EvidenceProf Blog

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

Tuesday, March 22, 2016

Federal Circuit Creates New Patent-Agent Privilege In Samsung Case

On March 7th, the United States Court of Appeals for the Federal Circuit issued a groundbreaking opinion: In Re Queen's University at Kingston, 2016 WL 860311 (Fed. Cir. 2016). In that opinion, the Federal Circuit created a brand new privilege: the patent-agent privilege

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March 22, 2016 | Permalink | Comments (2)

The Jacob D. Fuchsberg Law Center of Touro College Seeks Visiting Professors

JOB ANNOUNCEMENT

Visiting Professor

Touro Law Center

The Jacob D. Fuchsberg Law Center of Touro College invites applications for Visiting Professors to teach one or more of the following courses: Civil Procedure and Torts during the fall 2016 semester and Evidence the spring 2017 semester. Teaching experience in one or more of these three courses is required. The Law Center will entertain expressions of interest for one semester and full-year appointments based on teaching experience and curricular needs.

Touro Law Center is a student-centered school conveniently across the street from the Eastern District of New York courthouse and is located only 45 miles from New York City in Suffolk County, Long Island, New York. We seek candidates with a demonstrated commitment to excellence in teaching and mentoring students, as well as a willingness to engage in the intellectual academic life of the Law Center.

Touro Law is dedicated to the goal of diversity and strongly encourages applications from women and minorities. Applications will be reviewed on a rolling basis. Applications must include a resume and statement of interest and should be mailed to Professor Meredith R. Miller, Chair, Faculty Appointments Committee, at

mmiller@tourolaw.edu<mailto:mmiller@tourolaw.edu>

March 22, 2016 | Permalink | Comments (0)

Monday, March 21, 2016

"Subscriber Activity" and Applying the Analytical Gap Test to Chad Fitzgerald's Testimony

In today's "Subscriber Activity" episode of the Undisclosed Podcast, we discussed the testimony by FBI Special Agent Chad Fitzgerald. From Susan Simpson's notes, it appears as if Fitzgerald and his friend at AT&T* assumed that the AT&T disclaimer about incoming calls being unreliable for determining location only applied to calls that went to voicemail because the recipient's phone was turned off. Of course, as we also noted, at other points during his testimony, Fitzgerald seemed to indicate that there were other circumstances when incoming calls could be unreliable for determining location, such as the "check-in lag" scenario.

But let's stick for now with Fitzgerald's initial statement about the limited nature of the AT&T disclaimer. Does that testimony survive the "analytical gap" test that I mentioned during the episode?

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March 21, 2016 | Permalink | Comments (8)

Friday, March 18, 2016

The Statement of Facts for Jay's Guilty Plea & The Location of Hae's Car

I did a talk about the Adnan Syed case earlier this week, and it led me to reconsider something I had nearly forgotten.* While Jay's guilty plea was initially held sub curia, a "Statement of Facts" was eventually submitted to support that plea. Here is that Statement of Facts: Download Statement of Facts. Most of these facts are what you'd expect given the narrative and timeline that the prosecution presented at trial. For instance, the Statement of Facts indicates that

Screen Shot 2016-03-18 at 11.31.25 AM

This is very much consistent with the State's timeline, which had the Best Buy call at 2:36 P.M. and very much inconsistent with Jay's own statements and testimony, which placed that call at 3:40 P.M. or later. Of course, Jay initially said that this call came from a strip off of Edmondson Avenue and not from the Best Buy. Maybe, then, this portion of the Statement of Facts is simply a vestige of Jay's first recorded statement:

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This portion is stating what Adnan did after the Leakin Park burial, but the reference to taking Hae's car "back to Edmondson Avenue" makes no sense given that there was no initial trip to Edmondson Avenue; in the "Statement of Facts" version, the trunk pop took place at Best Buy, and Edmondson Avenue doesn't come into play until after the burial. Actually, it doesn't come into play at all.

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March 18, 2016 | Permalink | Comments (21)

Thursday, March 17, 2016

Supreme Court of Ohio Gives Slap of the Wrist to Prosecutor Who Catfished Alibi Witnesses

I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being "disciplined" is the way in which he was "disciplined" by the court. So, what were the exact facts of the case?

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March 17, 2016 | Permalink | Comments (5)

Wednesday, March 16, 2016

Proposed D.C. Local Rule Would Expand Prosecutors' Brady Obligations

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I've noted before, has long advocated for Brady reform. If you are in favor of this local rule change, which I will describe below, you can send positive comments in writing to

John Aldock, Esq., Chairman, Advisory Committeeon Local Rules, Goodwin Procter LLP, 901 New York Avenue, N.W; Washington, DC 20001. 

Such comments must be made by March 30, 2016. Unless negative comments lead to the proposed rule being modified or withdrawn, they will be adopted as written. So, what does would this new local rule provide?

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March 16, 2016 | Permalink | Comments (4)

Tuesday, March 15, 2016

Supreme Court's Opinion in Wearry v. Cain Could Have an Effect on Adnan's Appeal

A week ago, the United States Supreme Court issued its opinion in Wearry v. Cain. As has already been noted, this opinion could have an effect on Judge Welch's opinion in the Adnan Syed case. In this post, I will explain why.

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March 15, 2016 | Permalink | Comments (12)

Friday, March 11, 2016

Assessing Jay's Claim of a 3:40ish "Come & Get Me" Call Based Upon His Pre-Interview

One of the very few consistent elements in Jay's story is that Adnan placed the "come and get me" call to his cell phone at about 3:40 P.M. Given that there were no incoming calls to Adnan's cell phone between 3:15 and 4:27 P.M., Jay's timeline creates an obvious problem. I've seen three main explanations for this timing discrepancy: (1) Adnan did not make a "come and get me" call to his cell phone; (2) Jay is bad with time; and/or (3) Jay intentionally moved the "come and get me call" to 3:40ish so that he could use the Pusateris as alibis.

The obvious problem with scenario #1 is that it completely undermines the credibility of Jay's entire story. The narrative that Adnan lent Jay his cell phone so that he could call him after the murder is at very heart of the State's first-degree murder/kidnapping/false imprisonment case. If that story is a complete fabrication, how can we possibly believe anything that Jay said? This then takes us to scenarios 2 and 3, which in turn takes us to Detective Ritz's pre-interview notes.

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March 11, 2016 | Permalink | Comments (29)

Thursday, March 3, 2016

A Quick Post About the Recent Opinion in the Sabein Burgess Case

I don't have much time now, but I wanted to do a quick post about the recent opinion of the United States District Court for the District of Maryland in Burgess v. Baltimore Police Department. We discussed Burgess's case on Undisclosed, and here is a good article about it. Basically, Sabein Burgess 

was convicted of first-degree murder and sentenced to life in prison in 1995 in the shooting death of his girlfriend, Michelle Dyson, in her Harwood home the year before...

In October 1998, a prisoner named Charles Dorsey wrote to Burgess' mother saying he was behind the killing....

Detectives interviewed Dorsey but discounted the confession because it lacked details....

In April 2010, the Mid-Atlantic Innocence Project obtained previously undisclosed police notes in Burgess' case. They included statements that Dyson's then-6-year-old son, Brian Rainey, had made a statement that cast doubt on Burgess' involvement.

In 2012, Rainey, who was incarcerated at the time, said he had witnessed the moments before his mother's killing and corroborated Dorsey's account. He and Dorsey both wrote affidavits with their accounts of the night Dyson was killed.

The mounting evidence prompted a Baltimore judge to order a new trial in February 2014. The state's attorney's office dropped charges against Burgess.

Thereafter, Burgess filed a federal lawsuit against several defendants, including the Baltimore City Police Department, Detective William Ritz (who interviewed Dorsey but didn't disclose his confession to the defense), and Daniel Van Gelder, a crime laboratory analyst.*

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March 3, 2016 | Permalink | Comments (5)

Wednesday, March 2, 2016

Maryland Murder Reversal Involves Pings & State's Failure to Turn Over Cell Phone/Tower Instructions

Last week I did a post about the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), which "require[d] the prosecution to offer expert testimony to explain the functions of cell phone towers, derivative tracking, and the techniques of locating and/or plotting the origins of cell phone calls using cell phone records." It turns out that the Court of Special Appeals of Maryland isn't the only court to reach this conclusion. Instead, the Court of Appeals of Maryland reached the same conclusion in State v. Payne, 104 A.3d 142 (Md. 2014), a case that also involved the State failing to properly turn over cell phone/tower instructions to the defense.

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March 2, 2016 | Permalink | Comments (5)

Tuesday, March 1, 2016

A Brief Post on Adnan's Motion to Supplement the Record

Today, Adnan's attorney, Justin Brown, filed a motion to supplement the record in the reopened PCR proceedings. Specifically, he is seeking to supplement the record with (1) a letter from Deputy Attorney General Thiru Vignarajah indicating that Professor Michael Millemann solely represented Adnan back in 1999 "for the limited purpose of enforcing the defendant’s right to be represented by counsel of his choice;" and (2) a letter from Professor Millemann indicating that Vignarajah (a) failed to contact him before describing his role at the proceedings; (b) misrepresented his role at the proceedings;  (c) failed to run his letter by Millemann before sending it to Judge Welch; and (d) misrepresented the nature of Millemann's objection in his letter.

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March 1, 2016 | Permalink | Comments (12)

Monday, February 29, 2016

A Proposed Test for How the Court Should Assess the Misleading Disclosure Brady Claim in Adnan's Case

There are three ways that the State can commit a Brady violation:

1. The State completely fails to disclose material exculpatory evidence to the defense. See Brady v. Maryland.

2. The State makes a misleading disclosure of material exculpatory evidence. See Ware v. State, 702 A.2d 699 (Md. 1997) ("If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well.")

3. The State makes an untimely disclosure of material exculpatory evidence. See infra.

In Adnan's case, Justin Brown is claiming that the State made a misleading disclosure of the AT&T cover sheet, with that cover sheet constituting material exculpatory evidence. As the Court of Appeals of Maryland noted in Ware, misleading disclosures of material exculpatory evidence will seldom, if ever, be excusable. That said, the Ware court neither fleshed out the definition of a misleading response/disclosure nor gave any indication of when such a response/disclosure might be excusable under Brady. In this post, I will argue that Maryland courts should use the same criterion for determining category 2 (misleading disclosure) violations that they use for determining category 3 (late disclosure) violations.

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February 29, 2016 | Permalink | Comments (6)

Friday, February 26, 2016

The Game is Not Worth the Candle: Is Chad Fitzgerald's Testimony Enough For a New Trial?

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In yesterday's post, I noted how Judge Welch can grant Adnan a new trial even without delving into the substantive issue of whether AT&T cell tower pings from incoming calls were (un)reliable back in 1999. Simply put, the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), requires an expert to vouch for the accuracy of such information, and the State's cell phone/tower expert at trial, Abraham Waranowitz, has now indicated that he would not have given such testimony if he had been shown the fax cover sheet/disclaimer.

If Judge Welch does delve into this substantive issue, it appears that there is a "battle of the experts." According to Keene Corp., Inc. v. Hall, 626 A.2d 997 (Md.App. 1993), this substantive issue should be resolved in Adnan's favor unless Judge Welch finds State expert Chad Fitzgerald more knowledgeable than Waranowitz and defense expert Gerald Grant. But even if Judge Welch does find Fitzgerald more knowledgeable, there is still a good chance that Judge Welch would rule in Adnan's favor.

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February 26, 2016 | Permalink | Comments (7)

Thursday, February 25, 2016

Court of Special Appeals of Maryland Opinion Implies Waranowitz's Affidavit Necessitates a New Trial

In connection with Adnan Syed's reopened postconviction review proceeding, Abraham Waranowitz submitted the following affidavit:

Screen Shot 2016-02-25 at 6.47.51 PM

In any jurisdiction, this affidavit would have been tremendously important. Based upon the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), it might just be dispositive.

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February 25, 2016 | Permalink | Comments (7)

Wednesday, February 24, 2016

Court of Appeals of Kansas Finds Alibi IAC Despite Concerns About Alibi Perjury, Hostility & Tampering

At the reopened PCR proceedings in the Adnan Syed case, the Deputy Attorney General tried to sell the following scenario to Judge Welch: Asia McClain's first letter was an offer to perjure herself as an alibi witness for Adnan. Meanwhile, her second letter was backdated to March 2nd despite being written at a later date based upon information provided by Adnan. Indeed, the Deputy AG even seemed to imply that the second letter might have been written by Adnan himself. 

According to the Deputy AG, under this scenario, which he admitted was "just a theory," Cristina Gutierrez certainly would have been relieved of her obligation to contact Asia McClain. Right? Wrong, at least according to the Court of Appeals of Kansas in State v. Sanford, 948 P.2d 1135 (Kan.App. 1997). 

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February 24, 2016 | Permalink | Comments (3)

Tuesday, February 23, 2016

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

In the recent reopened PCR proceedings, Adnan made the claim that the State violated the Brady doctrine by failing to disclose that an AT&T disclaimer about incoming calls being unreliable for determining location applied to Exhibit 31 (which did not include the disclaimer or the page indicating that the exhibit was a Subscriber Activity report). So, is there an analogous case finding a Brady violation under similar circumstances? Absolutely. 

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February 23, 2016 | Permalink | Comments (17)

Monday, February 22, 2016

The Order Denying Kesha Relief Had Nothing to do With Her Abuse Allegations Against Dr. Luke

I've gotten a lot of questions from readers about the order denying Kesha relief in her lawsuit against Dr. Luke (Lukasz Gottwald) and Sony. I haven't seen an actual copy of the order, but I have seen Kesha's motion, and the media seems to have missed an important part of the story: It has nothing to do with the abuse allegations against Dr. Luke.

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February 22, 2016 | Permalink | Comments (2)

Sunday, February 21, 2016

Live Tweeted Murder Case Raises Interesting Mixed Lividity Issues

The Adnan Syed PCR proceeding was probably the first that many people followed via Twitter. But it's certainly not the only court proceeding to receive social media attention. Yesterday, a reader sent me information regarding the Timoty McVay case, which apparently contained interesting testimony about mixed lividity. 

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February 21, 2016 | Permalink | Comments (8)

Friday, February 19, 2016

Court of Appeals of Maryland Steps in to Sort out 5th Amendment Issue in Freddie Gray Trials

Yesterday, I posted an entry about the George Johnson case, in which Johnson has claimed that Thiruvendran Vignarajah violated the Fifth Amendment by calling his alleged co-conspirator, Derrick Toomer, knowing that Toomer would invoke his privilege against self-incrimination when asked about the crime. The State's response is that this was not inconsequential theater because Vignarajah had offered Toomer immunity, meaning that he was justified in calling him to the stand. In turn, Johnson has argued that such immunity couldn't protect Toomer against federal prosecution and that Toomer was appealing his conviction, meaning that there could be a retrial and the very real danger that Toomer's testimony could be used against him at that retrial.*

Hours later, it was reported that the Court of Appeals of Maryland "halt[ed] trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants." In other words, Maryland's highest court is addressing the same issue that is at the heart of Johnson's appeal.

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February 19, 2016 | Permalink | Comments (3)

Thursday, February 18, 2016

Appeal Claims Thiru Vignarajah Violated 5th Amendment & Brady in 1st Degree Murder Case

Today, I'm teaching the Fifth Amendment in my Criminal Adjudication class. Interestingly, there is a current appeal before the Court of Special Appeals of Maryland claiming that current Deputy Attorney General Thiruvendran Vignarajah (the Deputy AG from Adnan's case) violated the Fifth Amendment (as well as the Brady doctrine and the rules regarding closing arguments) in a murder trial. Also interesting is the fact that the attorney representing the appellant is one of the law clerks who worked on the Adnan Syed case for Cristina Gutierrez.

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February 18, 2016 | Permalink | Comments (4)