Thursday, July 7, 2016
In discussing Judge Welch's opinion granting Adnan a new trial, I have placed a lot of emphasis on substantive caselaw regarding ineffective assistance of counsel, alibi witnesses, and cell tower pings. But a trial that ended three days before the Doors appeared on "The Ed Sullivan Show" might be more important than any of that.
Wednesday, July 6, 2016
In Greek mythology, Scylla and Charybdis were a pair of monsters who lived on opposite ends of the Strait of Messina between Italy and Sicily Scylla was originally a sea nymph who was loved by the sea god Poseidon*. Out of jealousy, Poseidon's wife Amphitrite poisoned the waters in which Scylla bathed. This turned Scylla into a six-headed beast with three rows of sharp teeth in each head. When ships passed close by her, she struck out to grab and eat unwary sailors.
Charybdis was also a sea nymph, as well as the daughter of Poseidon. Zeus* transformed her into a dangerous whirlpool across the strait from Scylla. Ships sailing the strait were almost certain to be destroyed by one of the monsters.
Based on the opinion of the Fourth Circuit in Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011), I'm more convinced than ever that the State will be between Scylla and Charybdis if it attempts to appeal Judge Welch's opinion granting Adnan a new trial.
Tuesday, July 5, 2016
"Had trial counsel investigated the potential alibi witness, she could have undermined a theory premised upon inconsistent facts. The potential alibi witness, however, would not have undermined the crux of the State's case: that Petitioner buried the victim's body in Leakin Park at approximately 7:00 P.M. on January 13, 1999." Excerpt from Judge Martin P. Welch's opinion granting Adnan Syed a new trial.
In yesterday's episode of Undisclosed, I repeated the claim I made in a blog post last week: Pursuant to the Supreme Court's recent opinion in Wearry v. Cain, evidence "that [the defendant] may have been involved in events related to the murder after it occurred" might support a conviction for being an accessory after the fact but cannot support a conviction for murder. Therefore, evidence of what Adnan may have been doing at approximately 7:00 P.M. cannot support his conviction for murder, and there are good reasons to believe that the Court of Special Appeals of Maryland (COSA) will use Wearry to find that failure to contact Asia McClain was prejudicial, assuming that there is even an appeal.*
Apart from Wearry, however, in this post I will really dig into Judge Welch's opinion and show how it demonstrates that Asia wouldn't merely have undermined the theory presented by the State at trial; she would have undermined any theory that the State could have presented at trial.
Saturday, July 2, 2016
In response to Thursday's post, a commenter, Ben, asked, where the State could present new evidence or witnesses regarding the AT&T disclaimer at the hearing before the Court of Special Appeals of Maryland. My response was that
The State cannot bring new witnesses or evidence at the COSA hearing, which would just feature legal analysis. In other words, the State could find a new witness or document today which would establish that the disclaimer was irrelevant to this case, and it wouldn’t matter.
Friday, July 1, 2016
A new trial in three steps:
Step One: May 6, 2015: The State files its Brief of Appellee. At trial, the State had claimed that the 2:36 P.M. call on Adnan's call log was Adnan calling Jay from Best Buy after having killed Hae Min Lee. On appeal, the defense had thus claimed that Asia McClain, who saw Adnan at the library until 2:40 P.M., provided a complete alibi. In its brief, the State responded with the now infamous footnote 8, which states in pertinent part:
This argument was completely unnecessary. The State could have simply deemphasized the importance of the 2:36 P.M. timeline or claimed that Asia's testimony wouldn't have been enough to change the jury's verdict. Instead, the State decided to advance a new argument on appeal, an argument that piqued the interest of defense counsel.
Thursday, June 30, 2016
Today, Judge Martin Welch granted Adnan a new trial. Judge Welch reached this conclusion by finding that "trial counsel's...failure to challenge the reliability of the cell tower location evidence violated [Adnan]'s right to effective assistance of counsel[.]" This alone was enough to grant Adnan a new trial.
Judge Welch also found that trial counsel acted unreasonably by failing to contact prospective alibi witness Asia McClain, thus satisfying the first prong of the ineffective assistance of counsel test. That said, Judge Welch found that Adnan failed to prove prejudice, i.e., that contacting Asia would have created the reasonable probability of a different outcome at trial.
I will have much more about Judge Welch's opinion in future posts, but I wanted to shoot out a quick post about this last conclusion because there's a recent Supreme Court opinion that seems directly on point.
Yesterday, Deadline announced that
Netflix has given a 10-episode straight-to-series order to Lost in Space, a remake of sci-fi master Irwin Allen’s 1965 cult TV classic, from Legendary TV.
I remember watching watching "Lost in Space" in syndication as a kid. Apparently, the same was the case for a prosecutor in Connecticut, and it's part of the reason why a defendant was given a new trial.
Wednesday, June 29, 2016
COSA Finds Thiru Vignarajah Acted "In Bad Faith and For an Improper Purpose," But Denies George Johnson a New Trial
Back on February 18th, I posted an entry about the George Johnson appeal. Johnson was the man allegedly hired by Derrick Toomer to murder Ralph Hall. Toomer was prosecuted for Hall's murder before Johnson. At Toomer's trial, prosecutor Thiru Vignarajah (the State attorney handling Adnan's appeal) misrepresented the DNA evidence and secured Tommer's conviction. According to the Court of Special Appeals of Maryland,
The prosecutor misrepresented the evidence, creating a picture in which appellant, complicit in the crime, attempted to erase the evidence. The prosecutor’s argument had no basis in fact.
Before the Court of Special Appeals reached this conclusion, however, Johnson was put on trial. At Johnson's trial, Thiru called Toomer as a witness despite knowing that Toomer would exercise his Fifth Amendment privilege against self-incrimination. Yesterday, the Court of Special Appeals of Maryland had to answer the question of whether this dog and pony show required a new trial. Specifically, the court addressed this question:
Whether Appellant was denied his right to a fair trial, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments, when the prosecution called his separately tried and convicted codefendant as a witness in its case in chief with full knowledge that the witness would invoke a valid Fifth Amendment privilege and refuse to testify?
Monday, June 27, 2016
Michigan Court Denies Alibi/IAC Claim Because Defense Counsel Rejected Alibi Witness After Contacting Her
I've written before about the key distinction between failing to contact a prospective alibi witness and "failing" to call a prospective alibi witness at trial. While courts have invariably found that the former failure is unreasonable for purposes of a claim of ineffective assistance of counsel, courts routinely find that the latter "failure" can be, and frequently is, reasonable. The latest example of this can be found in the recent opinion of the United States District Court for the Eastern District of Michigan in Gaines v. Burt, 2016 WL 3444042 (E.D.Mich. 2016).
Friday, June 24, 2016
Section 8-201(b) of Maryland's Criminal Procedure Article provides as follows:
(b) Notwithstanding any other law governing postconviction relief, a person who is convicted of a crime of violence under § 14–101 of the Criminal Law Article may file a petition:
(1) for DNA testing of scientific identification evidence that the State possesses that is related to the judgment of conviction; or
(2) for a search by a law enforcement agency of a law enforcement data base or log for the purpose of identifying the source of physical evidence used for DNA testing.
In yesterday's opinion in Jackson v. State, the Court of Appeals of Maryland had to answer an interesting question: Can a defendant bring successive petitions for DNA testing?
Tuesday, June 21, 2016
According to an article in yesterday's Ventura County Star,
The preliminary hearing for a man accused of the murder of a pregnant woman and allegedly dumping her body at a local high school parking lot and the killing another woman nearly 40 years ago began Monday.
Wilson Chouest, 64, dressed in blue and orange jail garb, appeared before Ventura County Superior Court Judge Nancy Ayers. Prosecutors said Chouest is responsible for the July 1980 killings of an unidentified pregnant woman whose body was found at Westlake High School's upper parking lot and another unidentified female victim found in Kern County.
For the next 22 years, these killings went unsolved before "a 2012 search of a DNA databank of people arrested across the United States linked Chouest to DNA collected from the victims and their clothing."
Monday, June 20, 2016
Court Denies Missouri Man New Trial Despite Victim's Daughter Recanting Her Eyewitness Identification
According to an article in the Southeast Missourian,
A Missouri judge refused to grant freedom to a man convicted of sexually attacking and killing a St. Louis woman more than three decades ago.
Cole County Circuit Judge Daniel Green last week ruled there was not enough evidence to back Rodney Lincoln's claim of innocence in the death of 35-year-old JoAnn Tate. She was killed in her home in 1982. Her two young daughters were assaulted.
The 2014 opinion of the Missouri Court of Appeals lays out the facts of the case in more detail:
Wednesday, June 15, 2016
North Dakota Man Claims His Attorney Failed to Contact Alibi Witness Who Placed Him in Fargo at Time of Grand Forks Robbery
According to a story by KFGO,
One of the men found guilty of a violent Grand Forks home invasion in 2012 has appealed his conviction to the North Dakota Supreme Court. Allen Ratliff was sentenced to 30 years in prison for breaking into the mobile home of Sherman and Carmen Jones. The two were beaten with clubs, and their heads, hands and legs were duct-taped. The suspects stole prescription drugs, jewelry, cash and two tvs.
Ratliff claims his trial counsel was ineffective because he told them he was in Fargo at the time of the incident. He says his attorney failed to call an alibi witness, prepare arguments for a new trial, or object to jury instructions.
Monday, June 13, 2016
It's rare that a defendant gets two bites of the apple on appeal based on State misconduct. Glendale More is the exception to the rule. On two separate occasions, he was able to prove that errors were committed in connection with his murder trial. And yet, in both cases, it wasn't enough to award him a new trial.
Thursday, June 9, 2016
Judge in Freddie Gray Case Finds Brady Violation, Says Baltimore's #2 Prosecutor Doesn't Understand Discovery Rules
Earlier today, Judge Barry Williams found that the prosecution in the Caesar Goodson case violated Brady v. Maryland by failing "to disclose to the defense that they had engaged in a lengthy interview with one Donta Allen." Goodson was the van driver in the Freddie Gray case; he's been charged with murder, manslaughter, second-degree assault, misconduct in office and reckless endangerment in connection with Gray's death. Allen was another criminal suspect in the van.
Wednesday, June 8, 2016
SJC of Massachusetts Finds Ineffective Assistance Based on Failure to Challenge Shaken Baby Syndrome Diagnosis
On Friday, the Supreme Judicial Court of Massachusetts granted a new trial to Oswelt Millien, finding in Commonwealth v. Millien, 2015 WL 10944994 (Mass. 2016), that he received the ineffective assistance of counsel.
On the evening of October 20, 2009, the defendant's six month old daughter, Jahanna, was rushed to the emergency room, unconscious and unresponsive. She was diagnosed with traumatic brain injury, and scans of her brain showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as “the triad” associated with shaken baby syndrome. The defendant, who was the baby's sole caretaker when she became unconscious, claimed that Jahanna accidentally fell backwards from the couch where she was sitting and landed on the wooden floor. After Jahanna's physicians concluded that her brain injuries could not have been caused by an accidental fall from the couch but were instead caused by a violent shaking, the defendant was charged and later convicted by a jury of assault and battery on a child causing substantial bodily injury (head injuries)...and assault and battery on a child causing bodily injury (fractured vertebrae).
So, what was the basis for the ineffective assistance of counsel claim? According to the court,
There is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall. At trial, the jury heard only one side of this debate, because the defense attorney did not retain a medical expert to offer opinion testimony or to assist him in cross-examining the Commonwealth's medical experts. We conclude that, in these circumstances, where the prosecution's case rested almost entirely on medical expert testimony, the defendant was denied his constitutional right to the effective assistance of counsel because, by not providing the jury with the other side of this debate, his attorney's poor performance “likely deprived the defendant of an otherwise available, substantial ground of defence.”
Tuesday, June 7, 2016
5th Circuit: "[A]t a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation"
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985), is another in a long line of cases establishing a near per se duty for defense counsel to interview alibi witnesses brought to their attention by defendants. According to the Fifth Circuit,
Although the scope of the required investigation is a function of the “number of issues in the case, the relative complexity of those issues, the strength of the government's case and the overall strategy of trial counsel,” this circuit has recognized that, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. This duty is reflected in the American Bar Association Standards for Criminal Justice, a proper guide for determining what is reasonable under the circumstances. These specific obligations inherent in counsel's duty to investigate must temper the amount of deference we give Burdine's on-the-spot actions in evaluating his performance.
So, what were the facts in Nealy?
Thursday, June 2, 2016
The Investigation Discovery Documentary on Adnan & the Leading Cause of Death for Serial Killer Victims
A couple of days ago, several sites reported the news that Investigation Discovery will premiere a documentary about the Adnan Syed case on June 14th. The preview accompanying one of the stories features commentary by an attorney at a civil litigation firm in Texas who used to "assist prosecutors with complex civil procedure issues." This attorney previously took part in an article by The Marshall Project in which attorneys expressed their views on Adnan's innocence or guilt. With regard to Hae Min Lee, the attorney told his interviewer to
look at the WAY she was killed. She was strangled. Very personal. There was a relationship there. That’s why I don’t buy the whole “maybe a serial killer did it” angle.
So, what does strangulation tell us about the "maybe a serial killed did it" angle?
Wednesday, June 1, 2016
You might have seen the recent Intercept article about the Supreme Court of California tossing Bill Richards' conviction for murdering his wife, Pamela. Richards' conviction was reversed based upon faulty bite mark testimony presented by the prosecution.
[I]t took the state four attempts to convict Richards — two full trials ended in a hung jury and a third ended in a mistrial during jury selection — and prosecutors were successful only after putting on the stand a legendary forensic dentist who testified that Richards’s highly unique lower dentition was a match for a bite mark found on Pamela’s hand. The dentist, Norman “Skip” Sperber, told the jury that based on his 40-plus years in the field, he could say that out of 100 people, only “one or two or less” would have the same “unique feature” in their lower teeth.
In fact, however, Sperber was wrong. In 2008 he recanted his testimony, saying that he had cited statistics that lacked scientific support and never should have done so, “because it’s inappropriate to cite percentages or things resembling percentages unless there has been some prior scientific study” to back up the assertion. Based on Sperber’s recantation (and that of another dentist, Greg Golden, who testified for the defense, along with additional testimony about new DNA evidence that matched an unknown male), a district judge in 2009 said that the evidence now before the court pointed “unerringly” to Richards’s innocence.
Richards' conviction, however, was also based upon the prosecution's misleading lividity arguments.
Tuesday, May 31, 2016
According to an article on wkyc.com, last week, the
Ohio House of Representatives... passed HB 392, legislation to modernize Ohio’s domestic violence laws, according to a press release from State Rep. Emilia Strong Sykes. House Bill 392 passed the House with bipartisan support with a vote of 89-0. The bill now goes to the Senate for further consideration.
The bill would allow "victims of domestic violence at the hands of an intimate partner to obtain civil protective orders against their attacker." Currently, a domestic violence victim in a dating relationship cannot obtain such a protective order under Ohio law.