EvidenceProf Blog

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

Saturday, February 16, 2019

The Parallels Between the Malcolm Bryant Case and the Adnan Syed Case

On the evening of November 20, 1998, 16-year-old Toni Bullock was fatally stabbed in Baltimore, Maryland. 24 year-old Malcolm Bryant was subsequently convicted of her murder. Thereafter,

In 2009, a petition for DNA testing was filed and in 2011, fingernail clippings taken from Bullock were sent for testing. The testing revealed a partial DNA profile of a male, which had a rare identifier, which Bryant did not have. Several more rounds of DNA tests were performed and in 2015, a full DNA profile was obtained from Bullock’s t-shirt—where the fatal wound was inflicted. That profile contained the same rare identifier and matched the partial profile taken from the fingernail clippings.

Finally, in May 2016, Bryant was granted a new trial, and the charges against him were dismissed. Tragically, less than a year later, Bryant died from a stroke.

Recently, Bryant's family brought a lawsuit against parties such as the Baltimore Police Department, lead investigator William F. Ritz, and forensic analyst Barry Verger. At the end of this post, I will detail the allegations in this lawsuit, which of course will be contested.

But what's interesting about this case is that it's already produced a report by the Baltimore Event Review Team, which

is a voluntary collaboration among the Baltimore City State’s Attorney’s Office (SAO), the Baltimore Police Department (BPD), the Maryland Office of the Public Defender in Baltimore City (OPD), and the University of Baltimore Innocence Project (UBIP), a collaborative effort of the Office of the Public Defender and the University of Baltimore School of Law, coordinated by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.

And that report deals, inter alia, with the investigation of Bryant's alibi beginning with a memo from Assistant District Attorney Vickie Wash to Detective Ritz on January 12, 1999. This is important because Wash and Ritz were the team assigned to investigate Adnan Syed's movements, including a possible alibi, on January 13, 1999, the day that Hae Min Lee disappeared, meaning that these investigations were occurring simultaneously.


Malcolm Bryant

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February 16, 2019 | Permalink | Comments (1)

Wednesday, February 13, 2019

Supreme Court of Wisconsin Recalibrates the Brady Doctrine in What Might Be the Most Important Brady Opinion in 17 Years

Last week, the Supreme Court of Wisconsin issued an opinion that might have huge implications for the Brady doctrine. Under that doctrine the prosecution has an affirmative obligation under the Due Process Clause to disclose material exculpatory evidence to the defense. In its opinion in State v. Wayerski, 2019 WL 471276 (Wis. 2019), however, the Supreme Court of Wisconsin held that Wisconsin courts had shifted the focus from the State's misconduct to the defense's due diligence and issued a course correction. And it's a course correction that could apply to courts across the country.

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February 13, 2019 | Permalink | Comments (7)

Tuesday, February 12, 2019

William Kidder Posts "(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings" on SSRN

William Kidder (UCLA Civil Rights Project) has posted "(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings" on SSRN. Here is the abstract:

Prevention of sexual assault and sexual harassment are major challenges at U.S. colleges and universities today. In recent years a vigorous law and policy debate emerged within the higher education community about Title IX and whether the “preponderance of evidence” or “clear and convincing” evidence represents the more appropriate standard of evidence in campus sexual violence and sexual harassment disciplinary procedures. During the Obama administration the Office for Civil Rights in the U.S. Department of Education issued a 2011 “Dear Colleague” letter recognizing that the preponderance of evidence standard was the appropriate standard for Title IX investigations. The Trump administration's Office for Civil Rights rescinded this earlier guidance and in November 2018 issued a notice of proposed rulemaking regarding Title IX regulations. The new proposed regulation reflects a “you can have more discretion, if you rachet up” policy: a college can only use the preponderance of evidence standard if it adopts that same standard across-the-board in similarly serious non-Title IX student misconduct cases and in both Title IX and non-Title IX cases where the accused/respondent is a faculty member or employee. If a campus chooses to adopt the clear and convincing evidence standard in Title IX cases, the proposed regulation would not restrict campus discretion in non-Title IX student cases. 

While the relationship between the burden of proof and outcomes is complicated and dynamic, the main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors (student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive” errors. By implication, a shift to the clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.

This article also aims to inform the debate about Title IX and faculty and student disciplinary cases by objectively identifying whether the preponderance of evidence or clear and convincing evidence standard is used in most domains that are reasonably analogous to faculty Title IX-related misconduct proceedings (a more stringent test than looking only at student-to-student Title IX cases). This review includes U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases. In a large majority of these areas, preponderance of evidence is used as the standard of evidence. This pattern highlights concerns about the Office for Civil Rights selectively referencing cases that support its proposed Title IX regulation and questionable claims about the clear and convincing evidence standard and stigma. This article also raises questions, depending on how the notice-and-comment process unfolds, about the proposed Title IX regulation and the Administrative Procedure Act. 


February 12, 2019 | Permalink | Comments (0)

Monday, February 11, 2019

Supreme Court of New Jersey Finds a Brady Violation Based on Late Disclosure of Nineteen Pieces of Exculpatory Evidence

Pursuant to the Supreme Court's opinion in Brady v. Maryland, the State has an affirmative duty under the Due Process Clause to timely disclose material exculpatory evidence. The typical opinion involving a Brady violation involves the State's complete failure to disclose exculpatory evidence, with the main question being that evidence was material, i.e, whether it undermines our confidence in the jury's verdict. In this sense, the recent opinion of the Supreme Court of New Jersey in State v. Brown, 2019 WL 418076 (N.J. 2019), is a bit of an outlier because the State did disclose exculpatory evidence to the accused...but not until a week had passed in his murder trial.

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February 11, 2019 | Permalink | Comments (0)

Wednesday, February 6, 2019

The Wrongful Conviction of Kelvin Bradley & How a Private Bill Could Get Him Compensation

Currently, 33 states have laws that allow the wrongfully convicted to receive compensation based upon their years of imprisonment. Georgia is not one of those states. What this means is that a state representative must submit what's known as a “private bill” to compensate one individual, rather than creating a policy for compensation any time someone is proven innocent. 

One example of such a bill can be found in the case of Clarence Harrison, who was convicted of rape and robbery in 1987 but was later released in 2004 based upon the conclusion that "DNA evidence obtained from Harrison could not possibly belong to the same man whose DNA was in the rape kit." After Harrison was released, several Georgia representatives filed a private bill that gave Harrison $1 million in compensation.

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The beginning of the private bill in the Clarence Harrison case.

This then takes us to the recent exoneration of Kelvin Bradley.*


Kelvin Bradley

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February 6, 2019 | Permalink | Comments (0)

Monday, February 4, 2019

Inaugural Evidence Summer Workshop at Vanderbilt Law School in Nashville, TN, May 23-24, 2019

This workshop should be of interest to all Evidence law scholars:

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We are delighted to announce the inaugural Evidence Summer Workshop to be held at Vanderbilt Law School in Nashville, TN, on May 23-24, 2019.

The Workshop aims to provide evidence scholars a regular venue to present their latest projects, share ideas, and develop lasting relationships among each other. We hope this summer’s workshop will be the first of many to be held on an annual basis.

The conference will include both plenary paper sessions at which papers will be discussed by designated commentators and smaller group sessions.

All evidence scholars are welcome to register and attend the Workshop. Those wishing to present papers should submit an abstract (not to exceed 500 words) by March 15, 2019 on the conference webpage, which can be found at evidenceworkshop.com. We welcome submissions from scholars at all stages of their careers. Preference will be given to those within their first decade of teaching. Selection decisions will be made by mid-April.

The Workshop includes all meals (dinner, breakfast, lunch) for registrants. Participants are responsible for their own housing and travel costs. A block of rooms has been reserved at the Loews Vanderbilt for Workshop participants. More details are available at evidenceworkshop.com.

The 2019 Evidence Summer Workshop is generously made possible by Vanderbilt Law School’s Branstetter Litigation and Dispute Resolution Program.

If you have any questions, please contact any member of the Program Committee.

Ed Cheng (Vanderbilt), edward.cheng@vanderbilt.edu

Alex Nunn (Arkansas), ganunn@uark.edu

Julia Simon-Kerr (Connecticut), julia.simon-kerr@uconn.edu

Maggie Wittlin (Nebraska), maggie.wittlin@unl.edu

February 4, 2019 | Permalink | Comments (0)

Sunday, January 27, 2019

4th Circuit Finds 80 Year-Old Charles Ray Finch Has Proven His "Actual Innocence" After 42 Years in Prison...But That Doesn't Guarantee His Release

On February 13, 1976, Richard "Shadow" Holloman was fatally shot in a failed robbery attempt inside his Black Creek country store in eastern North Carolina. Later that year, Charles Ray Finch was convicted of his murder. Finch has always maintained his innocence, and, on Friday, the United States Court of Appeals for the Fourth Circuit agreed with him, finding that Finch has proven his "actual innocence." This might lead you to believe that the 80 year-old Finch was released or will soon be released; instead, it could be years before Finch is released...if he is ever released at all. So, what's going on?


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January 27, 2019 | Permalink | Comments (1)

Friday, January 25, 2019

Court of Appeals of Maryland Accepts the Defense's Supplemental Authority Memo in the Adnan Syed Case

On Wednesday, the Court of Appeals of Maryland granted the defense's Motion for Leave to Submit a Supplemental Authority Memorandum in the Adnan Syed case and therefore accepted the defense's Supplemental Authority Memorandum:

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So, what's the significance of this decision?


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January 25, 2019 | Permalink | Comments (3)

Friday, January 18, 2019

How Should U.S. Courts Deal With Testimony From Foreign Countries Without the Oath Requirement and/or the Penalty of Perjury?

In the United States, Federal Rule of Evidence 603 provides that 

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Witnesses testifying under oath also know that any knowingly false testimony is given subject to the penalty of perjury. So, what happens when a party in a case in the United States seeks to introduce testimony given in another country that did not require an oath and was not given subject to the penalty of perjury? These were some of the questions addressed by the United States District Court for the Eastern District of California in its recent opinion in United States v. Hayat, 2019 WL 176342 (E.D. Cal. 2019).

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January 18, 2019 | Permalink | Comments (0)

Wednesday, January 16, 2019

South Carolina State Representative Mandy Powers Norrell Files Detainee Consent Bill

Yesterday, South Carolina State Representative Mandy Powers Norrell filed a bill that would make people in police custody legally incapable of consenting to sexual acts with law enforcement officers. This would apply to any number of people in police custody, including (1) suspects; (2) victims; and (3) witnesses. The origin of all of this is the story of 18 year-old "Anna," who claimed that two Brooklyn police officers took turns raping her when she was taken into police custody after weed was found in a car she was sitting in with two other individuals. The officers claimed that the sexual acts were consensual, which brought to light the fact that 35 states allow police officers to claim that sexual acts with people in their custody were consensual. This is in stark contrast with the correctional facility context, where every state and the federal government says that inmates are legally incapable of consenting to sexual acts with correctional officers.

Representative Norrell's bill says that the same type of law should apply to people who are in police custody. So, how big of a problem is this? Buffalo News maintains a "database of more than 700 law enforcement officers accused of sexual misconduct." Specifically, "[o]f at least 158 law enforcement officers charged since 2006 with sexual assault, sexual battery, or unlawful sexual contact with somebody under their control, at least 26 have been acquitted or had charges dropped based on the consent defense."

But this also understates the scope of the conduct. Many more officers are technically convicted...but of the lesser charge of misconduct in office, often because prosecutors fear that jurors will believe a consent defense, just as they do in many rape and sexual assault cases. That was the case with Dereck Johnson, an officer with the Orangeburg County Sheriff’s Office in South Carolina, who engaged in a sexual act with an alleged domestic violence victim while responding to a 911 call. If you want to see how the consent defense is raised in cases like these, check out this Youtube clip of Dereck Johnson's preliminary hearing:

If you want more insight into the issues surrounding what I'll call "detainee consent," you can check out our special "Consent" episode of the Undisclosed Podcast. And, if you want more insight into Representative Norrell's bill and why I think it should get broad bipartisan support in South Carolina, check out my "Explainer" below the jump.

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January 16, 2019 | Permalink | Comments (1)

Monday, January 14, 2019

Blaine Milam Seeks a Stay of Execution Under Texas's Junk Science Statute. Here's Why It Should be Granted.

[Update: The Court of Criminal Appeals of Texas has stayed Blaine Milam's execution, concluding, "Because of recent changes in the science pertaining to bite mark comparisons and recent changes in the law pertaining to the issue of intellectual disability...we therefore stay his execution and remand these claims to the trial court for a review of the merits of these claims.”]

Blaine Milam is scheduled to be executed tomorrow, January 15, 2019. "Milam – who prior court pleadings have argued is intellectually disabled – and his mentally ill girlfriend, Jessica Carson, were convicted of killing Carson’s 13-month-old daughter, Amora, during an alleged exorcism in 2008." The State was unsure whether Milam or Carson (or both) killed Amora, so they presented the case to the jury under Texas's law of parties, which says "that a co-defendant involved in a crime that results in a murder is just as responsible, even if that defendant was not involved in the actual killing."

Is Milam guilty? I don't know. Answering that question would require a lot of research, but this is clearly not a straightforward case of innocence. That said, Milam has asked for a stay of execution, and I feel strongly that he should be granted that stay. Why?


Blaine Milam

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January 14, 2019 | Permalink | Comments (3)

Saturday, January 12, 2019

Justin Sevier Posts "Legitimizing Character Evidence" on SSRN

Friday, January 11, 2019

Supreme Court of Alaska Shuts the Door on Comparison Question Technique Polygraph Evidence

Polygraph evidence is inadmissible in 49 states (the exception being New Mexico). Therefore, it might surprise you that Alaska courts allowed for the admission of a particular type of polygraph test in two recent cases. But, as a result of the recent opinion of the Supreme Court of Alaska in State v. Sharpe, 2019 WL 99081 (Alaska 2019), this test won't be admissible in the future.

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January 11, 2019 | Permalink | Comments (0)

Thursday, January 10, 2019

Breaking Down Today's Supplemental Authority Memorandum in the Adnan Syed Case

Today, the defense team in the Adnan Syed case filed (1) a Motion for Leave to Submit a Supplemental Authority Memorandum; and (2) a Supplemental Authority Memorandum. So, what does this mean? Let's break it down.

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January 10, 2019 | Permalink | Comments (3)

Wednesday, January 9, 2019

Why the Justin Wolfe Case Looks Like a Classic Case of Prosecutorial Vindictiveness

Yesterday, the United States Supreme Court "ordered a lower court to review the case of a northern Virginia drug dealer who says his guilty plea in a 2001 murder was coerced by vindictive prosecutors." That man is Justin Wolfe, and his name might be familiar if you listened to the first season of the Serial Podcast. Here's the transcript of Sarah Koenig talking about the Wolfe case in Episode 7 of Season 1:

I heard about this other case, of a kid named Justin Wolfe. Actually Adnan mentioned the case to me, kind of in passing. I can’t remember how he heard about it. He reads a lot of different stuff in prison. Anyway, we had been talking about the cell records, and how they were used in Adnan’s case, and Adnan said that in this other case of Justin Wolfe, cell records had also been used against him, but then Justin Wolfe’s conviction was overturned, in part because of the cell records.

So, I looked up this case of Justin Wolfe, just to see, and on paper, I have to say it’s sort of uncanny how many similarities there are with Adnan’s case. All young people, first of all. Justin Wolfe was a suburban kid, eighteen, football player. People thought of him as a good kid though he was selling pot and hanging around some tougher types. This next part is different obviously. He was convicted in the 2001 murder of a drug dealer who was shot nine times. Justin Wolfe was not the shooter. The shooter was the slightly older friend of Wolfe’s named Owen Barber who got a deal in exchange for testifying against Justin Wolfe. Owen Barber told the cops Justin Wolfe had hired him to kill the drug dealer. Wolfe was sentenced to death in Virginia. Wolfe’s trial attorney later gave up his law license, after the bar had initiated disciplinary charges against him for, and this is the technical term, being a crappy lawyer. Oh and there was a witness who was never heard from. Other than that, totally different cases.

Anyhow, eventually Owen Barber recanted. He said Justin Wolfe had nothing to do with the murder, he’d only implicated Wolfe to avoid a death sentence for himself.

Eventually, Wolfe's conviction was thrown out for three reasons: (1) a Brady violation; (2) the prosecutor knowingly suborning perjury; and (3) the improper striking of a prospective juror (who expressed reservations about the death penalty but ultimately said he could impose it). So, what happened next?


Justin Wolfe

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January 9, 2019 | Permalink | Comments (6)

How the Skakel & Gissendanner Cases Help Defendants Like Adnan Syed With Ineffective Assistance/Alibi Claims

On Monday, the United States Supreme Court denied certiorari in Connecticut v. Skakel, meaning that it will not hear the State of Connecticut's appeal from the Supreme Court of Connecticut opinion granting Michael Skakel a new trial.

Skakel is a nephew of Ethel Skakel Kennedy, the widow of Senator Robert F. Kennedy. In 2002, he was convicted of the October 30, 1975 murder of Martha Moxley, who was last seen spending time at the home of the Skakel family, across the street from her home in Belle Haven. Both Skakel and Moxley were 15 years old at the time. Skakel's cousin, Georgeann Dowdle, testified before the grand jury in the case "that she was at home with her young daughter and her 'beau' on the night of the murder and heard her brother and Skakel cousins talking, but, given the passage of so much time, she could not recall whether she actually saw them."

Defense counsel did not, however, contact Dowdle's "beau," and Skakel was eventually convicted of murder. Back in May, the Supreme Court of Connecticut found that this failure to contact Dowdle's "beau" was ineffective assistance of counsel. With the United States Supreme Court denying certiorari, the Supreme Court of Connecticut's opinion in Skakel becomes final and will not be disturbed. So, what's the combined effect of the Skakel opinion and the recent opinion of the Supreme Court of Alabama in the Gissendanner case? It means that it just became a lot easier for defendants like Adnan to establish ineffective assistance of counsel based on failure to contact an alibi witness.


Michael Skakel

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January 9, 2019 | Permalink | Comments (2)

Tuesday, January 8, 2019

Why Justices Gorsuch & Sotomayor Are Right About the Sixth Amendment Applying to Criminal Restitution

In Apprendi v. New Jersey, the United States Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. So, let's say that Dan attacks Vince and is charged with battery, which has a statutory maximum sentence of 5 years in State X. Let's also say that State X has a sentencing enhancement of up to 3 years for hate crimes. Finally, let's say that the jury finds Damn guilty of battery and is not given a special jury questionnaire asking it if the crime was a hate crime.* Pursuant to Apprendi, even if the prosecutor presented compelling evidence during sentencing that Dan's crime was a hate crime, the judge could not impose a total sentence of more than 5 years. So, for instance, the judge could not impose a sentence of 4 years for the crime and 2 years for the hate crimes sentencing enhancement because that would lead to a total sentence of 6 years. According to the Apprendi Court, such a sentence would violate the Sixth Amendment right to trial by jury counsel.

Recently, in Hester v. United States, the United States Supreme Court was presented with an interesting question under Apprendi: Does it apply to the imposition of criminal restitution?

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January 8, 2019 | Permalink | Comments (1)

Monday, January 7, 2019

Cyntoia Brown Will be Released in August. Now's it's Time for Tennessee to Get Rid of its 51-to-Life Law

Today, departing Tennessee Governor Bill Haslam granted full clemency to Cyntoia Brown (meaning she will be released from prison on August 7, 2019). 

Brown was convicted in 2006 for the killing of Johnny Allen, a 43-year-old man who had picked her up at a drive-through restaurant and taken her home. Brown was 16 at the time of the murder and contends she feared for her life. Advocates for Brown have argued that, as a teen who was being sex trafficked, she should not have been tried as an adult and given a life sentence.


We covered Cyntoia's case on a special episode of the Undisclosed Podcast, and her case led me to do a fifty state survey on this blog analyzing juvenile sentencing. My conclusion from that survey was that Tennessee has the harshest juvenile sentencing laws in the country, requiring juveniles with life sentences to serve 51 years before being eligible for parole.

As a result of the project, I did two things. The first was for readers/listeners to reach out to Governor Haslam and ask him to grant Cyntoia clemency. That effort started on February 1, 2018, and, over the past year, you have told me about your efforts to reach out to Governor Haslam and ask for clemency. I have no doubt that each and every one of you played a role in Governor Haslam's decision to grant Cyntoia clemency.

The second thing was to try to work with Tennessee legislators on abolishing Tennessee's 51-to-Life law and replacing it with a law that makes juvenile lifers eligible for parole after serving 15 or 20 years. This is, in effect, what Governor Haslam did in Cyntoia's case:

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He declared her eligible for parole after serving 15 years and found that she qualified for parole based on what she had done since becoming an inmate:

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But Cyntoia is not alone. There are dozens of other juvenile lifers in Tennessee who are not currently eligible for parole until they have served 51 years. Given that the life expectancy for juvenile lifers is 50.6 years, these juvenile lifers are unlikely to ever live a life outside of prison.

So, what happened with the effort to amend Tennessee's harsh 51-to-Life law? My understanding is that there was broad support behind changing this law but debate over whether juveniles should be eligible for parole after serving 15, 20, 25, or 30 years. Simply put, 2019 is the year to resolve those disputes. Cyntoia Brown's case is Exhibit #1 as to why juvenile lifers should be eligible for parole after serving 15-20 years. Tennessee legislators can and should get this done.


January 7, 2019 | Permalink | Comments (3)

Jeffrey Bellin and Shevarma Pemberton Post "Policing the Admissibility of Body Camera Evidence" on SSRN

Friday, January 4, 2019

Supreme Court of Alabama Throws Out the Conviction of Death Row Inmate Emanuel Aaron Gissendanner, Jr.

Today, the Supreme Court of Alabama granted a new trial to death row inmate Emanuel Aaron Gissendanner, Jr., "who was convicted of murdering Margaret Snellgrove in 2001 during a robbery and a kidnapping." I don't know enough about Mr. Gissendanner's case to say whether he is innocent or guilty, but I feel like I know enough about his case to say that there were serious issues with both the prosecution and defense at his trial. I also feel like I know enough about his case to say that this opinion by Alabama's highest court has significant ramifications for Adnan Syed.


Emanuel Aaron Gissendanner, Jr.

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January 4, 2019 | Permalink | Comments (8)