EvidenceProf Blog

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

Wednesday, March 16, 2016

Proposed D.C. Local Rule Would Expand Prosecutors' Brady Obligations

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I've noted before, has long advocated for Brady reform. If you are in favor of this local rule change, which I will describe below, you can send positive comments in writing to

John Aldock, Esq., Chairman, Advisory Committeeon Local Rules, Goodwin Procter LLP, 901 New York Avenue, N.W; Washington, DC 20001. 

Such comments must be made by March 30, 2016. Unless negative comments lead to the proposed rule being modified or withdrawn, they will be adopted as written. So, what does would this new local rule provide?

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March 16, 2016 | Permalink | Comments (4)

Tuesday, March 15, 2016

Supreme Court's Opinion in Wearry v. Cain Could Have an Effect on Adnan's Appeal

A week ago, the United States Supreme Court issued its opinion in Wearry v. Cain. As has already been noted, this opinion could have an effect on Judge Welch's opinion in the Adnan Syed case. In this post, I will explain why.

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March 15, 2016 | Permalink | Comments (12)

Friday, March 11, 2016

Assessing Jay's Claim of a 3:40ish "Come & Get Me" Call Based Upon His Pre-Interview

One of the very few consistent elements in Jay's story is that Adnan placed the "come and get me" call to his cell phone at about 3:40 P.M. Given that there were no incoming calls to Adnan's cell phone between 3:15 and 4:27 P.M., Jay's timeline creates an obvious problem. I've seen three main explanations for this timing discrepancy: (1) Adnan did not make a "come and get me" call to his cell phone; (2) Jay is bad with time; and/or (3) Jay intentionally moved the "come and get me call" to 3:40ish so that he could use the Pusateris as alibis.

The obvious problem with scenario #1 is that it completely undermines the credibility of Jay's entire story. The narrative that Adnan lent Jay his cell phone so that he could call him after the murder is at very heart of the State's first-degree murder/kidnapping/false imprisonment case. If that story is a complete fabrication, how can we possibly believe anything that Jay said? This then takes us to scenarios 2 and 3, which in turn takes us to Detective Ritz's pre-interview notes.

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March 11, 2016 | Permalink | Comments (29)

Thursday, March 3, 2016

A Quick Post About the Recent Opinion in the Sabein Burgess Case

I don't have much time now, but I wanted to do a quick post about the recent opinion of the United States District Court for the District of Maryland in Burgess v. Baltimore Police Department. We discussed Burgess's case on Undisclosed, and here is a good article about it. Basically, Sabein Burgess 

was convicted of first-degree murder and sentenced to life in prison in 1995 in the shooting death of his girlfriend, Michelle Dyson, in her Harwood home the year before...

In October 1998, a prisoner named Charles Dorsey wrote to Burgess' mother saying he was behind the killing....

Detectives interviewed Dorsey but discounted the confession because it lacked details....

In April 2010, the Mid-Atlantic Innocence Project obtained previously undisclosed police notes in Burgess' case. They included statements that Dyson's then-6-year-old son, Brian Rainey, had made a statement that cast doubt on Burgess' involvement.

In 2012, Rainey, who was incarcerated at the time, said he had witnessed the moments before his mother's killing and corroborated Dorsey's account. He and Dorsey both wrote affidavits with their accounts of the night Dyson was killed.

The mounting evidence prompted a Baltimore judge to order a new trial in February 2014. The state's attorney's office dropped charges against Burgess.

Thereafter, Burgess filed a federal lawsuit against several defendants, including the Baltimore City Police Department, Detective William Ritz (who interviewed Dorsey but didn't disclose his confession to the defense), and Daniel Van Gelder, a crime laboratory analyst.*

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March 3, 2016 | Permalink | Comments (5)

Wednesday, March 2, 2016

Maryland Murder Reversal Involves Pings & State's Failure to Turn Over Cell Phone/Tower Instructions

Last week I did a post about the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), which "require[d] the prosecution to offer expert testimony to explain the functions of cell phone towers, derivative tracking, and the techniques of locating and/or plotting the origins of cell phone calls using cell phone records." It turns out that the Court of Special Appeals of Maryland isn't the only court to reach this conclusion. Instead, the Court of Appeals of Maryland reached the same conclusion in State v. Payne, 104 A.3d 142 (Md. 2014), a case that also involved the State failing to properly turn over cell phone/tower instructions to the defense.

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March 2, 2016 | Permalink | Comments (5)

Tuesday, March 1, 2016

A Brief Post on Adnan's Motion to Supplement the Record

Today, Adnan's attorney, Justin Brown, filed a motion to supplement the record in the reopened PCR proceedings. Specifically, he is seeking to supplement the record with (1) a letter from Deputy Attorney General Thiru Vignarajah indicating that Professor Michael Millemann solely represented Adnan back in 1999 "for the limited purpose of enforcing the defendant’s right to be represented by counsel of his choice;" and (2) a letter from Professor Millemann indicating that Vignarajah (a) failed to contact him before describing his role at the proceedings; (b) misrepresented his role at the proceedings;  (c) failed to run his letter by Millemann before sending it to Judge Welch; and (d) misrepresented the nature of Millemann's objection in his letter.

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March 1, 2016 | Permalink | Comments (12)

Monday, February 29, 2016

A Proposed Test for How the Court Should Assess the Misleading Disclosure Brady Claim in Adnan's Case

There are three ways that the State can commit a Brady violation:

1. The State completely fails to disclose material exculpatory evidence to the defense. See Brady v. Maryland.

2. The State makes a misleading disclosure of material exculpatory evidence. See Ware v. State, 702 A.2d 699 (Md. 1997) ("If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well.")

3. The State makes an untimely disclosure of material exculpatory evidence. See infra.

In Adnan's case, Justin Brown is claiming that the State made a misleading disclosure of the AT&T cover sheet, with that cover sheet constituting material exculpatory evidence. As the Court of Appeals of Maryland noted in Ware, misleading disclosures of material exculpatory evidence will seldom, if ever, be excusable. That said, the Ware court neither fleshed out the definition of a misleading response/disclosure nor gave any indication of when such a response/disclosure might be excusable under Brady. In this post, I will argue that Maryland courts should use the same criterion for determining category 2 (misleading disclosure) violations that they use for determining category 3 (late disclosure) violations.

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February 29, 2016 | Permalink | Comments (6)

Friday, February 26, 2016

The Game is Not Worth the Candle: Is Chad Fitzgerald's Testimony Enough For a New Trial?

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In yesterday's post, I noted how Judge Welch can grant Adnan a new trial even without delving into the substantive issue of whether AT&T cell tower pings from incoming calls were (un)reliable back in 1999. Simply put, the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), requires an expert to vouch for the accuracy of such information, and the State's cell phone/tower expert at trial, Abraham Waranowitz, has now indicated that he would not have given such testimony if he had been shown the fax cover sheet/disclaimer.

If Judge Welch does delve into this substantive issue, it appears that there is a "battle of the experts." According to Keene Corp., Inc. v. Hall, 626 A.2d 997 (Md.App. 1993), this substantive issue should be resolved in Adnan's favor unless Judge Welch finds State expert Chad Fitzgerald more knowledgeable than Waranowitz and defense expert Gerald Grant. But even if Judge Welch does find Fitzgerald more knowledgeable, there is still a good chance that Judge Welch would rule in Adnan's favor.

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February 26, 2016 | Permalink | Comments (7)

Thursday, February 25, 2016

Court of Special Appeals of Maryland Opinion Implies Waranowitz's Affidavit Necessitates a New Trial

In connection with Adnan Syed's reopened postconviction review proceeding, Abraham Waranowitz submitted the following affidavit:

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In any jurisdiction, this affidavit would have been tremendously important. Based upon the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), it might just be dispositive.

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February 25, 2016 | Permalink | Comments (7)

Wednesday, February 24, 2016

Court of Appeals of Kansas Finds Alibi IAC Despite Concerns About Alibi Perjury, Hostility & Tampering

At the reopened PCR proceedings in the Adnan Syed case, the Deputy Attorney General tried to sell the following scenario to Judge Welch: Asia McClain's first letter was an offer to perjure herself as an alibi witness for Adnan. Meanwhile, her second letter was backdated to March 2nd despite being written at a later date based upon information provided by Adnan. Indeed, the Deputy AG even seemed to imply that the second letter might have been written by Adnan himself. 

According to the Deputy AG, under this scenario, which he admitted was "just a theory," Cristina Gutierrez certainly would have been relieved of her obligation to contact Asia McClain. Right? Wrong, at least according to the Court of Appeals of Kansas in State v. Sanford, 948 P.2d 1135 (Kan.App. 1997). 

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February 24, 2016 | Permalink | Comments (3)

Tuesday, February 23, 2016

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

In the recent reopened PCR proceedings, Adnan made the claim that the State violated the Brady doctrine by failing to disclose that an AT&T disclaimer about incoming calls being unreliable for determining location applied to Exhibit 31 (which did not include the disclaimer or the page indicating that the exhibit was a Subscriber Activity report). So, is there an analogous case finding a Brady violation under similar circumstances? Absolutely. 

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February 23, 2016 | Permalink | Comments (17)

Monday, February 22, 2016

The Order Denying Kesha Relief Had Nothing to do With Her Abuse Allegations Against Dr. Luke

I've gotten a lot of questions from readers about the order denying Kesha relief in her lawsuit against Dr. Luke (Lukasz Gottwald) and Sony. I haven't seen an actual copy of the order, but I have seen Kesha's motion, and the media seems to have missed an important part of the story: It has nothing to do with the abuse allegations against Dr. Luke.

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February 22, 2016 | Permalink | Comments (2)

Sunday, February 21, 2016

Live Tweeted Murder Case Raises Interesting Mixed Lividity Issues

The Adnan Syed PCR proceeding was probably the first that many people followed via Twitter. But it's certainly not the only court proceeding to receive social media attention. Yesterday, a reader sent me information regarding the Timoty McVay case, which apparently contained interesting testimony about mixed lividity. 

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February 21, 2016 | Permalink | Comments (8)

Friday, February 19, 2016

Court of Appeals of Maryland Steps in to Sort out 5th Amendment Issue in Freddie Gray Trials

Yesterday, I posted an entry about the George Johnson case, in which Johnson has claimed that Thiruvendran Vignarajah violated the Fifth Amendment by calling his alleged co-conspirator, Derrick Toomer, knowing that Toomer would invoke his privilege against self-incrimination when asked about the crime. The State's response is that this was not inconsequential theater because Vignarajah had offered Toomer immunity, meaning that he was justified in calling him to the stand. In turn, Johnson has argued that such immunity couldn't protect Toomer against federal prosecution and that Toomer was appealing his conviction, meaning that there could be a retrial and the very real danger that Toomer's testimony could be used against him at that retrial.*

Hours later, it was reported that the Court of Appeals of Maryland "halt[ed] trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants." In other words, Maryland's highest court is addressing the same issue that is at the heart of Johnson's appeal.

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February 19, 2016 | Permalink | Comments (3)

Thursday, February 18, 2016

Appeal Claims Thiru Vignarajah Violated 5th Amendment & Brady in 1st Degree Murder Case

Today, I'm teaching the Fifth Amendment in my Criminal Adjudication class. Interestingly, there is a current appeal before the Court of Special Appeals of Maryland claiming that current Deputy Attorney General Thiruvendran Vignarajah (the Deputy AG from Adnan's case) violated the Fifth Amendment (as well as the Brady doctrine and the rules regarding closing arguments) in a murder trial. Also interesting is the fact that the attorney representing the appellant is one of the law clerks who worked on the Adnan Syed case for Cristina Gutierrez.

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February 18, 2016 | Permalink | Comments (4)

Wednesday, February 17, 2016

Assessing the Lividity Decisions Made by Dr. Korell in Hae's Autopsy Report

According to the autopsy report for Hae Min Lee,

Lividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure.

I always presumed that the Office of the Chief Medical Examiner for the State of Maryland has a template that medical examiners use for creating autopsy reports. By looking at other Maryland autopsy reports, this indeed appears to be the case. If so, we can see what decisions Dr. Margarita Korell made while writing the above entry.

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February 17, 2016 | Permalink | Comments (20)

Tuesday, February 16, 2016

South Carolina Courts Find Failure to Contact Alibi Witness Ineffective, Despite PI Investigation

Today, I'm teaching ineffective assistance of counsel in my Criminal Adjudication class. One of the cases I will be discussing is Walker v. State723 S.E.2d 610 (S.C. App. 2012), which was decided by Judge John Few, the Chief Judge of the Court of Appeals of South Carolina. Judge Few teaches Advanced Evidence at the law school, and I've had lunch with him a few times. During one of those lunches, we (and another judge) discussed Serial and Undisclosed. Walker is another in a long line of cases stating the duty of a lawyer to contact a prospective alibi witness. It has particular relevance to Adnan's case

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February 16, 2016 | Permalink | Comments (8)

Monday, February 15, 2016

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

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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.

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*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.

-CM

February 12, 2016 | Permalink | Comments (13)