EvidenceProf Blog

A Quick Thought on Adnan Syed's Motion to Reopen

Today, Adnan Syed filed his Motion to Re-Open Postconviction Proceedings. As should be clear to the readers of this blog, I agree with many of the arguments made in the motion:

-It is "in the interests of justice" to reopen based upon Campbell v. State, 376 A.2d 866 (Md.App. 1977) (prosecutor dissuaded a witness from testifying) (blog post);

-It is "in the interests of justice" to reopen based upon Curry v. State, 458 A.2d 474 (Md.App. 1983) (prosecutor misstated facts to the court) (blog post);

-The statements made by prosecutor Kevin Urick to The Intercept could be used by the defense (blog post); and

-Precedent from across the county (including Maryland and the Fourth Circuit) supports the proposition that trial counsel is ineffective if she fails to contact prospective alibi witnesses ((blog post).

In this post, though, I wanted to highlight one other interesting part of the Motion.

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The Defense Failed to Contact Adnan's Track Teammate Will, a Potential Alibi Witness

This seems huge to me. Yesterday, I posted an entry which discussed how Adnan's defense team failed to contact his track teammates until after October 16, 1999. But what if it turns out that at least some of these track teammates were never contacted at all? And what if one of these uncontacted track teammates was pretty clearly a potential alibi witness?

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The Defense Didn't Start Contacting Adnan's Track Teammates Until After October 16, 1999

I've gotten a few e-mails about the comments section of my post from last Thursday. In one of the comments, I noted that

For context, Adnan's track teammates weren't contacted until after July 13th.

More specifically, it looks like they weren't contacted until after October 16, 1999.

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Supreme Judicial Court of Massachusetts Mandates Jury Instruction on Problems With Cross-Racial IDs

On several prior occasions (see, e.g., here and here), I have written on the topic of the problems with cross-racial eyewitness identifications and whether courts should be allowed to issue jury instructions regarding these problems. Despite the literature on these problems,  many courts refuse to give such instructions. Yesterday, however, the Supreme Judicial Court of Massachusetts went in the opposite direction in Commonwealth v. Bastaldo, 2015 WL 3885652 (Mass. 2015).

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Cristina Gutierrez's Issues Billing Clients for Work Done in Other Cases

Yesterday, I posted an entry about a number of unrelated documents from other cases being in the case file for Adnan Syed. As I noted in the comments section to my prior post, it also appears as if Cristina Gutierrez was having problems with possibly billing clients for work done for other clients. Again, it's tough to share the documentation because of issues involving attorney-client privilege, but I again have one (redacted) document that I feel comfortable sharing.

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An Example of a Misplaced Document Found in the Adnan Syed Case File

Yesterday, in the comments section of my blog, I noted that it is difficult to determine what documents Cristina Gutierrez had in the Adnan Syed case because his case file has a number of documents from other cases. In response, I've gotten some questions about the nature of these documents and whether they might have had some relation to Adnan's case. The simple answer is that these documents have no relation to Adnan's case. I can't really post most of these documents, however, because they contain information that is covered by attorney-client privilege. That said, there is one document that I feel comfortable posting, albeit in heavily redacted form.

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The 5 Missing Witness Statements & The Possibility of a New Trial for Adnan

In yesterday's episode of the Undisclosed Podcast, we revealed that the police "lost" the notes from interviews with 5 out of the first 8 witnesses they interviewed after Adnan was arrested: "Ann," Debbie, Aisha, Jeff J., and Patrice. So, let's assume that these witnesses are contacted now and are able to recall the substance of what they told police. Where would that leave Adnan?

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Is Tennessee's Victims Rights Photo Bill Fair to Defendants?

According to an article in The Greenville Sun,

Postmortem images of murder victims are one of the tools prosecutors use to help obtain a conviction at trial.

But legislation that becomes law on July 1 in Tennessee will allow juries to see victims as they appeared alive.

The "Victim Rights Photo Bill" has strong supporters among the state's district attorneys, and detractors among criminal defense lawyers who defend murder suspects.

The bill, as enacted, "provides that in a prosecution for any criminal homicide, an appropriate photograph of the victim while still alive will be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive."

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Full Disclosure: Exclusive Q&A With the Creators of ‘Undisclosed’

Here's a link to Full Disclosure: Exclusive Q&A With the Creators of ‘Undisclosed’, a series of Q&As that Rabia, Susan, and I did with the Audioboom team in connection with our podcast.

-CM

Thoughts on Ohio v. Clark: Predictable but with a Twist

The Supreme Court handed down its decision in Ohio v. Clark today, holding that there was no confrontation clause violation when the prosecution introduced a non-testifying child’s out-of-court statement identifying his abuser.  There is no real surprise here, unless you view consistency from the Court as surprising. 

The decision in Ohio v. Clark tracks my view of where the post-Crawford Court has settled.  As I argued in The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865, 1870 (2012):

[In the cases after Crawford,] a new majority of the Supreme Court seized the evolving jurisprudence . . . and, while claiming fidelity to Crawford, constricted the definition of “testimonial” statements to its minimalist core: statements “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” . . . .  Together, Bryant and Davis work a dramatic curtailment of the post-Crawford confrontation right.  The current Supreme Court's conclusion that the Confrontation Clause addresses only “testimonial” statements, in concert with its pointed narrowing of the definition of “testimonial,” results in the elimination (not strengthening) of the constitutional restrictions on the bulk of admissible hearsay.  As Bryant itself declares, statements admitted under many commonly utilized hearsay exceptions - for example, excited utterances, present sense impressions, co-conspirator statements, statements for medical diagnosis or treatment - will rarely be testimonial and consequently are now completely unregulated by the Confrontation Clause.

This is precisely what happened in Ohio v. Clark.  The Court simply applied its shrinking definition of “testimonial.”  The child’s statement, admitted under Rule 807 (the residual hearsay exception), was not  “procured with a primary purpose of creating an out-of-court substitute for trial testimony.”  End of analysis.

I argued in The Incredible Shrinking Confrontation Clause that narrowly defining testimonial statements and excluding those that fall within the definition makes sense historically and logically.  However, the Court’s complete abandonment of unconfronted, non-testimonial hearsay is not justified.  In light of text, history and reason, constitutional regulation is required although the regulation can be much more permissive:

As the admission of nontestimonial statements does not strike as closely to the historical and textual core of the confrontation right, it need not be restricted as severely (that is, excluded absent confrontation). Rather, prior to admitting such evidence, courts can enforce a constitutional preference for live testimony - as they have in other contexts - by requiring the prosecution to demonstrate the out-of-court declarant's “unavailability.”  ICC at 1870.

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Full, Cleaned Up Audio From My Interview With Dr. Leigh Hlavaty Now Posted

We have now posted the entire interview between Dr. Lee Hlavaty and me with cleaned up audio. Special thanks go to (1) Amar Nagi for cleaning up the audio and his work on Undisclosed in general; and (2) Dr. Hlavaty for her time spent reviewing the case materials and her clear and informative responses.

Note: The fifth episode now also has the cleaned up audio from the interview inserted.

-CM

Case Involving Death of Child Has Livor Mortis, Algor Mortis & Cell Tower Issues

According to an article in the Seattle Times,

Tatiana Baker and her boyfriend, DeMarco Jackson, waited more than seven hours before summoning help for Baker’s 3-year-old daughter, who was already dead from a savage beating by the time medics arrived at their Auburn apartment Tuesday night, according to King County prosecutors.

The charging documents in the case indicate that

a man called 911 just before 2:30 p.m. Tuesday, telling a dispatcher the 3-year-old was dehydrated and vomiting. He gave the operator an address in Seattle, though the 911 computer system showed his cellphone was pinging off a cell tower in Auburn, the charges say. The phone call was disconnected, and when the operator called back, a woman told the dispatcher aid was not needed, charging papers say. Auburn police and medics responded to an address on 28th Street Southeast but couldn’t find the 911 caller.

Thereafter,

A second 911 call was made from the same cellphone at 9:45 p.m., and Jackson stated he was performing CPR on the girl, the charges say. Medics arrived at their apartment complex at 420 23rd St. S.E. and quickly determined the girl "was deceased, possibly for some time, since postmortem lividity was observed and her body was cold to the touch."

So, did the victim die at or around 2:30 P.M.? It's tough to know without learning whether the victim's lividity was fully fixed or merely partially fixed? And what about the fact that the victim's body was cold to the touch? I've written before about livor mortis and rigor mortis, but there is a third "mortis" that can be used to estimate time of death: algor mortis, the cooling of a body after death. During the first hour or so after death, a body does not cool much below its typical temperature. Thereafter, between hours 2-6, a body tends to cool about 1.5 degrees per hour. Generally skin starts feeling "cold to the touch" about 2-4 hours after death (6-8 hours in protected areas).

-CM

An Addendum to the Addendum: More on Mobile NCIC Plate Checks

National Crime Information Center (NCIC)...is a national crime information center run by the Federal Bureau of Investigation...."[P]retty much anything that any of us do[es]," including obtaining a job or applying for a new social security card, immigration card, or driver's license in any state, is cross-referenced by NCIC. United States v. Villareal, 2008 WL 1995042 (N.D.Fla. 2008).

In last night's Addendum Episode of the Undisclosed Podcast, Susan Simpson noted that two "plate checks" were done by Baltimore County Police Officers using mobile NCIC devices on February 4, 1999. Given that Hae Min Lee's car was found 2 miles east of the border between Baltimore County and Baltimore City, this is strong circumstantial evidence that Hae's Sentra was in Baltimore County and not on Edgewood Road (in Baltimore City) on February 4th. So, what was the purpose of the mobile plate checks?

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The ME at Adnan's Trial Previously Testified That Lividity Fixes 8-12 Hours After Death

I have written a number of posts about livor mortis/fixed lividity as it relates to the prosecution of Adnan Syed for the murder of Hae Min Lee. Since a post in February, my theory has been that Cristina Gutierrez did not even need to call her own forensic pathologist to destroy the State's theory of the case; instead, she merely needed to cross-examine the State's own forensic pathologist -- Dr. Margarita Korell -- to establish how long lividity takes to fix. The conclusion in my prior post was based upon a prior case in which Dr. Korell was corrected by her supervisor on the timing of lividity. Based upon this correction, my assumption was that Dr. Korell would testify to the correct lividity timeline at Adnan's trial and could have been impeached through her supervisor's correction in the event she testified to a different timeline. It turns out, however, that the analysis of this issue is actually much simpler.

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Livor Mortis & Placing a Victim in the Trunk of a Car

For the past week, I've been trying to find a case involving lividity and a body in a trunk. The only case that I was able to find is State v. Persitz, 518 N.W.2d 843 (Minn. 1994). The Persitz case isn't especially factually similar to the Adnan Syed case, but it does provide some interesting points of comparison/contrast.

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The "Two Hour Lividity" Case Handled by Gutierrez is Much Worse Than I Imagined

Yesterday, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), the "two hour lividity" case handled by Cristina Gutierrez, the same attorney who handled the Adnan Syed case. It turns out that the Nicolas is much more troubling than I initially imagined for a few reasons.

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Cristina Gutierrez Was the Attorney Who Failed to Question the ME About the 2 Hour Lividity Claim

A couple of hours ago, I did a post about Nicolas v. Attorney General of Maryland, 2015 WL 1469184 (D.Md. 2015), in which the United States District Court for the District of Maryland found that trial counsel was not ineffective, despite her failure to contradict a medical examiner's claim that lividity could become fixed within two hours after death by either (1) cross-examining the expert on the issue; or (2) calling her own expert. Unfortunately, that opinion didn't list the defendant's trial counsel, and I couldn't find any of the opinions from the Maryland courts on the case. A few minutes ago, a commenter on my prior post noted how it might have been asking too much for Gutierrez to realize the importance of lividity evidence.

In response to that post, I figured I'd look again to see if I could find the attorney from the Nicolas case to see if she could explain how she missed the importance of the lividity evidence. After searching for a few minutes, I was able to find the defendant's brief in the case: Nichols v. State of Maryland, 1998 WL 35222540 (D.Md. 1998). Here's the relevant language from the brief:

In fact, this issue has been preserved for appeal. Initially, Mr. Nicolas's trial counsel proposed a dual inferences instruction based upon Robinson v. State, 18 Md. App 678, 308 A.2d 734 (1973). See Affidavit of M. Cristina Gutierrez, attached as Exhibit A.

Yes, that's right: The attorney in the case was Cristina Gutierrez, the same attorney who represented Adnan. Furthermore, the final opinion of the Maryland courts on this claim came on April 16, 1999, two days before Gutierrez started representing Adnan. So, in response to the comment: Yes, Gutierrez should have been uniquely aware of lividity evidence and importance case.

-CM

Did Gutierrez Give Ineffective Assistance of Counsel to Adnan on the Lividity Issue?

I just got the following question from Alison Sweeney:

It's a very good question and one that has an answer I recently uncovered.

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Will Livor Mortis Evidence Prove the Innocence of a Death Row Inmate?

I've been writing a good deal about livor motis/fixed lividity evidence as it relates to the prosecution of Adnan Syed for the murder of Hae Min Lee. It turns out that it's is also a big part of the current appeal by Norfolk "Fuzzy" Best. Best was convicted of the 1991 murders of Leslie and Gertrude Baldwin and is currently on death row. The State's theory of the case was that the Baldwins were killed on a Saturday night, 64 hours before their bodies were found. The lividity evidence, however, seems to suggest otherwise.

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Autoptēs: More About Dual Lividity & The Impossibility of Hae Being in the Trunk for 4-5 Hours

Yesterday, we posted the fifth episode of the Undisclosed Podcast: Autoptēs. For those of you wondering, Autoptēs is the Greek work that provides the origin for the English word autopsy. Autoptēs means eyewitness/to witness with ones own eyes.

I again want to thank Dr. Leigh Hlavaty for the time she put into reviewing the medical evidence in the case and rendering her expert opinion. Obviously, her biggest finding was that Hae could not have been buried on her right side in Leakin Park in the 7:00 hour given the lividity evidence. That said, I think her conclusion that Hae couldn't have been "pretzeled up" in the trunk of her Nissan Sentra for 4-5 hours after death is of near equal importance.

While lividity becomes fully fixed approximately 8-12 hours after death, it partially fixes within hours after death. Assume that Hae was on her side (or anything other than fully prone) in the Sentra for 4-5 hours, then put face down for another 4-5 hours, and then buried on her right side in Leakin Park. In that case, there would be what is known as "mixed lividity," "dual lividity," or "second lividity." In other words, there would be some lividity on the side and some on the front. This is described a bit in the Report of Lee Ann Grossberg, M.D. in Kiniun v. Minnesota Life Insurance Company, 2011 WL 7266761 (N.D.Fla. 2011):

6. At 10:07 am, approximately 3 1/2 hours after Ms. Strickland was found deceased, the livor mortis was noted to remain fixed when manual pressure was applied.

a. Lividity generally takes 30 minutes to 2 hours to become visible and about 8 - 12 hours to become fully fixed (although this range is highly variable). After the lividity become fixed, it remains so. 

b. The finding of lividity that does not blanch with pressure can indicate that the livor mortis is partially or fully fixed.

i. If the livor mortis is only partially fixed, moving the body to a different position will yield a second lividity pattern.

ii. Ms. Strickland was found dead lying on her front right side and the lividity pattern at the scene was consistent with this body position (the lividity was on her front right side).

iii. However, if Ms. Strickland were turned over onto her back to be placed into the body bag and her lividity were not fully fixed, she would develop a secondary livor mortis pattern on her back. The autopsy report describes the lividity fixed and as anterior, but I have not had access to the autopsy photos to see if an additional lividity pattern is also present on the back. Secondary lividity patterns can be lighter than primary ones and darkly pigmented skin makes visual inspection of lividity more difficult to discern than in lighter pigmented individuals, however.

-CM