EvidenceProf Blog

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

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)

Thursday, December 24, 2015

Supreme Court of Virginia Rejects Criminal Discovery Revisions, Leaving Lawyers & Judges Flabbergasted

In 2014, the Supreme Court of Virginia appointed a special committee on criminal discovery rules. On March 3rd of this year, that Committee issued a 60 page report. That report asked for major revisions to Virginia's criminal discovery rules. The ACLU Foundation of Virginia* summarized three of those revisions in a letter to the Supreme Court of Virginia: 

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December 24, 2015 | Permalink | Comments (1)

Wednesday, December 23, 2015

Steven Avery of "Making a Murderer" & the Special Responsibilities of a Prosecutor

Last week, the Netflix documentary series "Making a Murderer" was released to a rapturous response. The series, created by Laura Ricciardi and Moira Demos, follows the trials and tribulations of Steven Avery, a Wisconsin man who...well, I won't spoil anything for readers who haven't watched the series. Indeed, I haven't even watched the series yet because I don't have a Netflix subscription.

As a result, this post is not about Steven Avery; it's about the ethical rule that was created as a result of his case and other similar cases.

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December 23, 2015 | Permalink | Comments (14)

Tuesday, December 22, 2015

Cream City Chronicles: My Take on Episode One of the Unsolved Podcast

“I always want to do stories that are going to in some way be helpful to people who have survived a crime like this.” Gina Barton, Milwaukee Journal Sentinel

Yesterday, we premiered the final episode of the first season of the Undisclosed Podcast (we will drop a bonus episode on January 4th). In some ways, it was a relief. On the other hand, I couldn't help but feel a bit overcome by emotion as I listened to the last few minutes of the episode. This was compounded by the fact that Adnan's brother Yusuf reported on Adnan's health issues in prison yesterday.*

After the episode, I was finally able to listen to the first episode of the Unsolved Podcast, and I was immediately struck by some of the parallels to Adnan's case, including a high school student who goes missing from school, his body stumbled upon in a park in February after intervening snow, high school wrestling, and different jurisdictions covering the missing persons and homicide cases.


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December 22, 2015 | Permalink | Comments (7)

Monday, December 21, 2015

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

Last week, I did a post speculating that Hae might have been coming from Drama tryouts on January 13th when Becky saw her tell Adnan that she couldn't give him a ride because she had "something else" to do. You can find most of the basis for my speculation in that post, including Becky seemingly saying that Hae was involved in Drama in January and Hae herself indicating in her diary that she had helped with Drama in the past. What we do know is that Becky said that she was going to pick up her sister Diane from Drama tryouts when she saw Hae. 

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December 21, 2015 | Permalink | Comments (14)

Friday, December 18, 2015

Star Wars, X-Men, Mutant X, and Judicial Notice

Last night was the premiere of "The Force Awakens," Episode VII in the Star Wars saga. Star Wars will always have a special place in my heart. If memory serves, I first watched "Star Wars" and "The Empire Strikes Back" at the Ground Round in Columbus, Ohio. When Halloween 1982 rolled around, the choice of costume for my six year-old self was obvious: I went as Boba Fett, my favorite character. The following year, my parents took me to see "Return of the Jedi;" it's the first movie I can remember watching in a movie theater. I was devastated when Han Solo stumbled into knocking Boba Fett into the Sarlacc toward the beginning of Jedi. I can still recall vivid dreams about Star Wars from my childhood, and I have creative writing projects from elementary school that take place in its universe. I think that somewhere in my parents' house, there's still an old Empire Strikes Back popup book floating around.

Later, upon graduating from college in 1999, I took a job at a summer camp before working days at a law firm and nights as a LSAT instructor. I was in charge of a group of rising fifth graders, and they were all obsessed with "The Phantom Menace" (and Pokemon and Eminem). At the end of the summer, there was a talent show. We created a script in the Star Wars universe and performed our own intergalactic epic.

And now, there's a whole new generation interested in Star Wars. Last year, my niece was Yoda for Halloween. Just this weekend, I was at a friend's house and engaged in a Nerf light saber battle with their kid;* he was Yoda, and I was the dreaded Darth Sidious. It's safe to assume that Star Wars will continue to be part of our culture fabric for generations to come, and the same holds true for our legal fabric.

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December 18, 2015 | Permalink | Comments (3)

Wednesday, December 16, 2015

A Quick Discussion of the Scheduling of Adnan's Reopened Postconviction Proceedings

Yesterday, Judge Martin Welch scheduled the post-conviction proceedings in the Adnan Syed case. Here is a copy of the order. You can replace most of the "2015"s in the order with "2016"s. First, there will be a status conference on January 12, 2016, during which both sides will likely inform Judge Welch of how everything is proceeding, whether there are any issues with witnesses, etc. Then, the actual proceedings will be held on two days: (1) Friday, February 5, 2016; and (2) Monday, February 8, 2016. As Adnan's attorney tweeted, "Maryland has a law that prohibits the broadcasting of court proceedings. No cameras allowed." As Rabia tweeted, "Adnan will be present at the hearing." Rabia and Susan will also likely be there. I will not.

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December 16, 2015 | Permalink | Comments (19)

Tuesday, December 15, 2015

More on the Judge Ruling the School Nurse Unqualified to Testify About Catatonic States at the Adnan Syed Trial

In yesterday's Addendum episode of the Undisclosed Podcast, we talked a bit about the school nurse being precluded from testifying at Adnan's second trial. In this entry, I will post the relevant portions of the documents as well as some of the discussion of the issue that took place at trial. 

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December 15, 2015 | Permalink | Comments (5)

Monday, December 14, 2015

Was Hae Coming from Drama Tryouts Just Before She Told Adnan She Had "Something Else" to Do?

We will be recording our final episode(s) of the first season of Undisclosed this week. Amazingly, just as we're winding down, I feel like I've stumbled across something that might change, or at least clarify, what I think about the events of January 13th. It was a loose strand I initially pulled at several months ago, but I soon gave up when I couldn't find any support for it. Now, I've found that support.

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December 14, 2015 | Permalink | Comments (23)

Friday, December 11, 2015

Serial, Season 2, Episode 1: Is Bowe Bergdahl Guilty of the Two Charges Brought Against Him?

Last night, I had the chance to listen to the first episode of the second season of Serial. In the episode, Sarah Koenig plays a recording of Sergeant Robert (Bowe) Bowdrie Bergdahl talking to Mark Boal about his decision to leave his outpost, OP Mest, at night and run—or at least walk—to his base at FOB Sharana. According to Bergdahl, he left OP Mest

to create a "DUSTWUN" — short for duty status whereabouts unknown; a radio call issued when a soldier goes missing in combat or is taken captive. Bergdahl claims his actions were intended to call attention to a larger issue: his serious concerns over leadership in the military.

"What I was seeing from my first unit, all the way up into Afghanistan… was basically leadership failure to the point that the lives of the guys standing next to me were literally — from what I could see — in danger of something seriously going wrong and somebody being killed," Bergdahl says in one of the taped interviews with Boal.

So, what does this mean in terms of the two charges against Bergdahl that I discussed in yesterday's post

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December 11, 2015 | Permalink | Comments (9)

Thursday, December 10, 2015

Serial, Season 2 & A Legal Analysis of the Charges Against Bowe Bergdahl

Season 2 of the Serial Podcast premiered earlier today. Before listening to it, I thought that I would take a look at the charges against Sergeant Robert (Bowe) Bowdrie Bergdahl. Both of these charges were brought under the Uniform Code of Military Justice (UCMJ). From the charge sheet, we have:



SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.




SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

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December 10, 2015 | Permalink | Comments (2)

Wednesday, December 9, 2015

Assessing the LensCrafters Motion for an Ex Parte Subpoena in the Adnan Syed Case

In a prior post, I noted how a law student/clerk was put in charge of subpoenaing the work records from LensCrafters in the Adnan Syed case. In this post, I will go in more depth about the motion for an ex parte subpoena, some of its errors, and what effect those errors might have had.

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December 9, 2015 | Permalink | Comments (17)

Tuesday, December 8, 2015

Scrutinizing Jay's Claim That Adnan Confessed to Somebody While Driving Jay to Work

Following up on last night's episode of Undisclosed, let's put another of Jay's claims under the microscope. This comes from Jay's second recorded police interview (pg. 64):

Screen Shot 2015-12-08 at 11.40.55 AM

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December 8, 2015 | Permalink | Comments (29)

Monday, December 7, 2015

Why Did Billy Murphy Force Gutierrez to Move Out of His Firm "Literally" Overnight Without Planning Whatsoever?

Following up on my post earlier today, another portion of the district court's opinion in Merzbacher made me think of this scene from the movie "Parenthood." As we reported in the Tina episode of the Undisclosed Podcast, the Baltimore Sun did an article on May 15, 1994 about Cristina Gutierrez and her near unparalleled success at Billy Murphy's law firm. Eight months later, the Baltimore Sun published an article about Gutierrez's departure from Murphy's firm. In the article, Gutierrez describes the split as "amicable." But was the split as amicable as Gutierrez describes?

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December 7, 2015 | Permalink | Comments (8)

Did Gutierrez Perjure Herself By Saying She Saw Adnan's Case as a Victory Because She Saved Him From Death Row?

Over the last week, Audioboom released a series of Recording in Progress minisodes because we didn't record a new Undisclosed episode during Thanksgiving week (we will have a new episode tonight). The minisodes deal with the role of social media in the news, and I've been thinking a lot about the crowdsourced nature of our investigation as Season 1 winds down. As you might recall, a listener first informed us of someone claiming the $3,075 CrimeStoppers tip in the Adnan Syed case, which we were later able to confirm through written documentation from a source at CrimeStoppers. And now, a listener, pointlesschaff, has passed along a huge piece of information that could lead to Adnan being granted a new trial.

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December 7, 2015 | Permalink | Comments (14)

Friday, December 4, 2015

Some Observations From the State's 8/23/99 Amended Disclosure in the Adnan Syed Case

Next week's episode of the Undisclosed Podcast will deal with the case that the State presented against Adnan Syed. Preparing the episode got me to thinking about how the State prepared its case. In a prior post, I included an Amended State's Disclosure in which the State notified the defense of potential witnesses it might call at trial who were not included in prior disclosures. Some of these witnesses, such as Detective O'Shea and Young Lee, were eventually called at trial. Others, such as Mark Pusateri and Ann, were not called as trial witnesses. Today, let's look at another Amended State Disclosure and the witnesses whom the State did and didn't call.

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December 4, 2015 | Permalink | Comments (6)

Thursday, December 3, 2015

How Does Jay Now Know That Nothing Bad Happened in the Best Buy Parking Lot?

In Natasha Vargas Cooper's interview with Jay for The Intercept, there was the following exchange:

Where was Hae’s car? Was it in the Best Buy parking lot?

Hae’s car could have been in the parking lot, but I didn’t know what it looked like so I don’t remember. When I pick him up at Best Buy, he’s telling me her car is somewhere there, and that he did this in the parking lot. But that, according to what I learned later, is probably not what happened.

Regrettably, there was no follow-up question asking what Jay later learned, and I had kind of put this response aside until I recently reviewed what Jenn told Sarah Koenig during Serial.

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December 3, 2015 | Permalink | Comments (20)

Wednesday, December 2, 2015

The Habit Defense Squandered by Cristina Gutierrez in the Adnan Syed Case

I was taking another look at the alibi notice that Cristina Gutierrez filed for Adnan. Here is the introductory comment on that notice:

Screen Shot 2015-12-02 at 10.34.56 AM

What's interesting is that this comment makes clear that this isn't solely an alibi notice; instead, it is also a notice of habit witnesses, which makes the failure of the defense team to contact most of these witnesses even less defensible.

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December 2, 2015 | Permalink | Comments (14)

Tuesday, December 1, 2015

Even More on the Hair Analysis in the Adnan Syed Case

This is the third in a series of posts about the hair evidence in the Adnan Syed case (prior posts here and here). This post deals with the defense's motion for a Brady hearing on the hair evidence and the judge's denial of that motion.

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December 1, 2015 | Permalink | Comments (12)