Wednesday, July 29, 2015
Back in June, I did a post about a memo to Cristina Gutierrez about how another client was being billed for work done in Adnan's case. That memo was dated September 16, 1999, and the other client was Hector Oscar Acosta-Martinez. I was reminded of this fact when I came across this letter from the following week while reviewing the bail issues in Adnan's case:
Tuesday, July 28, 2015
On yesterday's episode of the Undisclosed Podcast, I noted how Cristina Gutierrez could and should have moved for a Frye hearing regarding the admissibility of the cell tower pings at Adnan's trial. I further concluded that the result of such a hearing would have been (1) the court certainly deeming the incoming pings inadmissible based upon AT&T's own disclaimer that such pings are not reliable for determining location; and (2) the court quite possibly deeming all pings inadmissible based upon the irregularities in how the testing was done (e.g., the prosecutor selectively writing down things called out by the cell phone expert). In this post, I wanted to flesh out the analysis a bit more.
Monday, July 27, 2015
According to an article in the Sentinel & Enterprise News,
The American Civil Liberties Union of Massachusetts has joined with defense attorneys in an effort to toss out a crucial piece of evidence -- the "pings" off cellphone towers -- that allegedly tie four men to the 2012 murder of a Billerica man and the motive.
Probing the cellphone records of Adam Bradley, the accused shooter, and his cousin Jason Estabrook, along with Peter Bin, Gabriel Arias and others show that from about 1 a.m. to shortly after 6 a.m. on July 7, 2012 -- the day of the murder -- the cellphones of those men hit off cell-tower locations in Billerica, prosecutors allege.
The ACLU argues investigators were required to obtain a warrant for the cell-site location information. After receiving two weeks worth of cell information, investigators argued they only needed the six hours of information to locate suspects around the time of the murder as the "critical time period."
The ACLU's brief makes this seem like an easy one. In Commonwealth v. Augustine, the Supreme Judicial Court of Massachusetts held that "the tracking of the defendant's movements in the urban Boston area for two weeks [through Cell Site Location Information ("CSLI")] was more than sufficient to intrude upon the defendant's expectation of privacy safeguarded by" Article XIV of the Massachusetts Constitution.
According to the ACLU,
Augustine determined that it is the Commonwealth’s collection of location information, not its subsequent use, which triggers Article 14 protection. Under this holding, Augustine squarely foreclosed the view that the Commonwealth can warrantlessly seek and obtain two weeks of CSLI without violating Article 14.
Although Augustine also stated that the duration of CSLI "sought" or "request[ed]" would likely bear on "the reasonable expectation of privacy calculus," it nowhere suggested that periods of CSLI sought or requested by the Commonwealth can be excluded from that calculus if they are later deemed non-critical to a criminal case....This Court did not write that a request for two weeks of historical CSLI does not require a warrant so long as the Commonwealth is truly interested in or ultimately uses only six hours or less. Rather, it wrote that it would be "reasonable to assume that a request for historical CSLI...for a period of six hours or less would not require the police to obtain a search warrant."
In other words, the Commonwealth has argued that it can request two weeks of CSLI without a warrant when it only plans to use 6 hours of that information. The ACLU counters that breadth of the request that matters, not the breadth of the use. Given that the Commonwealth requested and received two weeks of CSLI, this seems like an easy decision for the appellate court.
Friday, July 24, 2015
From Nancy Levit:
We just updated our charts about law journal submissions, expedites, and rankings from different sources for the Fall 2015 submission season covering the 204 main journals of each law school.
A couple of the highlights from this round of revisions are:
First, the chart now includes as much information as possible about what law reviews are not accepting submissions right now and what dates they say they'll resume accepting submissions. Most of this is not specific dates, because the journals tend to post only imprecise statements about how the journal is not currently accepting submissions but will start doing so at some point in spring.
Second, there continues to be a gradual increase in the number of journals using and preferring Scholastica instead of ExpressO or accepting emails submissions: 22 journals prefer or strongly prefer Scholastica, 14 more list it as one of the alternative acceptable avenues of submission, and 10 now list Scholastica as the exclusive method of submission.
The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review. The second chart contains rankings information from U.S. News and World Report as well as data from Washington & Lee’s law review website.
Information for Submitting Articles to Law Reviews and Journals: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029
A call for information to law professors from my former colleague:
Greetings Law Teacher Colleagues:
I am working on an article this summer on uses of popular culture in the law schoolclassroom. I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of whatlaw professors are doing in this area. If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
The John Marshall Law School
A commenter on yesterday's post adds additional context to my prior post about Hae Min Lee's computer. In that prior post, my tenuous conclusion was that no search of Hae's computer was done before it was returned to her family. Now, assuming that testimony given by Detective MacGillivary is correct, that conclusion becomes a lot less tenuous and a lot more troubling.
Thursday, July 23, 2015
I'm glad that many readers/listeners have been so interested in the mechanics of how a court determines whether to detain or release a defendants pending trial. The decision often has a huge impact on how a defendant is able to assist in preparing his case for trial. In Episode 7 of Undisclosed, we discussed how Adnan moved to be released from incarceration after his first trial was declared a mistrial and several jurors indicated that they would have found him "not guilty." So, what happened with that motion?
Wednesday, July 22, 2015
Sachin Pandya, a Professor at the University of Connecticut School of Law, has written a very interesting blog post about a federal judge in Pennsylvania rejecting expert opinion testimony on implicit bias in an age discrimination lawsuit. The post can be found over at Workplace Prof Blog.
Tuesday, July 21, 2015
In last night's Addendum episode of the Undisclosed Podcast, we again discussed the denial of bail to Adnan Syed in connection with his murder prosecution. In the prior episode, I had noted that about 60% of murder suspects are given some type of bail package. That statistic came from this Bulletin by the Bureau of Justice Statistics (BJS), which noted that 40% of murder defendants are denied bail. But what exactly is a murder defendant?
Monday, July 20, 2015
On Friday, additional missing pages from Adnan Syed's second trial were posted. As was the case with the prior releases, these missing pages uncover further possible errors by Adnan's attorney, Cristina Gutierrez. The relevant pages here are 252-253:
Friday, July 17, 2015
Thursday, July 16, 2015
Back in May, I did a post about Cristina Gutierrez and her team failing to talk to five State witnesses who received duplicate subpoenas from the defense. Specifically, at Adnan's second trial, prosecutor Kevin Urick noted that five witnesses had complained to him about making calls to Gutierrez's office that went unreturned.
I later added context to this issue by posting a copy of the defense letter sent to French Teacher Hope Schab in connection with the duplicate subpoena she received from the defense:
Now, with the release of additional missing pages from the trial transcript, I can pretty confidently confirm that Ms. Schab was one of these five witnesses whom the defense failed to contact. I can also pretty confidently confirm that this was an oversight by Gutierrez rather than a matter of trial strategy.
Wednesday, July 15, 2015
I recommend Anna Roberts' (Seattle University School of Law) article forthcoming in the University of Chicago Law Review, now available on SSRN: Reclaiming the Importance of the Defendant’s Testimony
Prof. Roberts' article addresses an important topic that I have written about on this blog and elsewhere -- regarding the flawed five-factor framework employed by the federal courts (and many state courts) in assessing the admissibility of a testifying defendant’s prior convictions. We have different takes on the topic but find common ground on the urgent need for reform!
Abstract follows after the break.
Tuesday, July 14, 2015
Monday, July 13, 2015
I've written a few posts about Woodlawn's track practice on January 13, 1999. For instance, in this post, I addressed the question of whether track practice started at 3:30 P.M. Later, in this post, I noted how Adnan's defense team failed to contact his track teammate Will despite having every reason to believe that he could have had information that would have completely destroyed the State's case. But what if there were another person connected to the track team whom the defense erroneously failed to contact?
Friday, July 10, 2015
Additional Context & A Call for Information About the Missing Police Interviews in the Adnan Syed Case
After yesterday's post, I realized that there was one witness who had his interview at Woodlawn High School recorded: Adnan's friend Ja'uan, who was referenced in Episode 5 of Serial. Indeed, during the episode, a portion of his recorded interview -- in which he said that Adnan and Hae used to hook up in the Best Buy parking lot -- was played. Here is the Progress Report for his interview:
Thursday, July 9, 2015
While searching through the MPIA files today in preparation for next Monday's episode of Undisclosed, I came across the following document:
This seems like a pretty benign document...until you realize that there are no records of any interviews conducted at the precinct on April 1, 1999.
Wednesday, July 8, 2015
Yesterday, I took another look at Detective Ritz's notes of the pre-interview with Jay. Upon reflection, it seems like the notes are actually notes taken during both Jay's pre-interview and his recorded interview. One particular portion stood out:
The name Christopher/Chris should be familiar to those who listened to the Serial Podcast.
Tuesday, July 7, 2015
People who have been following Serial and its aftermath likely know that we have been working off of incomplete copies of the transcripts from Adnan's trials. Apparently, someone has made a successful request for the missing pages because the pages from the first day of Adnan's second trial were posted yesterday. I'm not going to link to those pages because they're not redacted, but they do contain one key piece of information, which I've captured in a screenshot:
This part of the transcript lists the prospective witnesses at trial. As far as I can tell, I have a record of every prospective prosecution witness listed in the transcript being interviewed by the State...except for Mark Pusateri.* Mark Pusateri, you'll recall, is Jay's alibi, the person who was allegedly hanging out with him when Adnan made the Best Buy call.
Now, the State certainly could have listed Mark as a prospective witness despite not interviewing him. But again, that does not appear to be the case with any other witness listed in the transcript.*
*Neighbor Boy is also listed despite no official interview by the police. That said, I know that the defense private investigator did interview him, and it's possible that he was a prospective defense witness. If he was a prospective prosecution witness, he would be a second person whom the State didn't officially interview. [Edit: It turns out that Neighbor Boy was interviewed by police, but the notes from that interview are "missing," like the notes from the interviews with "Ann" and Patrice.].
Monday, July 6, 2015
On last week's Addendum Episode of the Undisclosed Podcast, we discussed Stephanie's statement to Adnan's private investigator that she recalled calling Adnan's cell phone between 4:15 and 5:30 P.M. on January 13, 1999. According to Stephanie, (1) she made this call from Parkville High School after getting bored while waiting for her basketball game; and (2) Jay was with Adnan at the time of the call. Stephanie's game was at 6:30 P.M., Stephanie recalled getting on the bus to the game between 3:30 and 3:45 P.M., and a bus ride from Woodlawn to Parkville would likely take around 30 minutes. Therefore, 4:15 P.M. is probably when Stephanie arrived at Parkville High School, and 5:30 P.M. is probably when the team started stretching, warming up, etc.
Now, as we discussed in the Episode, it's certainly possible that Stephanie was mistaken or lying about the call. For purposes of this post, however, let's assume that Stephanie indeed made the call that she described to the private investigator. What would that mean? We have three calls that are possibilities.