Monday, July 13, 2015
I've written a few posts about Woodlawn's track practice on January 13, 1999. For instance, in this post, I addressed the question of whether track practice started at 3:30 P.M. Later, in this post, I noted how Adnan's defense team failed to contact his track teammate Will despite having every reason to believe that he could have had information that would have completely destroyed the State's case. But what if there were another person connected to the track team whom the defense erroneously failed to contact?
Friday, July 10, 2015
Additional Context & A Call for Information About the Missing Police Interviews in the Adnan Syed Case
After yesterday's post, I realized that there was one witness who had his interview at Woodlawn High School recorded: Adnan's friend Ja'uan, who was referenced in Episode 5 of Serial. Indeed, during the episode, a portion of his recorded interview -- in which he said that Adnan and Hae used to hook up in the Best Buy parking lot -- was played. Here is the Progress Report for his interview:
Thursday, July 9, 2015
While searching through the MPIA files today in preparation for next Monday's episode of Undisclosed, I came across the following document:
This seems like a pretty benign document...until you realize that there are no records of any interviews conducted at the precinct on April 1, 1999.
Wednesday, July 8, 2015
Yesterday, I took another look at Detective Ritz's notes of the pre-interview with Jay. Upon reflection, it seems like the notes are actually notes taken during both Jay's pre-interview and his recorded interview. One particular portion stood out:
The name Christopher/Chris should be familiar to those who listened to the Serial Podcast.
Tuesday, July 7, 2015
People who have been following Serial and its aftermath likely know that we have been working off of incomplete copies of the transcripts from Adnan's trials. Apparently, someone has made a successful request for the missing pages because the pages from the first day of Adnan's second trial were posted yesterday. I'm not going to link to those pages because they're not redacted, but they do contain one key piece of information, which I've captured in a screenshot:
This part of the transcript lists the prospective witnesses at trial. As far as I can tell, I have a record of every prospective prosecution witness listed in the transcript being interviewed by the State...except for Mark Pusateri.* Mark Pusateri, you'll recall, is Jay's alibi, the person who was allegedly hanging out with him when Adnan made the Best Buy call.
Now, the State certainly could have listed Mark as a prospective witness despite not interviewing him. But again, that does not appear to be the case with any other witness listed in the transcript.*
*Neighbor Boy is also listed despite no official interview by the police. That said, I know that the defense private investigator did interview him, and it's possible that he was a prospective defense witness. If he was a prospective prosecution witness, he would be a second person whom the State didn't officially interview. [Edit: It turns out that Neighbor Boy was interviewed by police, but the notes from that interview are "missing," like the notes from the interviews with "Ann" and Patrice.].
Monday, July 6, 2015
On last week's Addendum Episode of the Undisclosed Podcast, we discussed Stephanie's statement to Adnan's private investigator that she recalled calling Adnan's cell phone between 4:15 and 5:30 P.M. on January 13, 1999. According to Stephanie, (1) she made this call from Parkville High School after getting bored while waiting for her basketball game; and (2) Jay was with Adnan at the time of the call. Stephanie's game was at 6:30 P.M., Stephanie recalled getting on the bus to the game between 3:30 and 3:45 P.M., and a bus ride from Woodlawn to Parkville would likely take around 30 minutes. Therefore, 4:15 P.M. is probably when Stephanie arrived at Parkville High School, and 5:30 P.M. is probably when the team started stretching, warming up, etc.
Now, as we discussed in the Episode, it's certainly possible that Stephanie was mistaken or lying about the call. For purposes of this post, however, let's assume that Stephanie indeed made the call that she described to the private investigator. What would that mean? We have three calls that are possibilities.
Friday, July 3, 2015
I've done a couple of posts about State v. Terry, 2014 WL 3579653 (N.J. 2014) 68 A.3d 177 (N.J.Super.A.D. 2013) (here and here). In Terry, the Supreme Court of New Jersey proposed a crime-fraud exception to the marital privilege. The proposed exception works as follows: If Hal tells his wife Wanda that he murdered Vince, that statement would be privileged because it was made in confidence by a husband to a wife. Conversely, if Hal discussed with Wanda how they could poison Vince, the statement would not be privileged because the statement was directed toward advancing a crime or fraud.
This is a logical exception that applies in most states, and the New Jersey Senate unsurprisingly gave final legislative approval to a bill that would codify this crime-fraud exception. According to an article in the New Jersey Law Journal,
The bill would create a crime-fraud exception to the marital communications privilege. Legislators acted at the behest of the state Supreme Court, which last year urged an approval of changes to the rules of evidence.
The court, in its 2014 ruling in State v. Terry, said it supported the creation of a crime-fraud exception to the privilege, but said it did not believe it could make such a drastic change in the law without the approval of the Legislature and the governor.
"This evidentiary privilege was intended to protect the privacy of married couples and the sanctity of marriage. But in practice, it can shield those who have engaged in unlawful acts from criminal prosecution," Senate Judiciary Committee Chairman Nicholas Scutari, D-Union, said in a statement in May, when his committee recommended passage.
"This legislation recognizes the importance of marital privacy but also ensures that individuals engaged in illegal activity and who potentially pose a serious risk to the public are not able to escape prosecution by taking advantage of the process," he said.
Thursday, July 2, 2015
Yesterday, I posted about Jay's statement to Detectives Ritz and MacGillivary during his pre-interview that Jeff G. drove him to Woodlawn High School at 3:00 P.M. on January 13, 1999, whereupon he met Stephanie in the parking lot. Obviously, if true, this statement presents a counternarrative very different from anything else that Jay said during his recorded interviews or Adnan's trials. But was his statement true? Not necessarily the whole statement. Jay may or may not have been driven to Woodlawn by Jeff G., and he may or may not have seen Stephanie. But was he at Woodlawn at about 3:00 P.M. on January 13th? Is there a 10% chance? 30%? 50%? 75%? Would it change your thoughts if Adnan himself said that Jay arrived at the Woodlawn High School parking lot at 3:00 P.M. on January 13th? Well, it turns out that he (maybe) did.
Wednesday, July 1, 2015
On Monday's Addendum Episode of the Undisclosed Podcast, we delved more into Jay's statement that Jeff G. drove him to Woodlawn High School on January 13, 1999, where he saw his girlfriend Stephanie. Specifically, we talked about the notes that Detective Ritz took during Jay's pre-interview, including this notation:
In this post, I will delve more into the Jeff G. conundrum.
Tuesday, June 30, 2015
Today, Adnan Syed filed his Motion to Re-Open Postconviction Proceedings. As should be clear to the readers of this blog, I agree with many of the arguments made in the motion:
-The statements made by prosecutor Kevin Urick to The Intercept could be used by the defense (blog post); and
-Precedent from across the county (including Maryland and the Fourth Circuit) supports the proposition that trial counsel is ineffective if she fails to contact prospective alibi witnesses ((blog post).
In this post, though, I wanted to highlight one other interesting part of the Motion.
This seems huge to me. Yesterday, I posted an entry which discussed how Adnan's defense team failed to contact his track teammates until after October 16, 1999. But what if it turns out that at least some of these track teammates were never contacted at all? And what if one of these uncontacted track teammates was pretty clearly a potential alibi witness?
Monday, June 29, 2015
For context, Adnan's track teammates weren't contacted until after July 13th.
More specifically, it looks like they weren't contacted until after October 16, 1999.
Friday, June 26, 2015
On several prior occasions (see, e.g., here and here), I have written on the topic of the problems with cross-racial eyewitness identifications and whether courts should be allowed to issue jury instructions regarding these problems. Despite the literature on these problems, many courts refuse to give such instructions. Yesterday, however, the Supreme Judicial Court of Massachusetts went in the opposite direction in Commonwealth v. Bastaldo, 2015 WL 3885652 (Mass. 2015).
Thursday, June 25, 2015
Yesterday, I posted an entry about a number of unrelated documents from other cases being in the case file for Adnan Syed. As I noted in the comments section to my prior post, it also appears as if Cristina Gutierrez was having problems with possibly billing clients for work done for other clients. Again, it's tough to share the documentation because of issues involving attorney-client privilege, but I again have one (redacted) document that I feel comfortable sharing.
Wednesday, June 24, 2015
Yesterday, in the comments section of my blog, I noted that it is difficult to determine what documents Cristina Gutierrez had in the Adnan Syed case because his case file has a number of documents from other cases. In response, I've gotten some questions about the nature of these documents and whether they might have had some relation to Adnan's case. The simple answer is that these documents have no relation to Adnan's case. I can't really post most of these documents, however, because they contain information that is covered by attorney-client privilege. That said, there is one document that I feel comfortable posting, albeit in heavily redacted form.
Tuesday, June 23, 2015
In yesterday's episode of the Undisclosed Podcast, we revealed that the police "lost" the notes from interviews with 5 out of the first 8 witnesses they interviewed after Adnan was arrested: "Ann," Debbie, Aisha, Jeff J., and Patrice. So, let's assume that these witnesses are contacted now and are able to recall the substance of what they told police. Where would that leave Adnan?
Monday, June 22, 2015
According to an article in The Greenville Sun,
Postmortem images of murder victims are one of the tools prosecutors use to help obtain a conviction at trial.
But legislation that becomes law on July 1 in Tennessee will allow juries to see victims as they appeared alive.
The "Victim Rights Photo Bill" has strong supporters among the state's district attorneys, and detractors among criminal defense lawyers who defend murder suspects.
The bill, as enacted, "provides that in a prosecution for any criminal homicide, an appropriate photograph of the victim while still alive will be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive."
Thursday, June 18, 2015
The Supreme Court handed down its decision in Ohio v. Clark today, holding that there was no confrontation clause violation when the prosecution introduced a non-testifying child’s out-of-court statement identifying his abuser. There is no real surprise here, unless you view consistency from the Court as surprising.
The decision in Ohio v. Clark tracks my view of where the post-Crawford Court has settled. As I argued in The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865, 1870 (2012):
[In the cases after Crawford,] a new majority of the Supreme Court seized the evolving jurisprudence . . . and, while claiming fidelity to Crawford, constricted the definition of “testimonial” statements to its minimalist core: statements “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” . . . . Together, Bryant and Davis work a dramatic curtailment of the post-Crawford confrontation right. The current Supreme Court's conclusion that the Confrontation Clause addresses only “testimonial” statements, in concert with its pointed narrowing of the definition of “testimonial,” results in the elimination (not strengthening) of the constitutional restrictions on the bulk of admissible hearsay. As Bryant itself declares, statements admitted under many commonly utilized hearsay exceptions - for example, excited utterances, present sense impressions, co-conspirator statements, statements for medical diagnosis or treatment - will rarely be testimonial and consequently are now completely unregulated by the Confrontation Clause.
This is precisely what happened in Ohio v. Clark. The Court simply applied its shrinking definition of “testimonial.” The child’s statement, admitted under Rule 807 (the residual hearsay exception), was not “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” End of analysis.
I argued in The Incredible Shrinking Confrontation Clause that narrowly defining testimonial statements and excluding those that fall within the definition makes sense historically and logically. However, the Court’s complete abandonment of unconfronted, non-testimonial hearsay is not justified. In light of text, history and reason, constitutional regulation is required although the regulation can be much more permissive:
As the admission of nontestimonial statements does not strike as closely to the historical and textual core of the confrontation right, it need not be restricted as severely (that is, excluded absent confrontation). Rather, prior to admitting such evidence, courts can enforce a constitutional preference for live testimony - as they have in other contexts - by requiring the prosecution to demonstrate the out-of-court declarant's “unavailability.” ICC at 1870.
We have now posted the entire interview between Dr. Lee Hlavaty and me with cleaned up audio. Special thanks go to (1) Amar Nagi for cleaning up the audio and his work on Undisclosed in general; and (2) Dr. Hlavaty for her time spent reviewing the case materials and her clear and informative responses.
Note: The fifth episode now also has the cleaned up audio from the interview inserted.