Tuesday, December 11, 2018
Thursday, December 6, 2018
My Seventh Post on the Oral Arguments in the Adnan Syed Case: Why This is NOT a "Silent Record" Case
Tuesday, December 4, 2018
This is my sixth post on last Thursday's oral arguments in the Adnan Syed case. This one is on the current panel of judges on the Court of Appeals of Maryland. This post will address two questions: (1) How often has the current panel ruled in favor of the defendant and the State in cases in which there is a dissenting opinion; and (2) how many times has each individual judge ruled in favor of the defendant and the State in such cases? In other words, how does the court rule in "close call" cases?
Monday, December 3, 2018
This is my fifth post on last Thursday's oral arguments in the Adnan Syed case. This one covers the cell tower claim, i.e., the claim that Adnan Syed received the ineffective assistance of counsel because his trial counsel did not cross-examine the State's cell tower expert with the AT&T disclaimer.
The pertinent portion of the AT&T disclaimer
Sunday, December 2, 2018
This is my fourth post on Thursday's oral arguments in the Adnan Syed case. This one covers the two points upon which the State a defense agreed: (1) there is fixed factual finding in this case that nobody from Cristina Gutierrez's team contacted prospective alibi witness Asia McClain before trial; and (2) the test for determining whether trial counsel was ineffective under Strickland v. Washington is an OBJECTIVE test, not a SUBJECTIVE test. So, what does this distinction mean, and why is it so important to the defense?
Saturday, December 1, 2018
This is my third post on Thursday's oral arguments in the Adnan Syed case. This post addresses something that the attorney for the State, Thiru Vignarajah, gave repeated attention in his oral arguments: whether the defendant was asking the judges to create a per se rule that failure to contact an alibi witness is always ineffective assistance of counsel. In this post, I will explain why I think this emphasis was misguided.
Friday, November 30, 2018
Yesterday, there were oral arguments in the Adnan Syed case in the Court of Appeals of Maryland (Maryland's highest court). The primary focus during those arguments was on the issue of whether Adnan received ineffective assistance of counsel based on his trial counsel's failure to contact prospective alibi witness Asia McClain. As I noted yesterday, there are two prongs that a defendant must prove to establish a claim of ineffective assistance of counsel: (1) trial counsel rendered deficient performance; and (2) this deficient performance was prejudicial, i.e, undermines confidence in the jury's verdict. Yesterday's post dealt with the prejudice prong. This post will start to deal with the deficient performance prong.
During oral arguments, the attorney for the State -- Thiru Vignarajah -- placed huge emphasis on a Supreme Court opinion to support his argument, but it wasn't Cullen v. Pinholster, the opinion I expected. Instead, it was Burt v. Titlow.
Thursday, November 29, 2018
Today, there were oral arguments in the Adnan Syed case in the Court of Appeals of Maryland (Maryland's highest court). If you weren't able to watch the oral arguments, a recording is now archived on the Court of Appeals website (Normal Quality; Higher Quality). This is my first take on those oral arguments.
Wednesday, November 28, 2018
There will be oral arguments in the Adnan Syed case in the Court of Appeals of Maryland tomorrow, November 29, 2018, at 10:00 A.M. For those who want to attend in person, the arguments are open to the public, with limited seating. The Court of Appeals is at 361 Rowe Boulevard in Annapolis, with doors opening at 8:30 A.M.:
A Majority of the Court of Appeals Judges Who Decided the Kulbicki Case 4 Years Ago Will NOT Be Deciding the Adnan Syed Case
On Thursday, there will be oral arguments in the Adnan Syed case in the Court of Appeals of Maryland on two issues: (1) was trial counsel ineffective in failing to contact prospective alibi witness Asia McClain; and (2) was trial counsel ineffective in failing to use the AT&T disclaimer to cross-examine the State's cell tower expert (with emphasis on whether Adnan has waived this issue)? What's interesting is that the Court of Appeals addressed similar issues a mere four years ago in its 2014 opinion in Kulbicki v. State. In Kulbicki, the Court of Appeals of Maryland found that trial counsel was ineffective in failing to cross-examine the State's comparative bullet lead analysis (CBLA) expert with a report calling into question the reliability of CBLA.* And, importantly, the Court of Appeals did so despite the defendant previously abandoning that issue. So, Kulbicki and the Adnan Syed case both involve similar substantive issues and also both involve possible issues of waiver. In Kulbicki, 4 judges ruled in favor of the defendant and 3 dissenting judges ruled in favor of the State. So, a mere four years later, how many of those same judges will hear Adnan's case?
Wednesday, November 21, 2018
Tuesday, November 20, 2018
It is well established that the Federal Rules of Evidence apply at the guilt/innocence phase of trial but do not apply at the sentencing stage of trial. But do the Federal Rules of Evidence apply at hearings to establish prior convictions? That was the question answered by the Eleventh Circuit in its recent opinion in United States v. Hernandez, 906 F.3d 1367 (11th Cir. 2018).
Wednesday, November 14, 2018
On Tuesday, Louisiana voters overwhelmingly voted to abolish the practice of allowing non-unanimous jury verdicts in felony cases (e.g., a defendant could be convicted of manslaughter based on a 10-2 jury verdict [10 guilty, 2 not guilty]). In the wake of this vote, Oregon's House majority leader Jennifer Williamson plans
to introduce two bills in 2019 in an effort to overturn Oregon's non-unanimous jury law...
The first would seek a legislative fix to the law that allows juries in most felony cases — aside from murder — to convict defendants with a 10-2 vote, she said.
The second would refer the issue to voters, who would then decide whether to overturn an amendment in the state constitution enacted more than eight decades ago.
In the last few days, the reporting has focused on Oregon being the last state that allows non-unanimous jury verdicts in felony cases. In one sense, this is true. In another sense, this is false, and it could mean that innocent people have been and will continue to be executed.
Friday, November 9, 2018
I have posted the draft of my new article, "The Right to Evidence of Innocence Before Pleading Guilty," on SSRN. Here is the abstract:
George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.
This article argues, however, that these courts are ignoring a forgotten Supreme Court opinion that was central to the creation of the Brady doctrine. In its opinion in Wilde v. Wyoming, the Court recognized that the suppression of favorable substantive evidence before a defendant’s guilty plea can violate the Due Process Clause. Later, the Court stated that its Brady opinion was merely an extension of its prior opinions such as Wilde. And yet, while each of the other opinions that formed the foundation for the Brady doctrine has had a lasting legacy, the Wilde opinion has been lost to time despite never being repudiated. This article calls for a resurrection of Wilde and the recognition of a right to evidence of innocence before pleading guilty.
Any feedback would be much appreciated.
Thursday, November 8, 2018
The Case of the 9th Grade, Special Education Student and the Right to Evidence of Innocence Before Pleading Guilty
On November 27, 2005, George Alvarez, a ninth grade, special education student, was arrested by the Brownsville Police Department and taken to a detention center on suspicion of public intoxication and burglary of a motor vehicle. Alvarez tried to use the telephone located in his holding cell to call his family; when the phone didn't work, "Alvarez banged the headset against the phone and yelled for the jailers to fix the phone." Because Alvarez was being somewhat disruptive, officers removed Alvarez from his cell to the center's booking area, whereupon Alvarez engaged in a conversation with Officers Jesus Martin Arias, Guadalupe Rios Salinas, and Nelson W. Mendoza. According to all three officers, Alvarez then attacked Officer Arias.
Alvarez was thereafter charged with assaulting a public servant, a third degree felony in Texas with a sentencing range between 2-10 years. "Despite believing that he did not assault Arias, Alvarez also believed 'I had no [way to win the case]. It's my word against their word, and they're always going to believe them because they're like the law.'" Alvarez thus pleaded guilty to to the assault. Four years into Alvarez's eight year sentence,*
video footage came to light that prosecutors had never gathered from police officers, and thus never shown to the grand jury. The footage showed no such attack. Instead, the guard could be seen placing Alvarez in a choke hold and eventually a head lock while the young man flailed beneath him. His hands and arms were pinned down, nowhere near the guard’s throat. The Texas Court of Criminal Appeals found Alvarez to be “actually innocent” of the charges.
Specifically, here's the video:
Thursday, October 25, 2018
In yesterday's post, I covered the State's Reply Brief of Petitioner/Cross-Respondent in the Adnan Syed case and its allegation that the defense was engaging in a bait-and-switch. Specifically,
the State is claiming that (1) the defense's bait is to claim that Cristina Gutierrez was deficient because she merely had to pick up the phone and call alibi witness Asia McClain; and (2) the defense's switch is then to claim that Adnan Syed was prejudiced based upon Gutierrez's failure to use Asia McClain as an alibi witness at trial. In other words, the State is claiming that contacting Asia McClain wouldn't have necessarily led to Gutierrez calling her at trial.
In yesterday's post, I noted how the Fourth Circuit's opinion in Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), belies this claim. I used Griffin because it is a Fourth Circuit case originating out of Baltimore, but it turns out the one of my favorite IAC/alibi cases -- Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988) -- makes things even clearer.
Wednesday, October 24, 2018
Today, the State filed its Reply Brief of Petitioner/Cross-Respondent in the Adnan Syed case. This will likely the penultimate brief in this case before oral arguments are held in the Court of Appeals of Maryland on November 29th. In this post, I will quickly address the State's claim that the defense is trying to pull a bait-and-switch on the court.
Tuesday, October 23, 2018
Assume that a defendant who has been charged with a crime attempts suicide while detained prior to trial. Should evidence of this suicide attempt be admissible at the defendant's ensuing trial? This was the question of first impression addressed by the Supreme Court of South Carolina in its recent opinion in State v. Cartwright, 2018 WL 4609386 (S.C. 2018).
Monday, October 22, 2018
The pertinent portion of Wyoming's postconviction DNA testing statute, W.S. 7-12-303(d), states that
The court may not order DNA testing in cases in which the trial or a plea of guilty or nolo contendere occurred after January 1, 2000 and the person did not request DNA testing or present DNA evidence for strategic or tactical reasons or as a result of a lack of due diligence, unless the failure to exercise due diligence is found to be a result of ineffective assistance of counsel. A person convicted before January 1, 2000 shall not be required to make a showing of due diligence under this subsection.
So, where does that leave pleading defendants?
Thursday, October 18, 2018
I noted in a prior post that Pennsylvania is among the states in which pleading defendants are not allowed to seek postconviction DNA testing. I also noted that the was legislation in the works that might get rid of this pleading defendant prohibition. Well, that legislation is now one step away from passing, and you can help get it across the finish line. Yesterday, the Pennsylvania House approved Senate Bills 915 and 916.