EvidenceProf Blog

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

Monday, February 15, 2016

The Problems With the State Pivoting From the 2:36 Timeline to the 3:15 Timeline



This language comes from footnote 8 on page 26 of the State's Brief of Appellee in the Adnan Syed case. The argument seeks to strike at the heart of the "prejudice" prong of the ineffective assistance of counsel standard. Adnan's claim is that testimony by Asia McClain that she saw Adnan until 2:40 P.M. on January 13, 1999 would have created the reasonable probability of a different outcome at trial given that the State claimed that the 2:36 P.M. call on Adnan's call log was the Best Buy call Adnan made to Jay after he had killed Hae.

The State's claim, both in its brief and at the reopened PCR proceedings, was that the prosecution could have claimed at trial that Debbie saw Hae at 3:00 P.M. at school, making the 3:15 P.M. call the Best Buy call, with Adnan possibly getting a ride from Hae after Asia saw him at the library. Indeed, according to the State, neither the 2:36 nor the 3:15 "timeline was more or less consistent with the rest of the State's case." In this post, I will test that claim. 

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February 15, 2016 | Permalink | Comments (16)

Saturday, February 13, 2016

Another Recent Case in Which the Maryland AG's Office Claimed an Alibi Hurt a Defendant

On January 27th, the Court of Appeals of Maryland issued its opinion in Seward v. State. In the case,

Around noon on July 26, 1984, a man knocked on Phyllis Diacont’s ("Diacont") door and asked to use her phone after claiming that his car had broken down. Shortly after entering her home, the man raped, robbed, and shot Diacont. Diacont survived and later identified George Cameron Seward (“Seward”) as her attacker.

At trial,

Louise Stamathis (“Stamathis”) testified that Seward had worked at her dog grooming shop during the summer of the attack on Diacont. Because she was caring for her ill husband, however, Stamathis was unable to locate employment records and state whether Seward was at work the week of the crime.

Consequently, Seward was convicted "of first degree rape, first degree sex offense, assault with intent to murder, breaking and entering of a dwelling house, using a handgun in the commission of a felony, and robbery with a dangerous and deadly weapon." Now, he had been found actually innocent based on evidence that the Maryland Attorney General's office claimed supported his guilt. 

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February 13, 2016 | Permalink | Comments (6)

Friday, February 12, 2016

A Brady Violation in Pictures

I've gotten a lot of questions about whether Adnan's attorney, Justin Brown, raised a Brady/cell tower/Exhibit 31 claim at the reopened PCR proceedings. Sometimes, a picture really does tell a thousand words. Coreworkflow, the company that did some of the defense's exhibits for the PCR hearing, has now posted them online. The 26 documents posted on the website do a great job of illustrating the misleading/incomplete nature of Exhibit 31 and how the prosecution's arguments during closing (the most important evidence pursuant to Ware) establish the prejudice caused by the cell tower evidence and testimony at trial.* They also show how the Woodlawn Public Library was part of the school campus. Here's to great (pro bono) work by Coreworkflow and a terrific job by Justin Brown.


*The documents also indicate the importance placed on the evidence at the initial PCR hearing, while talking to Asia, and during Urick's Intercept interview.


February 12, 2016 | Permalink | Comments (13)

Thursday, February 11, 2016

Wrap-Up of Adnan's Reopened PCR Proceedings: Addendum

While writing my post yesterday, I realized that Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) is not only a very helpful case for Adnan under the "unreasonable performance" prong of the ineffective assistance of counsel test. It's also exceedingly helpful under the "prejudice" prong.

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February 11, 2016 | Permalink | Comments (15)

Wednesday, February 10, 2016

Wrap-Up of Adnan's Reopened PCR Proceedings: It's All About the Case(law)

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After five days of evidence and testimony at the reopened PCR proceedings for Adnan Syed, the case now shifts from facts to law on the issue of whether Cristina Gutierrez rendered ineffective assistance of counsel by failing to contact prospective alibi witness Asia McClain. In reaching that legal conclusion, Judge Welch will be able to rely on the testimony of (1) William Kanwisher; and (2) David Irwin, with both claiming that Gutierrez was ineffective and could not have been effective without contacting Asia McClain. 

Judge Welch will not have any countervailing testimony from a State's witness. The State listed renowned attorney Billy Martin on its Notice of Potential Witnesses, indicating that he might be called as an expert witness to testify "that the performance and tactical decisions of trial counsel for [Adnan] were objectively unreasonable and not constitutionally deficient." In my Day 1 preview, I predicted that there would be no way that Martin would render such testimony given the applicable case law, and he didn't. The State decided against calling him for obvious reasons.

The most obvious reason is precedent.

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February 10, 2016 | Permalink | Comments (31)

Tuesday, February 9, 2016

Closing Argument Preview: The Difficulty the State Faces in Arguing Against Prejudice

Today, we can expect the closing arguments in Adnan Syed's reopened PCR proceeding. Based on the testimony by Asia McClain and multiple lawyers, I think that Adnan has made a very strong showing on the "unreasonable performance" prong of the Strickland/ineffective assistance of counsel test. Accordingly, I expect the State to try to argue that Adnan has not satisfied the prejudice prong. The seeming problem that the State faces is an opinion by Maryland's highest court.

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February 9, 2016 | Permalink | Comments (12)

Monday, February 8, 2016

Did FBI Special Agent Chad Fitzgerald Just Prove the Defense's Brady Claim?

It's a busy day for me today, but, having just arrived back from class, I am intrigued by the reporting regarding Justin Brown's cross-examination of FBI Special Agent Chad Fitzgerald. Last Friday, the reopened PCR proceedings came to an abrupt end after Fiztgerald told the judge that he'd discovered something:

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This morning, Fitzgerald ostensibly revealed his discovery.

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February 8, 2016 | Permalink | Comments (28)

Saturday, February 6, 2016

Debunking the Claim That a Teammate Said Adnan Was 20 Minutes Late to Practice

Yesterday, there was a moment when I thought that I might need to reassess my opinion regarding the innocence of Adnan Syed:

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Later, Jessie did indeed grab a pic of the State's exhibit, and it turns out that the exhibit does not support the State's argument at all.

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February 6, 2016 | Permalink | Comments (23)

Friday, February 5, 2016

Thoughts on the 2nd Day of Adnan's Reopened PCR

Last night, we had another special minisode of the Undisclosed Podcast based on the second day of the reopened postconviction review proceedings in the Adnan Syed case. In this post, I will expand upon some of the topics I covered in the minisode. First, however, I will touch upon the key cell tower testimony by Gerald R. Grant, Jr.

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February 5, 2016 | Permalink | Comments (21)

Thursday, February 4, 2016

Thoughts on the 1st Day of Adnan's Reopened PCR

Yesterday was the first day of the reopened PCR proceeding in the Adnan Syed case. I wasn't up in Baltimore, but I got the gist of what happened over social media. As a result, I recorded some audio for last night's special minisode of Undisclosed. Unfortunately, I recorded my segment during a tornado warning, so it seems like there were some resulting glitches. So, here are my thoughts a bit more fleshed out.

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February 4, 2016 | Permalink | Comments (33)

Wednesday, February 3, 2016

It Comes Down To This: Gutierrez's Failure to Contact Asia McClain & Ineffective Assistance

There have been 12 episodes of the first season of Serial, 17 episodes and 16 Addenda of Undisclosed, 32 first season episodes of the Truth & Justice Podcast, and several other podcasts related to the Adnan Syed case, including Crime Writers On and Serially Obsessed. In the end, though, everything seemingly comes down to something that Sarah Koenig said in the very first episode of her groundbreaking podcast:

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February 3, 2016 | Permalink | Comments (11)

Tuesday, February 2, 2016

A Preview of Adnan's Reopened Postconviction Review Proceedings

This post is about the reopened postconviction review proceedings in the Adnan Syed case, which will be held on February 3rd, 4th, and 5th.

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February 2, 2016 | Permalink | Comments (26)

Monday, February 1, 2016

Is California About to Execute an Innocent Man, and What Can We and Jerry Brown Do?

I've done three posts (herehere, and here) about the Kevin Cooper case, in which Cooper claimed that the presence of EDTA in the blood on a t-shirt recovered near the murder site proved that the police had planted the blood, calling into question all of the evidence against him. Cooper was initially scheduled to be executed on February 10, 2004.

"I met their volunteer executioners," Cooper said. "They had me stand there butt-naked in that death chamber." 

"You watch the clock as your life goes off, minute by minute," Cooper told NBC News. "I was ten feet away from being murdered." 

Then with three hours left, the Ninth Circuit halted the execution.

Now, unless something changes, Cooper will walk the green mile again.

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February 1, 2016 | Permalink | Comments (5)

Friday, January 29, 2016

The Inter-American Commission on Human Rights & EDTA Misconduct in the Kevin Cooper Case

I have written two previous posts (here and here) about the Kevin Cooper case, in which Cooper claimed that the presence of EDTA in the blood on a t-shirt recovered near the murder site proved that the police had planted the blood, calling into question all of the evidence against him. My prior posts dealt with the opinions of the Ninth Circuit denying Cooper relief. In that second opinion, four justices dissented from the decision to deny Cooper en banc review, concluding that, inter alia, there were serious concerns with the EDTA testing protocol approved by the district court. 

After the court's opinion, Cooper sent a clemency petition to

Governor Schwarzenegger. This petition laid out new developments in the evidence that had not been known when the first petition was denied in 2004.The second clemency petition also cited the conclusions and observations of [dissenting] appellate judges of the Ninth Circuit Court of Appeals, including the fact that blood taken from Cooper after he was arrested was contaminated with the DNA of another person, that a sheriff’s deputy had lied at Cooper’s trial about destruction of key evidence, and that three witnesses, never interviewed by the prosecution, had come forward with strong evidence of other possible perpetrators.

Just before Governor Schwarzenegger left office in January 2010, his office wrote a letter to Cooper’s lawyer stating that the application “raises many evidentiary concerns which deserve a thorough and careful review of voluminous records”. The letter further stated that since the Governor had only two weeks left in office, he had decided to leave the matter for Governor-elect Jerry Brown's determination.

Brown, however, did not act upon the petition. That left Cooper with one action: go international.

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January 29, 2016 | Permalink | Comments (0)

Thursday, January 28, 2016

Judge Finds Illinois Man's Lawyer Ineffective Based on Failure to Contact Alibi Witness

We're less than a week away from the reopened postconviction proceeding in the Adnan Syed case. One of the issues that the court will consider is whether Cristina Gutierrez's failure to contact Asia McClain constituted ineffective assistance of counsel. I've written numerous times about case law from across the country standing for the proposition that the failure to contact a known alibi witness constitutes ineffective assistance of counsel. The most recent example involves a case out of Cook County, Illinois.

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January 28, 2016 | Permalink | Comments (1)

Wednesday, January 27, 2016

Another Dr. Rodriguez Case, Another Disclosure Issue...and Lividity Evidence

Before becoming the Forensic Anthropologist and Chief Deputy Medical Examiner for the Armed Forces Institute of Pathology, Dr. William Rodriguez was a Deputy Chief Coroner

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Through this work, Dr. Rodriguez became known as "a time-of-death specialist." State v. Willie, 559 So.2d 1321, 1334 (La. 1990). It was in this capacity that he was called as an expert witness at the murder trial of Sean Esty, a trial that involved late disclosure of Dr. Rodriguez and conflicting lividity testimony.

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January 27, 2016 | Permalink | Comments (19)

Tuesday, January 26, 2016

Another Case, Another Dr. Rodriguez Report...and the Prosecution's Failure to Turn it Over

Yesterday, I posted an entry about Dr. William Rodriguez preparing a report in a case that bore striking similarities to the Adnan Syed case. In today's post, I will discuss another Maryland case in which Dr. Rodriguez prepared a report...and the prosecution failed to turn it over.

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January 26, 2016 | Permalink | Comments (5)

Monday, January 25, 2016

Dr. Rodriguez's Lack of a Report & Missing Interview Notes in the Adnan Syed Case

A few days ago, a redditor named pdxkat posted a pretty interesting entry on the Undisclosed Subreddit about Dr. William Rodriguez. Dr. Rodriguez was the Forensic Anthropologist and Chief Deputy Medical Examiner for the Armed Forces Institute of Pathology who supervised the disinterment of Hae Min Lee's body from Leakin Park. Among other things, pdxkat's post references a case in which (1) the victim was strangled; (2) her killer buried her in a very shallow grave in a wooded area in Baltimore City; (3) Dr. Rodriguez supervised the disinterment; and (4) Dr. Margarita Korell performed the autopsy. So, why did Dr. Rodriguez act so differently in that case than he did in Adnan's case?

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January 25, 2016 | Permalink | Comments (12)

Friday, January 22, 2016

Do You Agree With the UK's Decision to Scale Back its Prohibition on Double Jeopardy?

The Double Jeopardy Clause of the Fifth Amendment states:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

As the Court of Criminal Appeals of Texas noted in Ex Parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986):

Historians have traced the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes...[T]he principle of double jeopardy is at least 2,340 years old, and its roots can be traced to Greek, Roman, canon, and Hebrew law, with its evolution traceable back literally through the ages—from the Constitutional Convention, to the common law of England, through the Dark Ages....”

In 2003, however, the United Kingdom passed the Criminal Justice Act of 2003, which, inter alia, allows for an acquitted defendant to be retried for certain serious offenses if there is "new and compelling" evidence. In other words, the Act allows for the government to try to cure wrongful exonerations. So, does this exception to the prohibition on double jeopardy make sense?

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January 22, 2016 | Permalink | Comments (16)

Thursday, January 21, 2016

Is an ATF Forensic Chemist an Investigative or Law Enforcement Officer?

In yesterday's post, I discussed Kristine Guerra's new "Stolen Freedom" series and specifically the case of Kristine Bunch, whose felony murder conviction was thrown out after sixteen years based on a Brady violation. Thereafter, Bunch filed a couple of lawsuits, including a lawsuit against William Kinard, a forensic chemist with the ATF. This lawsuit was brought under the Federal Tort Claims Act (FTCA), asserting claims of malicious prosecution and intentional infliction of emotional distress. The  lawsuits were eventually consolidated, and the question of whether the consolidated lawsuit will go forward might hinge on an interesting question: Is the forensic chemist an investigative or law enforcement officer?

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January 21, 2016 | Permalink | Comments (10)