Monday, October 17, 2016
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.
Tuesday, October 11, 2016
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.
Monday, October 10, 2016
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:
Friday, October 7, 2016
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?
Wednesday, October 5, 2016
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.
Tuesday, September 27, 2016
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.
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.
So, what was the response by the Attorney General, the FBI, and the National District Attorneys Association (NDAA) to this report?
Wednesday, September 21, 2016
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).
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.
Friday, September 16, 2016
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.
Thursday, September 15, 2016
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.
Wednesday, September 14, 2016
North Carolina Subcommittee Approves Rule Requiring Prosecutors to Turn Over Post-Conviction Evidence of Innocence
Pursuant to Rule 3.8(g) of the Model Rules of Professional Conduct,
When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
Rule 3.8 covers the Special Responsibilities of a Prosecutor, and it was created in response to cases like the (initial) prosecution of Steven Avery.
Monday, September 12, 2016
The Oxford Police Department approached the 1978 stabbing and strangulation of Elizabeth Andes as an open-and-shut case. This mindset was bolstered by the next-day confession of Andes’ boyfriend, Bob Young, who admitted to the slaying after 15 straight hours of interrogation. But Young immediately recanted the confession, saying he was tired, traumatized and confused. Two separate juries – one criminal, the other civil – found him not guilty of the crime.
But Oxford Police refused to re-investigate the case, telling reporters at the time that the juries got it wrong and Young got away with murder. Several of the players to this day maintain that they’d charged the right guy.
That’s where journalists Amber Hunt and Amanda Rossmann have stepped in. The two have dedicated a year re-investigating the case – more thoroughly, it turns out, than did the initial detectives. They’ve tracked down people that police weren’t able to find and uncovered information overlooked in 1978. The resulting podcast, titled “Accused: The Unsolved Murder of Elizabeth Andes,” lays out the story while uncovering strong leads never pursued by police.
I highly recommend it.
Thursday, September 8, 2016
Yesterday, American Public Media premiered the first two episodes of the new podcast, "In the Dark," by Madeleine Baran. Baran is a reporter for APM Reports, American Public Media's investigative reporting and radio documentaries project. In 2015. she won a Peabody Award for her role in the documentary, "Betrayed By Silence," which took an indepth look into the child sex-abuse scandal in the Archdiocese of St. Paul and Minneapolis. She is also a guest on tonight's episode of the Undisclosed Podcast.
Wednesday, September 7, 2016
Why Incriminatory Police Reports Are Unreliable/Inadmissible & Exculpatory Police Reports Are Reliable/(Potentially) Admissible
In response to Monday's post, I've been getting a lot of questions about the admissibility/reliability of police reports. The long and short of the analysis is this: If a police report contains information that seems helpful to the defense, that information is thought to be reliable and admissible against the prosecution (barring another reason for inadmissibility). On the other hand, if a police report contains information that seems helpful to the prosecution, that information is thought be unreliable and inadmissible against the defendant.
Monday, September 5, 2016
Here's a quick post on the Adnan Syed case for Labor Day. On March 9, 1999, Detectives Ritz and Carew interviewed Not Her Real Name Cathy (NHRNC). We've known about this for quite some time. We also knew that the detectives thereafter interviewed NHRNC's boyfriend Jeff on March 11, 1999, with only the cover sheet (final page) for that interview surviving.
Friday, September 2, 2016
Jury Takes 5 Minutes to Acquit Tony Wright After Retrial Held Despite DNA Evidence Proving His Innocence
Here's a pretty incredible story out of Philadelphia:
Last week, after 25 years in prison for rape, robbery and murder, Tony Wright was found not guilty in a two-and-a-half-week re-trial – a verdict that took a jury of his peers just five minutes to deliberate. “The evidence of his innocence was so overwhelming that there could’ve been no other verdict,” said Grace Greco, the jury forewoman, at a packed and emotional press conference in the Philadelphia offices of Wright’s star-studded legal team. “I’m angry that this case was ever re-tried, but thrilled that we were able to release Tony from this nightmare of twenty-five years.”
Wright, however, very nearly never had a chance to prove his innocence.
Monday, August 29, 2016
In a lawsuit that could only have been filed in latetwentieth-century America, a newly minted millionaire has filedthis defamation action against the producer of a seven-and-a-halfminute satirical videotape that in fifty-nine film clips spoofsthe transaction in which the plaintiff acquired his riches. In order to test the legal viability of plaintiff’s claim, asdefendant invites us to do, we must view the video with care against the screen of its public exhibition. Karl v. Donaldson, Lufkin & Jenrette Securities Corp., 78 F.Supp.2d 393 (E.D.Pa. 1999).
Would it surprise anyone to learn that the offending clip came from a Coen Brothers movie?
Friday, August 26, 2016
DOJ Files Amicus Brief Supporting Man's Claim That Georgia's Bail Schedule System is Unconstitutional
Undisclosed listeners might look at the above map and conclude that it pertains to our second season case. That's because, on January 11, 2000, Isaac Dawkins was driving north from Rome on Route 27 to his family's home in Armuchee when he was fatally shot. But shift your focus to the upper right of the map, and you will see the the city of Calhoun, Georgia, the home of the New Echota Historical site, commemorating the first Cherokee capital. Now, it could also be the site of a revolution in the way the we view bail.
Thursday, August 25, 2016