EvidenceProf Blog

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

Thursday, July 16, 2015

Cristina Gutierrez Didn't Realize She'd Subpoenaed Hope Schab in the Adnan Syed Case

Back in May, I did a post about Cristina Gutierrez and her team failing to talk to five State witnesses who received duplicate subpoenas from the defense. Specifically, at Adnan's second trial, prosecutor Kevin Urick noted that five witnesses had complained to him about making calls to Gutierrez's office that went unreturned.

I later added context to this issue by posting a copy of the defense letter sent to French Teacher Hope Schab in connection with the duplicate subpoena she received from the defense:


Now, with the release of additional missing pages from the trial transcript, I can pretty confidently confirm that Ms. Schab was one of these five witnesses whom the defense failed to contact. I can also pretty confidently confirm that this was an oversight by Gutierrez rather than a matter of trial strategy.

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July 16, 2015 | Permalink | Comments (27)

Wednesday, July 15, 2015

New Article of Interest: "Reclaiming the Importance of the Defendant’s Testimony"

I recommend Anna Roberts' (Seattle University School of Law) article forthcoming in the University of Chicago Law Review, now available on SSRN: Reclaiming the Importance of the Defendant’s Testimony

Prof. Roberts' article addresses an important topic that I have written about on this blog and elsewhere -- regarding the flawed five-factor framework employed by the federal courts (and many state courts) in assessing the admissibility of a testifying defendant’s prior convictions.  We have different takes on the topic but find common ground on the urgent need for reform!

Abstract follows after the break.

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July 15, 2015 | Permalink | Comments (0)

Tuesday, July 14, 2015

The Law(s) Behind Episode 7 of Undisclosed

Last night's episode of the Undisclosed Podcast was pretty legally dense, so I thought that I would do a post explaining some of the legal topics that were discussed.

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July 14, 2015 | Permalink | Comments (19)

Monday, July 13, 2015

The Track Coach Whom Cristina Gutierrez Failed to Contact in the Adnan Syed Case

I've written a few posts about Woodlawn's track practice on January 13, 1999. For instance, in this post, I addressed the question of whether track practice started at 3:30 P.M. Later, in this post, I noted how Adnan's defense team failed to contact his track teammate Will despite having every reason to believe that he could have had information that would have completely destroyed the State's case. But what if there were another person connected to the track team whom the defense erroneously failed to contact?

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July 13, 2015 | Permalink | Comments (16)

Friday, July 10, 2015

Additional Context & A Call for Information About the Missing Police Interviews in the Adnan Syed Case

After yesterday's post, I realized that there was one witness who had his interview at Woodlawn High School recorded: Adnan's friend Ja'uan, who was referenced in Episode 5 of Serial. Indeed, during the episode, a portion of his recorded interview -- in which he said that Adnan and Hae used to hook up in the Best Buy parking lot -- was played. Here is the Progress Report for his interview:

Screen Shot 2015-07-10 at 9.25.29 PM


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July 10, 2015 | Permalink | Comments (14)

Thursday, July 9, 2015

There is No Documentation for 2+ Witnesses Interviewed at the Precinct in the Adnan Syed Case

While searching through the MPIA files today in preparation for next Monday's episode of Undisclosed, I came across the following document:

Screen Shot 2015-07-09 at 2.43.14 PM

This seems like a pretty benign document...until you realize that there are no records of any interviews conducted at the precinct on April 1, 1999.

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July 9, 2015 | Permalink | Comments (23)

Wednesday, July 8, 2015

Can Jay's Friend Chris Tell Us Anything About the Death of Hae Min Lee?

Yesterday, I took another look at Detective Ritz's notes of the pre-interview with Jay. Upon reflection, it seems like the notes are actually notes taken during both Jay's pre-interview and his recorded interview. One particular portion stood out:

Screen Shot 2015-07-08 at 9.18.27 AM

The name Christopher/Chris should be familiar to those who listened to the Serial Podcast.

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July 8, 2015 | Permalink | Comments (42)

Tuesday, July 7, 2015

Did the Police Actually Interview Mark Pusateri in Connection With the Adnan Syed Prosecution?

People who have been following Serial and its aftermath likely know that we have been working off of incomplete copies of the transcripts from Adnan's trials. Apparently, someone has made a successful request for the missing pages because the pages from the first day of Adnan's second trial were posted yesterday. I'm not going to link to those pages because they're not redacted, but they do contain one key piece of information, which I've captured in a screenshot:

Screen Shot 2015-07-07 at 12.56.38 PM

This part of the transcript lists the prospective witnesses at trial. As far as I can tell, I have a record of every prospective prosecution witness listed in the transcript being interviewed by the State...except for Mark Pusateri.* Mark Pusateri, you'll recall, is Jay's alibi, the person who was allegedly hanging out with him when Adnan made the Best Buy call. 

Now, the State certainly could have listed Mark as a prospective witness despite not interviewing him. But again, that does not appear to be the case with any other witness listed in the transcript.*


*Neighbor Boy is also listed despite no official interview by the police. That said, I know that the defense private investigator did interview him, and it's possible that he was a prospective defense witness. If he was a prospective prosecution witness, he would be a second person whom the State didn't officially interview. [Edit: It turns out that Neighbor Boy was interviewed by police, but the notes from that interview are "missing," like the notes from the interviews with "Ann" and Patrice.].


July 7, 2015 | Permalink | Comments (21)

Monday, July 6, 2015

Breaking Down the Possibilities Assuming Stephanie Was Honest & Accurate About Her Call to Adnan

On last week's Addendum Episode of the Undisclosed Podcast, we discussed Stephanie's statement to Adnan's private investigator that she recalled calling Adnan's cell phone between 4:15 and 5:30 P.M. on January 13, 1999. According to Stephanie, (1) she made this call from Parkville High School after getting bored while waiting for her basketball game; and (2) Jay was with Adnan at the time of the call. Stephanie's game was at 6:30 P.M., Stephanie recalled getting on the bus to the game between 3:30 and 3:45 P.M., and a bus ride from Woodlawn to Parkville would likely take around 30 minutes. Therefore, 4:15 P.M. is probably when Stephanie arrived at Parkville High School, and 5:30 P.M. is probably when the team started stretching, warming up, etc.

Now, as we discussed in the Episode, it's certainly possible that Stephanie was mistaken or lying about the call. For purposes of this post, however, let's assume that Stephanie indeed made the call that she described to the private investigator. What would that mean? We have three calls that are possibilities.

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July 6, 2015 | Permalink | Comments (25)

Friday, July 3, 2015

NJ Senate Approves Bill to Create Crime-Fraud Exception to Marital Privilege

I've done a couple of posts about State v. Terry, 2014 WL 3579653 (N.J. 2014) 68 A.3d 177 (N.J.Super.A.D. 2013) (here and here). In Terry, the Supreme Court of New Jersey proposed a crime-fraud exception to the marital privilege. The proposed exception works as follows: If Hal tells his wife Wanda that he murdered Vince, that statement would be privileged because it was made in confidence by a husband to a wife. Conversely, if Hal discussed with Wanda how they could poison Vince, the statement would not be privileged because the statement was directed toward advancing a crime or fraud.

This is a logical exception that applies in most states, and the New Jersey Senate unsurprisingly gave final legislative approval to a bill that would codify this crime-fraud exception. According to an article in the New Jersey Law Journal,

The bill would create a crime-fraud exception to the marital communications privilege. Legislators acted at the behest of the state Supreme Court, which last year urged an approval of changes to the rules of evidence.

The court, in its 2014 ruling in State v. Terry, said it supported the creation of a crime-fraud exception to the privilege, but said it did not believe it could make such a drastic change in the law without the approval of the Legislature and the governor.

"This evidentiary privilege was intended to protect the privacy of married couples and the sanctity of marriage. But in practice, it can shield those who have engaged in unlawful acts from criminal prosecution," Senate Judiciary Committee Chairman Nicholas Scutari, D-Union, said in a statement in May, when his committee recommended passage.

"This legislation recognizes the importance of marital privacy but also ensures that individuals engaged in illegal activity and who potentially pose a serious risk to the public are not able to escape prosecution by taking advantage of the process," he said.


July 3, 2015 | Permalink | Comments (2)

Thursday, July 2, 2015

What Are the Odds That Jay Was at Woodlawn at 3:00 P.M. on January 13th?

Yesterday, I posted about Jay's statement to Detectives Ritz and MacGillivary during his pre-interview that Jeff G. drove him to Woodlawn High School at 3:00 P.M. on January 13, 1999, whereupon he met Stephanie in the parking lot. Obviously, if true, this statement presents a counternarrative very different from anything else that Jay said during his recorded interviews or Adnan's trials. But was his statement true? Not necessarily the whole statement. Jay may or may not have been driven to Woodlawn by Jeff G., and he may or may not have seen Stephanie. But was he at Woodlawn at about 3:00 P.M. on January 13th? Is there a 10% chance? 30%? 50%? 75%? Would it change your thoughts if Adnan himself said that Jay arrived at the Woodlawn High School parking lot at 3:00 P.M. on January 13th? Well, it turns out that he (maybe) did.

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July 2, 2015 | Permalink | Comments (42)

Wednesday, July 1, 2015

Delving More Into Jeff G.'s Importance to the Adnan Syed Trial/Appeal

On Monday's Addendum Episode of the Undisclosed Podcast, we delved more into Jay's statement that Jeff G. drove him to Woodlawn High School on January 13, 1999, where he saw his girlfriend Stephanie. Specifically, we talked about the notes that Detective Ritz took during Jay's pre-interview, including this notation:

Screen Shot 2015-07-01 at 9.15.36 AM

In this post, I will delve more into the Jeff G. conundrum.

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July 1, 2015 | Permalink | Comments (32)

Tuesday, June 30, 2015

A Quick Thought on Adnan Syed's Motion to Reopen

Today, Adnan Syed filed his Motion to Re-Open Postconviction Proceedings. As should be clear to the readers of this blog, I agree with many of the arguments made in the motion:

-It is "in the interests of justice" to reopen based upon Campbell v. State, 376 A.2d 866 (Md.App. 1977) (prosecutor dissuaded a witness from testifying) (blog post);

-It is "in the interests of justice" to reopen based upon Curry v. State, 458 A.2d 474 (Md.App. 1983) (prosecutor misstated facts to the court) (blog post);

-The statements made by prosecutor Kevin Urick to The Intercept could be used by the defense (blog post); and

-Precedent from across the county (including Maryland and the Fourth Circuit) supports the proposition that trial counsel is ineffective if she fails to contact prospective alibi witnesses ((blog post).

In this post, though, I wanted to highlight one other interesting part of the Motion.

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June 30, 2015 | Permalink | Comments (14)

The Defense Failed to Contact Adnan's Track Teammate Will, a Potential Alibi Witness

This seems huge to me. Yesterday, I posted an entry which discussed how Adnan's defense team failed to contact his track teammates until after October 16, 1999. But what if it turns out that at least some of these track teammates were never contacted at all? And what if one of these uncontacted track teammates was pretty clearly a potential alibi witness?

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June 30, 2015 | Permalink | Comments (13)

Monday, June 29, 2015

The Defense Didn't Start Contacting Adnan's Track Teammates Until After October 16, 1999

I've gotten a few e-mails about the comments section of my post from last Thursday. In one of the comments, I noted that

For context, Adnan's track teammates weren't contacted until after July 13th.

More specifically, it looks like they weren't contacted until after October 16, 1999.

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June 29, 2015 | Permalink | Comments (23)

Friday, June 26, 2015

Supreme Judicial Court of Massachusetts Mandates Jury Instruction on Problems With Cross-Racial IDs

On several prior occasions (see, e.g., here and here), I have written on the topic of the problems with cross-racial eyewitness identifications and whether courts should be allowed to issue jury instructions regarding these problems. Despite the literature on these problems,  many courts refuse to give such instructions. Yesterday, however, the Supreme Judicial Court of Massachusetts went in the opposite direction in Commonwealth v. Bastaldo, 2015 WL 3885652 (Mass. 2015).

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June 26, 2015 | Permalink | Comments (0)

Thursday, June 25, 2015

Cristina Gutierrez's Issues Billing Clients for Work Done in Other Cases

Yesterday, I posted an entry about a number of unrelated documents from other cases being in the case file for Adnan Syed. As I noted in the comments section to my prior post, it also appears as if Cristina Gutierrez was having problems with possibly billing clients for work done for other clients. Again, it's tough to share the documentation because of issues involving attorney-client privilege, but I again have one (redacted) document that I feel comfortable sharing.

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June 25, 2015 | Permalink | Comments (19)

Wednesday, June 24, 2015

An Example of a Misplaced Document Found in the Adnan Syed Case File

Yesterday, in the comments section of my blog, I noted that it is difficult to determine what documents Cristina Gutierrez had in the Adnan Syed case because his case file has a number of documents from other cases. In response, I've gotten some questions about the nature of these documents and whether they might have had some relation to Adnan's case. The simple answer is that these documents have no relation to Adnan's case. I can't really post most of these documents, however, because they contain information that is covered by attorney-client privilege. That said, there is one document that I feel comfortable posting, albeit in heavily redacted form.

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June 24, 2015 | Permalink | Comments (22)

Tuesday, June 23, 2015

The 5 Missing Witness Statements & The Possibility of a New Trial for Adnan

In yesterday's episode of the Undisclosed Podcast, we revealed that the police "lost" the notes from interviews with 5 out of the first 8 witnesses they interviewed after Adnan was arrested: "Ann," Debbie, Aisha, Jeff J., and Patrice. So, let's assume that these witnesses are contacted now and are able to recall the substance of what they told police. Where would that leave Adnan?

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June 23, 2015 | Permalink | Comments (34)

Monday, June 22, 2015

Is Tennessee's Victims Rights Photo Bill Fair to Defendants?

According to an article in The Greenville Sun,

Postmortem images of murder victims are one of the tools prosecutors use to help obtain a conviction at trial.

But legislation that becomes law on July 1 in Tennessee will allow juries to see victims as they appeared alive.

The "Victim Rights Photo Bill" has strong supporters among the state's district attorneys, and detractors among criminal defense lawyers who defend murder suspects.

The bill, as enacted, "provides that in a prosecution for any criminal homicide, an appropriate photograph of the victim while still alive will be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive."

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June 22, 2015 | Permalink | Comments (8)