visible and about 8 - 12 hours to become fully fixed (although this range is highly variable). After the lividity become fixed, it remains so. 

b. The finding of lividity that does not blanch with pressure can indicate that the livor mortis is partially or fully fixed.

i. If the livor mortis is only partially fixed, moving the body to a different position will yield a second lividity pattern.

ii. Ms. Strickland was found dead lying on her front right side and the lividity pattern at the scene was consistent with this body position (the lividity was on her front right side).

iii. However, if Ms. Strickland were turned over onto her back to be placed into the body bag and her lividity were not fully fixed, she would develop a secondary livor mortis pattern on her back. The autopsy report describes the lividity fixed and as anterior, but I have not had access to the autopsy photos to see if an additional lividity pattern is also present on the back. Secondary lividity patterns can be lighter than primary ones and darkly pigmented skin makes visual inspection of lividity more difficult to discern than in lighter pigmented individuals, however.


June 9, 2015 | Permalink | Comments (34)

Monday, June 8, 2015

South Carolina's Murder Statute & the Indictment of the Officer Who Shot Walter Scott

Today, former police officer Michael T. Slager was indicted for murder in connection with the shooting death of Walter Scott in North Charleston. As such, I though I would do a brief post about South Carolina homicide law. Under South Carolina homicide law, the prosecution can secure a murder conviction by proving beyond a reasonable doubt that the defendant killed the victim with malice aforethought:

"Malice aforethought" is defined as "the requisite mental state for common-law murder" and it utilizes four possible mental states to encompass both specific and general intent to commit the crime. Black's Law Dictionary 969 (7th ed.1999). These four possibilities are intent to kill, intent to inflict grievous bodily harm, extremely reckless indifference to the value of human life (abandoned and malignant heart), and intent to commit a felony (felony murder rule). State v. Kinard.

The first two of these -- intent to kill and intent to inflict grievous bodily harm -- are express malice. If the jury finds that the defendant acted with express malice, it must return a murder conviction. The last two of these -- depraved heart and felony murder -- are implied malice. If the jury finds either of these, it may return a murder conviction, but it also has the ability to return an involuntary manslaughter conviction (a killing without malice).

Depraved heart murder basically works as follows. First, of course, the prosecution must prove that the defendant acted (or failed to act in the face of a legal duty) and caused the victim’s death. Second, the prosecution must prove mens rea of depraved heart murder. This mens rea contains both a subjective and an objective element: (1) subjective element: that the defendant acted with extremely reckless indifference to the value of human life; and (2) objective element: that it was highly probable that the defendant’s act/omission would result in death. Third, once the prosecution has proven this mens rea, the jury must still infer malice to convict the defendant.

Here's a real world hypothetical I use in class to teach depraved heart murder (the answer is "yes"):

Hypothetical 8.5: 

Daniel McCall and two accomplices were driving on an interstate when they saw A.R.M. Stroud standing beside his automobile, working on it. McCall and his accomplices stopped to rob Stroud. They offered to help him and when he opened his trunk to get more tools, McCall forced Stroud, who was a 72 year-old man with heart problems, into the trunk of his own car. McCall, following his accomplices, drove Stroud’s car off the interstate, down a paved road and then turned onto a dirt road. This was an isolated place. There, they removed Stroud from the trunk and searched him, taking his money. They then forced Stroud back into the trunk of his car and left him in the car on the dirt road.  Several days later, Stroud’s body was found in the trunk of his car. The testimony of record established that as a result of his being forced into the trunk and left there, Stroud died of a heart attack. According to the medical testimony of record, Stroud was “literally scared to death.” McCall is charged with murder. Can he be convicted? See State v. McCall, 405 S.E.2d 414 (S.C.App. 1991).


June 8, 2015 | Permalink | Comments (1)

Friday, June 5, 2015

Contextualizing Cristina Gutierrez's Disbarment

Recently, I contacted the Client Protection Fund of the Bar of Maryland to try to see whether I could get more information about the twenty (or more) client complaints that precipitated the disbarment of Cristina Gutierrez, the attorney who represented Adnan Syed. Unfortunately (but understandably), I was told that such complaints are confidential. That said, I was directed to this Press Release, which gives some additional context to Gutierrez's disbarment. According to the Press Release,

During their quarterly meeting on June 26, Trustees of the Clients' Security Trust Fund, now known as the Client Protection Fund of the Bar of Maryland, agreed to pay out more than $112,000 to claimants whose attorney was found to have kept money to which he/she was not entitled. 

“The bulk of the money paid out to claimants was due to attorneys not doing the work that they promised,” said Fund Trustee Isaac Hecht. “We sincerely hope that the public realizes that these attorneys are a few bad apples in an otherwise reputable group.”

More than half the money paid out at the Trustee meeting was to clients of M. Cristina Gutierrez, who consented to disbarment in May. According to Hecht, Gutierrez failed to hold property of clients separately from her own, did not refund advanced fees that were not earned, and misappropriated funds intended to be used for third-party payments. 

So, the Fund had to pay out at least $56,000.01 to Gutierrez's clients based upon, inter alia, failing to do the work that she promised and misappropriating/failing to refund monies paid to her by her clients. Among the "bad apples" in Maryland, Gutierrez was responsible for more malfeasance than all of the other "bad apples" combined.


June 5, 2015 | Permalink | Comments (17)

Thursday, June 4, 2015

Evidence Scholar to Lead UCLA Law School

From the UCLA press release:

Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, ....

This fits with my general sentiment that Evidence scholars should be in charge of everything.

Congratulations to Dean Mnookin and UCLA!

June 4, 2015 | Permalink | Comments (0)

South Carolina Set to Adopt 2 of My Recommendations for Strengthening Domestic Violence Laws

Last fall, I was honored to be asked to speak before a subcommittee tasked with strengthening South Carolina's domestic violence laws. After giving my presentation to the subcommittee, I was asked to submit my proposals to the subcommittee for consideration. Here are the 10 recommendations I sent to the subcommittee:  Download DV(3).

Today, I was happy to hear that Governor Nikki Haley will be signing into law a new domestic violence law that incorporates two of these recommendations.

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June 4, 2015 | Permalink | Comments (4)

Wednesday, June 3, 2015

Adding More Context to the Allegation That Gutierrez Wouldn't Talk to 5 Witnesses for the Adnan Syed Trial

Previously, I've posted about (1) the judge at Adnan Syed's trial being disturbed by the "accusations that Ms. Gutierrez [Adnan's attorney] wouldn't talk to people;" and (2) the accusation that Gutierrez wouldn't talk to five witnesses subpoenaed by both the prosecution and defense. As I noted in a third post, one of the limited number of witnesses subpoenaed by both the prosecution and defense was Hope Schab, the French teacher at Woodlawn High School. She was subpoenaed at both of Adnan's trials, and, based upon this memorandum, it seems like she tried in vain to contact Gutierrez about testifying so that she could prepare lesson plans and arrange for a substitute teacher.

In response to these posts, some people have construed Gutierrez's failure to talk to these five witnesses as a pretty serious error. Others have claimed that Gutierrez's failure to talk to these five witnesses about mere scheduling issues wasn't a big deal and was perhaps even trial strategy. According to letters that Gutierrez herself sent to each of these witnesses, however, this latter claim doesn't seem to match the reality of the situation.

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June 3, 2015 | Permalink | Comments (24)

Tuesday, June 2, 2015

The Failed Attempt by the Defense to Subpoena Krista for the Adnan Syed Trial

When I learned that five witnesses subpoenaed by both the prosecution and defense had tried in vain to talk to Cristina Gutierrez (and the defense team) in the Adnan Syed trial, I immediately thought of Krista. A mutual friend to both Adnan and Hae, Krista has told me that she wished the defense used her as a character witness at trial. I also knew that Krista was one of a limited number of witnesses subpoenaed by both the prosecution and defense. Indeed, she was among the first batch of witnesses subpoenaed by the defense:

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So, let's break this subpoena list down, person by person, before getting to Krista.

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June 2, 2015 | Permalink | Comments (33)

Sunday, May 31, 2015

Adding Context to the Allegation That Gutierrez Wouldn't Talk to 5 Witnesses for the Adnan Syed Trial

On the last two days, I've posted entries about (1) the judge at Adnan Syed's trial being disturbed by the "accusations that Ms. Gutierrez [Adnan's attorney] wouldn't talk to people;" and (2) the accusation that Gutierrez wouldn't talk to five witnesses subpoenaed by both the prosecution and defense. After digging through the defense files, I feel pretty certain that I've found one of these witnesses, and the correspondence about her gives some useful context to the allegations against Gutierrez.

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May 31, 2015 | Permalink | Comments (14)

Saturday, May 30, 2015

Five Witnesses Accused Gutierrez of Not Talking to Them At the Adnan Syed Trial

Yesterday, I posted an entry about this statement by the judge at the Adnan Syed trial, in which she notes the accusation that Cristina Gutierrez (Adnan's defense counsel) wouldn't talk to people. An astute reader has now shown me where this accusation occurs in the trial record. It is on pages 51-52 of the transcript from the second day of trial:

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This exchange seems important for two reasons: (1) FIVE witnesses are telling the State that Gutierrez and her team have subpoenaed them and yet won't talk to them; and (2) the judge is explaining to Urick what he should do when he is contacted by prospective defense witnesses.


May 30, 2015 | Permalink | Comments (11)

Friday, May 29, 2015

Where in the Adnan Syed Trial Record Does Someone Accuse Gutierrez of Not Talking to People?

An astute reader pointed me to an interesting discussion that occurred during the second trial of Adnan Syed for murdering Hae Min Lee. The discussion occurred on February 15th, when Adnan's defense attorney (Cristina Gutierrez) was claiming that one of the prosecutors instructed Jenn not to talk to her. Here's part of the judge's response (pages 176-77):

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This leads to two questions: (1) Who accused Gutierrez wouldn't talk to people; and (2) Does this accusation appear anywhere else in the trial record? Thanks for any assistance.


May 29, 2015 | Permalink | Comments (7)

Sentencing of Nelson Clifford Reinvigorates Argument for Passage of Sexual Character Evidence Rules

Back in February, I posted an entry about the prosecution of Nelson Clifford and how Baltimore City State's Attorney used the case as support for her argument that Maryland should adopt state counterparts to Federal Rules of Evidence 413-415. These Federal Rules are contrary to the general prohibition on the admission of propensity character evidence in that they allow for the introduction of prior acts of sexual assault and child molestation in cases involving similar allegations.

Yesterday, Clifford was finally sentencing to 31.5 years incarceration after avoiding convictions in four prior sexual assault cases. In each of those cases, Clifford claimed that the sexual acts were consensual. These and similar exonerations are why Mosby has again claimed that Maryland needs to pass versions of Rules 413-415.

Here's a link to Mosby speaking about the Clifford case, and here are some of her comments:

"Today's sentencing was achieved in the face of seemingly impossible odds. We need legislation to change our criminal justice system. We cannot afford to try a serial three, four or five times ever again. Too many lives are at stake."

If Maryland were to pass versions of Rules 413-415, evidence of prior sexual acts could be admissible, even if they didn't lead to convictions. For instance, when Clifford was charged a second time, the alleged victim from his first case likely could have testified, even though Clifford was found "not guilty" of that crime.

Some claim that such a rule is necessary to bolster the credibility of people who claim that they were the victims of sexual assault. Others, however, claim that such rules stack the deck to much and take away the presumption of innocence. So far, only about 11 states have passed counterparts to some or all of Rules 413-415.

It will be interesting to see how this new effort in Maryland is presented and received.


May 29, 2015 | Permalink | Comments (2)

Thursday, May 28, 2015

New Comments Policy

Since I started this blog in 2007, I have been proud of the fact that I've allowed all voices to be heard in the comments section. I've always approved all comments that were on point and respectful. As readers have probably noted, I've recently even approved comments that were off topic and borderline disrespectful. That changed last night when I received a deluge of disrespectful comments directed not toward me, but toward one of the subjects of my posts. As such, I took the post down and decided to deliberate today over whether to start seriously moderating comments for the first time. Given that the disrespectful comments continued today, I am regrettably instituting a new comments policy, pursuant to which I will be moderating comments. As someone who is a strong advocate of free speech, it's not a decision I make lightly, and I hope it is merely a temporary change. Thanks, and I hope that this will lead to a more respectful and productive exchange of information in the comments section.


May 28, 2015 | Permalink | Comments (23)

Chain of Fools, Take 5: Chain of Custody & The Failure to Properly Seal Blood Evidence

In Episode 4 of the Undisclosed Podcast, Susan Simpson noted a disturbing discovery regarding the blood samples used to determine the source of the stains found on the t-shirt in Hae Min Lee's car. While the seal on the blood sample for Jay was intact at the time it was tested, the blood samples for both Hae and Adnan Syed had been inexplicably broken before they were tested. As I noted on the episode, this should have formed the basis for a chain of custody objection by defense counsel.

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May 28, 2015 | Permalink | Comments (15) | TrackBack (0)

Tuesday, May 26, 2015

On March 3, 1999, Coach Sye Said That Track Practice Started at 3:30 P.M. at Woodlawn

I could immediately relate to Adnan Syed when I learned he told his attorney that he recalled attending track practice on January 13, 1999 because he informed his coach on that day that he had to lead Ramadan prayers the next day. I still vividly remember four things about running cross-country in high school in Virginia Beach in the early 1990s: (1) we had our cross-country meets at Mount Trashmore; (2) a teammate got horribly lost when trying to take a shortcut during a practice at Seashore State Park; (3) the team once watched a marathon of all three (at the time) Child's Play movies; and (4) October 7, 1992.

That year, Yom Kippur ran from sundown on October 6th to sundown on October 7th. I'm not really religious,* but I used to fast on the Day of Atonement. So did my brother. The problem was that there was a cross-country meet on October 7th. Our coach didn't want us to fast and run. Being the most competitive person in the world at the time, I made the decision to eat and run on the 7th. Being the most stubborn person in the world at the time, my brother did three completely predictable things: (1) decided to fast; (2) convinced the coach to let him run anyway; and (3) posted the fastest time on the team.

October 7th is definitely one of those days I can access at will in my mental DVR. It was a brisk fall day, in the upper 50s to lower 60s, pretty much the perfect weather for a cross-country meet. I'm also guessing it was a pretty memorable day for the cross-country coach. Virginia Beach was a place where the token Jewish kid would relay to class the story of the plight of the Maccabees each December and not exactly a hotbed of Hebrewism.

Therefore, I also wasn't surprised that track coach Michael Sye had a clear memory of Adnan being on time for track practice and talking with him about leading prayers at his Mosque during the rare warm January day in Baltimore when the indoor track team could practice outside. Given that Ramadan is a month rather than a day, I'm unsurprised that Coach Sye couldn't pinpoint the day, but, given the uniqueness of the temperature, I agree with Susan Simpson that it would have been easy enough for defense counsel to pinpoint the day as January 13th (especially given that the recollections of Adnan and Coach Sye dovetailed).

Of course, if track practice started at 4:00 P.M., Adnan arriving on time would be important but not any type of case-cracking detail. On the other hand, if track practice started at 3:30 P.M., Adnan's arrival on time on January 13th would have been a huge deal. I know that Susan Simpson has argued on her blog and our podcast that practice indeed did start at 3:30 P.M., and I mostly agreed with her. That said, I was waiting for that last key piece of information to lock everything into place. Now, I've found it.

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May 26, 2015 | Permalink | Comments (31)

Saturday, May 23, 2015

Undisclosed Podcast Research Project: Can Anyone Find a Copy of this Order From the Zach Witman Case?

I'm looking for some assistance in getting a copy of the following order from the Zachary Witman case:

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Here is a link to the full docket sheet for the case. If I'm correct, this order could be highly important to the Adnan Syed appeal. If someone is able to track down a copy, could you please send it to me at Mille933@law.sc.edu?

[Update: A helpful reader sent me a document containing this:

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So, the court quashed (disposed with the defendant's cross-appeal disfavorably before decision) sua sponte (on its own, without a motion by the State). Now, if (1) I can find the order quashing the cross-appeal; and (2) it was quashed for the reason I think it was quashed, I might really have something.].


May 23, 2015 | Permalink | Comments (7) | TrackBack (0)

Friday, May 22, 2015

The Undisclosed Explainer & Another Maryland Case With a Remand in the Interests of Justice

In today's Explainer Episode of the Undisclosed Podcast, I noted how Adnan's attorney had cited several cases in support of the claim that it is "in the interests of justice" to reopen Adnan's postconviction proceeding so that Asia McClain can testify. The two cases that I mentioned are Campbell v. State, 376 A.2d 866 (Md.App. 1977), and Curry v. State, 458 A.2d 474 (Md.App. 1983), which I blogged about here. Those aren't, however, the only cases that he cited. Another case is Wiener v. State, 430 A.2d 588 (Md. 1981), which isn't factually similar to Adnan's case but is interesting nonetheless.

In Wiener, Scott Wiener was charged with first-degree murder and first-degree rape. Wiener was represented by the Public Defender of Anne Arundel County, who also maintained a private practice. That practice was being investigated by the State Attorney General, who thought that the Public Defender was misusing state services and personnel in his private practice. As a result, the Assistant Attorney General told a law student intern to go undercover, volunteering for the Public Defender so that he could uncover any improprieties. The student was told that "(i)f there should come a time when it is necessary to choose between observing privileged material and revealing your 'cover,' you are to contact me immediately for guidance."

After Wiener was convicted, he had lengthy appeals, which ultimately resulted in the Court of Appeals of Maryland issuing a limited remand in the interests of justice. While the Assistant Attorney General claimed that the law student never disclosed to the AG's office what he learned while working for the Public Defender, the court found that the possibility of prosecutorial misconduct was enough to require further evidence and testimony on the issue.


May 22, 2015 | Permalink | Comments (3) | TrackBack (0)