EvidenceProf Blog

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

Monday, September 21, 2015

Litigant Uses Doctor Who & the Tardis to Explain the "Time of Filing" Rule

There is a rule in the law known as the "time of filing" rule. Simply put, the rule provides that the legal status of a claim is determined at the time the lawsuit involving that claim is filed. This rule is most commonly cited in cases in which a plaintiff tries to create diversity jurisdiction by moving to a different state after filing a lawsuit. Under the "time of filing" rule, such a move doesn't work because a lawsuit by, say, a California resident against a California resident fails to qualify for diversity jurisdiction simply because the plaintiff subsequently moves to another state (e.g., Oregon).

Sometimes legal concepts are best explained by reference to science fiction. For instance, I teach my Criminal Law students about proximate causation by discussing the classic Ray Bradbury short story, "A Sound of Thunder." The defendants' brief in Righthaven, LLC v. Newsblaze, LLC, 2011 WL 5143472 (D.Nev. 2011), does the same thing for the "time of filing" rule by citing to the timeless BBC show "Doctor Who," which just returned for its new season.

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September 21, 2015 | Permalink | Comments (5)

Friday, September 18, 2015

Court of Appeals of Maryland Finds Protective Housing for a Witness Wasn't a "Benefit"

Witnesses in criminal trials have typically a variety of interactions with the State prior to testifying under oath before a judge and/or jury. Usually, a witness is interviewed initially by a police officer or detective after the commission of a crime. Witnesses might be offered a monetary reward in exchange for coming forward with information pertaining to a crime. Witnesses "with a past" might exchange their testimony for a favorable plea deal arising from the case in which they are to testify or a related matter, or qualified or absolute immunity. In some cases, a witness might fear for his or her life, or for the safety of an immediate family member, and be placed in some form of witness protection program prior to and/or after trial to ensure his or her safety. In the present case, a witness was placed in protective housing for several months leading up to a murder trial after she claimed that the defendant showed up on her doorstep, causing her to be in fear of retaliation for talking with the police. We consider here whether her placement in reasonable protective housing constitutes a "benefit" that would compel the trial judge, upon request by the defendant, to give a particularized jury instruction pertaining to that witness's credibility (Maryland Criminal Pattern Jury Instruction (2nd ed.2012, 2013 Supp.) 3:13, "Witness Promised Benefit"). We conclude that it does not. Preston v. State, 118 A.3d 902 (Md. 2015).

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September 18, 2015 | Permalink | Comments (4)

Thursday, September 17, 2015

Maryland Public Defender Trying to Get Juvenile Life Without Parole Sentences Tossed

According to a recent article,

The Maryland Office of the Public Defender's post-conviction division has adopted a strategy to help ensure juveniles convicted of crimes and serving life sentences without the possibility of parole are resentenced following a U.S. Supreme Court ruling that such punishments are cruel and unusual.

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September 17, 2015 | Permalink | Comments (11)

Wednesday, September 16, 2015

A Legal Analysis of the Stay of Execution Entered in the Richard Glossip Case

Just three hours before Richard Glossip was scheduled to be executed, the Oklahoma Court of Criminal Appeals granted him a stay of the execution until September 30th. The Glossip case initially garnered a lot of attention when the Supreme Court denied Glossip's claim that Oklahoma's use of midazolam as the first drug in its lethal injection protocol violated the Eight Amendment earlier this year. 

Glossip was convicted of the murder of motel owner Barry Van Treese in large part due to the testimony of Justin Sneed, who claimed that Glossip hired him to murder Van Treese. The stay of execution was granted based upon a "successor petition" filed by Glossip, which was based upon an affidavit by a fellow inmate, who indicated that "among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river."

A "successor petition" earns its name because the petition is a "successor" to prior postconviction petitions. The standard used by federal and state courts is similar. 28 U.S.C. Section 2244(b) provides that

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—...


(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

In other words, a successor petition can only be brought if it tends to establish actual innocence and could not have previously been discovered. Given that the other inmate only came forward in the last few weeks and tends to establish Glossip's actual innocence, it made sense for the court to grant a stay. It also makes sense given that courts generally require only a prima facie showing of actual innocence to grant successor petitions (although this standard is rarely met).

So, what happens next? According to the court, it granted the stay to "give fair consideration to the materials included" in the successor petition. We'll see what that means in the next two weeks.


September 16, 2015 | Permalink | Comments (5)

The Law Behind the Possible Transfer of Jay's Case to Baltimore County

In Monday's eleventh episode of the Undisclosed Podcast, we noted how Jay's defense counsel believed that, if he did not plead guilty to accessory after the fact to murder in Baltimore City, his case would have been transferred to Baltimore County, where he would have been charged with murder and faced the death penalty. Given time limitations, I just briefly touched upon why such a transfer would have been possible. In this post, I will flesh out this analysis.

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September 16, 2015 | Permalink | Comments (15)

Tuesday, September 15, 2015

Harris v. State: The Most Important Case for Adnan Syed?

I've written about a lot of Maryland precedent on this blog in connection with the Adnan Syed case. Perhaps no Maryland case, however, is as important as the case we discussed in last night's eleventh episode of the Undisclosed Podcast: Harris v. State. In this post, I will discuss that case in more depth.

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September 15, 2015 | Permalink | Comments (27)

Monday, September 14, 2015

The Maryland State Police Aviation Unit Declined a Request to Search For Hae's Sentra Via Helicopter

This is neither here nor there, but I came across this document in the MPIA files from the Adnan Syed case:

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I wonder why the request was denied. It seems like a murder case is pretty high priority, and Hae's Sentra was eventually found pretty close to Leakin Park. According to the Aviation Unit/Command,

The Maryland State Police Aviation Command is a public safety organization. Its mission is to protect and improve the quality of life through the airborne delivery of emergency medical transportation, law enforcement, search and rescue, homeland security and disaster assessment services to citizens of the State of Maryland and its neighbors 24 hours a day.


September 14, 2015 | Permalink | Comments (17)

Thursday, September 10, 2015

The Multiple Sclerosis Fraud Case Handled by Cristina Gutierrez in 1999/2000

In prior posts, I've discussed several other first-degree murder cases handled by Cristina Gutierrez while she was representing Adnan Syed in 1999-2000. In addition to these murder cases, Gutierrez also handled another case with a connection to Adnan's case and Gutierrez's own condition.


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September 10, 2015 | Permalink | Comments (17)

Tuesday, September 8, 2015

Another First-Degree Murder Case Handled by Cristina Gutierrez in 1999

I have written before about some of the other first-degree murder cases that Cristina Gutierrez was handling at the same time that she was handling the Adnan Syed case. We can now add another to the roster: State v. Matthews.

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September 8, 2015 | Permalink | Comments (23)

Friday, September 4, 2015

Undisclosed Extra: An Audio Answer to an 11th Twitter Question on My Blog

I recorded 10 responses to Twitter questions for Monday's Undisclosed Minisode. I passed 10 of them along to our sound editor, leaving on additional Twitter question and answer. Here's the raw audio for that answer, in which I discuss one of my favorite Supreme Court cases, which involves none other than Detective William Ritz:

Play: Play Gray


Download Download Gray.wav


September 4, 2015 | Permalink | Comments (19)

Thursday, September 3, 2015

Cropped Video Deemed Inadmissible Due to Rule of Completeness, Best Evidence & Chain of Custody Issues

There's an interesting case out of Arizona that ties directly into the subjects I'm covering both in Evidence class and on the Undisclosed Podcast. That case is State v. Steinle, 2015 WL 4497917 (Ariz.App. 2015).

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September 3, 2015 | Permalink | Comments (20)

Wednesday, September 2, 2015

More on Jay's Ride-Along Notes and The Mom Call

On Monday's Addendum Episode, we talked about the notes from the ride-along that Jay did with detectives on March 18, 1999. Here are the notes in which Jay explains how he dropped Adnan off (late) for track practice on January 13, 1999:

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I described the listed phone call as "The Mom Call."

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September 2, 2015 | Permalink | Comments (32)

Tuesday, September 1, 2015

What Can the Video of Hae Min Lee's Sentra Tell Us About the Windshield Wiper Lever?

Today, Rabia ChaudrySusan Simpson, and I appeared on The Docket with Seema Iyer. The full episode can be accessed by clicking on this link. Part of our discussion focused on the video taken of the "broken" windshield wiper lever in Hae Min Lee's Nissan Sentra. The background for that video can be found in this post. That post, of course, was written before we had the video. Now, we do. So, what does it show us?

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September 1, 2015 | Permalink | Comments (35)

Monday, August 31, 2015

Texas's In Camera Approach to Releasing CrimeStoppers Information to Defendants

In a comment to my post last Thursday, I noted how the State of Maryland could respond to requests about CrimeStoppers tips. Under this procedure, CrimeStoppers tip information would be given to the judge to review in camera. If the judge thought that this information contained possible Brady material, he would turn the information over to the defense. If the judge thought that this information did not contain possible Brady material, it would be returned to the State. Interestingly enough, this is the exact procedure followed in Texas.

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August 31, 2015 | Permalink | Comments (21)

Friday, August 28, 2015

Answering Two Questions About the Intersection of CrimeStoppers & Brady

Over the past week, I've been following up on Monday's episode of the Undisclosed Podcast and digging into the possible legal implications of the State's failure to disclose that a CrimeStoppers tipster received the full $3,075 reward for information supplied in connection with the death of Hae Min Lee. In today's post, I will delve even deeper into the weeds by answering a couple of questions.

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August 28, 2015 | Permalink | Comments (25)

Thursday, August 27, 2015

The Discoverability & Admissibility of CrimeStoppers Information in Maryland

The next big question in the Adnan Syed case is whether and when the State will disclose the identity of the CrimeStoppers tipster and the content of his or her tip. The one thing I am confident about is that the State should be required to disclose this information. The reason for this is that, as I noted on the podcast, attempts to limit the discoverability and admissibility of such information in Maryland have been shot down.

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August 27, 2015 | Permalink | Comments (25)

Wednesday, August 26, 2015

Long Way Home: Would Jay Angling for the CrimeStoppers Reward be Enough for a New Trial?

On Monday's episode of the Undisclosed Podcast, we noted how a CrimeStoppers reward of $3,075 was collected on November 1, 1999 in connection with the Hae Min Lee case. We also speculated that this reward could have been claimed by Jay based in part on some interesting documents relating to a motorcycle being sold by Jay's former soccer coach. Let's assume, however, for the sake of argument that Jay didn't actually receive the CrimeStoppers reward. Even in that scenario, there's a good argument that Adnan is entitled to a new trial.

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August 26, 2015 | Permalink | Comments (25)

Tuesday, August 25, 2015

Long Way Round: More on CrimeStoppers and Episode 10 of Undisclosed

In last night's Episode 10 of the Undisclosed Podcast, we noted that a tip was made to Metro CrimeStoppers on February 1, 1999 that led to the tipster receiving the full reward amount of $3,075 on November 1, 1999. In this post, I will provide further information about the tip and its possible legal consequences.

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August 25, 2015 | Permalink | Comments (42)

Monday, August 24, 2015

Adnan's Attorney Files a Supplement to the Motion to Reopen Based Upon Cell Phone Evidence

Today, Justin Brown filed a Supplement to Motion to Re-Open Post-Conviction Proceedings on behalf of Adnan Syed. The Supplement asks the court to consider evidence such as the AT&T Cover Sheet to show that, inter alia, (1) the cell tower pinged by incoming calls was not reliable to determine the location of Adnan's cell phone; and (2) the 5:14 P.M. "call" on Adnan's call log was a missed call that went to voicemail and not Adnan checking his voicemail. Brown is asking that this evidence be considered "in the interests of justice," which is the standard under Section 7-104 of the Maryland Code of Criminal Procedure.

This is a pretty nebulous standard, so the judge has a great deal of discretion in considering the issue. That said, I think one argument by Brown is especially compelling. According to the Supplement (pages 8-9):

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In other words, the State didn't claim at trial or during the PCR hearing that the incoming 3:15 P.M. call could have been the "Best Buy call." Instead, it made this argument for the first time in its Brief of Appellee to the Court of Special Appeals of Maryland to try to show that it could have created a timeline that could have worked even if the Asia alibi had been presented. 

Given that this new argument now needs to be addressed by the Maryland courts, they need all relevant information about that call, including whether the cell tower it pinged was important. Therefore, I think that the court should allow the Supplement.


August 24, 2015 | Permalink | Comments (29)

Friday, August 21, 2015

Adnan's Handwritten Account of His Whereabouts on January 13th & His Role in Planning Hae's Memorial

On August 25, 1999, Adnan was visited in prison by one of Cristina Gutierrez's law clerks, resulting is Adnan talking with the clerk about January 13, 1999 and his role in planning Hae's memorial service. Here's the portion of the clerk's memo dealing with these two things:

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August 21, 2015 | Permalink | Comments (26)