EvidenceProf Blog

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

Thursday, December 7, 2017

Cyntoia Brown & the "51-To-Life" Project: Connecticut

This is the seventh in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Connecticut treats juvenile homicide offenders better than Tennessee.

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December 7, 2017 | Permalink | Comments (0)

Wednesday, December 6, 2017

Thiru Vignarajah & the New Trials & Tossed 100+ Year Prison Terms For 2 Man Convicted of Killing a Prospective Witness

I hadn't noticed this Baltimore Sun article until seeing this tweet. The title of the article is provocative: "2 men sentenced to more than 100 years in killing of witness to receive new trial." Specifically, according to the article,

Derius Duncan, 27, and Clifford Butler, 25, were both convicted of first-degree murder of Ronald Givens* in 2015. But in an opinion issued on Feb. 2, the appeals court wrote that they should receive new trials because information was unfairly used against them from a proffer agreement Butler had made during the investigation.

So, what happened?

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December 6, 2017 | Permalink | Comments (15)

Cyntoia Brown & the "51-To-Life" Project: Colorado

This is the sixth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Colorado treats juvenile homicide offenders better than Tennessee.

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December 6, 2017 | Permalink | Comments (0)

Tuesday, December 5, 2017

Cyntoia Brown & the "51-To-Life" Project: California

This is the fifth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why California treats juvenile homicide offenders better than Tennessee.

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December 5, 2017 | Permalink | Comments (0)

Monday, December 4, 2017

Cyntoia Brown & the "51-To-Life" Project: Arkansas

This is the fourth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Arkansas treats juvenile homicide offenders better than Tennessee.

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December 4, 2017 | Permalink | Comments (0)

Friday, December 1, 2017

Cyntoia Brown & the "51-To-Life" Project: Arizona

This is the third in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Arizona treats juvenile homicide offenders better than Tennessee.

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December 1, 2017 | Permalink | Comments (0)

Thursday, November 30, 2017

Cyntoia Brown & the "51-To-Life" Project: Alaska

This is the second in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Alaska treats juvenile homicide offenders better than Tennessee.

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November 30, 2017 | Permalink | Comments (0)

Wednesday, November 29, 2017

Cyntoia Brown & the "51-To-Life" Project: Alabama

This is the first in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Alabama treats juvenile homicide offenders better than Tennessee.

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November 29, 2017 | Permalink | Comments (0)

Cyntoia Brown & the "51-To-Life" Project

I've done a few posts (here, here, and here) about the Cyntoia Brown case.

Brown, now 29, was a 16-year-old victim of sex trafficking in Tennessee in 2004 when she fatally shot Johnny Mitchell Allen, a 43-year-old real estate agent who solicited sex from her, according to court documents and multiple local reports. Brown — who admitted she killed Allen by shooting him in the back of the head — becomes eligible for parole soon after she turns 69.

In doing those posts, what I've realized is that perhaps the most significant legal change in Tennessee that can help Brown and other juvenile lifers in Tennessee is a change in Tennessee's "51-To-Life" Law, which I outlined in this post. So, let me break that down, and then I will start the "51-To-Life" Project (similar to the Prior Inconsistent Statement Project).

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November 29, 2017 | Permalink | Comments (2)

Friday, November 24, 2017

Cyntoia Brown & Tennessee's Aberrational "51-To-Life" Law for Juvenile Offenders

Earlier today, I did a second post on the case of Cyntoia Brown.

Brown, now 29, was a 16-year-old victim of sex trafficking in Tennessee in 2004 when she fatally shot Johnny Mitchell Allen, a 43-year-old real estate agent who solicited sex from her, according to court documents and multiple local reports. Brown — who admitted she killed Allen by shooting him in the back of the head — becomes eligible for parole soon after she turns 69.

In that post, I noted that neither the trial nor the appellate court heard evidence regarding Brown's birth mother kidnapping her and engaging in other behaviors that should have been relevant to the sentencing decision. But I closed that post by noting that this evidence wouldn't in fact have been relevant under Tennessee's sentencing scheme. Why?

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November 24, 2017 | Permalink | Comments (0)

How Evidence that Cyntoia Brown's Birth Mother Kidnapped Her Was Never Considered by a Court

On Wednesday, I did a first post on the case of Cyntoia Brown.

Brown, now 29, was a 16-year-old victim of sex trafficking in Tennessee in 2004 when she fatally shot Johnny Mitchell Allen, a 43-year-old real estate agent who solicited sex from her, according to court documents and multiple local reports. Brown — who admitted she killed Allen by shooting him in the back of the head — becomes eligible for parole soon after she turns 69.

One of the big questions in the Brown case is whether, given, her circumstances, she should have been given a sentence as a 16 year-old that doesn't even allow for the possibility of parole until well after she becomes a senior citizen. In making that determination, however, neither the trial nor the appellate court considered some key pieces of evidence.

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November 24, 2017 | Permalink | Comments (0)

Wednesday, November 22, 2017

Cyntoia Brown and Prostitution Safe Harbor Laws for Minors

I've been getting a lot of questions about Cyntoia Brown

Brown, now 29, was a 16-year-old victim of sex trafficking in Tennessee in 2004 when she fatally shot Johnny Mitchell Allen, a 43-year-old real estate agent who solicited sex from her, according to court documents and multiple local reports. Brown — who admitted she killed Allen by shooting him in the back of the head — becomes eligible for parole soon after she turns 69.

In 2011, director Daniel Birman chronicled Brown's story in the documentary Me Facing Life: Seeking Redemption In Cyntoia Brown's Story. "The film gave insight on the physical, sexual and verbal abuse Brown suffered as a child before she was solicited for sex by 43-year-old realtor Johnny Mitchell Allen."

Subsequently,

Brown has completed her associate's degree and is now working on her master's. In December 2016, pictures of her receiving her associate's from Lipscomb University's in-jail program showed a hopeful Brown.

Cyntoia Brown's case calls into question several aspects of the criminal justice system. The first that I want to address is safe harbor laws limiting the criminal liability of minors who are arrested for prostitution.

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November 22, 2017 | Permalink | Comments (0)

Friday, November 17, 2017

Washington Becomes 1st State in Country to Create Rule Deeming Immigration Status Evidence Inadmissible

Back in 2009/2010, I did a series of posts about whether lawyers and/or judges should be able to question witnesses about their immigration status. After doing a number of these posts, I wrote an essay for the Northwestern University Law Review Online: "Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes." Subsequently, the Court of Appeal of California cited the article in finding that a trial court properly precluded defense counsel from interrogating a prosecution witness about his immigration status. But, as far as I can tell, no jurisdiction ever created a categorical rule precluding such interrogation...until now.

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November 17, 2017 | Permalink | Comments (1)

Wednesday, November 15, 2017

The Adnan Syed Case: Jenn's Interview & "A Different Broads House"

Last week, I posted an entry about Jenn's Day in the Adnan Syed case based on her trial testimony. Next, I planned to do a post about Jenn's Day based upon her police interview. I will still do that post, but I came across something interesting in Jenn's interview that I don't think I fully processed before. I also can't remember anyone else addressing it, so I figured I would do a post on it.

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November 15, 2017 | Permalink | Comments (6)

Friday, November 10, 2017

The Adnan Syed Case: Jenn's Day

Recently, someone was asking about a particular aspect of Jenn's testimony in the Adnan Syed case. This led me to realize that while we had episodes on Adnan's Day, Hae's Day, and Jay's Day on Undisclosed, we never had an episode on Jenn's Day. This post is an attempt to piece together what she claims at trial was her timeline on January 13th (I might do a separate post in the future about her police statement). All of the excerpts are taken from Jenn's trial testimony. This post isn't an attempt to compare Jenn's day to other evidence/statements/testimony in the case; it's just laying out what she said.

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November 10, 2017 | Permalink | Comments (11)

Monday, November 6, 2017

Is Failure to Register as a Sex Offender a Crime of Dishonesty or False Statement?

Similar to its federal counterpart, Arkansas Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime 

(2) involved dishonesty or false statement, regardless of the punishment.

So, does the crime of failure to register as a sex offender qualify as a crime of dishonesty or false statement under Rule 609(a)(2)? That was the question presented to the Court of Appeals of Arkansas in Pledger v. State, 2017 Ark. App. 566 (Ark.App. 2017).

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November 6, 2017 | Permalink | Comments (1)

Thursday, November 2, 2017

The Supreme Court of Georgia's Ruling in Undisclosed, LLC v. The State

On Monday, the Supreme Court of Georgia ruled against Undisclosed in our attempt to get the court reporter's recording of the Joey Watkins trial. In doing so, Georgia's highest court made one decision that will greatly help future parties seeking access to court records and one decision that will greatly curtail that access. So, what did the Supreme Court of Georgia rule and why? 

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November 2, 2017 | Permalink | Comments (6)

Wednesday, October 25, 2017

The Effect of 4 Permutations of Debbie's Statements on the Adnan Syed Case

A reader/listener e-mailed me recently to ask about the implications of various permutations of Debbie's police statements/testimony in the Adnan Syed case. You might recall that Debbie gave three police statements and testified at both of Adnan's trials:

Police Statement to Detective O'Shea: On January 28, 1999, Debbie said that she saw Hae at school at approximately 3:00 P.M. on January 13th and that "Hae told Debbie she was going to see Donald at the mall."

Police Statement to Detectives MacGillivary and O'Shea: On March 2, 1999, Debbie went to the police station for a recorded interview. The State has only been able to locate the cover sheet for this interview.

Police Statement to Detectives Ritz and MacGillivary: On March 26, 1999, Debbie said that 

(1) she saw Adnan outside the guidance counselor's office at about 2:45 P.M. on January 13th; Adnan had his "track stuff with him, his gym bag," and they talked about school and Adnan "going to practice;"

(2) she saw Hae and their classmate "Takera" between 2:45 and 3:15 P.M., with "Takera" (and no one else that Debbie can remember) asking Hae for a ride and Hae responding that "she couldn't because she had to pick up her cousins after school, and she had to meet them about 3 O'CLOCK, so she didn't have time;"

Trial #1 Testimony: At Adnan's first trial, Debbie testified on December 13, 1999 that she remembered telling the detectives that she saw Adnan outside the guidance counselor's office on January 13th. She was not asked about seeing Hae after school on January 13th.

Trial #2 Testimony: At Adnan's second trial, Debbie testified on February 16-17, 2000 that she saw Hae at about 3:00 P.M. on January 13th, with Hae telling her that she was going to see Don at the mall. Debbie was not asked about "Takera" and testified that she did not recall telling detectives that she saw Adnan outside the guidance counselor's office on January 13th.

The reader/listener's question was about the implications of various permutations of these statements. So, let's look at the four likeliest permutations and their implications.

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October 25, 2017 | Permalink | Comments (25)

Wednesday, October 18, 2017

Supreme Court of Georgia Deems Statements Inadmissible as Co-Conspirator Admissions in Murder Trial

Similar to its federal counterpart, Georgia Rule of Evidence 801(d)(2)(E) allows for the admission of

A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

It seems fairly easy to determine when a statement is made during the course of a conspiracy, but when is such a statement made in furtherance of a conspiracy? That was the question addressed by the Supreme Court of Georgia in its recent opinion in State v. Wilkins, 2017 WL 4341400 (Ga. 2017).

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October 18, 2017 | Permalink | Comments (0)

Wednesday, October 11, 2017

Supreme Court of Hawai'i Finds Co-Defendants Don't Have to Join Objections to Preserve Issues

Two defendants -- Lawrence L. Bruce and Justin McKinley -- are jointly tried in connection with "their alleged involvement in and benefit from the activities of a prostitute, the complaining witness (CW). In response to the prosecutor's comment during rebuttal closing

that CW was “somebody's daughter, she's somebody's friend, she's a mother, she's a woman, she is a person,” McKinley objected on grounds that “this is a little bit far beyond arguing the evidence.” Bruce did not join McKinley's objection, nor did he raise one of his own. McKinley's objection was overruled.

Has Bruce reserved the issue for appellate review? This was the question of first impression that the Supreme Court of Hawai'i addressed in its recent opinion in State v. Bruce, 2017 WL 4480038 (Hawai'l 2017). 

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October 11, 2017 | Permalink | Comments (4)