EvidenceProf Blog

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

Wednesday, October 5, 2016

The State Shoots Itself in the Foot in its Consolidated Reply in the Adnan Syed Case

Today, the State filed a Consolidated Reply in the Adnan Syed case. The Reply once again asks the Court of Special Appeals of Maryland to (1) grant it leave to appeal Judge Welch's order granting Adnan a new trial on the cell tower issue; and (2) remand the case back to the Circuit Court in the event that it plans to grant Adnan leave to cross-appeal Judge Welch's order denying Adnan a new trial on the Asia alibi issue. Let's dig into three of the arguments made in the Reply.

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October 5, 2016 | Permalink | Comments (13)

Tuesday, September 27, 2016

The "Wet Bandits" in "Home Alone" & Propensity Character Evidence vs. Signature Crime/M.O. Evidence

In last night's episode of "Undisclosed," I discussed Joe Pesci and Daniel Stern in "Home Alone" as an example of a "signature" crime, in which the criminals leave behind some type of calling card at the crime scene. In "Home Alone," characters played by Pesci and Stern (Harry and Marv) would commit burglaries and then wad up towels in kitchen sink and leave the water running to flood the houses of their victims. This is why I mistakenly referred to them as the "kitchen sink burglars" when they actually (as many listeners have correctly pointed out) referred to themselves as the "wet bandits." 

It actually turns out that a few lawyers/judges have used a similar analogy to describe the dichotomy between inadmissible propensity character evidence and admissible signature crime/modus operandi evidence.

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September 27, 2016 | Permalink | Comments (0)

Friday, September 23, 2016

Attorney General, FBI, District Attorneys Say They'll Ignore President's Council Report on Flawed Forensics

Recently, the Executive Office of the President President’s Council of Advisors on Science and Technology (PCAST) issued a report to President Obama entitled "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." That report had a series of recommendations and findings. According to Recommendation 1:

It is important that scientific evaluations of the foundational validity be conducted, on an ongoing basis, to assess the foundational validity of current and newly developed forensic feature-comparison technologies. To ensure the scientific judgments are unbiased and independent, such evaluations must be conducted by a science agency which has no stake in the outcome.

(A) The National Institute of Standards and Technology (NIST) should perform such evaluations and should issue an annual public report evaluating the foundational validity of key forensic feature-comparison methods.

Meanwhile Finding 4 was that

PCAST finds that bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards. To the contrary, available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bitemark and cannot identify the source of bitemark with reasonable accuracy.

And Finding 5 was that

PCAST finds there are no appropriate empirical studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks (sometimes called “randomly acquired characteristics). Such conclusions are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.

PCAST has not evaluated the foundational validity of footwear analysis to identify class characteristics (for example, shoe size or make).

So, what was the response by the Attorney General, the FBI, and the National District Attorneys Association (NDAA) to this report?

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September 23, 2016 | Permalink | Comments (13)

Wednesday, September 21, 2016

Coast Guard Court of Appeals Clarifies the Scope of the Psychotherapist-Patient Privilege

Military Rule of Evidence 513(a) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Does this psychotherapist-patient privilege prevent the disclosure of the dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used? That was the question of first impression addressed by the United States Coast Guard Court of Appeals in H.V. v. Kitchen, 75 M.J. 717 (2016).

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September 21, 2016 | Permalink | Comments (1)

Monday, September 19, 2016

2001 Baltimore Murder Trial With Familiar Prosecutor Involved Brady Violation for Failing to Disclose Interview Records

Here's a pretty interesting story about a 1998 murder in Baltimore.* It involves the trial of "Kenneth D. Perry, 43, who was convicted and sentenced to life without parole in 2001 for killing Kelly Bunn and his former girlfriend, LaShawn Jordan, as Jordan's 4-year-old daughter watched." Well, actually, it involves the trial(s) of Perry.

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September 19, 2016 | Permalink | Comments (12)

Friday, September 16, 2016

NACDL/MCDAA/Steven Klepper File Amici Curiae Brief Arguing for a Retrial for Adnan Syed

Yesterday, the National Association of Criminal Defense Lawyers and the Maryland Criminal Defense Attorneys’ Association filed an amici curiae (friend of the court) brief written by Steven M. Klepper in the Adnan Syed case. Simply put, the brief asks the Court of Special Appeals of Maryland to deny the State leave to appeal Judge Welch's order granting Adnan a new trial.

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September 16, 2016 | Permalink | Comments (4)

Thursday, September 15, 2016

A First Take on Adnan's Response to the State's Conditional Application for Limited Remand

Today, Justin Brown filed two responses in the Adnan Syed case: (1) a response to the State's Application for Leave to Appeal; and (2) a response to the State's Conditional Application for Limited Remand. The first response asks the Court of Special Appeals of Maryland to deny the State leave to appeal Judge Welch's order granting Adnan a new trial based upon trial counsel's failure to cross-examine the State's cell tower expert with the AT&T disclaimer. The second response, which I will address in this post, asks the Court of Special Appeals to refrain from remanding the appeal back to Judge Welch so that he can receive testimony from two sisters, who allege that Asia McClain told them she would make up an alibi for Adnan.

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September 15, 2016 | Permalink | Comments (8)

Wednesday, September 14, 2016

North Carolina Subcommittee Approves Rule Requiring Prosecutors to Turn Over Post-Conviction Evidence of Innocence

Pursuant to Rule 3.8(g) of the Model Rules of Professional Conduct,

When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

Rule 3.8 covers the Special Responsibilities of a Prosecutor, and it was created in response to cases like the (initial) prosecution of Steven Avery

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September 14, 2016 | Permalink | Comments (3)

Monday, September 12, 2016

Podcast Recommendation: "Accused" by Amber Hunt and Amanda Rossmann

This weekend, I listened to the first two episodes of the Accused podcast. Here is the Cincinnati Enquirer's description of the podcast:

The Oxford Police Department approached the 1978 stabbing and strangulation of Elizabeth Andes as an open-and-shut case. This mindset was bolstered by the next-day confession of Andes’ boyfriend, Bob Young, who admitted to the slaying after 15 straight hours of interrogation. But Young immediately recanted the confession, saying he was tired, traumatized and confused. Two separate juries – one criminal, the other civil – found him not guilty of the crime.

But Oxford Police refused to re-investigate the case, telling reporters at the time that the juries got it wrong and Young got away with murder. Several of the players to this day maintain that they’d charged the right guy.

That’s where journalists Amber Hunt and Amanda Rossmann have stepped in. The two have dedicated a year re-investigating the case – more thoroughly, it turns out, than did the initial detectives. They’ve tracked down people that police weren’t able to find and uncovered information overlooked in 1978. The resulting podcast, titled “Accused: The Unsolved Murder of Elizabeth Andes,” lays out the story while uncovering strong leads never pursued by police.

I highly recommend it.


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September 12, 2016 | Permalink | Comments (6)

Thursday, September 8, 2016

The "In the Dark" Podcast and the Wetterling Act

Yesterday, American Public Media premiered the first two episodes of the new podcast, "In the Dark," by Madeleine Baran. Baran is a reporter for APM Reports, American Public Media's investigative reporting and radio documentaries project. In 2015. she won a Peabody Award for her role in the documentary, "Betrayed By Silence," which took an indepth look into the child sex-abuse scandal in the Archdiocese of St. Paul and Minneapolis. She is also a guest on tonight's episode of the Undisclosed Podcast.

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September 8, 2016 | Permalink | Comments (2)

Wednesday, September 7, 2016

Why Incriminatory Police Reports Are Unreliable/Inadmissible & Exculpatory Police Reports Are Reliable/(Potentially) Admissible

In response to Monday's post, I've been getting a lot of questions about the admissibility/reliability of police reports. The long and short of the analysis is this: If a police report contains information that seems helpful to the defense, that information is thought to be reliable and admissible against the prosecution (barring another reason for inadmissibility). On the other hand, if a police report contains information that seems helpful to the prosecution, that information is thought be unreliable and inadmissible against the defendant. 

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September 7, 2016 | Permalink | Comments (5)

Monday, September 5, 2016

The Second Interview of Not Her Real Name Cathy

Here's a quick post on the Adnan Syed case for Labor Day. On March 9, 1999, Detectives Ritz and Carew interviewed Not Her Real Name Cathy (NHRNC). We've known about this for quite some time. We also knew that the detectives thereafter interviewed NHRNC's boyfriend Jeff on March 11, 1999, with only the cover sheet (final page) for that interview surviving.

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September 5, 2016 | Permalink | Comments (31)

Friday, September 2, 2016

Jury Takes 5 Minutes to Acquit Tony Wright After Retrial Held Despite DNA Evidence Proving His Innocence

Here's a pretty incredible story out of Philadelphia:

Last week, after 25 years in prison for rape, robbery and murder, Tony Wright was found not guilty in a two-and-a-half-week re-trial – a verdict that took a jury of his peers just five minutes to deliberate. “The evidence of his innocence was so overwhelming that there could’ve been no other verdict,” said Grace Greco, the jury forewoman, at a packed and emotional press conference in the Philadelphia offices of Wright’s star-studded legal team. “I’m angry that this case was ever re-tried, but thrilled that we were able to release Tony from this nightmare of twenty-five years.”

Wright, however, very nearly never had a chance to prove his innocence.

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September 2, 2016 | Permalink | Comments (4)

Monday, August 29, 2016

The Coen Brothers, "FoxTrot," and Malum in Se vs. Malum Prohibitum

In a lawsuit that could only have been filed in latetwentieth-century America, a newly minted millionaire has filedthis defamation action against the producer of a seven-and-a-halfminute satirical videotape that in fifty-nine film clips spoofsthe transaction in which the plaintiff acquired his riches. In order to test the legal viability of plaintiff’s claim, asdefendant invites us to do, we must view the video with care against the screen of its public exhibition. Karl v. Donaldson, Lufkin & Jenrette Securities Corp., 78 F.Supp.2d 393 (E.D.Pa. 1999).

Would it surprise anyone to learn that the offending clip came from a Coen Brothers movie? 

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August 29, 2016 | Permalink | Comments (2)

Friday, August 26, 2016

DOJ Files Amicus Brief Supporting Man's Claim That Georgia's Bail Schedule System is Unconstitutional

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Undisclosed listeners might look at the above map and conclude that it pertains to our second season case. That's because, on January 11, 2000, Isaac Dawkins was driving north from Rome on Route 27 to his family's home in Armuchee when he was fatally shot. But shift your focus to the upper right of the map, and you will see the the city of Calhoun, Georgia, the home of the New Echota Historical site, commemorating the first Cherokee capital. Now, it could also be the site of a revolution in the way the we view bail. 

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August 26, 2016 | Permalink | Comments (2)

Thursday, August 25, 2016

Court of Special Appeals Will Only Review Judge Welch's Decision to Reopen For Abuse of Discretion

Today, Steve Klepper made  a great point about the State's appeal in the Adnan Syed case:

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Let's break down exactly what this means.

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August 25, 2016 | Permalink | Comments (10)

Wednesday, August 24, 2016

What Can The Far Side and a Jigsaw Puzzle Teach Us About Guilt Beyond a Reasonable Doubt?

Here's a hypothetical I just created to teach my Criminal Law students about proper and improper prosecutorial descriptions of the concept of guilt beyond a reasonable doubt:

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August 24, 2016 | Permalink | Comments (10)

Monday, August 22, 2016

A First Take on the State's Conditional Application for Limited Remand

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From the State's Conditional Application for Limited Remand


Today, the Maryland Attorney General filed a "Conditional Application for Limited Remand." That application is based upon the allegation that Asia McClain told two sisters back in 1999 that she was going to fabricate an alibi to assist Adnan Syed. Given that  Deputy Attorney General Thiru Vignarajah has a history of overpromising and underproducing in this case, there is reason to view this assertion with skepticism. After all, back in February, Vignarajah promised that

1. Attorney Billy Martin would testify that Cristina Gutierrez performed reasonably at Adnan's trial(s);

2. Officer Steve would testify that Adnan was not at the Woodlawn Public Library on January 13, 1999; and

3. FBI Special Agent would testify that the AT&T disclaimer did not apply to the Leakin Park pings.

Of course, Martin never testified, Officer Steve did not say anything close to what Vignarajah claimed he would say, and Officer Steve's testimony went over like the Hindenburg.

I can't tell whether Vignarajah is overpromising this time, but I can tell that he has underproduced with regard to precedent that would support yet another remand.

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August 22, 2016 | Permalink | Comments (37)

Consider Supporting the Petition Asking Mike Pence to Pardon Keith Cooper

Back in January, I posted an entry about Kristine Guerra's "Stolen Freedom," a series of stories that examined "the issue of wrongful imprisonment and shares the stories of people who have suffered this injustice." The first entry in that series was about the case of Keith Cooper. You can read Guerra's article for the full story, but the basics are laid out in a change.org petition:

In 1997, Keith Cooper was wrongly accused and convicted of a crime he did not commit. He was sentenced to 40 years for a horrible robbery, but it later became apparent a miscarriage of justice had occurred. A jailhouse informant against Cooper recanted his testimony and a DNA test on a hat recovered at the scene of the crime matched a different man serving time for a 2002 murder. Even the robbery victims, pushed by an investigator to identify Cooper, have said that they misidentified him.

In 2006, as the case against Cooper began to fall apart, he was offered a deal to get out of prison. He could be retried, waiting for his trial while still in prison, or he could be released with time served, though with his conviction still on his record. Having heard that his family was living in a homeless shelter, Cooper took the deal. He has been released from prison.

Understandably, given these facts, 

Both the Indiana Parole Board and the prosecutor of the case against him have recommended a full pardon for Keith Cooper. A full pardon is the only way to right this wrong.

The change.org petition closes by noting that

Indiana Governor and Vice Presidential candidate Mike Pence has had a request for Cooper's pardon since March 2014. Please tell him to grant the pardon now.

Right now, the change.org petition asking Mike Pence to pardon Keith Cooper has 97,285 supporters out of 150,000 needed to reach the goal. So, if you have the time, look at the case and support the petition if you agree that Cooper deserves a pardon. If you're so inclined, tell your friend to take a look. Send an e-mail or letter to Pence. At some point, he will need to respond.


August 22, 2016 | Permalink | Comments (4)

Thursday, August 18, 2016

Justice Department Announces Plan to End its Use of Private Prisons

In a memo issued today by Deputy Attorney General Sally Yates, the Justice Department plans to end its use of private/contract prisons. According to the memo,

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August 18, 2016 | Permalink | Comments (3)