EvidenceProf Blog

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

Wednesday, November 14, 2018

How Alabama Allows for Non-Unanimous Jury Verdicts & How It Can Lead to the Innocent Being Executed

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. 

Continue reading

November 14, 2018 | Permalink | Comments (0)

Friday, November 9, 2018

My New Article: "The Right to Evidence of Innocence Before Pleading Guilty"

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.

-CM

November 9, 2018 | Permalink | Comments (5)

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:

 

Continue reading

November 8, 2018 | Permalink | Comments (2)

Thursday, October 25, 2018

My Second Post on the State's New Brief in the Adnan Syed Case

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.

Continue reading

October 25, 2018 | Permalink | Comments (1)

Wednesday, October 24, 2018

My First Take on the State's New Brief in the Adnan Syed Case

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.

Continue reading

October 24, 2018 | Permalink | Comments (27)

Tuesday, October 23, 2018

Should Evidence of a Defendant's Suicide Attempt While Awaiting Trial be Admissible?

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).

Continue reading

October 23, 2018 | Permalink | Comments (1)

Monday, October 22, 2018

Project DNA: Wyoming

Wyoming

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? 

Continue reading

October 22, 2018 | Permalink | Comments (0)

Thursday, October 18, 2018

Project DNA: Pennsylvania Update

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.

Continue reading

October 18, 2018 | Permalink | Comments (1)

Wednesday, October 17, 2018

Project DNA: Wisconsin

Wisconsin

The pertinent portion of Wisconsin's postconviction DNA testing statute, Wisconsin Statutes Section 974.07(7)(b)(1),  states that after a petition for postconviction DNA testing is filed

It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

So, where does that leave pleading defendants? 

Continue reading

October 17, 2018 | Permalink | Comments (0)

Tuesday, October 16, 2018

Project DNA: West Virginia

West Virginia

The pertinent portion of West Virginia's postconviction DNA testing statute, W. Va. Code, § 15-2B-14(c)(1)(E), states that after a petition for postconviction DNA testing is filed

(e) The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial or accepted the convicted person's plea, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.

So, where does that leave pleading defendants? 

Continue reading

October 16, 2018 | Permalink | Comments (0)

Monday, October 15, 2018

The John Marshall Law School Seeks Spring 2019 Full-Time Faculty Podium Visitors

Spring 2019 Full-Time Faculty Podium Visitors

The John Marshall Law School in Chicago seeks one or two full-time visiting faculty members for the Spring 2019 semester. We need coverage in the areas of Civil Procedure (evening course), Secured Transactions, and Estates & Trusts. The appointment is for one semester, but we will be seeking visitors for the 2019–2020 academic year in these areas plus some combination of Evidence, Criminal Law, and Property.

Candidates should have taught full-time at an ABA-approved law school.

To Apply:

Submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at 7sorkin@jmls.edu. The review will begin immediately and continue on a rolling basis until one or both positions are filled. We may request a Skype or in-person interview and submission of prior teaching evaluations.

The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.

October 15, 2018 | Permalink | Comments (1)

Friday, October 12, 2018

Project DNA: Washington

Washington

The pertinent portion of Washington's postconviction DNA testing statute, Wash. Rev. Code Ann. § 10.73.170(2)(b), states that a petition for postconviction DNA testing must

Explain why DNA evidence is material to the identity of the perpetrator of, or accomplice to, the crime, or to sentence enhancement

So, where does that leave pleading defendants? 

Continue reading

October 12, 2018 | Permalink | Comments (0)

Tuesday, October 9, 2018

Project DNA: Virginia

Virginia

The pertinent portion of Virginia's postconviction DNA testing statute, VA ST § 19.2-327.1(A), states that a defendant can seek postconviction DNA testing if

(i) the evidence was not known or available at the time the conviction or adjudication of delinquency became final in the circuit court or the evidence was not previously subjected to testing because the testing procedure was not available at the Department of Forensic Science at the time the conviction or adjudication of delinquency became final in the circuit court; (ii) the evidence is subject to a chain of custody sufficient to establish that the evidence has not been altered, tampered with, or substituted in any way; (iii) the testing is materially relevant, noncumulative, and necessary and may prove the actual innocence of the convicted person or the person adjudicated delinquent; (iv) the testing requested involves a scientific method employed by the Department of Forensic Science; and (v) the person convicted or adjudicated delinquent has not unreasonably delayed the filing of the petition after the evidence or the test for the evidence became available at the Department of Forensic Science.

So, where does that leave pleading defendants? 

Continue reading

October 9, 2018 | Permalink | Comments (0)

Friday, October 5, 2018

Project DNA: Vermont

Vermont

The pertinent portion of Vermont's postconviction DNA testing statute, 13 V.S.A. § 5561(c)(1), states that

The petition [for postconviction DNA testing] shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial.

So, where does that leave pleading defendants? 

Continue reading

October 5, 2018 | Permalink | Comments (4)

Thursday, October 4, 2018

Project DNA: Utah

Utah

The pertinent portion of Utah's postconviction DNA testing statute, Utah Code Ann. § 78-35a-301(2)(c), states that:

 (2) A person convicted of a felony offense may at any time file a petition for postconviction DNA testing in the trial court that entered the judgment of conviction against him if the person asserts his actual innocence under oath and the petition alleges:

 (c) the person identifies the specific evidence to be tested and states a theory of defense, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support.

So, where does that leave pleading defendants? 

Continue reading

October 4, 2018 | Permalink | Comments (0)

Wednesday, October 3, 2018

Project DNA: Texas

Texas

The pertinent portion of Texas's postconviction DNA testing statute, Tex. Code Crim. Proc. Ann. art. 64.03(b), states that a petition for postconviction DNA testing must

A convicted person who pleaded guilty or nolo contendere or, whether before or after conviction, made a confession or similar admission in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea, confession, or admission, as applicable.

So, where does that leave pleading defendants? 

Continue reading

October 3, 2018 | Permalink | Comments (0)

Tuesday, October 2, 2018

Project DNA: Tennessee

Tennessee

The pertinent portion of Tennessee's postconviction DNA testing statute, Tenn. Code Crim. Pro. Section 40-30-305, states that a petition for postconviction DNA testing must

After notice to the prosecution and an opportunity to respond, the court may order DNA analysis if it finds that:

(1)  A reasonable probability exists that analysis of the evidence will produce DNA results that would have rendered the petitioner's verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;

(2)  The evidence is still in existence and in such a condition that DNA analysis may be conducted;

(3)  The evidence was never previously subjected to DNA analysis, or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and

(4)  The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

So, where does that leave pleading defendants? 

Continue reading

October 2, 2018 | Permalink | Comments (0)

Sunday, September 30, 2018

The Case That Could Change the Course of Criminal Law: George Alvarez & the Right to Evidence of Actual Innocence

For some unknown reason, my Twitter account has been suspended since yesterday morning. I don't know whether the two are connected, but, just before it was suspended, I was tweeting about what might end up being the most important case of my career, and I'd like to give it some more attention here. I'm not an attorney for George Alvarez, but I am writing an amici curiae (friend of the court) brief on his behalf to the Supreme Court. 

In 2005, George Alvarez was a 9th grade, special education student. He was arrested on suspicion of committing misdemeanor burglary of a motor vehicle. Jail Officer Nelson W. Mendoza later wrote the following report on what happened at the Brownsville Detention Center after the arrest.

ON THIS DAY AT APPROXIMATELY 2115 A MALE SUBJECT BY THE NAME OF ALVAREZ, GEORGE WAS BROUGHT INTO CITY JAIL FOR THE CHARGE OF BURGLARY OF MOTOR VEHICLE X 2 AND WHILE IN CELL 101 ALVAREZ WAS OBSERVED BANGING PHONE RECIEVER AND WAS THEN MOVED TO CELL #114 IN THE PROCESS OF TRANSFERING HIM HE BECAME VIOLENT WITH D.O ARIAS #4831-MENDOZA #5950- SALINAS #5989. WHILE IN STRUGGLE I D.O MENDOZA PLACED MY KNEE OVER HIS BACK WHILE TRYING TO PLACE HANDCUFFS ON INDIVIDUAL TO REGAIN CONTROL TO SUBDUE HIM AND WAS PLACED IN CELL #114 WITH SHACKLES AND HANDCUFFS. NO FURTHER ACTION TAKEN BY THIS D.O.

Alvarez would later plead guilty to assaulting a peace officer. 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.

Alvarez, who could not read or write well prior to his incarceration, "couldn't even read his own innocence ruling when he received it in prison." See Appellee's Response to Appellant City of Brownsville's Brief, 2016 WL 7449286 (5th Cir. 2016).

Innocent(1)

Continue reading

September 30, 2018 | Permalink | Comments (4)

Friday, September 28, 2018

Project DNA: South Dakota

South Dakota

The pertinent portions of Dakota's postconviction DNA testing statute, South Dakota Code Section 23-5B-1(9) & (10), state that a court will allow for postconviction DNA testing if

(9) The petitioner identifies a theory of defense that: (a) Is consistent with an affirmative defense presented at trial; or (b) Would establish the actual innocence of the petitioner of the felony offense referenced in the petitioner's assertion under subdivision (1); and

(10) If the petitioner was convicted following a trial, the identity of the perpetrator was at issue in the trial.

So, where does that leave pleading defendants? 

Continue reading

September 28, 2018 | Permalink | Comments (0)

Thursday, September 27, 2018

Season 3, Episode 3 of Serial: The Battle of the Bulge & the Cleveland Haberdashery That Changed Criminal Law

Today was the premiere of Episode 3 of Season 3 of the Serial Podcast: "Misdemeanor, Meet Mr. Lawsuit." At the center of the episode was the case of Erimius Spencer, who "filed a civil lawsuit alleging he was kicked in the face and tased numerous times during a December 2016 arrest in Euclid," just outside of Cleveland.

Spencer said he was arrested inside his apartment building last year, after two Euclid officers, then-Officer Michael Amiott and Officer Shane Rivera, came up to him when he went to a friend’s apartment asking for a cigarette.

This encounter ended with Spencer looking like this:

Spencer

The officers claimed that they conducted a valid stop-and-frisk of Spencer, resulting in the discovery of a blunt during a pat-down, a valid arrest, Spencer resisting arrest, and the ensuing injuries to Spencer. Spencer claims that the officers didn't have grounds for conducting a stop-and-frisk, that he wasn't resisting arrest, and that the officers used excessive force. Had the case gone to trial, the law governing it would have come from a famous Supreme Court case out of Cleveland 50 years ago.

Continue reading

September 27, 2018 | Permalink | Comments (0)