EvidenceProf Blog

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

Sunday, November 13, 2016

Supreme Court Denies Cert in Bill Kuenzel Death Penalty Case, But is He Innocent?

When I did a presentation at the Media Law School at the University of South Carolina School of Law back in September, a reporter asked me to look into the case of Bill Kuenzel, a death row inmate in Sylacauga, Alabama. I was intrigued for a few reasons, including the fact that my uncle lives in Sylacauga. Beyond that, though, there was the fact that some high profile people were protesting Kuenzel's innocence, including Sam Waterston of "Law and Order" fame.


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November 13, 2016 | Permalink | Comments (2)

Friday, November 11, 2016

Contrary to the State's Claim, Adnan Does Not Remain a Convicted Murderer & Kidnapper

Screen Shot 2016-11-11 at 8.53.52 AM

This is one of the more troubling contentions in the State's Response to Motion for Release in the Adnan Syed case, and the State backs the contention up with no citations to any statutes or case law.* Perhaps this is because it is clear that Adnan's convictions have been vacated and that he is cloaked in the presumption of innocence.

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November 11, 2016 | Permalink | Comments (10)

Thursday, November 10, 2016

The State's Response to Motion for Release in the Adnan Syed Case is Fundamentally Flawed

Today, the State filed its Response to Motion for Release in the Adnan Syed case. As Justin Fenton notes, the Motion makes clear that Charlton Howard, a retired NCIS special agent, has taken over for Thiru Vignarajah. Unfortunately for the State, a one minute glance at the Response makes clear that it is fundamentally flawed. 

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November 10, 2016 | Permalink | Comments (20)

Thursday, November 3, 2016

Lividity Evidence/Withheld Police Report Contradict State's Timeline, Don't Lead to New Trial in Ohio Case

Here's an interesting lividity/prosecutorial misconduct case out of Ohio. In State v. Montgomery, 2016 WL 6393027 (Ohio App. 2016),

On the morning of March 8, 1986, the body of Cynthia Tincher was found in her car near the intersection of Angola and Wenz Roads in Toledo, Ohio. She died from a gunshot wound to the head. That same day, her roommate, Debra Ogle, failed to show up for work. Police searched for her after finding Tincher's body, and discovered that Tincher and Ogle's apartment door was unlocked. By the end of the day, they concluded that Ogle was missing. On March 9, 1986, her abandoned car was found with the key in the ignition. Her purse was in the car.

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November 3, 2016 | Permalink | Comments (2)

Monday, October 31, 2016

Daubert's Werewolf and the Concept of "Fit" With Expert Evidence

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court replaced the old  Frye test for determining the admissibility of expert evidence with the new Daubert, pursuant to which judges serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as

(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

A less well known portion of the Court's Daubert opinion deals with the idea of "fit" as it relates to expert evidence. To establish this point, Justice Blackmon uses a werewolf analogy that some have since dubbed Daubert's werewolf.


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October 31, 2016 | Permalink | Comments (1)

Monday, October 24, 2016

A Quick Post About Dr. Hlavaty's Affidavit & Adnan's Bail Motion

Today, Justin Brown filed a Motion for Release Pending Appeal in the Adnan Syed case. This Motion comes on the heels of (1) Judge Welch's order granting Adnan a new trial; and (2) the State's Application for Leave to Appeal this order to the Court of Special Appeals of Maryland. Brown's motion asks Judge Welch to release Adnan from incarceration* (1) while the State appeals Judge Welch's order and (2) in the event of a retrial. I'm going to save the bulk of my analysis for a special Undisclosed episode on the Motion, but I will highlight one aspect of the Motion in this post. 

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October 24, 2016 | Permalink | Comments (33)

Friday, October 21, 2016

D.C. Court of Appeals Abandons Frye Test, Adopts Daubert Test for Expert Evidence

In 1923, the Court of Appeals of the District of Columbia issued its opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In the wake of this federal opinion, court across the across the country adopted  the Frye test, which deemed expert evidence admissible only if was based upon a technique/technology that had general acceptance in the relevant expert community. In 1993, however, the Supreme Court created a sea change when it decided Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which said that judges should serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as

(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

Since this decision, at least 30 states have changed from the Frye test to the Daubert test. One court, however, that had not adopted the Daubert test was the District of Columbia Court of Appeals, the "state" supreme court for D.C. But that all changed yesterday.

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October 21, 2016 | Permalink | Comments (1)

Thursday, October 20, 2016

Hiring Announcement: Concordia

Hiring Announcement: Concordia

Background: Concordia University School of Law, located in Boise, Idaho, invites applications for a tenure-track position beginning in the 2017-18 academic year.  Candidates for the position must clearly demonstrate the potential for excellence in research and teaching and have a record of (or clear potential for) distinguished scholarship.  Our goal is to recruit dynamic, bright, and highly motivated individuals who are interested in making significant contributions to our law school and its students.  Practice experience is preferred, and teaching experience is desirable.  As a Lutheran institution of higher education, we seek candidates who will support our mission and promote Lutheran values.

Special Instructions to Applicants: Questions about the position can be directed to the Chair of the Committee.  Applicants should submit a current Curriculum Vitae, a statement of faith, and a letter of interest to https://cu-portland.csod.com/ats/careersite/JobDetails.aspx?id=118.  Please also provide the names and email addresses of three individuals prepared to speak to your professional qualifications for this position. Please note: these references will not be contacted immediately, but may be contacted at an appropriate later point in the review process. Additional materials related to teaching excellence and samples of scholarly publications may be emailed to the Victoria Haneman, Chair of the Committee, atvhaneman@cu-portland.edu.  Review of applications will begin immediately and continued until the position is filled. Concordia University reserves the right to give preference in employment based upon religion in order to further the Lutheran objectives of the University and the Lutheran Church-Missouri Synod.

The Committee has a particular interest in hiring someone to teach Criminal Law and Evidence.  

October 20, 2016 | Permalink | Comments (0)

Wednesday, October 19, 2016

Floyd County, Georgia Has the Second Highest Rate of Jailed Women in the Country

Here's a pretty interesting statistic tangentially related to our Season 2 case for Undisclosed. According to a New York times story, the three counties with the highest rates of jailed women in the country are

Nevada County, Calif.; Floyd County, Ga.; and St. Charles Parish, La. Each has a population of fewer than 100,000 people but a rate of incarceration for women of more than 280 per 100,000, according to the Vera Institute.


In Floyd County there was an average of 504.3 women per 100,000 in jail in 2014, compared to 4.6 per 100,000 in 1970, according to the report. The growth accelerated in the 1990s, with a rate of 71.3 in 1993 rising to 360.3 by 2000.

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October 19, 2016 | Permalink | Comments (4)

Monday, October 17, 2016

Maryland Parole Commission Will Hold Parole Hearings For 200+ Juvenile Lifers, Including Adnan Syed

Many readers have asked me whether the Supreme Court's opinion in Miller v. Alabama means that Adnan Syed's life sentence is unconstitutional. In Miller, the Supreme Court held that mandatory life without parole sentences for juveniles are unconstitutional, and many jurisdictions, including South Carolina, have read Miller even more broadly. The problem for Adnan, however, was that he was technically given a life sentence with the possibility of parole, making Miller inapplicable. I say "technically," however, because Parris Glendening, the governor of Maryland in the 1990s and early 2000s, "effectively stopped all parole possibilities for criminals serving life sentences." So, should sentences like the one given to Adnan be treated as the functional equivalent of a sentence of life without parole, which could render it unconstitutional? That's the claim in a lawsuit filed by the ACLU of Maryland against Governor Larry Hogan and other officials, and the question is whether the State's latest response is sincere or subterfuge.

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October 17, 2016 | Permalink | Comments (6)

Tuesday, October 11, 2016

The Other Georgia Murder Case With a Podcast and a Big Reward

In last night's episode of "Undisclosed," we discussed the $20,000ish reward offered in the Isaac Dawkins case, including the possibility that the reward money might have been spent to purchase motorcycle(s). This wouldn't be the first Georgia case covered by a podcast in which a key witness received the reward money. The other case was the prosecution of Justin Chapman, covered by Season 1 of the Breakdown Podcast.

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October 11, 2016 | Permalink | Comments (2)

Monday, October 10, 2016

(Maybe) The Biggest Factual Error in the State's Attorneys' Brief in the Adnan Syed Case

On Friday, I posted an entry about the amici curiae brief filed by various Maryland State's Attorneys in support of the State's Application for Leave to Appeal in the Adnan Syed case. Since then, on Twitter, I've noted that almost every factual assertion made in the brief was incorrect and/or misleading, and Susan has noted how the factual error with regard to cell tower pings was especially egregious. The assertion that really bugs me, though, is this one:

  Screen Shot 2016-10-10 at 2.47.37 PM

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October 10, 2016 | Permalink | Comments (27)

Friday, October 7, 2016

Maryland State's Attorneys Pound the Table in Amici Brief in Adnan Syed Case

On September 15th,  the National Association of Criminal Defense Lawyers and the Maryland Criminal Defense Attorneys’ Association filed an amici curiae (friend of the court) brief written by Steven M. Klepper in the Adnan Syed case. The brief cited

-Statistics on the percentage of cases in which the Court of Special Appeals (COSA) granted Applications for Leave to Appeal (ALAs) (0-5% annually);

-A Maryland Appellate Practice Manual on how COSA should assess ALAs (Sandler & Levy, APPELLATE PRACTICE FOR THE MARYLAND LAWYER: STATE AND FEDERAL 307 (4th ed. 2014));

-A law review article by a Ninth Circuit Judge on the difficulty of getting federal habeas relief if an appeal fails at the state level (Hon. Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC. iii, xli (2015));

-Five opinions by the Court of Appeals of Maryland and COSA (State v. Adams-Bey, __ Md. __ (2016), slip op. at 7–12; Jones v. State, 445 Md. 324, 358 (2015); State v. Potter, No. 1309/13 (Md. Ct. Spec. App. Aug. 4, 2016); Stachowski v State, 416 Md. 276, 298 (2010); In re Maria C., 294 Md. 538, 538–41 (1982); and

-Two rules to explain how COSA should treat the State's § 7-109 application (Fed. R. App. P. 22(b)(3); Rule 8-204(b)(3)).

Today, various Maryland State's Attorneys filed an amici curiae brief in support of the State's Application for Leave to Appeal. So, what did they cite in their brief?

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October 7, 2016 | Permalink | Comments (9)

Wednesday, October 5, 2016

The State Shoots Itself in the Foot in its Consolidated Reply in the Adnan Syed Case

Today, the State filed a Consolidated Reply in the Adnan Syed case. The Reply once again asks the Court of Special Appeals of Maryland to (1) grant it leave to appeal Judge Welch's order granting Adnan a new trial on the cell tower issue; and (2) remand the case back to the Circuit Court in the event that it plans to grant Adnan leave to cross-appeal Judge Welch's order denying Adnan a new trial on the Asia alibi issue. Let's dig into three of the arguments made in the Reply.

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October 5, 2016 | Permalink | Comments (13)

Tuesday, September 27, 2016

The "Wet Bandits" in "Home Alone" & Propensity Character Evidence vs. Signature Crime/M.O. Evidence

In last night's episode of "Undisclosed," I discussed Joe Pesci and Daniel Stern in "Home Alone" as an example of a "signature" crime, in which the criminals leave behind some type of calling card at the crime scene. In "Home Alone," characters played by Pesci and Stern (Harry and Marv) would commit burglaries and then wad up towels in kitchen sink and leave the water running to flood the houses of their victims. This is why I mistakenly referred to them as the "kitchen sink burglars" when they actually (as many listeners have correctly pointed out) referred to themselves as the "wet bandits." 

It actually turns out that a few lawyers/judges have used a similar analogy to describe the dichotomy between inadmissible propensity character evidence and admissible signature crime/modus operandi evidence.

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September 27, 2016 | Permalink | Comments (0)

Friday, September 23, 2016

Attorney General, FBI, District Attorneys Say They'll Ignore President's Council Report on Flawed Forensics

Recently, the Executive Office of the President President’s Council of Advisors on Science and Technology (PCAST) issued a report to President Obama entitled "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." That report had a series of recommendations and findings. According to Recommendation 1:

It is important that scientific evaluations of the foundational validity be conducted, on an ongoing basis, to assess the foundational validity of current and newly developed forensic feature-comparison technologies. To ensure the scientific judgments are unbiased and independent, such evaluations must be conducted by a science agency which has no stake in the outcome.

(A) The National Institute of Standards and Technology (NIST) should perform such evaluations and should issue an annual public report evaluating the foundational validity of key forensic feature-comparison methods.

Meanwhile Finding 4 was that

PCAST finds that bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards. To the contrary, available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bitemark and cannot identify the source of bitemark with reasonable accuracy.

And Finding 5 was that

PCAST finds there are no appropriate empirical studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks (sometimes called “randomly acquired characteristics). Such conclusions are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.

PCAST has not evaluated the foundational validity of footwear analysis to identify class characteristics (for example, shoe size or make).

So, what was the response by the Attorney General, the FBI, and the National District Attorneys Association (NDAA) to this report?

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September 23, 2016 | Permalink | Comments (13)

Wednesday, September 21, 2016

Coast Guard Court of Appeals Clarifies the Scope of the Psychotherapist-Patient Privilege

Military Rule of Evidence 513(a) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Does this psychotherapist-patient privilege prevent the disclosure of the dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used? That was the question of first impression addressed by the United States Coast Guard Court of Appeals in H.V. v. Kitchen, 75 M.J. 717 (2016).

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September 21, 2016 | Permalink | Comments (1)

Monday, September 19, 2016

2001 Baltimore Murder Trial With Familiar Prosecutor Involved Brady Violation for Failing to Disclose Interview Records

Here's a pretty interesting story about a 1998 murder in Baltimore.* It involves the trial of "Kenneth D. Perry, 43, who was convicted and sentenced to life without parole in 2001 for killing Kelly Bunn and his former girlfriend, LaShawn Jordan, as Jordan's 4-year-old daughter watched." Well, actually, it involves the trial(s) of Perry.

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September 19, 2016 | Permalink | Comments (12)

Friday, September 16, 2016

NACDL/MCDAA/Steven Klepper File Amici Curiae Brief Arguing for a Retrial for Adnan Syed

Yesterday, the National Association of Criminal Defense Lawyers and the Maryland Criminal Defense Attorneys’ Association filed an amici curiae (friend of the court) brief written by Steven M. Klepper in the Adnan Syed case. Simply put, the brief asks the Court of Special Appeals of Maryland to deny the State leave to appeal Judge Welch's order granting Adnan a new trial.

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September 16, 2016 | Permalink | Comments (4)

Thursday, September 15, 2016

A First Take on Adnan's Response to the State's Conditional Application for Limited Remand

Today, Justin Brown filed two responses in the Adnan Syed case: (1) a response to the State's Application for Leave to Appeal; and (2) a response to the State's Conditional Application for Limited Remand. The first response asks the Court of Special Appeals of Maryland to deny the State leave to appeal Judge Welch's order granting Adnan a new trial based upon trial counsel's failure to cross-examine the State's cell tower expert with the AT&T disclaimer. The second response, which I will address in this post, asks the Court of Special Appeals to refrain from remanding the appeal back to Judge Welch so that he can receive testimony from two sisters, who allege that Asia McClain told them she would make up an alibi for Adnan.

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September 15, 2016 | Permalink | Comments (8)