EvidenceProf Blog

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

Monday, June 8, 2015

South Carolina's Murder Statute & the Indictment of the Officer Who Shot Walter Scott

Today, former police officer Michael T. Slager was indicted for murder in connection with the shooting death of Walter Scott in North Charleston. As such, I though I would do a brief post about South Carolina homicide law. Under South Carolina homicide law, the prosecution can secure a murder conviction by proving beyond a reasonable doubt that the defendant killed the victim with malice aforethought:

"Malice aforethought" is defined as "the requisite mental state for common-law murder" and it utilizes four possible mental states to encompass both specific and general intent to commit the crime. Black's Law Dictionary 969 (7th ed.1999). These four possibilities are intent to kill, intent to inflict grievous bodily harm, extremely reckless indifference to the value of human life (abandoned and malignant heart), and intent to commit a felony (felony murder rule). State v. Kinard.

The first two of these -- intent to kill and intent to inflict grievous bodily harm -- are express malice. If the jury finds that the defendant acted with express malice, it must return a murder conviction. The last two of these -- depraved heart and felony murder -- are implied malice. If the jury finds either of these, it may return a murder conviction, but it also has the ability to return an involuntary manslaughter conviction (a killing without malice).

Depraved heart murder basically works as follows. First, of course, the prosecution must prove that the defendant acted (or failed to act in the face of a legal duty) and caused the victim’s death. Second, the prosecution must prove mens rea of depraved heart murder. This mens rea contains both a subjective and an objective element: (1) subjective element: that the defendant acted with extremely reckless indifference to the value of human life; and (2) objective element: that it was highly probable that the defendant’s act/omission would result in death. Third, once the prosecution has proven this mens rea, the jury must still infer malice to convict the defendant.

Here's a real world hypothetical I use in class to teach depraved heart murder (the answer is "yes"):

Hypothetical 8.5: 

Daniel McCall and two accomplices were driving on an interstate when they saw A.R.M. Stroud standing beside his automobile, working on it. McCall and his accomplices stopped to rob Stroud. They offered to help him and when he opened his trunk to get more tools, McCall forced Stroud, who was a 72 year-old man with heart problems, into the trunk of his own car. McCall, following his accomplices, drove Stroud’s car off the interstate, down a paved road and then turned onto a dirt road. This was an isolated place. There, they removed Stroud from the trunk and searched him, taking his money. They then forced Stroud back into the trunk of his car and left him in the car on the dirt road.  Several days later, Stroud’s body was found in the trunk of his car. The testimony of record established that as a result of his being forced into the trunk and left there, Stroud died of a heart attack. According to the medical testimony of record, Stroud was “literally scared to death.” McCall is charged with murder. Can he be convicted? See State v. McCall, 405 S.E.2d 414 (S.C.App. 1991).


June 8, 2015 | Permalink | Comments (1)

Friday, June 5, 2015

Contextualizing Cristina Gutierrez's Disbarment

Recently, I contacted the Client Protection Fund of the Bar of Maryland to try to see whether I could get more information about the twenty (or more) client complaints that precipitated the disbarment of Cristina Gutierrez, the attorney who represented Adnan Syed. Unfortunately (but understandably), I was told that such complaints are confidential. That said, I was directed to this Press Release, which gives some additional context to Gutierrez's disbarment. According to the Press Release,

During their quarterly meeting on June 26, Trustees of the Clients' Security Trust Fund, now known as the Client Protection Fund of the Bar of Maryland, agreed to pay out more than $112,000 to claimants whose attorney was found to have kept money to which he/she was not entitled. 

“The bulk of the money paid out to claimants was due to attorneys not doing the work that they promised,” said Fund Trustee Isaac Hecht. “We sincerely hope that the public realizes that these attorneys are a few bad apples in an otherwise reputable group.”

More than half the money paid out at the Trustee meeting was to clients of M. Cristina Gutierrez, who consented to disbarment in May. According to Hecht, Gutierrez failed to hold property of clients separately from her own, did not refund advanced fees that were not earned, and misappropriated funds intended to be used for third-party payments. 

So, the Fund had to pay out at least $56,000.01 to Gutierrez's clients based upon, inter alia, failing to do the work that she promised and misappropriating/failing to refund monies paid to her by her clients. Among the "bad apples" in Maryland, Gutierrez was responsible for more malfeasance than all of the other "bad apples" combined.


June 5, 2015 | Permalink | Comments (17)

Thursday, June 4, 2015

Evidence Scholar to Lead UCLA Law School

From the UCLA press release:

Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, ....

This fits with my general sentiment that Evidence scholars should be in charge of everything.

Congratulations to Dean Mnookin and UCLA!

June 4, 2015 | Permalink | Comments (0)

South Carolina Set to Adopt 2 of My Recommendations for Strengthening Domestic Violence Laws

Last fall, I was honored to be asked to speak before a subcommittee tasked with strengthening South Carolina's domestic violence laws. After giving my presentation to the subcommittee, I was asked to submit my proposals to the subcommittee for consideration. Here are the 10 recommendations I sent to the subcommittee:  Download DV(3).

Today, I was happy to hear that Governor Nikki Haley will be signing into law a new domestic violence law that incorporates two of these recommendations.

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June 4, 2015 | Permalink | Comments (4)

Wednesday, June 3, 2015

Adding More Context to the Allegation That Gutierrez Wouldn't Talk to 5 Witnesses for the Adnan Syed Trial

Previously, I've posted about (1) the judge at Adnan Syed's trial being disturbed by the "accusations that Ms. Gutierrez [Adnan's attorney] wouldn't talk to people;" and (2) the accusation that Gutierrez wouldn't talk to five witnesses subpoenaed by both the prosecution and defense. As I noted in a third post, one of the limited number of witnesses subpoenaed by both the prosecution and defense was Hope Schab, the French teacher at Woodlawn High School. She was subpoenaed at both of Adnan's trials, and, based upon this memorandum, it seems like she tried in vain to contact Gutierrez about testifying so that she could prepare lesson plans and arrange for a substitute teacher.

In response to these posts, some people have construed Gutierrez's failure to talk to these five witnesses as a pretty serious error. Others have claimed that Gutierrez's failure to talk to these five witnesses about mere scheduling issues wasn't a big deal and was perhaps even trial strategy. According to letters that Gutierrez herself sent to each of these witnesses, however, this latter claim doesn't seem to match the reality of the situation.

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June 3, 2015 | Permalink | Comments (24)

Tuesday, June 2, 2015

The Failed Attempt by the Defense to Subpoena Krista for the Adnan Syed Trial

When I learned that five witnesses subpoenaed by both the prosecution and defense had tried in vain to talk to Cristina Gutierrez (and the defense team) in the Adnan Syed trial, I immediately thought of Krista. A mutual friend to both Adnan and Hae, Krista has told me that she wished the defense used her as a character witness at trial. I also knew that Krista was one of a limited number of witnesses subpoenaed by both the prosecution and defense. Indeed, she was among the first batch of witnesses subpoenaed by the defense:

Screen Shot 2015-06-02 at 5.54.20 AM

So, let's break this subpoena list down, person by person, before getting to Krista.

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June 2, 2015 | Permalink | Comments (33)