EvidenceProf Blog

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

Monday, September 12, 2016

Podcast Recommendation: "Accused" by Amber Hunt and Amanda Rossmann

This weekend, I listened to the first two episodes of the Accused podcast. Here is the Cincinnati Enquirer's description of the podcast:

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.

Accused

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September 12, 2016 | Permalink | Comments (6)

Thursday, September 8, 2016

The "In the Dark" Podcast and the Wetterling Act

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.

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September 8, 2016 | Permalink | Comments (2)

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. 

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September 7, 2016 | Permalink | Comments (5)

Monday, September 5, 2016

The Second Interview of Not Her Real Name Cathy

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.

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September 5, 2016 | Permalink | Comments (31)

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.

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September 2, 2016 | Permalink | Comments (4)

Monday, August 29, 2016

The Coen Brothers, "FoxTrot," and Malum in Se vs. Malum Prohibitum

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? 

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August 29, 2016 | Permalink | Comments (2)

Friday, August 26, 2016

DOJ Files Amicus Brief Supporting Man's Claim That Georgia's Bail Schedule System is Unconstitutional

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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. 

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August 26, 2016 | Permalink | Comments (2)

Thursday, August 25, 2016

Court of Special Appeals Will Only Review Judge Welch's Decision to Reopen For Abuse of Discretion

Today, Steve Klepper made  a great point about the State's appeal in the Adnan Syed case:

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Let's break down exactly what this means.

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August 25, 2016 | Permalink | Comments (10)

Wednesday, August 24, 2016

What Can The Far Side and a Jigsaw Puzzle Teach Us About Guilt Beyond a Reasonable Doubt?

Here's a hypothetical I just created to teach my Criminal Law students about proper and improper prosecutorial descriptions of the concept of guilt beyond a reasonable doubt:

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August 24, 2016 | Permalink | Comments (10)

Monday, August 22, 2016

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

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From the State's Conditional Application for Limited Remand

 

Today, the Maryland Attorney General filed a "Conditional Application for Limited Remand." That application is based upon the allegation that Asia McClain told two sisters back in 1999 that she was going to fabricate an alibi to assist Adnan Syed. Given that  Deputy Attorney General Thiru Vignarajah has a history of overpromising and underproducing in this case, there is reason to view this assertion with skepticism. After all, back in February, Vignarajah promised that

1. Attorney Billy Martin would testify that Cristina Gutierrez performed reasonably at Adnan's trial(s);

2. Officer Steve would testify that Adnan was not at the Woodlawn Public Library on January 13, 1999; and

3. FBI Special Agent would testify that the AT&T disclaimer did not apply to the Leakin Park pings.

Of course, Martin never testified, Officer Steve did not say anything close to what Vignarajah claimed he would say, and Officer Steve's testimony went over like the Hindenburg.

I can't tell whether Vignarajah is overpromising this time, but I can tell that he has underproduced with regard to precedent that would support yet another remand.

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August 22, 2016 | Permalink | Comments (37)

Consider Supporting the Petition Asking Mike Pence to Pardon Keith Cooper

Back in January, I posted an entry about Kristine Guerra's "Stolen Freedom," a series of stories that examined "the issue of wrongful imprisonment and shares the stories of people who have suffered this injustice." The first entry in that series was about the case of Keith Cooper. You can read Guerra's article for the full story, but the basics are laid out in a change.org petition:

In 1997, Keith Cooper was wrongly accused and convicted of a crime he did not commit. He was sentenced to 40 years for a horrible robbery, but it later became apparent a miscarriage of justice had occurred. A jailhouse informant against Cooper recanted his testimony and a DNA test on a hat recovered at the scene of the crime matched a different man serving time for a 2002 murder. Even the robbery victims, pushed by an investigator to identify Cooper, have said that they misidentified him.

In 2006, as the case against Cooper began to fall apart, he was offered a deal to get out of prison. He could be retried, waiting for his trial while still in prison, or he could be released with time served, though with his conviction still on his record. Having heard that his family was living in a homeless shelter, Cooper took the deal. He has been released from prison.

Understandably, given these facts, 

Both the Indiana Parole Board and the prosecutor of the case against him have recommended a full pardon for Keith Cooper. A full pardon is the only way to right this wrong.

The change.org petition closes by noting that

Indiana Governor and Vice Presidential candidate Mike Pence has had a request for Cooper's pardon since March 2014. Please tell him to grant the pardon now.

Right now, the change.org petition asking Mike Pence to pardon Keith Cooper has 97,285 supporters out of 150,000 needed to reach the goal. So, if you have the time, look at the case and support the petition if you agree that Cooper deserves a pardon. If you're so inclined, tell your friend to take a look. Send an e-mail or letter to Pence. At some point, he will need to respond.

-CM

August 22, 2016 | Permalink | Comments (4)

Thursday, August 18, 2016

Justice Department Announces Plan to End its Use of Private Prisons

In a memo issued today by Deputy Attorney General Sally Yates, the Justice Department plans to end its use of private/contract prisons. According to the memo,

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August 18, 2016 | Permalink | Comments (3)

Tuesday, August 16, 2016

California Bill Would Make Altering/Withholding/Modifying Material Evidence a Felony

California Assemblywoman Patty Lopez has introduced a pretty interesting piece of legislation. Under the bill,

Prosecutors who intentionally withhold or falsify evidence could be charged with a felony under a new bill winding through the state Legislature.

Specifically, the bill

would raise prosecutorial misconduct from a misdemeanor to a felony imprisonable by up to 16 months to three years.

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August 16, 2016 | Permalink | Comments (6)

Sunday, August 14, 2016

The Kulbicki Case Shows How COSA Could Excuse Any Possible Waiver of Adnan's IAC/Cell Tower Claim

In a post of July 13th, I noted that Maryland Court Rule 8-131(a) provides that

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

I then noted how, pursuant to Jones v. State, 843 A.2d 778 (Md. 2004), even if the Court of Special Appeals of Maryland finds that Adnan waived his cell tower/IAC claim, it could still excuse that waiver and affirm Judge Welch's order granting Adnan a new trial based upon the claim. Notably, something very similar was done in Kulbicki v. State, 99 A.3d 730 (Md. 2014).

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August 14, 2016 | Permalink | Comments (7)

Thursday, August 11, 2016

An Analysis of the Conditional Application for Leave to Cross Appeal in the Adnan Syed Case

Today, Justin Brown filed a Conditional Application for Leave to Cross Appeal in the Adnan Syed case. This application is "conditional" because it is conditioned on the Court of Special Appeals (COSA) granting the State leave to appeal Judge Welch's opinion granting Adnan a new trial. If COSA denies the State leave to appeal, Judge Welch's opinion granting Adnan a new trial becomes final, and there would be no appeal, meaning that there would be no need for a cross-appeal.

This application is also not a response to the State's Application for Leave to Appeal (ALA). That will come later this week or early next week and argue that the State should not review Judge Welch's conclusion that Cristina Gutierrez was ineffective (IAC) in her handling of the cell tower pings. Instead, this Conditional Application is saying that, if COSA grants the State leave to appeal Judge Welch's opinion granting Adnan a new trial on the IAC/cell tower issue, it should grant the defense leave to (cross)appeal Judge Welch's opinion granting Adnan a new trial on the IAC/alibi witness issue.

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August 11, 2016 | Permalink | Comments (5)

Wednesday, August 10, 2016

The Maryland AG Has Consistently Used Curtis to Prevent Defendants From Making IAC Claims on Direct Appeal

In his opinion granting Adnan a new trial, Judge Martin Welch noted that, pursuant to the opinion of the Court of Appeals of Maryland in Curtis v. State, fundamental rights like the right to the effective assistance of counsel cannot be waived by defendants unless the waiver was knowing and intelligent.  Judge Welch then found that Adnan had not knowingly and intelligently waived his claim that trial counsel was ineffective by failing to use the AT&T disclaimer to challenge the cell tower evidence.

In its Application for Leave to Appeal (ALA), the Maryland Attorney General claimed that "the standard for 'intelligent and knowing' waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided." As I noted on Monday, this claim is incorrect because the Court of Appeals of Maryland did just that in State v. Adams, 958 A.2d 295 (Md. 2008). What seems more troubling is that the Maryland Attorney General itself has claimed 8 times from 2007-2014 that Curtis' "intelligent and knowing" waiver standard applies to ineffective of counsel claims, and it has done so to prevent defendants from making such claims on direct appeal.

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August 10, 2016 | Permalink | Comments (13)

Tuesday, August 9, 2016

South Carolina vs. Federal Rules of Evidence, Take 2: No Delayed Objection to Judicial Interrogation

Yesterday, I noted how South Carolina Rule of Evidence 605 does not contain the "automatic" objection feature of Federal Rule of Evidence 605 when a judge "testifies" at trial. We can see a similar difference between Federal Rule of Evidence 614 and South Carolina Rule of Evidence 614.

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August 9, 2016 | Permalink | Comments (0)

Monday, August 8, 2016

Another Case Where Maryland Found the "Knowing & Intelligent" Waiver Standard Applies to an IAC Claim

In his opinion granting Adnan a new trial, Judge Martin Welch noted that, pursuant to the opinion of the Court of Appeals of Maryland in Curtis v. State, fundamental rights like the right to the effective assistance of counsel cannot be waived by defendants unless the waiver was knowing and intelligent.  Judge Welch then found that Adnan had not knowingly and intelligently waived his claim that trial counsel was ineffective by failing to use the AT&T disclaimer to challenge the cell tower evidence.

In its Application for Leave to Appeal (ALA), the State claimed that "the standard for 'intelligent and knowing' waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided." Later, the State claimed that, "it is not surprising that the State has not found, after conducting a preliminary review, a single Maryland appellate case since Curtis that has applied that standard to an ineffective assistance of counsel claim."

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August 8, 2016 | Permalink | Comments (1)

South Carolina vs. Federal Rules of Evidence, Take 1: No "Automatic" Objection to Judicial Testimony

Recently, South Carolina decided to adopt the Uniform Bar Exam. As such, law school graduates will no longer need to pass a South Carolina component of the South Carolina bar exam to be admitted to the bar. In place of a South Carolina component, there will be lectures by various people on the differences between South Carolina law and federal law in various practice areas. I will be doing the lecture on South Carolina evidence, so I will be spending the next several posts detailing some of the differences between the Federal Rules of Evidence and the South Carolina Rules of Evidence

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August 8, 2016 | Permalink | Comments (4)

Thursday, August 4, 2016

The State's Application for Leave to Appeal in the Adnan Syed Case, Take 2

According to the State's Application for Leave to Appeal (ALA) in the Adnan Syed case, Judge Welch erred in three ways by finding that Adnan did not waive his ineffective assistance/cell tower claim:

First, the standard for “intelligent and knowing” waiver articulated by the Court of Appeals in Curtis v. State, 284 Md. 132 (1978), has never been applied to an ineffective assistance of counsel claim since Curtis was decided. Second, even if it were proper to continue to apply Curtis’s holding to an ineffective assistance of counsel claim, Syed’s claim is readily distinguishable from the claim in Curtis, and application of the Curtis standard should have led the post-conviction court to the conclusion that Syed’s claim was waived. Finally, even if Syed’s claim were the kind of claim that required “intelligent and knowing” waiver, Syed has offered no evidence to rebut the statutory presumption that he “intelligently and knowingly failed” to raise the claim in a prior proceeding.

I will address each of these arguments in this second post on the State's ALA.

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August 4, 2016 | Permalink | Comments (4)