EvidenceProf Blog

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

Tuesday, July 19, 2016

'Serial': How Adnan Syed Could Win His Retrial

Yesterday, Amelia McDonell-Parry published a great article in Rolling Stone titled, "'Serial': How Adnan Syed Could Win His Retrial." She interviewed me for the article, which covers a number of topics such as CrimeStopppers and lividity.


July 19, 2016 | Permalink | Comments (11)

Friday, July 15, 2016

"[A]s a matter of law, the house is haunted" -- The Ghostbusters Case & Caveat Emptor

"Ghostbusters" was one of the defining movies of my childhood. I can still remember gong to a drive-in movie theater to see it in 1984. Bill Murray was rightfully the best part of the movie for most people, but, ever since Boba Fett, I always liked the bad guy. So, in "Ghostbusters", it was William Atherton's EPA agent I loved to hate. It was the first in a series of classic heels turns by Atherton.*

Soon thereafter, I got the video game for my Commodore 64. I often spent my Saturday mornings playing the game and watching "The Real Ghostbusters" animated series on TV. In 1989, Ghostbusters II was released. It wasn't as good as the original, but it still had some great scenes, including this one in the courtroom. 

Now, 27 years later, Paul Feig, who captured childhood in the '80s so well in "Freaks and Geeks," has created an entirely new version of "Ghostbusters," with the terrific cast of Kristen Wiig, Melissa McCarthy, Kate McKinnon, and Leslie Jones. If this reboot is successful, we can expect to the ghostbusters being part of the conversation for generations to come. Interestingly, they are already part of the conversation for many law students and judges. 

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July 15, 2016 | Permalink | Comments (4)

Thursday, July 14, 2016

Interesting Study on the Illusion of Truth Effect and Eyewitness Suggestibility

For those of you interested by the discussion of the illusion of truth effect in Episode 1 of Season 2 of Undisclosed, here's an interesting study about the illusion of truth effect and eyewitness suggestibility: (Download Illusion of Truth Study). Here is the abstract:

The purpose of the present study was to extend research on repetition and illusory truth to the domain of eyewitness suggestibility. Specifically, we assessed whether repeated exposure to suggestion, relative to a single exposure, facilitates the creation of false memory for suggested events. After viewing a video of a burglary, subjects were asked questions containing misleading suggestions, some of which were repeated. Their memory for the source of the suggestions was tested. The results show that following repeated (relative to a single) exposure to suggestion, subjects were more likely to (a) claim with high confidence that they remembered the suggested events from the video (Experiment 1) and (b) claim that they consciously recollected witnessing the suggested events (Experiment 2). The effects of repeated exposure were highly reliable and were observed over retention intervals as long as 1 week.


July 14, 2016 | Permalink | Comments (4)

The Cliffs Notes Version of Yesterday's Post on Excusing Waiver in the Adnan Syed Appeal

Last night's post seems to have caused some confusion, so here's the Cliffs Notes version:

1. Adnan had until June 6, 2010 to bring a claim that he received ineffective assistance of counsel based upon his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert;

2. In his initial PCR petition, filed on May 28, 2010, Adnan did not raise a claim of ineffective assistance of counsel based upon his trial counsel's failure to use the AT&T disclaimer to cross-examine the State's cell tower expert;

3. Adnan first raised the cell tower claim in a Supplement filed on August 24, 2015;

4. Judge Welch could have ruled that Adnan's failure to raise the cell tower claim by June 6, 2010 2000 resulted in waiver of that claim, meaning that Judge Welch would not consider the merits of that claim;

5. Instead, Judge Welch ruled that Adnan did not knowingly and intelligently waive the cell tower claim, meaning that (a) there was no actual waiver; (b) Judge Welch could consider the merits of the cell tower claim; (c) Judge Welch was able to grant Adnan a new trial based on the cell tower issue;

6. If the State appeals to the Court of Special Appeals of Maryland, that court could agree that Adnan did not waive the cell tower issue and affirm Judge Welch's order granting Adnan a new trial;

7. Alternatively, and this was the point of yesterday's post, the Court of Special Appeals of Maryland could disagree with Judge Welch, conclude that Adnan did waive his cell tower claim, and yet, pursuant to Maryland Court Rule 8-131(a), excuse Adnan's waiver, and affirm Judge Welch's order granting Adnan a new trial.

Put more simply, the Court of Special Appeals can affirm Judge Welch's order granting Adnan a new trial on the cell tower claim by either (1) agreeing with Judge Welch that Adnan did not waive the cell tower claim; or (2) finding that Adnan did waive the cell tower claim but excusing this waiver.


July 14, 2016 | Permalink | Comments (9)

Wednesday, July 13, 2016

The Court of Special Appeals Has Authority to Excuse Any Possible Waiver of Adnan's IAC/Cell Tower Claim

Maryland Court Rule 8-131(a) provides that

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

So, what does this Rule mean? It means that the Court of Special Appeals of Maryland can affirm Judge Welch's order granting Adnan a new trial even if it finds that he waived his ineffective assistance of counsel claim regarding the AT&T disclaimer. 

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July 13, 2016 | Permalink | Comments (3)

Tuesday, July 12, 2016

Undisclosed, S2, E1: The Illusion of Truth Effect & The Rule Against Hearsay

Last night, we premiered the first episode of the Second Season of Undisclosed: "The Panama City Incident." In the episode, we talked about the illusion of truth effect and how it led the residents of Rome, Georgia to believe that Joey Watkins had shot at Isaac Dawkins in July 1999. According to Wikipedia, the illusion of truth (or illusory truth effect is)

the tendency to believe information to be correct because we are exposed to it more often. It was first discovered in 1977 at Villanova University and Temple University. We see some misconceptions or exaggerations frequently in our daily lives, and thus have a tendency to believe them to be true because of our recurrent exposure.

This effect has an important relationship to the rule against hearsay.

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July 12, 2016 | Permalink | Comments (13)

Monday, July 11, 2016

Does Court of Appeals Precedent Imply It's Futile to Reverse Judge Welch's Waiver Ruling?

The opinion of the Court of Appeals of Maryland in Jourdan v. State, 341 A.2d 388 (Md. 1975), is another important one on the issue of knowing and intelligent waiver of fundamental rights. As I noted last week, Judge Welch found that Adnan did not knowingly and intelligently waive his IAC/cell tower claim by failing to raise it in his first postconviction relief petitions. Jourdan seems to stand for the proposition that there would be no point in the Court of Special Appeals or Court of Appeals reversing this ruling.

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July 11, 2016 | Permalink | Comments (7)

Friday, July 8, 2016

Was Judge Welch Correct That the Brady Right is Not a Fundamental Right?

In Judge's Welch's opinion granting Adnan a new trial, he noted the dichotomy between fundamental and non-fundamental rights:

Screen Shot 2016-07-08 at 8.56.44 AM

Because Maryland has found that the right to the effective assistance of counsel is "fundamental," Judge Welch was able to find that Adnan's prior failure to raise the AT&T disclaimer issue was not waived because Adnan did not "intelligently and knowingly" fail to raise the issue in his first PCR petition. Conversely, because Judge Welch concluded that an alleged Brady violation does not relate to a fundamental right, he also concluded that Adnan had waived his Brady claim because he had the opportunity to raise the claim in his first PCR petition; under this analysis, it was irrelevant that Adnan didn't "intelligently and knowingly" fail to raise the Brady claim. But is this conclusion correct? 

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July 8, 2016 | Permalink | Comments (17)

Thursday, July 7, 2016

Assessing Judge Welch's Conclusion That Adnan Didn't Waive His Cell Tower/IAC Claim

In discussing Judge Welch's opinion granting Adnan a new trial, I have placed a lot of emphasis on substantive caselaw regarding ineffective assistance of counsel, alibi witnesses, and cell tower pings. But a trial that ended three days before the Doors appeared on "The Ed Sullivan Show" might be more important than any of that.

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July 7, 2016 | Permalink | Comments (26)

Wednesday, July 6, 2016

The State is Between Scylla and Charybdis in Appealing Judge Welch's Ruling

In Greek mythology, Scylla and Charybdis were a pair of monsters who lived on opposite ends of the Strait of Messina between Italy and Sicily Scylla was originally a sea nymph who was loved by the sea god Poseidon*. Out of jealousy, Poseidon's wife Amphitrite poisoned the waters in which Scylla bathed. This turned Scylla into a six-headed beast with three rows of sharp teeth in each head. When ships passed close by her, she struck out to grab and eat unwary sailors.

Charybdis was also a sea nymph, as well as the daughter of Poseidon. Zeus* transformed her into a dangerous whirlpool across the strait from Scylla. Ships sailing the strait were almost certain to be destroyed by one of the monsters.

The legend of the two monsters gave birth to the phrase "between Scylla and Charybdis," meaning a situation in which one has to choose between two equally unattractive options.


Based on the opinion of the Fourth Circuit in Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011), I'm more convinced than ever that the State will be between Scylla and Charybdis if it attempts to appeal Judge Welch's opinion granting Adnan a new trial.

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July 6, 2016 | Permalink | Comments (23)

Tuesday, July 5, 2016

Does Judge Welch's Opinion Leave the State With Any Workable Theory of Adnan's Guilt?

"Had trial counsel investigated the potential alibi witness, she could have undermined a theory premised upon inconsistent facts. The potential alibi witness, however, would not have undermined the crux of the State's case: that Petitioner buried the victim's body in Leakin Park at approximately 7:00 P.M. on January 13, 1999." Excerpt from Judge Martin P. Welch's opinion granting Adnan Syed a new trial.

In yesterday's episode of Undisclosed, I repeated the claim I made in a blog post last week: Pursuant to the Supreme Court's recent opinion in Wearry v. Cain, evidence "that [the defendant] may have been involved in events related to the murder after it occurred" might support a conviction for being an accessory after the fact but cannot support a conviction for murder. Therefore, evidence of what Adnan may have been doing at approximately 7:00 P.M. cannot support his conviction for murder, and there are good reasons to believe that the Court of Special Appeals of Maryland (COSA) will use Wearry to find that failure to contact Asia McClain was prejudicial, assuming that there is even an appeal.*

Apart from Wearry, however, in this post I will really dig into Judge Welch's opinion and show how it demonstrates that Asia wouldn't merely have undermined the theory presented by the State at trial; she would have undermined any theory that the State could have presented at trial.

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July 5, 2016 | Permalink | Comments (23)

Saturday, July 2, 2016

The State Can't Present Any New Evidence/Witnesses Regarding the AT&T Disclaimer

In response to Thursday's post, a commenter, Ben, asked, where the State could present new evidence or witnesses regarding the AT&T disclaimer at the hearing before the Court of Special Appeals of Maryland. My response was that

The State cannot bring new witnesses or evidence at the COSA hearing, which would just feature legal analysis. In other words, the State could find a new witness or document today which would establish that the disclaimer was irrelevant to this case, and it wouldn’t matter.


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July 2, 2016 | Permalink | Comments (13)

Friday, July 1, 2016

A New Trial in Three Steps

A new trial in three steps:


Step One: May 6, 2015: The State files its Brief of Appellee. At trial, the State had claimed that the 2:36 P.M. call on Adnan's call log was Adnan calling Jay from Best Buy after having killed Hae Min Lee. On appeal, the defense had thus claimed that Asia McClain, who saw Adnan at the library until 2:40 P.M., provided a complete alibi. In its brief, the State responded with the now infamous footnote 8, which states in pertinent part:

Screen Shot 2016-07-01 at 12.27.45 PM

This argument was completely unnecessary. The State could have simply deemphasized the importance of the 2:36 P.M. timeline or claimed that Asia's testimony wouldn't have been enough to change the jury's verdict. Instead, the State decided to advance a new argument on appeal, an argument that piqued the interest of defense counsel. 

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July 1, 2016 | Permalink | Comments (25)

Thursday, June 30, 2016

A Quick Take on Judge Welch's Opinion Granting Adnan Syed a New Trial

Today, Judge Martin Welch granted Adnan a new trial. Judge Welch reached this conclusion by finding that "trial counsel's...failure to challenge the reliability of the cell tower location evidence violated [Adnan]'s right to effective assistance of counsel[.]" This alone was enough to grant Adnan a new trial.

Judge Welch also found that trial counsel acted unreasonably by failing to contact prospective alibi witness Asia McClain, thus satisfying the first prong of the ineffective assistance of counsel test. That said, Judge Welch found that Adnan failed to prove prejudice, i.e., that contacting Asia would have created the reasonable probability of a different outcome at trial.

I will have much more about Judge Welch's opinion in future posts, but I wanted to shoot out a quick post about this last conclusion because there's a recent Supreme Court opinion that seems directly on point.

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June 30, 2016 | Permalink | Comments (34)

Prosecutor's "Lost in Space" Statement Leads to Loss on Appeal in Manslaughter Case

Yesterday, Deadline announced that 

Netflix has given a 10-episode straight-to-series order to Lost in Space, a remake of sci-fi master Irwin Allen’s 1965 cult TV classic, from Legendary TV.

I remember watching watching "Lost in Space" in syndication as a kid. Apparently, the same was the case for a prosecutor in Connecticut, and it's part of the reason why a defendant was given a new trial.

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June 30, 2016 | Permalink | Comments (3)

Wednesday, June 29, 2016

COSA Finds Thiru Vignarajah Acted "In Bad Faith and For an Improper Purpose," But Denies George Johnson a New Trial

Back on February 18th, I posted an entry about the George Johnson appeal. Johnson was the man allegedly hired by Derrick Toomer to murder Ralph Hall. Toomer was prosecuted for Hall's murder before Johnson. At Toomer's trial, prosecutor Thiru Vignarajah (the State attorney handling Adnan's appeal) misrepresented the DNA evidence and secured Tommer's conviction. According to the Court of Special Appeals of Maryland,

The prosecutor misrepresented the evidence, creating a picture in which appellant, complicit in the crime, attempted to erase the evidence. The prosecutor’s argument had no basis in fact.

Before the Court of Special Appeals reached this conclusion, however, Johnson was put on trial. At Johnson's trial, Thiru called Toomer as a witness despite knowing that Toomer would exercise his Fifth Amendment privilege against self-incrimination. Yesterday, the Court of Special Appeals of Maryland had to answer the question of whether this dog and pony show required a new trial. Specifically, the court addressed this question:

Whether Appellant was denied his right to a fair trial, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments, when the prosecution called his separately tried and convicted codefendant as a witness in its case in chief with full knowledge that the witness would invoke a valid Fifth Amendment privilege and refuse to testify?

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June 29, 2016 | Permalink | Comments (4)

Monday, June 27, 2016

Michigan Court Denies Alibi/IAC Claim Because Defense Counsel Rejected Alibi Witness After Contacting Her

I've written before about the key distinction between failing to contact a prospective alibi witness and "failing" to call a prospective alibi witness at trial. While courts have invariably found that the former failure is unreasonable for purposes of a claim of ineffective assistance of counsel, courts routinely find that the latter "failure" can be, and frequently is, reasonable. The latest example of this can be found in the recent opinion of the United States District Court for the Eastern District of Michigan in Gaines v. Burt, 2016 WL 3444042 (E.D.Mich. 2016).

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June 27, 2016 | Permalink | Comments (5)

Friday, June 24, 2016

Court of Appeals of Maryland Finds Res Judicata Shouldn't Generally Bar Successive DNA Petitions

Section 8-201(b) of Maryland's Criminal Procedure Article provides as follows:

(b)   Notwithstanding any other law governing postconviction relief, a person who is convicted of a crime of violence under § 14–101 of the Criminal Law Article may file a petition:

(1)   for DNA testing of scientific identification evidence that the State possesses that is related to the judgment of conviction; or

(2)   for a search by a law enforcement agency of a law enforcement data base or log for the purpose of identifying the source of physical evidence used for DNA testing.

In yesterday's opinion in Jackson v. State, the Court of Appeals of Maryland had to answer an interesting question: Can a defendant bring successive petitions for DNA testing?

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June 24, 2016 | Permalink | Comments (0)

Tuesday, June 21, 2016

California Cold Case Trial Involves Lividity Evidence

According to an article in yesterday's Ventura County Star,

The preliminary hearing for a man accused of the murder of a pregnant woman and allegedly dumping her body at a local high school parking lot and the killing another woman nearly 40 years ago began Monday.

Wilson Chouest, 64, dressed in blue and orange jail garb, appeared before Ventura County Superior Court Judge Nancy Ayers. Prosecutors said Chouest is responsible for the July 1980 killings of an unidentified pregnant woman whose body was found at Westlake High School's upper parking lot and another unidentified female victim found in Kern County.

For the next 22 years, these killings went unsolved before "a 2012 search of a DNA databank of people arrested across the United States linked Chouest to DNA collected from the victims and their clothing."

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June 21, 2016 | Permalink | Comments (6)

Monday, June 20, 2016

Court Denies Missouri Man New Trial Despite Victim's Daughter Recanting Her Eyewitness Identification

According to an article in the Southeast Missourian

A Missouri judge refused to grant freedom to a man convicted of sexually attacking and killing a St. Louis woman more than three decades ago.

Cole County Circuit Judge Daniel Green last week ruled there was not enough evidence to back Rodney Lincoln's claim of innocence in the death of 35-year-old JoAnn Tate. She was killed in her home in 1982. Her two young daughters were assaulted.

The 2014 opinion of the Missouri Court of Appeals lays out the facts of the case in more detail:

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June 20, 2016 | Permalink | Comments (2)