EvidenceProf Blog

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

Wednesday, January 6, 2016

More Evidence That Jay Talked to the Detectives Before Jenn

A couple of days ago, I posted an entry about the evidence supporting the theory that the police first interviewed Jay (1) before Jenn; and (2) before February 28, 1999. In response, a commenter noted that Detective MacGillivary gave the following testimony about interviewing Jenn:

Q: And at that point you didn't know the name of Jay Wilds, right?

A: No.

Q: So you didn't ask her about Jay Wilds?

A: No.

This is the State's official story: They initially talked to Jenn on January February 26th without any prior awareness of Jay and only sought him out after Jenn mentioned him during an interview. 

Continue reading

January 6, 2016 | Permalink | Comments (28)

A Legal Analysis of the Juror's Allegations & the White House Petition in the Steven Avery Case

A few people have asked me about yesterday's development in the Steven Avery/"Making a Murderer" case. Specifically, according to co-creator Laura Ricciardi, a juror

"told us that they believe Steven Avery was not proven guilty...." "They believe Steven was framed by law enforcement and that he deserves a new trial, and if he receives a new trial, in their opinion it should take place far away from Wisconsin.

There was behind-the-scenes vote-trading going on during the trial, the juror told the filmmakers, and the verdicts on each count were "a compromise." 

"That was the actual word the juror used and went on to describe the jurors ultimately trading votes in the jury room and explicitly discussing, 'If you vote guilty on this count, I will vote not guilty on this count,'" Ricciardi said....

The juror also said he or she voted to convict, but claimed the decision came under duress.

"They told us really that they were afraid that if they held out for a mistrial that it would be easy to identify which juror had done that and that they were fearful for their own safety,'' [co-creator Moira] Demos said.

These are obviously troubling allegations, but they are not the type of allegations that will lead to a new trial, just as a petition to the President won't lead to a pardon.

Continue reading

January 6, 2016 | Permalink | Comments (8)

Tuesday, January 5, 2016

The Evidence That Hae Did Not End Up Giving Adnan a Ride on January 13th

In yesterday's bonus episode of the Undisclosed Podcast, I laid out my current best guess for what happened on January 13, 1999. My theory remains similar to the theory that I advanced on the day the final episode of Serial premiered, more than a year ago: (1) Adnan asked Hae for a ride on the morning of January 13th; (2) Hae initially agreed to give him a ride; and (3) something came up for Hae between lunch and the end of school that led to her not being able to give Adnan a ride. In this post, I will lay out all of the reasons we have for believing that Hae did not end up giving Adnan a ride on January 13th.

Continue reading

January 5, 2016 | Permalink | Comments (29)

Monday, January 4, 2016

The Evidence That Jay Was Interviewed Before February 28th, 1999

According to the official timeline/narrative,

(1) On February 26, 1999, Jenn met the detectives at the police station. Upon questioning (at approximately 11:11 9:11 P.M.), Jenn denied any involvement in the death of Hae Min Lee but seemingly could not account for her actions between 1:00 (or noon or 12:30) and 4:30 P.M. on January 13, 1999:

Screen Shot 2016-01-04 at 6.01.22 AM

(2) On February 27, 1999, Detectives MacGillivary and Ritz interviewed Jenn at approximately 1:00 P.M. at her attorney's house. Thereafter, the detectives took Jenn to the police station and interviewed her from approximately 3:45-5:10 P.M. During this interview, Jenn recounted her version of the events of January 13, 1999 and said that Jay told her that Adnan killed Hae.

(3) On February 27, 1999 at around midnight, Detectives MacGillivary and Ritz picked up Jay from work and took him to the police station, where he signed an explanation of right form at 12:35 A.M. on February 28, 1999. During a pre-interview, Jay said that Jeff G. took him to Woodlawn High school between 2:40 and 3:00 P.M. on January 13th, where he met Stephanie in the parking lot. Then, in his official interview, which started at approximately 1:30 P.M., Jay "came clean" and told the detectives his version of the events of January 13th, including the trunk pop (at Edmondson Avenue) and the burial. The interview ended at 2:21 A.M., at which point Jay led the police to Hae's car.

Continue reading

January 4, 2016 | Permalink | Comments (29)

Saturday, January 2, 2016

Cream City Chronicles: Episode 6 of Unsolved & The Ability of Police to Lie While Questioning Suspects

I have written four posts (hereherehere, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 6, which deals with all of the issues surrounding the medical examiner and the autopsy she performed in the case. Specifically, it deals with this portion of the episode:

Relying on a 1969 U.S. Supreme Court ruling that allows police to lie to a suspect to get a confession, [Detective Kent] Schoonover doctored the state crime lab's report to make it look as if [Michael] Uporsky's DNA had, in fact, been found on John's body.

Continue reading

January 2, 2016 | Permalink | Comments (6)

Friday, January 1, 2016

More Information About Hae Possibly Coming From Drama Tryouts on January 13th

In an entry last week, I posted about how Hae could have been coming from Drama when Becky saw her tell Adnan that she couldn't give him a ride because something had come up and she had "something else" to do. In a comment to that post, a reader asked whether Hae would have had time to make it to Drama after class ended (about 2:15 P.M.) and before Becky saw her (about 2:20 P.M.). In response to that comment, the same former Woodlawn student sent me the following:

Reading the comments on that post, I can clarify that the psychology class was in the 3rd floor pretty close to the stairwell by the gym. Just past the gym is the auditorium. It wouldn't have taken more than about 2 minutes to get from A to B. I had time to leave my last class and drive to Wendy's and back and get to drama before 2:30. Woodlawn was pretty small back then. They've added to it a lot since I graduated. 

Continue reading

January 1, 2016 | Permalink | Comments (9)

Thursday, December 31, 2015

Cream City Chronicles: Episode 5 of Unsolved and the Admissibility of Fetish Evidence

I've written three posts about (herehere, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 5 of the podcast, which addresses another suspect in the case, Michael Uporsky a full-time substitute teacher and hall monitor who helped coach girls basketball.* Specifically, this post is about the admissibility of fetish evidence.


Continue reading

December 31, 2015 | Permalink | Comments (1)

Wednesday, December 30, 2015

Cream City Chronicles: Episodes 3-4 of Unsolved & the Aphorism That a Criminal Always Returns to the Scene of the Crime

I've written two posts (here and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episodes 3-4, which deal with Daniel Acker, a swim coach who was viewed as a possible suspect in the case based in part upon a chilling tableau found in his basement which reminded me of a similar scene from the excellent/disturbing movie, "Prisoners."


Continue reading

December 30, 2015 | Permalink | Comments (6)

Tuesday, December 29, 2015

Cristina Gutierrez's Overuse of Law Student Summaries of Witness Statements in Adnan's Case

I've remarked before about Cristina Gutierrez's overuse of law clerks/students in her representation of Adnan Syed. Among other tasks that Gutierrez delegated to these law students, she assigned the task of reviewing many of the witness statements in the case and providing summaries. The implication is that Gutierrez did not herself read these witness statements and instead relied upon secondhand accounts by law students who might have missed key facts or misstated what a witness said. In this entry, I will post one of these summaries.

Continue reading

December 29, 2015 | Permalink | Comments (27)

The Refusal to Indict in the Tamir Rice Case & the Self-Defense Standard in Ohio

Yesterday, an Ohio grand jury decided not to indict the officers involved in the death of Tamir Rice: Timothy Loehmann, the officer-in-training who shot him, and Frank Garmback, who was training him. The charges against Loehmann were murder, involuntary manslaughter, reckless homicide, negligent homicide and dereliction of duty. These latter two charges contained negligent mens reas. Negligent homicide is a first-degree misdemeanor, and, according to the Ohio Code,

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.

Like other jurisdictions, the burden of proof before the grand jury is the low "probable cause" standard, which is why it is "incredibly rare" for grand jurors not to indict defendants.

What makes the decision not to indict especially odd in this case is Ohio's aberrational self-defense standard. In 49 states,* the prosecution must disprove a defendant's claim of self-defense beyond a reasonable doubt. In other words, a juror could think that it is highly unlikely that the defendant was acting is self-defense and still return a "not guilty" verdict as long as the juror had reasonable doubt about whether the defendant was acting in self-defense.

By way of contrast, in Ohio, the defendant affirmatively has to prove by a preponderance of the evidence (more likely than not) that he was acting in self-defense in order to receive an acquittal. Section 2901.05(A) of the Ohio Code reads as follows:

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Therefore, for the grand jurors to refuse to return an indictment in the Tamir Rice case, they must have found that there wasn't probable cause to believe (1) that Loehmann was acting negligently; and/or (2) that Loehmann would be unable to prove by a preponderance of the evidence that he was acting in self-defense.


*I might need to fact check that number, but it's safe to say that the vast majority of states apply this standard.


December 29, 2015 | Permalink | Comments (2)

Monday, December 28, 2015

Why Adnan's Reopened PCR Proceeding is Not About "Legal Technicalities"

We are now just a little over a month away from Adnan's reopened PCR proceeding. At the hearing, Adnan will present evidence and testimony on two claims: (1) he received the ineffective assistance of counsel based upon his trial attorney failing to contact a prospective alibi witness; and (2) the State violated Brady by failing to disclose to the defense (and its own expert) that Exhibit #31 was a Subscriber Activity Report governed by the disclaimer indicating that "[a]ny incoming calls will NOT be considered reliable information for location."

I've seen some label these issues as "legal technicalities" that don't go toward the issues of actual innocence and even the jury's finding of guilt beyond a reasonable doubt. In this post, I will counter these assertions.

Continue reading

December 28, 2015 | Permalink | Comments (23)

Sunday, December 27, 2015

"Making a Murderer" and the "Legitimate Tendency" Test for Admitting Evidence of Alternate Suspects

In a prior post, I talked about how the Steven Avery case from "Making a Murderer" was one of the cases that led the ABA to amend its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor." In the comments to that post, a reader asked about the (in)ability of Avery to present evidence of possible alternate suspects. I still haven't watched "Making a Murderer," but the question of whether and when a defendant can present evidence of alternate suspects is an important one. In this post, I will look at the Wisconsin test.

Continue reading

December 27, 2015 | Permalink | Comments (5)

Saturday, December 26, 2015

Cream City Chronicles: Episode 2 of Unsolved & The History of Lie Detector Evidence in Wisconsin

On Tuesday, I posted an entry about the first episode of the Unsolved Podcast, a deep dive into the unsolved 1976 death and disappearance of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episode 2 and the (in)admissibility of polygraph evidence in Wisconsin.



Continue reading

December 26, 2015 | Permalink | Comments (0)

Friday, December 25, 2015

Nevada Man Gets Chance to Argue Innocence Before State Supreme Court Based on New Evidence

A conviction that started with an anonymous tip might soon be overturned.

DeMarlo Berry was convicted of killing Charles Burkes, a Carl's Jr. restaurant manager, during a robbery in 1994. 

But in an opinion issued on Christmas Eve, a three-member panel of justices [of the Supreme Court of Nevada] said District Judge Michael Villani erred last year when he denied Berry's petition for a hearing to review new evidence that defense lawyers claim prove he was not the killer.

Continue reading

December 25, 2015 | Permalink | Comments (0)

Thursday, December 24, 2015

Supreme Court of Virginia Rejects Criminal Discovery Revisions, Leaving Lawyers & Judges Flabbergasted

In 2014, the Supreme Court of Virginia appointed a special committee on criminal discovery rules. On March 3rd of this year, that Committee issued a 60 page report. That report asked for major revisions to Virginia's criminal discovery rules. The ACLU Foundation of Virginia* summarized three of those revisions in a letter to the Supreme Court of Virginia: 

Continue reading

December 24, 2015 | Permalink | Comments (1)

Wednesday, December 23, 2015

Steven Avery of "Making a Murderer" & the Special Responsibilities of a Prosecutor

Last week, the Netflix documentary series "Making a Murderer" was released to a rapturous response. The series, created by Laura Ricciardi and Moira Demos, follows the trials and tribulations of Steven Avery, a Wisconsin man who...well, I won't spoil anything for readers who haven't watched the series. Indeed, I haven't even watched the series yet because I don't have a Netflix subscription.

As a result, this post is not about Steven Avery; it's about the ethical rule that was created as a result of his case and other similar cases.

Continue reading

December 23, 2015 | Permalink | Comments (14)

Tuesday, December 22, 2015

Cream City Chronicles: My Take on Episode One of the Unsolved Podcast

“I always want to do stories that are going to in some way be helpful to people who have survived a crime like this.” Gina Barton, Milwaukee Journal Sentinel

Yesterday, we premiered the final episode of the first season of the Undisclosed Podcast (we will drop a bonus episode on January 4th). In some ways, it was a relief. On the other hand, I couldn't help but feel a bit overcome by emotion as I listened to the last few minutes of the episode. This was compounded by the fact that Adnan's brother Yusuf reported on Adnan's health issues in prison yesterday.*

After the episode, I was finally able to listen to the first episode of the Unsolved Podcast, and I was immediately struck by some of the parallels to Adnan's case, including a high school student who goes missing from school, his body stumbled upon in a park in February after intervening snow, high school wrestling, and different jurisdictions covering the missing persons and homicide cases.


Continue reading

December 22, 2015 | Permalink | Comments (7)

Monday, December 21, 2015

More on Hae Possibly Coming From Drama Tryouts on January 13th

Last week, I did a post speculating that Hae might have been coming from Drama tryouts on January 13th when Becky saw her tell Adnan that she couldn't give him a ride because she had "something else" to do. You can find most of the basis for my speculation in that post, including Becky seemingly saying that Hae was involved in Drama in January and Hae herself indicating in her diary that she had helped with Drama in the past. What we do know is that Becky said that she was going to pick up her sister Diane from Drama tryouts when she saw Hae. 

Continue reading

December 21, 2015 | Permalink | Comments (14)

Friday, December 18, 2015

Star Wars, X-Men, Mutant X, and Judicial Notice

Last night was the premiere of "The Force Awakens," Episode VII in the Star Wars saga. Star Wars will always have a special place in my heart. If memory serves, I first watched "Star Wars" and "The Empire Strikes Back" at the Ground Round in Columbus, Ohio. When Halloween 1982 rolled around, the choice of costume for my six year-old self was obvious: I went as Boba Fett, my favorite character. The following year, my parents took me to see "Return of the Jedi;" it's the first movie I can remember watching in a movie theater. I was devastated when Han Solo stumbled into knocking Boba Fett into the Sarlacc toward the beginning of Jedi. I can still recall vivid dreams about Star Wars from my childhood, and I have creative writing projects from elementary school that take place in its universe. I think that somewhere in my parents' house, there's still an old Empire Strikes Back popup book floating around.

Later, upon graduating from college in 1999, I took a job at a summer camp before working days at a law firm and nights as a LSAT instructor. I was in charge of a group of rising fifth graders, and they were all obsessed with "The Phantom Menace" (and Pokemon and Eminem). At the end of the summer, there was a talent show. We created a script in the Star Wars universe and performed our own intergalactic epic.

And now, there's a whole new generation interested in Star Wars. Last year, my niece was Yoda for Halloween. Just this weekend, I was at a friend's house and engaged in a Nerf light saber battle with their kid;* he was Yoda, and I was the dreaded Darth Sidious. It's safe to assume that Star Wars will continue to be part of our culture fabric for generations to come, and the same holds true for our legal fabric.

Continue reading

December 18, 2015 | Permalink | Comments (3)

Wednesday, December 16, 2015

A Quick Discussion of the Scheduling of Adnan's Reopened Postconviction Proceedings

Yesterday, Judge Martin Welch scheduled the post-conviction proceedings in the Adnan Syed case. Here is a copy of the order. You can replace most of the "2015"s in the order with "2016"s. First, there will be a status conference on January 12, 2016, during which both sides will likely inform Judge Welch of how everything is proceeding, whether there are any issues with witnesses, etc. Then, the actual proceedings will be held on two days: (1) Friday, February 5, 2016; and (2) Monday, February 8, 2016. As Adnan's attorney tweeted, "Maryland has a law that prohibits the broadcasting of court proceedings. No cameras allowed." As Rabia tweeted, "Adnan will be present at the hearing." Rabia and Susan will also likely be there. I will not.

Continue reading

December 16, 2015 | Permalink | Comments (19)