Thursday, June 18, 2015
The Supreme Court handed down its decision in Ohio v. Clark today, holding that there was no confrontation clause violation when the prosecution introduced a non-testifying child’s out-of-court statement identifying his abuser. There is no real surprise here, unless you view consistency from the Court as surprising.
The decision in Ohio v. Clark tracks my view of where the post-Crawford Court has settled. As I argued in The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865, 1870 (2012):
[In the cases after Crawford,] a new majority of the Supreme Court seized the evolving jurisprudence . . . and, while claiming fidelity to Crawford, constricted the definition of “testimonial” statements to its minimalist core: statements “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” . . . . Together, Bryant and Davis work a dramatic curtailment of the post-Crawford confrontation right. The current Supreme Court's conclusion that the Confrontation Clause addresses only “testimonial” statements, in concert with its pointed narrowing of the definition of “testimonial,” results in the elimination (not strengthening) of the constitutional restrictions on the bulk of admissible hearsay. As Bryant itself declares, statements admitted under many commonly utilized hearsay exceptions - for example, excited utterances, present sense impressions, co-conspirator statements, statements for medical diagnosis or treatment - will rarely be testimonial and consequently are now completely unregulated by the Confrontation Clause.
This is precisely what happened in Ohio v. Clark. The Court simply applied its shrinking definition of “testimonial.” The child’s statement, admitted under Rule 807 (the residual hearsay exception), was not “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” End of analysis.
I argued in The Incredible Shrinking Confrontation Clause that narrowly defining testimonial statements and excluding those that fall within the definition makes sense historically and logically. However, the Court’s complete abandonment of unconfronted, non-testimonial hearsay is not justified. In light of text, history and reason, constitutional regulation is required although the regulation can be much more permissive:
As the admission of nontestimonial statements does not strike as closely to the historical and textual core of the confrontation right, it need not be restricted as severely (that is, excluded absent confrontation). Rather, prior to admitting such evidence, courts can enforce a constitutional preference for live testimony - as they have in other contexts - by requiring the prosecution to demonstrate the out-of-court declarant's “unavailability.” ICC at 1870.
We have now posted the entire interview between Dr. Lee Hlavaty and me with cleaned up audio. Special thanks go to (1) Amar Nagi for cleaning up the audio and his work on Undisclosed in general; and (2) Dr. Hlavaty for her time spent reviewing the case materials and her clear and informative responses.
Note: The fifth episode now also has the cleaned up audio from the interview inserted.
Wednesday, June 17, 2015
According to an article in the Seattle Times,
Tatiana Baker and her boyfriend, DeMarco Jackson, waited more than seven hours before summoning help for Baker’s 3-year-old daughter, who was already dead from a savage beating by the time medics arrived at their Auburn apartment Tuesday night, according to King County prosecutors.
The charging documents in the case indicate that
a man called 911 just before 2:30 p.m. Tuesday, telling a dispatcher the 3-year-old was dehydrated and vomiting. He gave the operator an address in Seattle, though the 911 computer system showed his cellphone was pinging off a cell tower in Auburn, the charges say. The phone call was disconnected, and when the operator called back, a woman told the dispatcher aid was not needed, charging papers say. Auburn police and medics responded to an address on 28th Street Southeast but couldn’t find the 911 caller.
A second 911 call was made from the same cellphone at 9:45 p.m., and Jackson stated he was performing CPR on the girl, the charges say. Medics arrived at their apartment complex at 420 23rd St. S.E. and quickly determined the girl "was deceased, possibly for some time, since postmortem lividity was observed and her body was cold to the touch."
So, did the victim die at or around 2:30 P.M.? It's tough to know without learning whether the victim's lividity was fully fixed or merely partially fixed? And what about the fact that the victim's body was cold to the touch? I've written before about livor mortis and rigor mortis, but there is a third "mortis" that can be used to estimate time of death: algor mortis, the cooling of a body after death. During the first hour or so after death, a body does not cool much below its typical temperature. Thereafter, between hours 2-6, a body tends to cool about 1.5 degrees per hour. Generally skin starts feeling "cold to the touch" about 2-4 hours after death (6-8 hours in protected areas).
Tuesday, June 16, 2015
National Crime Information Center (NCIC)...is a national crime information center run by the Federal Bureau of Investigation...."[P]retty much anything that any of us do[es]," including obtaining a job or applying for a new social security card, immigration card, or driver's license in any state, is cross-referenced by NCIC. United States v. Villareal, 2008 WL 1995042 (N.D.Fla. 2008).
In last night's Addendum Episode of the Undisclosed Podcast, Susan Simpson noted that two "plate checks" were done by Baltimore County Police Officers using mobile NCIC devices on February 4, 1999. Given that Hae Min Lee's car was found 2 miles east of the border between Baltimore County and Baltimore City, this is strong circumstantial evidence that Hae's Sentra was in Baltimore County and not on Edgewood Road (in Baltimore City) on February 4th. So, what was the purpose of the mobile plate checks?
Monday, June 15, 2015
I have written a number of posts about livor mortis/fixed lividity as it relates to the prosecution of Adnan Syed for the murder of Hae Min Lee. Since a post in February, my theory has been that Cristina Gutierrez did not even need to call her own forensic pathologist to destroy the State's theory of the case; instead, she merely needed to cross-examine the State's own forensic pathologist -- Dr. Margarita Korell -- to establish how long lividity takes to fix. The conclusion in my prior post was based upon a prior case in which Dr. Korell was corrected by her supervisor on the timing of lividity. Based upon this correction, my assumption was that Dr. Korell would testify to the correct lividity timeline at Adnan's trial and could have been impeached through her supervisor's correction in the event she testified to a different timeline. It turns out, however, that the analysis of this issue is actually much simpler.
Friday, June 12, 2015
For the past week, I've been trying to find a case involving lividity and a body in a trunk. The only case that I was able to find is State v. Persitz, 518 N.W.2d 843 (Minn. 1994). The Persitz case isn't especially factually similar to the Adnan Syed case, but it does provide some interesting points of comparison/contrast.
Thursday, June 11, 2015
Yesterday, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), the "two hour lividity" case handled by Cristina Gutierrez, the same attorney who handled the Adnan Syed case. It turns out that the Nicolas is much more troubling than I initially imagined for a few reasons.
Wednesday, June 10, 2015
A couple of hours ago, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), in which the United States District Court for the District of Maryland found that trial counsel was not ineffective, despite her failure to contradict a medical examiner's claim that lividity could become fixed within two hours after death by either (1) cross-examining the expert on the issue; or (2) calling her own expert. Unfortunately, that opinion didn't list the defendant's trial counsel, and I couldn't find any of the opinions from the Maryland courts on the case. A few minutes ago, a commenter on my prior post noted how it might have been asking too much for Gutierrez to realize the importance of lividity evidence.
In response to that post, I figured I'd look again to see if I could find the attorney from the Nicolas case to see if she could explain how she missed the importance of the lividity evidence. After searching for a few minutes, I was able to find the defendant's brief in the case: Nichols v. State of Maryland, 1998 WL 35222540 (D.Md. 1998). Here's the relevant language from the brief:
In fact, this issue has been preserved for appeal. Initially, Mr. Nicolas's trial counsel proposed a dual inferences instruction based upon Robinson v. State, 18 Md. App 678, 308 A.2d 734 (1973). See Affidavit of M. Cristina Gutierrez, attached as Exhibit A.
Yes, that's right: The attorney in the case was Cristina Gutierrez, the same attorney who represented Adnan. Furthermore, the final opinion of the Maryland courts on this claim came on April 16, 1999, two days before Gutierrez started representing Adnan. So, in response to the comment: Yes, Gutierrez should have been uniquely aware of lividity evidence and importance case.
I've been writing a good deal about livor motis/fixed lividity evidence as it relates to the prosecution of Adnan Syed for the murder of Hae Min Lee. It turns out that it's is also a big part of the current appeal by Norfolk "Fuzzy" Best. Best was convicted of the 1991 murders of Leslie and Gertrude Baldwin and is currently on death row. The State's theory of the case was that the Baldwins were killed on a Saturday night, 64 hours before their bodies were found. The lividity evidence, however, seems to suggest otherwise.
Tuesday, June 9, 2015
Yesterday, we posted the fifth episode of the Undisclosed Podcast: Autoptēs. For those of you wondering, Autoptēs is the Greek work that provides the origin for the English word autopsy. Autoptēs means eyewitness/to witness with ones own eyes.
I again want to thank Dr. Leigh Hlavaty for the time she put into reviewing the medical evidence in the case and rendering her expert opinion. Obviously, her biggest finding was that Hae could not have been buried on her right side in Leakin Park in the 7:00 hour given the lividity evidence. That said, I think her conclusion that Hae couldn't have been "pretzeled up" in the trunk of her Nissan Sentra for 4-5 hours after death is of near equal importance.
While lividity becomes fully fixed approximately 8-12 hours after death, it partially fixes within hours after death. Assume that Hae was on her side (or anything other than fully prone) in the Sentra for 4-5 hours, then put face down for another 4-5 hours, and then buried on her right side in Leakin Park. In that case, there would be what is known as "mixed lividity," "dual lividity," or "second lividity." In other words, there would be some lividity on the side and some on the front. This is described a bit in the Report of Lee Ann Grossberg, M.D. in Kiniun v. Minnesota Life Insurance Company, 2011 WL 7266761 (N.D.Fla. 2011):
6. At 10:07 am, approximately 3 1/2 hours after Ms. Strickland was found deceased, the livor mortis was noted to remain fixed when manual pressure was applied.
a. Lividity generally takes 30 minutes to 2 hours to become visible and about 8 - 12 hours to become fully fixed (although this range is highly variable). After the lividity become fixed, it remains so.
b. The finding of lividity that does not blanch with pressure can indicate that the livor mortis is partially or fully fixed.
i. If the livor mortis is only partially fixed, moving the body to a different position will yield a second lividity pattern.
ii. Ms. Strickland was found dead lying on her front right side and the lividity pattern at the scene was consistent with this body position (the lividity was on her front right side).
iii. However, if Ms. Strickland were turned over onto her back to be placed into the body bag and her lividity were not fully fixed, she would develop a secondary livor mortis pattern on her back. The autopsy report describes the lividity fixed and as anterior, but I have not had access to the autopsy photos to see if an additional lividity pattern is also present on the back. Secondary lividity patterns can be lighter than primary ones and darkly pigmented skin makes visual inspection of lividity more difficult to discern than in lighter pigmented individuals, however.
Monday, June 8, 2015
Today, former police officer Michael T. Slager was indicted for murder in connection with the shooting death of Walter Scott in North Charleston. As such, I though I would do a brief post about South Carolina homicide law. Under South Carolina homicide law, the prosecution can secure a murder conviction by proving beyond a reasonable doubt that the defendant killed the victim with malice aforethought:
"Malice aforethought" is defined as "the requisite mental state for common-law murder" and it utilizes four possible mental states to encompass both specific and general intent to commit the crime. Black's Law Dictionary 969 (7th ed.1999). These four possibilities are intent to kill, intent to inflict grievous bodily harm, extremely reckless indifference to the value of human life (abandoned and malignant heart), and intent to commit a felony (felony murder rule). State v. Kinard.
The first two of these -- intent to kill and intent to inflict grievous bodily harm -- are express malice. If the jury finds that the defendant acted with express malice, it must return a murder conviction. The last two of these -- depraved heart and felony murder -- are implied malice. If the jury finds either of these, it may return a murder conviction, but it also has the ability to return an involuntary manslaughter conviction (a killing without malice).
Depraved heart murder basically works as follows. First, of course, the prosecution must prove that the defendant acted (or failed to act in the face of a legal duty) and caused the victim’s death. Second, the prosecution must prove mens rea of depraved heart murder. This mens rea contains both a subjective and an objective element: (1) subjective element: that the defendant acted with extremely reckless indifference to the value of human life; and (2) objective element: that it was highly probable that the defendant’s act/omission would result in death. Third, once the prosecution has proven this mens rea, the jury must still infer malice to convict the defendant.
Here's a real world hypothetical I use in class to teach depraved heart murder (the answer is "yes"):
Daniel McCall and two accomplices were driving on an interstate when they saw A.R.M. Stroud standing beside his automobile, working on it. McCall and his accomplices stopped to rob Stroud. They offered to help him and when he opened his trunk to get more tools, McCall forced Stroud, who was a 72 year-old man with heart problems, into the trunk of his own car. McCall, following his accomplices, drove Stroud’s car off the interstate, down a paved road and then turned onto a dirt road. This was an isolated place. There, they removed Stroud from the trunk and searched him, taking his money. They then forced Stroud back into the trunk of his car and left him in the car on the dirt road. Several days later, Stroud’s body was found in the trunk of his car. The testimony of record established that as a result of his being forced into the trunk and left there, Stroud died of a heart attack. According to the medical testimony of record, Stroud was “literally scared to death.” McCall is charged with murder. Can he be convicted? See State v. McCall, 405 S.E.2d 414 (S.C.App. 1991).
Friday, June 5, 2015
Recently, I contacted the Client Protection Fund of the Bar of Maryland to try to see whether I could get more information about the twenty (or more) client complaints that precipitated the disbarment of Cristina Gutierrez, the attorney who represented Adnan Syed. Unfortunately (but understandably), I was told that such complaints are confidential. That said, I was directed to this Press Release, which gives some additional context to Gutierrez's disbarment. According to the Press Release,
During their quarterly meeting on June 26, Trustees of the Clients' Security Trust Fund, now known as the Client Protection Fund of the Bar of Maryland, agreed to pay out more than $112,000 to claimants whose attorney was found to have kept money to which he/she was not entitled.
“The bulk of the money paid out to claimants was due to attorneys not doing the work that they promised,” said Fund Trustee Isaac Hecht. “We sincerely hope that the public realizes that these attorneys are a few bad apples in an otherwise reputable group.”
More than half the money paid out at the Trustee meeting was to clients of M. Cristina Gutierrez, who consented to disbarment in May. According to Hecht, Gutierrez failed to hold property of clients separately from her own, did not refund advanced fees that were not earned, and misappropriated funds intended to be used for third-party payments.
So, the Fund had to pay out at least $56,000.01 to Gutierrez's clients based upon, inter alia, failing to do the work that she promised and misappropriating/failing to refund monies paid to her by her clients. Among the "bad apples" in Maryland, Gutierrez was responsible for more malfeasance than all of the other "bad apples" combined.
Thursday, June 4, 2015
From the UCLA press release:
Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, ....
This fits with my general sentiment that Evidence scholars should be in charge of everything.
Congratulations to Dean Mnookin and UCLA!
Last fall, I was honored to be asked to speak before a subcommittee tasked with strengthening South Carolina's domestic violence laws. After giving my presentation to the subcommittee, I was asked to submit my proposals to the subcommittee for consideration. Here are the 10 recommendations I sent to the subcommittee: Download DV(3).
Today, I was happy to hear that Governor Nikki Haley will be signing into law a new domestic violence law that incorporates two of these recommendations.
Wednesday, June 3, 2015
Adding More Context to the Allegation That Gutierrez Wouldn't Talk to 5 Witnesses for the Adnan Syed Trial
Previously, I've posted about (1) the judge at Adnan Syed's trial being disturbed by the "accusations that Ms. Gutierrez [Adnan's attorney] wouldn't talk to people;" and (2) the accusation that Gutierrez wouldn't talk to five witnesses subpoenaed by both the prosecution and defense. As I noted in a third post, one of the limited number of witnesses subpoenaed by both the prosecution and defense was Hope Schab, the French teacher at Woodlawn High School. She was subpoenaed at both of Adnan's trials, and, based upon this memorandum, it seems like she tried in vain to contact Gutierrez about testifying so that she could prepare lesson plans and arrange for a substitute teacher.
In response to these posts, some people have construed Gutierrez's failure to talk to these five witnesses as a pretty serious error. Others have claimed that Gutierrez's failure to talk to these five witnesses about mere scheduling issues wasn't a big deal and was perhaps even trial strategy. According to letters that Gutierrez herself sent to each of these witnesses, however, this latter claim doesn't seem to match the reality of the situation.
Tuesday, June 2, 2015
When I learned that five witnesses subpoenaed by both the prosecution and defense had tried in vain to talk to Cristina Gutierrez (and the defense team) in the Adnan Syed trial, I immediately thought of Krista. A mutual friend to both Adnan and Hae, Krista has told me that she wished the defense used her as a character witness at trial. I also knew that Krista was one of a limited number of witnesses subpoenaed by both the prosecution and defense. Indeed, she was among the first batch of witnesses subpoenaed by the defense:
So, let's break this subpoena list down, person by person, before getting to Krista.
Sunday, May 31, 2015
Adding Context to the Allegation That Gutierrez Wouldn't Talk to 5 Witnesses for the Adnan Syed Trial
On the last two days, I've posted entries about (1) the judge at Adnan Syed's trial being disturbed by the "accusations that Ms. Gutierrez [Adnan's attorney] wouldn't talk to people;" and (2) the accusation that Gutierrez wouldn't talk to five witnesses subpoenaed by both the prosecution and defense. After digging through the defense files, I feel pretty certain that I've found one of these witnesses, and the correspondence about her gives some useful context to the allegations against Gutierrez.
Saturday, May 30, 2015
Yesterday, I posted an entry about this statement by the judge at the Adnan Syed trial, in which she notes the accusation that Cristina Gutierrez (Adnan's defense counsel) wouldn't talk to people. An astute reader has now shown me where this accusation occurs in the trial record. It is on pages 51-52 of the transcript from the second day of trial:
This exchange seems important for two reasons: (1) FIVE witnesses are telling the State that Gutierrez and her team have subpoenaed them and yet won't talk to them; and (2) the judge is explaining to Urick what he should do when he is contacted by prospective defense witnesses.
Friday, May 29, 2015
An astute reader pointed me to an interesting discussion that occurred during the second trial of Adnan Syed for murdering Hae Min Lee. The discussion occurred on February 15th, when Adnan's defense attorney (Cristina Gutierrez) was claiming that one of the prosecutors instructed Jenn not to talk to her. Here's part of the judge's response (pages 176-77):
This leads to two questions: (1) Who accused Gutierrez wouldn't talk to people; and (2) Does this accusation appear anywhere else in the trial record? Thanks for any assistance.