Monday, May 18, 2015
A defendant is charged with murder. He is questioned about the crime weeks after the murder and says that he has no specific recollection of the day in question and that he was likely at a certain location based on his normal routine. A female acquaintance later reminds the defendant that she saw him on the day of the murder, jogging the defendant's memory of their interaction on that day. The defendant, however, doesn't testify at trial and is ultimately convicted of murder.
After the defendant is convicted, a key witness writes an affidavit that (1) tends to exonerate the defendant; and (2) indicates that the witness was never contacted by the defendant's attorney. When the defendant appeals, claiming that he received the ineffective assistance of counsel, the key witness refuses to testify. There are claims that this refusal to testify was based upon prosecutorial misconduct. This misconduct is proven in part through additional statements made by the witness. The defendant testifies at the hearing on his ineffective assistance claim, but the hearing is more than a decade after his conviction, and his trial counsel has passed away.
The State argues that the court should not find that the defendant received the ineffective assistance of counsel because there could have been strategic reasons for trial counsel failing to contact the key witness. The court...sides with the defendant. The case granting relief was Towns v. Smith, 2003 WL 21488333 (E.D.Mich. 2003). This decision was later affirmed in Towns v. Smith, 395 F.3d 251 (6th Cir. 2005).
Thursday, May 14, 2015
The State's Brief, Take 5: More on the Duty to Independently Investigate & Interview Alibi Witnesses
Back in January, I started to compile a list of cases from around the country in which courts had found that it was (or could be) unreasonable for attorneys to fail to contact prospective alibi witnesses. These cases all had a common origin: Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991), which stands for the proposition that "[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense."
Yesterday, I posted about the opinion of the Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994), which was cited with approval by the Court of Special Appeals of Maryland (the same court handling Adnan's appeal) in Mendes v. State, 806 A.2d 370 (Md.App. 2002). Bryant contains similar language that is perhaps even more favorable to criminal defendants claiming that they received the ineffective assistance of counsel:
"[A]n attorney must engage in a reasonable amount of pretrial investigation and 'at a minimum,...interview potential witnesses and...make an independent investigation of the facts and circumstances in the case."
Courts in 76 cases from around the country have cited this language. Today, let's take a look at one of these cases in which the attorney claimed that he failed to contact alibi witnesses because he thought that they would perjure themselves.
Wednesday, May 13, 2015
I recommend Eugene Volokh's blog post about the Second Circuit's recent ruling that the First Amendment does not preclude introduction of videos, etc., taken from a criminal defendant's Facebook page. He correctly points out when such evidence is excluded, "[t]he reason isn’t the First Amendment as such, but rather the rules of evidence . . . ." and talks through common evidence scenarios.
Today, I am continuing my series of posts about ineffective assistance of counsel/alibi opinions cited by Maryland courts. One of these opinions is Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994), which was cited with approval by the Court of Special Appeals of Maryland (the same court handling Adnan's appeal) in Mendes v. State, 806 A.2d 370 (Md.App. 2002). Bryant isn't really factually similar to Adnan's case, but it illustrates some key principles about the need of trial counsel to interview/contact prospective alibi witnesses.
Tuesday, May 12, 2015
Today was the premiere of Episode 3 of the Undisclosed Podcast: Jay's Day. In the episode, we discussed the possibility that significant portions of Jay's police statements were coached, meaning that the detectives taking the statements knew that those portions were false and part of their narrative rather than Jay's narrative. Is there enough evidence at this point to prove this possibility? I don't know, and I don't know that the possibility needs to be proven. It's still quite possible that the Court of Special Appeals of Maryland will remand Adnan's case to the Circuit Court so that Asia McClain can testify, which could result in a new trial. But let's assume that the Court of Special Appeals doesn't remand. That's quite possible as well.
In that event, Adnan could file a motion to reopen pursuant to Section 7-104 of the Maryland Code of Criminal Procedure, which states that
The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.
One ground for such a motion to reopen would be Asia's second affidavit, which raises the possibility of prosecutorial misconduct. Another ground for such a motion to reopen would be the evidence that Susan Simpson has uncovered, which raises the possibility of police misconduct. I wrote about this in an entry I posted last December after Jay's Intercept Interview. The key Maryland case on this issue is Gray v. State, 879 A.2d 1064 (Md. 2005). In Gray, the Court of Appeals of Maryland found that a motion to reopen was properly denied despite a witness admitting to perjuring herself because, inter alia, "there is no indication that the officer who obtained [her] testimony believed it to be false or that the State knowingly used false testimony at trial."
What this implies is that, if Adnan could present evidence indicating that the detectives who took Jay's statements knew them to be false, it would be grounds for reopening the postconviction proceeding and possibly a new trial.
Court of Appeals of Maryland Agrees With My Student & Me on Higher Authentication Standard for Social Media Evidence
I have written about how Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), should be the case that is used to support a finding that Adnan Syed received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain. Recently, Adnan's case was handed over to the Attorney General of Maryland, which submitted a Brief of Appellee that, inter alia, tried to distinguish Griffin.
It turns out that this isn't the first time that there's been an (indirect) clash between the Attorney General of Maryland and me over a case named Griffin. Instead, just last month, the Court of Appeals of Maryland had to decide whether to apply the interpretation of a case named Griffin by my student and me or the interpretation advanced by the Attorney General of Maryland. The Court of Appeals sided with my student and me; we'll see whether the same result will be reached in the Adnan Syed appeal.
Monday, May 11, 2015
In Friday's post, I cited to a case that directly contradicted one of the findings of the Baltimore City Circuit Court in denying the petition for postconviction relief brought by Adnan Syed. Adnan, of course, has claimed, that his trial counsel was ineffective based upon failure to contact potential alibi witness Asia McClain, who has claimed that she saw Adnan at the Woodlawn Public Library until 2:40 P.M. on January 13, 1999, the same day on which the prosecution claimed that Hae Min Lee was killed at Best Buy by 2:36 P.M.
In rejecting Adnan's petition, the Circuit Court noted that Adnan's attorney might have chosen not to contact Asia because Asia's story about seeing Adnan at the library until 2:40 P.M. on January 13, 1999 contradicted Adnan's "own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m." (page 11). In response, I discussed Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990), a case cited with approval by both the Fourth Circuit and the Court of Special Appeals of Maryland (the same court handling Adnan's appeal). You can read that post to see why this finding by the Circuit Court fails to hold water.
That still, however, leaves the other two reasons why the Circuit Court denied Adnan's petition: (1) Adnan failed to prove that Asia was a concrete alibi witness because her letters failed to state the time when she saw Adnan on January 13, 1999; and (2) "trial counsel could have reasonably concluded that [Asia] was offering to lie in order to help petitioner avoid conviction." (pages 11-12).
I now feel like I've found an analogous case that refutes both of these conclusions: Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).
Friday, May 8, 2015
The State's Brief, Take 2: The Failure to Contact/Call an Alibi Witness Based on Conflicts with the Defendant's Own Alibi
In yesterday's post, I discussed the Brief of Appellee in Syed v. State. The most important part of that post addressed what I regard to be the key holding of the Baltimore City Circuit Court in denying Adnan's claim of ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain: that Asia's story about seeing Adnan at the library until 2:40 P.M. on January 13, 1999 contradicted Adnan's "own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m." (page 11). In yesterday's post, I detailed how Adnan never claimed that he remained on the school campus from 2:15 to 3:30 P.M. on January 13th.
Let's assume for the sake of argument, however, that Adnan did claim that he remained on the school campus from 2:15 to 3:30 P.M. on January 13, 1999. Would that justify the decision of Adnan's trial attorney not to contact Asia McClain? According to a key case that has been cited by both the Court of Special Appeals of Maryland and the Fourth Circuit, the clear answer is "no."
Thursday, May 7, 2015
Yesterday, the State of Maryland filed its Brief of Appellee in Syed v. State. In this post, I will list my thoughts about the State's arguments on Adnan's claim that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact Asia McClain, a potential alibi witness.*
Wednesday, May 6, 2015
I was hoping to be able to do a post today about the State's brief in the Adnan Syed case, but the State has asked for another extension to the filing deadline. While we're all waiting for the State's brief, I thought that I would anticipate two arguments that the State could make in its brief.
You might recall that Asia McClain did not testify at Adnan's PCR proceeding. According to the defense, the reason that Asia didn't testify was a phone conversation that she had with Kevin Urick, one of the prosecutors at Adnan's trials in 1999 and 2000. According to Asia's new affidavit,
[Urick] told me there was no merit to any claims that Syed did not get a fair trial. Urick discussed the evidence of the case in a manner that seemed designed to get me to think Syed was guilty and that I should not bother participating in the case, by telling what I knew about January 13, 1999. Urick convinced me into believing that I should not participate in any ongoing proceedings. Based on my conversation with Kevin Urick, the comments made by him and what he conveyed to me during that conversation, I determined that I wished to have no further involvement with the Syed defense team, at that time.
So, let's assume that the State makes the following arguments in its brief: (1) Urick's motives were impeccable, and he had no intention to transform a willing witness into an unwilling witness; and (2) the conversation with Urick was not the direct or exclusive factor in Asia's failure to testify. Would either of these arguments hold water? The clear answer seems to be "no."
Tuesday, May 5, 2015
This is the last in a series of posts on my recently completed book project comparing the now-codified Virginia Rules of Evidence and the venerable Federal Rules of Evidence.
Here is the lineup of posts:
- Introduction: The Virginia and Federal Rules of Evidence
- Post 1: The Wrong Side of History: Prior False Accusations in Sexual Assault Cases
- Post 2: Virginia’s “Trap for the Unwary”: Loopholes in State Evidence Rules Protecting Settlement Discussions
- Post 3: Evidence Codification Intrigue in Virginia: A New(?) Hearsay Exception for Statements Made for Medical Treatment
- Conclusion: The Virginia and Federal Rules of Evidence
For those keeping score at home, here are the takeaways from the series:
(1) Virginia's Facial Similarity to the Federal Rules Masks Significant Differences
The codification of the Virginia rules and adoption of the federal numbering (and often federal-ish language) is a welcome development for the Commonwealth. But despite facial similarity, the Virginia rules regularly deviate from the federal rules, often in important ways. I flagged one deviation in Post 2 (settlement discussions), but there are many more. They range from the refreshing to the mundane to the maddening, but all are worth exploring.
In some areas like privilege, the Virginia rules take on questions that the federal rules sidestep. In other areas (e.g., Rule 106), the Virginia rules clarify questions that split the feds. And some rules, like the evidentiary morass that is Virginia Rule 2:607 (Impeachment of Witnesses), illustrate the wisdom of simpler federal rules.
(2) The Codified Rule Is Not Necessarily the Virginia Rule
The Codifiers were only authorized to codify (not alter) pre-codification case law. But the codifiers occasionally strayed from Virginia case law. The Virginia courts have not yet taken on an instance of codification inconsistency, perhaps because litigants have not brought any to their attention. I flagged a big one in Post 3, a seemingly new hearsay exception. When these deviations are inevitably litigated, will Virginia courts accept the codification or return to pre-codification case law? It’s a cliffhanger!
(3) A Book that Chronicled All This Would Be Very Useful
Yes, indeed. That’s what I thought when I first arrived in Virginia to teach Evidence three years ago. Turns out to get one of these books, I had to write it myself. You on the other hand can grab a copy for less than $20. That’s right, one fifth the cost of viewing the Mayweather-Pacquiao fight without all the angst.
In yesterday's Addendum episode of the Undisclosed Podcast, Susan discussed a very "interesting" statement made by prosecutor Kathleen Murphy in her closing argument at the trial of Adnan Syed for murdering Hae Min Lee. Here's the statement (pages 75-76):
This statement is interesting because we have Hae's diary...her "print" diary. In it, the last ride that Hae mentions giving to Adnan occurred on December 31, 1998. That's two weeks before January 13th and the day before Hae started dating Don. So, what was the basis for Murphy making this claim?
We know from testimony by Hae's brother Young that Hae had a second "diary" in the form of entries about private matters that she recorded on floppy disks (page 73):
We also know that a floppy disk was one of several items recovered from Hae's car:
This disk, however, was lost and never turned over to the defense or introduced into evidence. Before, it was lost, however, was it reviewed by Murphy? Murphy's statement during closing raises three possibilities: (1) Murphy was mistaken about the diary entry; (2) Murphy was lying about the diary entry; or (3) Murphy had read a diary entry on Hae's floppy disk about a ride on January 11th before that disk was lost.
Monday, May 4, 2015
Two things. First, look for the Addendum to the second episode of the Undisclosed Podcast later today. Just like I did two weeks ago, I will have an "Addendum to the Addendum," exploring one of the issues from the Addendum in more detail.
Second, I have been getting a few e-mails from people questioning whether the prosecution claimed in its closing argument at the trial of Adnan Syed that Hae Min Lee had been killed between 2:15 and 2:36 P.M. on January 13, 1999. Given that this claim was a huge part of the Serial Podcast and Adnan's current argument that he received the ineffective assistance of counsel based on failure to contact Asia McClain, I thought it made sense to do a quick post proving that the prosecution did, in fact, make this claim.
Thursday, April 30, 2015
At the trial of Adnan Syed for murdering Hae Min Lee, the prosecution introduced into evidence a note that Hae had written for her new boyfriend that referenced (1) Hae filming an interview; and (2) Hae attending a wrestling match at Randallstown High. At trial, the prosecution claimed that this note was written on January 13, 1999, the day that Hae disappeared. In the second episode of the Undisclosed Podcast, we argued that this note was actually written on January 5, 1999 because (1) Woodlawn had a reported wrestling match at Randallstown High School on January 5, 1999; (2) Woodlawn had no reported wrestling match on January 13, 1999; and (3) Randallstown had a reported wrestling match against another school (Carver) on January 13, 1999.
Yesterday, an astute reader pointed something else out to me: Randallstown had a home basketball game on January 13, 1999.
Wednesday, April 29, 2015
In the wake of the second episode of the Undisclosed Podcast, I've received many e-mails speculating that there might have been a Woodlawn wrestling match on January 13, 1999, despite the fact that no such game was reported in the newspaper. Maybe, for instance, it was a re-scheduled match after an earlier match was cancelled due to poor weather. Maybe it was a junior varsity match, despite the Woodlawn yearbook making no mention of a JV wrestling team in 1999. Maybe Hae was the one who was supposed to report the score to the newspaper. My best guess is still that there was no Woodlawn wrestling match on January 13, 1999, as originally asserted by Susan Simpson in this blog post.
That said, if there were a Woodlawn wrestling match on January 13, 1999, guess whose recollection of that day becomes much more important? Debbie. You might recall that, in her statement on March 26, 1999, she recalls talking to Adnan about going to track practice at about 2:45 and then talking with Hae Min Lee some time between 2:45 and 3:15. In the conversation with Hae, "Takera" asks Hae for a ride, and Hae turns her down because she has to pick up her cousin and has no time to give a ride.
I've noted before that I think Debbie had the wrong day, but, if Woodlawn did have a wrestling match on January 13, 1999, there's a very good chance that Debbie had the right day. You see, in her statement, Debbie makes reference to Hae having to go to a game on January 13th, but her statement about the game is pretty garbled:
Most people assume that "rustling" means wrestling, and I'm inclined to agree. So, if Woodlawn indeed had a wrestling match on January 13th, that would make it the only day in early January 1999 that Woodlawn had both track practice and a wrestling match. Therefore, Debbie would likely be remembering the right day. And, if Debbie was remembering the right day, I think the case against Adnan Syed is actually weaker.
[Update: I'm already getting questions about what effect hypothetical new information about a wrestling match on 1/13 would have on Adnan's claim of ineffective assistance of counsel based on failure to contact Asia McClain. My response is as follows: What actually happened is irrelevant to the ineffective assistance claim. What matters is what was presented at trial. At trial, both a witness for the prosecution (Inez) and a witness for the defense (Becky) said they saw Hae leaving school in a hurry between 2:15 and 2:20; the prosecution also claimed that Hae was dead within 21 minutes of leaving school and that the Best Buy call was at 2:36. Asia saying she left Adnan behind in the library at 2:40 has all of the legal relevance in the world based upon the evidence/argument presented at trial. If Summer and/or Debbie are right about date and time, Asia is factually irrelevant but legally still very relevant].
Tuesday, April 28, 2015
Evidence Codification Intrigue in Virginia: A New(?) Hearsay Exception for Statements Made for Medical Treatment
One of the most highly regarded hearsay exceptions in American jurisprudence is the exception for “Statements Made for Medical Diagnosis or Treatment,” Fed. R. Ev. 803(4). The basic idea of the exception is that we expect people to honestly tell their doctor they got shot in the leg, because when you tell the doctor your gunshot wound is a bug bite, you get useless ointment instead of life-saving surgery.
It is no surprise, then, that we find this exception – copied verbatim from the unrestyled federal rule – in the recently codified Virginia Rules of Evidence, Rule 2:803(4):
"Statements for Purposes of Medical Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
Interestingly, however, the "codified" rule does not track Virginia case law. From my book:
. . . Virginia case law seems significantly narrower than the codified rule. In the most recent case, the Court explained:
“We have acknowledged that “a physician [may] testify to a patient’s statements concerning his ‘past pain, suffering and subjective symptoms’ to show ‘the basis of the physician’s opinion as to the nature of the injuries or illness.’” Cartera v. Com., 219 Va. 516, 518, 248 S.E.2d 784, 785–86 (1978); accord Jenkins v. Com., 254 Va. 333, 339, 492 S.E.2d 131, 134 (1997).” Lawlor v. Com., 285 Va. 187, 243 (2013).
Lawlor and the two cases cited by Lawlor in the above excerpt are the three cases cited in the Virginia codification commentary to support Rule 2:803(4). But note that the Lawlor Court’s description of the “exception” does not suggest that qualifying statements are admissible as substantive evidence, the normal effect of a hearsay exception. Instead, the Virginia Supreme Court explains that such statements to a physician are admissible to “show the basis of the physician’s opinion” – a nonhearsay use that would not necessitate a hearsay exception. Further, one of the cited cases, Jenkins, contains the following passage, which is far from an endorsement of the exception:
“The Commonwealth contends that we should apply the hearsay exception extended in some jurisdictions to statements made by a patient to a treating physician. As the Commonwealth recognized on brief, ‘many of these out-of-state cases are partially based on their state’s adoption of rules equivalent to Federal Rule of Evidence 803(4).’ Neither this Court nor the General Assembly has adopted any such rule.” Jenkins v. Com., 254 Va. 333, 339, 492 S.E.2d 131, 134 (1997).
. . .
Virginia has not adopted Rule 803(4), eh? Tell that to the codifiers!
Rule 2:803(4) is one of a handful of places in the codified rules where the codifiers stretched the Virginia evidence rules beyond their pre-codification bounds.
Monday, April 27, 2015
Today's second episode of the Undisclosed Podcast focused on Hae's day on January 13, 1999 and tried to answer the question: Who was the last (innocent) person to see Hae alive? In the episode, we narrowed down the likely choices to Becky/Aisha and "Takera." But what if none of these people turned out to be the last (innocent) person to see Hae alive? And what if the last (innocent) person to see Hae alive were in fact the last person to speak with Adnan on his cell phone on the 13th?
Saturday, April 25, 2015
Adnan Syed's Postconviction Hearing & Why the Court Could & Should Remand to Allow Asia McClain to Testify
Yesterday, somebody released the transcript from Adnan Syed's Postconviction Review Hearing. Here is the heart of prosecutor Kathleen Murphy's argument from that hearing about why the court should deny Adnan's claim that he received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain:
Simply put, this argument has me more convinced than ever that the Court of Special Appeals of Maryland can and should remand to the Circuit Court to allow Asia McClain to testify.
Friday, April 24, 2015
Earlier this month, I did a post about "Takera," who was mentioned in Debbie's police interview and who was quite possibly the last person to see Hae Min Lee alive (besides her murderer). I did the post because (a) I was pretty convinced that "Takera" wasn't this person's actual name; and (b) there seemed to be no other reference to "Takera" in either the prosecution or defense files. As a result of that post, I was given information that led me to believe that I had tracked down the real "Takera."
Well, two days ago, Susan Simpson was able to locate a second reference to "Takera" in the prosecution files. This reference, however, was not to "Takera." This reference was a reference to Takera's real name, spelled correctly. So, what does this all mean?
Thursday, April 23, 2015
No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by...Lifting the Order
At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute or rule to be present.
So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You'd expect there to be severe consequences for that witness, right? So why wasn't that the case in Koller Concrete, Inc. v. Tube City IMS, LLC, 2015 WL 1788772 (Pa.Super. 2015)?