Monday, March 16, 2015
Last week, I posted an entry about the murder window for the death of Hae Min Lee based upon the evidence that the prosecution presented at the trial of Adnan Syed for murdering her. Recent revelations have now led me to reconsider the actual timeline for January 13, 1999, the day that Lee disappeared. After the Serial Podcast aired, most people probably believed that Lee did or was planning to do the following after school on January 13th:
1. At about 2:20 P.M., Lee told Adnan in front of Becky that she couldn't give him a ride because she had "something else to do."
2. Lee talked with Inez Butler-Hendricks at the concession stand sometime between 2:15 and 2:25 P.M.*
3. Lee talked with Summer in the gym area for at least 10 minutes starting between 2:30 and 2:45 P.M. (so, ending between 2:40 and 2:55 P.M. or later).
4. Lee possibly talked with Debbie at around 3:00/sometime between 2:45 and 3:15.
5. Lee was supposed to pick up her cousin at 3:15ish and then drop her off.
6. Lee planned to drop off a note to her new boyfriend Don and possibly talk with him ("Sorry I couldn't stay. I have to go to a wrestling match at Randallstown High.").
7. Lee planned to go to the Randallstown wrestling match (and possibly planned to get back to Woodlawn to catch the bus to the wrestling match). This could have been at 5:00 P.M. or earlier or later.
8. Lee planned to work at LensCrafters from 6:00-10:00 P.M.
9. Lee planned to see Don after her work shift ended.
Now, after recent revelations, we have reason to believe that Woodlawn High School had no wrestling match on January 13, 1999 and that Woodlawn's wrestling match at Randallstown was on January 5, 1999. That leaves us with the following things that Lee likely did or was planning to do after school on January 13, 1999:
1. At about 2:20 P.M., Lee told Adnan in front of Becky that she couldn't give him a ride because she had "something else to do" AND/OR told Becky that she had to leave because "she had to be somewhere after school."**
2. Lee was supposed to pick up her cousin at 3:15ish and then drop her off.
3. Lee planned to work at LensCrafters from 6:00-10:00 P.M.
4. Lee planned to see Don after her work shift ended.
So, how did I trim the original timeline, and what does this all mean?
Friday, March 13, 2015
The Autopsy Posts: It's Exceedingly Unlikely the Stains on the T-Shirt in the Sentra Were From a Pulmonary Edema
This is my eleventh post about autopsies following my first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth posts. There were ostensibly three pieces of evidence that Hae Min Lee was attacked in her Nissan Sentra. The first piece of evidence was the "broken" windshield wiper or turn signal lever, which I will again address in my post about conclusion #4. The second piece of evidence was used to be Hae's note to Don about having to attend the Randallstown wrestling match, which was found in the trunk of her Sentra; in the absence of evidence to the contrary, however, the note has now been debunked* as a note written on January 13, 1999, the day of Hae's disappearance, making it irrelevant for this purpose..
That leaves the third piece of evidence: the bloody t-shirt.
Wednesday, March 11, 2015
For those interested in the Second and Fourth Amendments, my latest article, The Right to Remain Armed, is now available for (free) download on SSRN at this link.
Here is the abstract:
The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta and Cleveland.
These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could radically transform American policing. Evidence of handgun possession – whether from a tip or observation – is increasingly an inadequate justification for a Fourth Amendment stop; officers will struggle to articulate legal grounds for temporarily disarming citizens during face-to-face encounters; and the promise of gun detecting technology as an alternative to invasive investigative techniques, such as pretextual arrests and frisks, may be squelched. Whether observers view these implications as beneficial, disastrous or something in between, one thing is clear: courts, policymakers and academics must begin to address the dramatic Fourth Amendment implications of an expanding Second Amendment “right to remain armed.”
The Autopsy Posts: It's Exceedingly Unlikely Hae Min Lee's Hemorrhages Were Caused By Punches Thrown in Her Sentra
I wonder if there was any investigation done to find a weapon used to hit her with? You would think the defense attorney would have hired a P.I. or a forensic expert.
The above was the very first response I got when I started soliciting expert opinions about the lividity evidence in the death of Hae Min Lee. The question was based upon the autopsy report for Lee, which indicated that she had a right occipital subgaleal hemorrhage as well as a right temporalis muscle hemorrhage. The experts I've heard from are all in agreement that such hemorrhaging likely was not the result of punches and almost certainly not the result of punches thrown from inside the cozy confines of the 1998 Nissan Sentra. This has allowed me to draw my third conclusion:
It’s possible that the blunt force injuries could have been caused by punches, but it is likelier that they were caused by a weapon or Lee's head striking some fixed object.
Tuesday, March 10, 2015
Federal Rule of Evidence 610 provides that
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
Under Rule 610, a party can't use evidence of a witness's religion to bolster (e.g., "he's a good Christian") or impeach (e.g., "he's a lying atheist) a witness's credibility. In its recent opinion in United States v. Davis, 2015 WL 925544 (11th Cir. 2015), the Eleventh Circuit addressed the following question: "[D]oes Federal Rule of Evidence 610, which excludes evidence of a witness's "religious beliefs or opinions...to attack or support the witness's credibility,” bar evidence that a witness's job is city and police-department chaplain, even when neither side argues that this affects credibility?"
Friday, March 6, 2015
My New Article: Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights
Today, I posted my new article, Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights, on SSRN. Here is the abstract:
Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” This article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act (“PSDA”), the so-called medical Miranda, which requires health care providers who accept money from Medicaid or Medicare to inform patients of their rights regarding advance directives and the refusal of medical treatment prior to admission.
The goal of the PSDA is to inform patients of their health care rights prior to admission so that they can assert those rights before pressed into an unfamiliar environment in which they face possible isolation and coercion. This article contends that the same principles that led to the passage of the PSDA support the ability of suspects to be able to pre-assert their Miranda rights when custodial interrogation is “imminent.” It also sets up a framework for determining whether a suspect properly pre-asserted his Miranda rights.
Thursday, March 5, 2015
As I have noted in a few prior posts (here, here, and here), before presenting real evidence at trial, a party has to establish chain of custody. For instance, assume that the State collects brain tissue from the victim and seeks to present evidence concerning that brain tissue at trial. If the prosecution were unable to present evidence to create a reasonable probability that the evidence was the same evidence taken from the victim in substantially the same condition as when it was taken, the prosecution would have failed to establish chain of custody. As a result, the evidence would be inadmissible. This is exactly what happened in a case out of Roanoke, Virginia last fall.
Wednesday, March 4, 2015
This is my ninth post about autopsies following my first, second, third, fourth, fifth, sixth, seventh and eighth posts. This post is a final table-setter post for my posts on conclusions 3-5. Before I got to those posts, I wanted to reflect on the timeline presented by the prosecution during closing argument. Prosecutor Kathleen Murphy asserted the following to the jury during her closing argument in the trial of Adnan Syed for killing Hae Min Lee:
This portion of the closing argument was the source for one of the more memorable moments of the Serial Podcast: In Episode 5, Sarah Koenig and Dana Chivvis try to retrace Hae Min Lee's movements on the afternoon of January 13, 1999 to determine whether she could have been killed between 2:15 and 2:36* (really 2:35), as claimed by the prosecution. If defense counsel had acted properly, however, this murder window should have been much, much smaller.
Tuesday, March 3, 2015
In response to yesterday's post, I got a question about the necessity of establishing chain of custody for generic vs. unique evidence. Generic evidence is evidence that is indistinguishable from other pieces of evidence, such as a bag of white powder taken from a suspect. If the prosecution wanted to introduce this bag of white powder or other generic evidence at trial, it would have to establish chain of custody.
Conversely, unique evidence is evidence that is readily distinguishable from other evidence, such as firearms. Assume that the police execute a search warrant at a suspect's house and seize a revolver. If the prosecution seeks to admit the revolver to prove that the defendant was a felon in possession of a firearm, it would not need to establish chain of custody; instead, it could simply note that the serial number on the gun was the same serial number on the gun seized from the defendant's house.
Conversely, assume that the police seize a revolver from a suspect's home and believe that the suspect used the revolver to murder a victim. Weeks later, the defendant claims that it is impossible the revolver was used to murder the victim because it is broken and can't fire a bullet. At this point, the police decide to take the gun to a firing range and make a video of an officer firing the gun to show that it is functional. In this case, the prosecution would need to establish chain of custody from when the government took possession of the firearm until it was used at the firing range. This might be problematic if, for instance, the government released the revolver to the custody of a gun repair shop before conducting the firing range test. The same goes if the prosecution wanted to introduce a video of a detective demonstrating how a turn or windshield wiper lever in a Nissan Sentra was broken but the video was not created until after the Sentra was released to the custody of a body shop.
Monday, March 2, 2015
In response to yesterday's post, I got the following question: Do problems with regard to the chain of custody go to the admissibility of the evidence or just the weight of the evidence? The answer: It depends. As noted, the proponent of evidence (e.g., drugs seized from the defendant) uses the chain of custody (evidence or proffers from everyone who handled the evidence) to satisfy the requirement that the evidence introduced at trial is that same evidence (e.g., the drugs) in substantially the same condition. If problems with the chain of custody make it so that there is not a reasonable probability of sameness (e.g., there is a decent chance the drugs were cross-contaminated), the evidence is inadmissible. If, despite problems with the chain of custody, there is still a reasonable probability of sameness, the evidence is still admissible, and the problems merely go to the weight of the evidence (e.g., how much weight the jury should give the evidence). Yesterday, I cited to the the opinion of the Court of Special Appeals of Maryland in Amos v. State, 400 A.2d 468 (Md.App. 1979), which said the following on the issue:
Although for purposes of admissibility the chain of custody authentication of evidence need not be beyond a reasonable doubt, it must create a reasonable probability of sameness, just as in a like instance it must preclude by reasonable probability, any tampering.
In Amos, the reasonable probability of sameness was destroyed based on the problems with the chain of custody, rendering the (drug) evidence inadmissible For a couple of other examples of cases in which Maryland courts deemed evidence inadmissible based upon problems with the chain of custody, see Gillis v. State, 456 A.2d 89, 93 (Md.App. 1983) ("Under these circumstances, the trial judge should have required the witnesses to be produced. In the absence of such requirement, the admission of the drugs as an exhibit was error."); and Parker v. State, 554 A.2d 429 (Md.App. 1989) ("Accordingly, we hold that the State failed to establish a complete chain of custody when it did not call the laboratory technician as a prosecution witness despite a timely demand that it do so. It follows that the photograph, chain of custody form and analysis report were erroneously admitted into evidence.").
So, when do problems with the chain of custody merely go to the weight of the evidence?
Sunday, March 1, 2015
Before I get to today's post, I just saw that Hae Min Lee's brother posted the following comment in response to Friday's post on the Serial subreddit:
TL:DR.... But After the trial ended, my grandpa and I went down the police station to pickup Hae's car. I am almost 100% sure that it was turn signal lever. I remember it pretty well because I was supposed to drive her car back home. But since the turn signal lever was HANGING/DANGLING, my grandpa drove it home. I was a new driver and was uncomfortable driving it without a turn signal.
You'll recall that in Friday's post, I speculated that Detective Kevin Forrester likely misspoke at Adnan's second trial when he claimed that the lever that was broken in Lee's 1998 Nissan Sentra was on the left side of the steering column. After all, prosecutor Kathleen Murphy claimed that, "[i]n order for H[ae] Lee to kick this wiper lever, we know she was in that passenger seat." For Murphy to argue that the "broken" lever was only consistent with Lee being in the passenger seat, the broken lever had to be on the right side of the steering column and not the left side as Forrester claimed, right? Well...wrong, according to Lee's brother. 100% wrong because the broken lever was the turn signal lever, and the manual for the 1998 Sentra clearly shows the turn signal lever on the left side of the steering column at 2-2].
One last thing before I start today's post. If Lee's brother or anyone in her family is reading these posts, I hope you see that my posts are a genuine attempt to try to get closer to the truth of the horrible loss that you suffered because I think that the version told at trial doesn't come close to resembling it. I am very sorry for your loss.
With that, let's move to today's post:
I got a number of questions about one aspect of Friday's post regarding the question of whether the windshield wiper lever in Hae Min Lee's 1998 Nissan Sentra was in fact broken. In that post, I noted how a member of the Crime Lab took photographs of the steering column of the Sentra which didn't really show the lever being broken; they just showed it "hanging down in a downward angle." Therefore, sixteen days later, after the Sentra had been sent to a body shop that was possibly owned by Lee's uncle, two detectives filmed a demonstration in which one detective allegedly lifted the lever repeatedly, always resulting in the lever dropping when he let go.
In my post, I noted that the court likely would have deemed this video inadmissible if defense counsel objected on one of several grounds, including lack of chain of custody. I also noted that I really needed to see the photographs and video before I could say anything definitive. In response to this claim, I got some e-mails asking me to explain chain of custody and how it could have been the grounds for an objection regarding the video. In this post, I will do just that.
Friday, February 27, 2015
The Autopsy Posts: There Were No "Broken Edges" on the Windshield Wiper Lever in Hae Min Lee's Sentra
This is my eighth post about autopsies following my first, second, third, fourth, fifth, sixth, and seventh posts. As with my last post, this post is more of a table setter for posts on conclusions 3-5. In particular, it is a detailed analysis of everything I know about the supposedly broken windshield wiper lever/selector switch in Hae Min Lee's 1998 Nissan Sentra. My conclusion? There was no broken windshield wiper lever or selector switch. But that's not merely my conclusion. It was the conclusion of Criminalist Daniel Van Gelder. You can read Van Gelder's entire report by clicking here: Download Windshield Wiper Analysis. Here's the relevant portion:
Thursday, February 26, 2015
Federal Rule of Evidence 609(a) provides that
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
So, when does a conviction qualify for admission under Rule 609(a)(2). Specifically, does a trespassing conviction meet the Rule 609(a)(2) standard? What about a conviction for attempted petit larceny? Let's take a look at the recent opinion of the United States District Court for the Western District of New York in United States v. Vickers, 2015 WL 751228 (W.D.N.Y. 2015).
Wednesday, February 25, 2015
The Autopsy Posts: The Prosecution Claimed (Conclusively) That Hae Was Strangled in the Passenger Seat
This is my seventh post about autopsies following my first, second, third, fourth, fifth, and sixth posts. This post is simply a preview post for posts on conclusions 3-5. I am writing it because I realized that I was wrong about what the State argued about the strangulation of Hae Min Lee at trial. My assumption was that the State claimed Hae was in the driver's seat when Adnan Syed strangled her. That assumption was incorrect. Here is an excerpt from pages 50-51 of prosecutor Kathleen Murphy's closing argument at Adnan's second trial:
Tuesday, February 24, 2015
The Autopsy Posts: Vascular Strangulation, Unconsciousness & the Unlikelihood that Hae Min Lee Spoke
Um [Adnan] told me he thought [Hae] was trying to say something while he was strangling her. Um he told me that she kicked like ah knocked off the ah windshield wiper thing in the car and that was it. Jay's first recorded interview
While we're at the cliff, we're standing over looking a whole bunch of stuff at this cliff, you know. [Adnan] starts ah, telling me about how it was when he killed [Hae]. How ah, he said he ah, wrapped his hands around her and her throat and she ah, started kicking him, and he said he looked up to make sure nobody was looking in the car at him. And ah, he said she, he was worried about her scratching him, getting her, his skin underneath her fingernails. And that ah, she was trying to say something. He said that he thinks that she was trying to say that she was sorry, but that's what she deserved and ah, that she had broken his heart. Jay's second recorded interview
This is my sixth post about autopsies following my first, second, third, fourth, and fifth post posts. Once again I will be looking at the autopsy report for Hae Min Lee. As I've previously noted, "based upon information I have now received from an assistant medical examiner and a pathology resident who has completed extensive rotations in forensics," the conclusion can be drawn that
2. It is highly unlikely that Lee spoke or even came close to speech if she were being fatally strangled.
So, how can this conclusion be drawn?
Monday, February 23, 2015
Return to Sender?: Court of Appeals of Indiana Allows Authentication of E-mails, Texts Though Circumstantial Evidence
Last fall, my student (Charles White) and I published, The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence, in the inaugural edition of the Temple Law Review Online. The essay argued that the authentication bar should be raised for electronic evidence based upon the concerns regarding reliability and fabrication that surround it. Exhibit A for the essay could be the recent opinion of the Court of Appeals of Indiana in Harsley v. State, 2015 WL 691701 (Ind.App. 2015).
Friday, February 20, 2015
In response to my posts about livor mortis, I've gotten a good number of questions about rigor mortis, the stiffening of the body after death because of a loss of Adenosine Triphosphate (ATP) from the body's muscles.
Specifically, the question I have been asked is whether the positioning of a body can give an indication of how much time elapsed after death before the body was put into that position. In this post, I will provide a basic introduction to rigor mortis and discuss how it can be relevant for this very purpose.
Thursday, February 19, 2015
Federal Rule of Evidence 404(b) states in pertinent part that
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
That said, Federal Rules of Evidence 413-415, passed in 1994, allow for the admission of prior acts of sexual assault and child molestation to be admitted against a civil or criminal defendant in a case involving similar behavior. After a constitutional amendment was passed in Missouri last year, 12 states have adopted state counterparts to these federal rules. Will Maryland soon make it a baker's dozen?
Wednesday, February 18, 2015
This is my fifth post about autopsies following my first, second, third, and fourth posts. Once again I will be looking at the autopsy report for Hae Min Lee. As I noted on Monday, the autopsy report stated that "[t]here were focal and poorly delineated right occipital subgaleal and right temporalis muscle hemorrhage." As I also noted, "based upon information I have now received from an assistant medical examiner and a pathology resident who has completed extensive rotations in forensics," the conclusion can be drawn that
1. Given the severity of the blunt force injuries, it is likely that Lee was at least stunned, and the injuries are certainly consistent with Lee being knocked unconscious.
So, how can this conclusion be drawn?
Tuesday, February 17, 2015
It is well established that, except in New Mexico, polygraph evidence is inadmissible to prove the guilt (or innocence) of a criminal defendant. That said, polygraphs are starting to play a larger role in the American criminal justice system. Last summer, I posted an entry about the Supreme Court of South Carolina upholding a waiver in a plea agreement that stated that the
petitioner agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that petitioner shot the victim, then "the terms of this proffer are null and void and any statements made by [petitioner] may be used against him by the State for any legal purpose, including...disposition of charges through plea or trial...and impeachment."...Further, section 7 provide[d] in relevant part not only that petitioner's violation of the Agreement would render the Proffer's terms null and void, but also that "the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral...."
Late last month, a polygraph test almost played a similarly prominent role in the prosecution of a Pennsylvania man.