EvidenceProf Blog

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

Sunday, July 5, 2020

Undisclosed Mega-Update Thread

On June 30, 2020, the Supreme Court of Missouri refused to hear the State's appeal from Judge Daniel Green's opinion granting Jonathan Irons a new trial. On July 1st, Jonathan was released from prison. The following day, the prosecutor announced that he would not take Jonathan's case back to trial.

Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Total cases covered: 22 cases.

Relief granted: 11 cases: 7 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; and (7) Jonathan Irons. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

DNA/Alternate Suspect: 1 case: Dennis Perry

Currently pending: 5 cases. (1) Ronnie Long's en banc hearing in the Fourth Circuit; (2) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (3) Joseph Webster's CRU petition; (4) Pedro Reynoso's CIU petition; and (5) Fred Freeman/Temujin Kensu's CIU petition.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

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July 5, 2020 | Permalink | Comments (1)

Tuesday, June 30, 2020

Call to Action in the Jonathan Irons Case

In our most recent series of Undisclosed, we covered the case of Jonathan Irons. Irons was 16 years-old when he was arrested for a burglary and shooting at the home of Stanley Stotler in O'Fallon, Missouri in 1997. Irons was eventually convicted of crimes connected to that burglary and sentenced to 50 years incarceration. Back in March, Judge Daniel Green granted him a new trial. Since then, despite this ruling and Irons's prison being a COVID-19 hotspot, the state Attorney General has continued appealing, keeping Irons behind bars. Today, the Supreme Court of Missouri will decide on whether to hear the State's final appeal. If, as we hope, the court rules against the State, St. Charles County Prosecutor Tim Lohmar will have 10 days to decide whether to drop the charges against Irons or take the case to trial again.

[Update: Tim Lohmar has dropped the case against Jonathan Irons]

I am asking you to contact Tim Lohmar (636-949-7355/pa@sccmo.org) today to respectfully ask that he drop the case against Irons. Here is a script that you can use (feel free to modify) for a phone call and/or e-mail:

Dear Mr. Lohmar,

     I am writing/calling to respectfully ask that you drop the case against Jonathan Irons. I believe that Mr. Irons was wrongfully convicted of a crime he did not commit at the age of 16 and do not believe that he should have to suffer the physical, mental, and emotional anguish of remaining incarcerated during the COVID pandemic and facing another trial. I am troubled by several aspects of Jonathan's case. First, the State has admitted to altering and failing to turn over an original fingerprint report that would have shown that a fingerprint lifted from the storm door where the burglar almost certainly exited the victim's home did not belong to either Jonathan Irons or the homeowner. Second, the victim was shown a biased photo array in which Jonathan Irons's face was larger than the other faces, and yet he still could not initially make an identification, which should be taken as evidence of Jonathan Irons's innocence. Third, Jonathan Irons's trial attorney never contacted a witness who told police she saw Jonathan Irons during Bible study at a time that would have made it highly improbable if not impossible that he could have committed the crime. Fourth, it has been uncovered that the detective who claims Jonathan Irons confessed to him kept a blog in which he admitted to all sorts of police misconduct, including fabricating evidence. Fifth, at trial, the State was unfairly allowed to introduce a gun into evidence despite the fact that there was no evidence linking the gun to Jonathan Irons or the crime.

     These are not just my opinions. They are the conclusions of Judge Daniel Green, who reached them after hearing testimony from both witnesses for the State and the defense. Jonathan Irons has already spent 23 year behind bars for a crime he did not commit. I respectfully ask that you drop the case against him so that he can be reunited with his family and live his life as an innocent man for the first time since he was sixteen.

Sincerely,

Name

Irons4

Jonathan Irons with his godparents

For more details regarding the case, you can read below:

 

Irons was convicted primarily based upon five factors:

1. The State claimed at trial that the burglar had to use the front storm door to exit Stotler's house and introduced a fingerprint report and testimony indicating that the only latent fingerprints lifted from the storm door belonged to Stotler. The detective who booked Irons also testified that Irons asked him during booking whether they recovered his fingerprints from Stotler's house, which the prosecutor used to argue that Irons must have been mocking the detective because Irons had ostensibly worn gloves during the burglary and knew he hadn't left behind any fingerprints.

2. Stanley Stotler identified Jonathan Irons as his shooter at trial.

3. Although lead detective Michael Hanlen could not testify at trial due to an operation on his throat, the prosecution introduced Hanlen's suppression hearing testimony in which Hanlen claimed that Irons orally confessed to entering Stotler's house. There was nothing written to corroborate Hanlen's claim, which Hanlen explained by claiming that Irons refused to sign anything, including a Miranda waiver. Shortly thereafter, however, when another detective sought to interrogate Irons, he readily signed a Miranda waiver indicating that he refused to talk (and he also invoked his Miranda rights when a third officer tried to interrogate him).

4. Various residents of Stanley Stotler's neighborhood -- Osage Meadows -- placed Irons in the neighborhood on the night of the shooting, some of whom said that he had a gun.

5. At trial, the prosecution presented into evidence a gun that an unnamed informant gave to an officer, saying that he was afraid it had been stolen.

Now, however, all five of these factors favors release and dropping of the charges against Jonathan Irons:

1. The State itself has admitted that someone working for the State altered the original fingerprint report before it was turned over to the defense during discovery. That original fingerprint report shows that one of the fingerprints lifted from around the handle on the storm door did not belong to either Irons or Stotler (who lived alone). This fingerprint was very likely left by the burglar, which strongly supports Irons's claim of innocence.

Screen Shot 2020-06-29 at 7.54.36 PM

Excerpt from Judge Daniel Green's opinion

2. Weeks after the shooting, Stotler was shown a biased photo array in which Jonathan Irons's face was much larger than the other faces in the photo array. Even with the biased array, Stotler could not pick anyone as his shooter, which should be taken as a non-identification and evidence of innocence. A detective then made the unconventional decision to ask Stotler to make his best guess. Stotler then said that it could have been #3 (Irons) or #6 (someone else). Upon his request, Stotler was then given the photo array and police reports (identifying Irons as the suspect). Only after studying these documents for weeks did Stotler identify Irons.

Array

The photo array shown to Stotler, with Irons in position #3

3. Michael Hanlen maintained a blog recounting all sorts of police misconduct that he committed. Here is one example:

Screen Shot 2020-06-30 at 10.28.20 AM

4. On the night of the burglary, police spoke to Amber Boeckman, who said that Jonathan Irons stopped by her home during Bible study between 6:30 and 6:40pm. Boeckman lived 2+ blocks away from Stotler, who made a 911 call after the shooting at 6:42pm. Despite the fact that Boeckman would have provided a terrific alibi, she was never contacted by the defense.

Screen Shot 2020-06-29 at 7.55.53 PM

Excerpt from Judge Daniel Green's opinion

5. There was no evidence connecting the gun to Jonathan Irons or the crime, and its display to the jury would have been highly prejudicial:

Screen Shot 2020-06-30 at 10.33.47 AM

Excerpt from Judge Daniel Green's opinion

June 30, 2020 | Permalink | Comments (0)

Sunday, June 28, 2020

Should a Spouse Ever be Allowed to Serve as a Juror in a Trial in Which His/Her Spouse is the Presiding Judge?

Should a spouse ever be allowed to serve as a juror in a trial in which his/her spouse is the presiding judge? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in Richardson v. People, 2020 WL 2829847 (Colo. 2020).

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June 28, 2020 | Permalink | Comments (0)

Thursday, June 25, 2020

Fourth Circuit Explores the "Complete the Story" Exception to Federal Rule of Evidence 404(b)

Federal Rule of Evidence 404(b)(1) states that

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

That said, courts have found that the prosecution can introduce evidence of other bad acts when they are "necessary to complete the story of the crime[s] on trial." So, what does that mean?

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June 25, 2020 | Permalink | Comments (1)

Friday, June 12, 2020

The Charges That Could be Brought Against the Police Officers Who Shot Breonna Taylor

Yesterday, the Louisville Metro Council unanimously voted to pass Breonna's Law, a categorical ban on no-knock warrants (i.e., warrants where officers do not need to knock and announce their presence before entering). The law is named after Breonna Taylor, an emergency room technician who was fatally shot by officers executing a no-knock warrant at her apartment. For the past several weeks, people across the country and the world have called for the officers who fatally shot Breonna Taylor to be arrested. In this post, I will lay out the theory for what charges could be brought against the officers.

Bret

Breonna Taylor

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June 12, 2020 | Permalink | Comments (1)

Monday, May 25, 2020

United States District Court for the District of New Mexico Addresses the Scope of Rule 615

Federal Rule of Evidence 615 states that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

But can a judge use Rule 615 to do more than sequester witnesses from the courtroom? The recent opinion of the United States District Court for the District of New Mexico in United States v. Baca, 2020 WL 1325118 (D.N.M. 2020), does a deep dive into Rule 615.

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May 25, 2020 | Permalink | Comments (0)

Sunday, May 24, 2020

Supreme Court of Delaware Finds Judge's Colloquy with 4 Year-Old Witness Sufficient to Establish Competency

Similar to its federal counterpart, Delaware Rule of Evidence 601 states that

Every person is competent to be a witness unless these rules provide otherwise.

Attorneys most commonly attempt to have child witnesses deemed incompetent under Rule 601, but they are usually unsuccessful, as was the case in Cathell v. State, 2020 WL 1157921 (Del. 2020).

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May 24, 2020 | Permalink | Comments (0)

Wednesday, May 20, 2020

New Jersey Court Finds Questions About Victim's Religion Violated Rule 610

Federal Rule of Evidence 610 states that

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

A good example of a line of questioning that violates Rule 610 can be found in the recent opinion of the Superior Court of New Jersey, Appellate Division in Grewal v. Greda, 2020 WL 2464760 (2020).

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May 20, 2020 | Permalink | Comments (0)

Monday, May 18, 2020

Eleventh Circuit Finds Judges Can Take Judicial Notice of Dictionary Definitions

Federal Rule of Evidence 201  covers judicial notice, and subsections (a) and (b) state the following:

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

So, can a judge take judicial notice of dictionary definitions? That was the question addressed by the Eleventh Circuit in its recent opinion in Robinson v. Liberty Mutual Insurance Company, 2020 WL 2315763 (11th Cir. 2020).

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May 18, 2020 | Permalink | Comments (0)

Tuesday, April 28, 2020

Undisclosed Mega-Update Thread

Today, it was reported that DNA testing was done on hairs recovered from glasses that were almost certainly worn by the man who killed Harold and Thelma Swain at the Rising Daughter Baptist Church. That testing revealed a match, and it was not a match for Dennis Perry, the man convicted of their murders. Instead, it was a match for Erick Sparre. We observed the following about Sparre in Episode 7 of our Undisclosed series on the Dennis Perry case: "If there had been a checklist of the known attributes of the killer at Rising Daughter, the description of Erik Sparre would seem to tick off just about every box." 

Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Total cases covered: 20 cases.

Relief granted: 10 cases: 6 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; and (6) Theophalis Wilson. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

DNA/Alternate Suspect: 1 case: Dennis Perry

Currently pending: 4 cases. (1) Ronnie Long's en banc hearing in the Fourth Circuit; (2) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (3) Joseph Webster's CRU petition; and (4) Pedro Reynoso's CIU petition.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

Continue reading

April 28, 2020 | Permalink | Comments (1)

Saturday, April 18, 2020

Utah Federal District Court Finds Trial Judge Didn't Need to Question Jurors About COVID-19 During Deliberations in Mid-March

A Utah jury hadn't completed deliberations as the weekend approached on Friday, March 13, 2020. The jury then completed deliberations on Monday, March 16, 2020, finding the defendant guilty. After the defendant was convicted, he appealed, claiming that the judge should have asked the following questions to the jury before the weekend:

Screen Shot 2020-04-18 at 8.46.55 AM

These were the facts in United States v. Derman, 2020 WL 1676770 (D. Utah 2020).

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April 18, 2020 | Permalink | Comments (1)

Sunday, April 12, 2020

Court of Appeals of Arkansas Finds Circuit Court Properly Failed to Take Judicial Notice of Google Maps Data

It's something many of us do all the time: Plug two locations into Google Maps to get a sense of how long it might take to get from Location A to Location B. But is it something that should lead to judicial notice? That was the question of first impression addressed by the Court of Appeals of Arkansas in its recent opinion in Reed v, State, 2020 WL 466668 (Ark.App. 2020).

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April 12, 2020 | Permalink | Comments (3)

Monday, March 30, 2020

Sixth Circuit Grants New Trial Based on Prosecution's Use of an Unauthenticated Video of a Masked Man Rapping & Wielding a Gun

The recent opinion of the United States Court of Appeals for the Sixth Circuit in United States v. Craig, 2020 WL 1482385 has to be among the craziest I've ever read. In Craig

[Terrance] Craig was charged with being a felon in possession of a firearm and took the case to trial. Craig admitted that he possessed a firearm while being a felon but testified that he possessed the gun only long enough to defend himself and his friends during [a] firefight. On cross-examination, the Government played for the jury a video depicting a masked individual it alleged to be Craig rapping and wielding a firearm that was similar to the gun for which he was charged. Craig denied that he was the masked individual in the video, and the Government did not attempt to introduce the video into evidence. 

Later, during closing arguments, the prosecutor stated:

And how do you know that he had that gun before, that he had that gun before he got in the car on November 26th? Because you saw it. You saw the Facebook video and you saw him with the gun, waving the gun around, and it looks just like this gun. And he said on cross-examination that that wasn't him in the Facebook video. Do you remember that?

So, was this proper?

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March 30, 2020 | Permalink | Comments (2)

Thursday, March 26, 2020

New Jersey Allows Statements Against Interest Even if the Declarant is Available

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Rule 804(b)(3) is subject to Rule 804(a), which first requires that the proponent of a statement against interest establish that the declarant -- the person who made the statement -- is unavailable.

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March 26, 2020 | Permalink | Comments (2)

Tuesday, March 24, 2020

Court of Appeals of Tennessee Questions Whether Inverse Habit Evidence is Admissible

Tennessee Rule of Evidence 406 provides that

(a) Evidence of the habit of a person, an animal, or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person, animal, or organization on a particular occasion was in conformity with the habit or routine practice.

(b) A habit is a regular response to a repeated specific situation. A routine practice is a regular course of conduct of an organization.

So, for example, if Carl carpooled with Dan every day, Carl could testify that Dan always drove above the speed limit when they passed San Dimas High School if Dan were being prosecuted for involuntary manslaughter based upon striking a San Dimas student with his car while driving to work. But could Carl testify that Dan always drove below the speed limit when they passed the high school? The answer would seem to be a clear "yes," but according to the Court of Appeals of Tennessee, the answer is (possibly) "no."

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March 24, 2020 | Permalink | Comments (5)

Monday, March 23, 2020

District Court Finds Statement After Domestic Assault Qualified as an Excited Utterance

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

The recent opinion of the United States District Court for the District of Nevada in United States v. Howard, 2020 WL 1318790 (D.Nev. 2020), provides a pretty textbook example of a hearsay statement properly admitted this excited utterance hearsay exception.

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March 23, 2020 | Permalink | Comments (0)

Sunday, March 22, 2020

District Court Finds Gypsy Plaintiff Can be Impeached With Evidence He Previously Used Multiple Names & Dates of Birth

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, under Rule 608(b), can an attorney cross-examine a witness who is a gypsy and who previously used multiple names and dates of birth?

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March 22, 2020 | Permalink | Comments (0)

Friday, March 20, 2020

District Court Clarifies the Timing for Subsequent Remedial Measure Rule

Federal Rule of Evidence 407 provides that 

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

But when is a remedial measure a subsequent remedial measure under the Rule? That was the question addressed by the United States District Court for the District of Nebraska in its recent opinion in Susman v. Goodyear Tire & Rubber Company, 2020 WL 1065179 (D.Neb. 2020).

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March 20, 2020 | Permalink | Comments (0)

Thursday, March 19, 2020

District Court Finds Inmate Food Grievances Not Admissible as Business Records, Might be Admissible to Prove Notice

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

"[H]uman resources and payroll databases...are textbook examples of records of regularly conducted activity within the hearsay exception of Rule 803(6)." Fredrickson v. Starbucks Corp., 980 F. Supp. 2d 1227, 1231 (D. Or. 2013). But what about food-related grievances filed by various inmates at a correctional facility?

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March 19, 2020 | Permalink | Comments (0)

Friday, March 13, 2020

Supreme Court of Georgia Allows Both of Joey Watkins's Claims to Move Forward

Today, the Supreme Court of Georgia issued its opinion in the Joey Watkins case, and...the news is good. In this post, I will break things down.

Jwatk

JoeyWatkins

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March 13, 2020 | Permalink | Comments (9)