EvidenceProf Blog

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

Tuesday, July 14, 2015

The Law(s) Behind Episode 7 of Undisclosed

Last night's episode of the Undisclosed Podcast was pretty legally dense, so I thought that I would do a post explaining some of the legal topics that were discussed.

1. Korematsu v. United States

In the wake of Pearl Harbor, FDR issued Executive Order 9066. This Order authorized the internment of both Japanese resident aliens and American citizens with Japanese ancestry. The Order also authorized regional military commanders to designate "military areas" from which these individuals could be excluded. Using this power, the commanders excluded these individuals from the entire West Coast, leading to forcible relocation.

At the time, Fred Korematsu, an individual with Japanese ancestry, lived in the San Francisco Bay Area and had a good job after being rejected by the military due to poor health. To avoid his internment, he moved to a nearby town, changed his name, had facial surgery, and claimed to be Mexican-American.* Eventually, he was found out and brought a Constitutional challenge to Executive Order 9066. In an opinion that rivals Dred Scott as the worst in the history of the Supreme Court, the Justices deemed the Order constitutional.

2. Percent of Murder Suspects Who Are Given Bail

The Bureau of Justice Statistics has great information about a number of aspects of the American criminal justice system. In the podcast, I noted how 60% of murder suspects are given some type of bail package. My information comes from this BJS Report. As the report notes, "defendants charged with murder (40%) [are] the most likely to be denied bail." Of course, that means that 60% are given some type of bail. That's not to say, thought, that most murder defendants make bail. As the report notes, "[m]urder defendants (24%) [a]re the least likely to be released prior to case disposition."

That's because most murder defendants, like most defendants, are indigent. 80% of criminal defendants qualify for a public defender, as do 90% of capital defendants.

As I also noted on the podcast, there is no right to bail in capital cases. Therefore, a big chunk of the 40% of murder defendants who are denied bail likely consists of those eligible for the death penalty. Moreover, 67% of murder defendants have an arrest record. This is why I argued that Adnan (no prior record, not death-eligible) should have been given release, especially given that he was willing to put up significant collateral and submit to house arrest/electronic monitoring.

3. Samuel Sheinbein

Here's an article about the Samuel Sheibnein case that I mentioned in the podcast. 

The Law of Return (Hebrew: חֹוק הַשְׁבוּת, ḥok ha-shvūt) is Israeli legislation, passed on 5 July 1950, that gives Jews the right of return and the right to live in Israel and to gain citizenship.[1] In 1970, the right of entry and settlement was extended to people of Jewish ancestry, and their spouses.

He's an article about how the Law of Return allowed Sheibein to flee to Israel (where his father, an attorney, was born), which did not have an extradition agreement with the U.S. at the time. Sheinbein eventually accepted a plea bargain in Israel and was fatally shot in an Israeli prison last yearIn 2005, the U.S. and Israel entered into an extradition agreement.

4. Waiver of Miranda Rights

I will take this directly from my forthcoming article, Cloning Miranda:

Studies conducted over the course of more than four decades have consistently found that around 80 percent of adults waive their Miranda rights.[1]  Three decades of research also supports the empirical finding that more than 90 percent of juveniles waive their Miranda rights.[2]

[1] Barry C. Field, Real Interrogation: What Actually Happens When Cops Question Kids, 47 LAW & SOC’Y REV. 1, 11 (2013).

[2] Id.

5. Invocation of Miranda

We addressed a few points about this on the podcast. In Fare v. Michael C., the Supreme Court held that a juvenile can be interrogated without his parents as long as the circumstances support a finding of voluntariness:

This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits - indeed, it mandates - inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. 

In J.D.B. v. North Carolina, the Supreme Court did not change this analysis but did note that it is "commonsense reality...that a child's age properly informs the Miranda custody analysis."

While Maryland is not among them, many jurisdictions use/require a juvenile Miranda form that notifies a minor of his right to have his parents present during his interrogation.

6. No Death Penalty for Minors

Finally, the most important part of the episode. In 1987, the Maryland legislature amended the state's death penalty statute so that minors were no longer eligible for capital punishment. Eighteen years later, the Supreme Court deemed the death penalty to be unconstitutional for juvenile defendants in Roper v. Simmons.


*Nowadays, you'd likely see the opposite.


| Permalink


Hey Colin this is somewhat unrelated to this specific post however I have been following undisclosed and your blog. I just wanted to know was it ever possible for the police to have gained access to Hae's pager records at the time or the towers her pager would have pinged. If they did is there any record for it and if not why would they not do that if they got Adnan's records?

Posted by: Mkay | Jul 14, 2015 8:13:01 AM

Thanks for the information Colin, some more tangents for me to read through today!
Regarding point 6, I just can't fathom or believe how this could have slipped by everyone involved in the process. Yes, the police (purposely or otherwise) fudged the charge sheet, but I don't understand how the defence, the family, the judge, how absolutely EVERYONE missed such a fundamental issue? Even a lay person would ask if capital punishment applies to minors.

Posted by: poldebruin | Jul 14, 2015 8:24:31 AM

Thanks for the context. But, I was a little disturbed by the first part of the podcast. There was, in my opinion, a reckless speculation on a potential deal offered to Jenn. First of all, no such deal occurs on record. Secondly, I doubt that a police officer shall have authorization to offer a legal deal in the early stages of a murder deal. Thirdly, why would be a attorney representing Jenn agree to a verbal deal without having it in written form. That would not be in the best interests of his client. Finally, you were also making an assumption that this attorney is also conspiring to get Adnan behind bars and subverting the interests of justice.

It is a very implausible scenario and this speculation is not befitting three accomplished attorneys without having any shred of evidence.

Posted by: S | Jul 14, 2015 8:57:29 AM

Mkay: That’s a big question that I have. I don’t know what type of pager information was available back in 1999.

poldebruin: Adnan’s attorneys did realize the mistake when they saw the judge’s order. I don’t know whether they had the charge sheet at the time of the bail hearing. They were also just hired, so they might not have know Adnan’s date of birth at that point.

S: We’re not making any assumption of a conspiracy; we’re simply noting the oddities of Jenn’s interactions with the State and the lack of documentation. We know that Jenn met with one of the prosecutors in early April, but there are no notes from that interview. If that meeting did not relate to possible charges, an informal deal, etc., why isn’t there documentation?

Posted by: Colin Miller | Jul 14, 2015 9:08:41 AM

What would have happened if Adnan had confessed in his interrogation after his arrest? Would there still have been a trial?

Posted by: carnotbrown | Jul 14, 2015 9:17:49 AM

Thanks Colin. I have to confess I commented without hearing the end of the episode, which I just did there. I don't think I've heard you so exasperated as when you were describing the machinations of the bail arguments. I really enjoyed this episode and the amount of information you folks can cram in.

Posted by: poldebruin | Jul 14, 2015 9:25:38 AM

Is it common practice for a lawyer defending a murder suspect to send a clerk or assistant to speak to their client? The fact that Adnan wasn't released on bail is a HUGE ERROR. Had he been released, classmates, friends, family, etc. of all the key parties would have started making mental notes of who they saw and when, along with notes about other crucial factors surrounding Hae's murder. Instead, those details were forgotten or can't be recalled accurately. This case is so outrageous. I can't believe those responsible for Adnan being locked up can even sleep at night.

Posted by: Traci | Jul 14, 2015 12:20:10 PM

Traci, Yes it is common practice. The lawyers are in court fighting other cases. They often send clerks, juniors lawyers, etc. to do the grunt work. Then the lawyer puts together the case.

Posted by: Ella | Jul 14, 2015 5:28:59 PM

I have been mulling over the episode for the last day or so!
I had a thought which I think could help explain why Jay would make it all up.

Until now I thought if Adnan is innocent then Jay must have done it.
However this ep gave me real food for thought which could explain Jay's motive to fabricate this story.

It is very likely that the police would have used the same/similar interrogation tactics on Jay as they did with Adnan. Therefore it is very probable that they also threatened Jay with the death penalty. Being older than Adnan that would mean Jay IS eligible for the death penalty if he were found to be guilty of this crime.
Jay would have been terrified at this prospect, a guy who completely mistrusted the police and very much believed they could put him away for this crime regardless of his guilt/innocence.

Jay either knew Adnan being younger would not face the same fate and thus threw him under the bus or Jay simply didn't care and just wanted to save his own skin. Regardless to me it makes perfect sense how Jay would then become willing to do whatever it takes to save his life.

Jenn has stated before that she would do anything for Jay. If Jay came to her and said look you need to tell the police I told you Adnan did it because if not I will get put away and they will kill me, I think Jenn would help Jay. Or maybe Jay then figured out he needed to make people believed Adnan did it so told his fabricated story to Jenn but told her to ensure his safety she needed to tell the cops that he told her about it on the 13th.

This could also explain his irrational level of fear in the following days as he was quite literally scared for his life. Maybe that fear continues today or maybe he is so caught up in the web of lies now he can't see a way out so he sticks to them.

Obviously this is all speculation but I think its a fair theory as to how and why jay would totally make this up.


Posted by: MKay | Jul 15, 2015 3:18:29 AM

Too cute by half: the suspect has to name his/her lawyer? WTH?
My lawyer is part of a big firm. I don't know all their names, nor should I.
If I land up behind bars this weekend, I'd have to know who to ask for...by name?
Calling BS on this. Impossible that this is legal or passes muster on any level.
For an adult or minor....

Posted by: Fancy Nancy | Jul 15, 2015 5:39:59 AM

I must tell you that Monday's episode was the hardest for me to digest so far, and that's saying a lot. I had no idea of the implications of Adnan being denied bail. Everything about this case is so wrong and tragic. Thank you and Rabia and Susan for advocating for Adnan but also teaching us so much about the legal process.

Also, go Cocks! :)

Posted by: NT | Jul 15, 2015 6:01:12 AM

MKay, that makes a lot of sense!

Posted by: NancyE | Jul 15, 2015 7:14:42 AM

Did Gutierrez address the obvious contradictions made at trial by Det. Macgillivary, Jenn and Cathy about the Feb 26th visit to Jenn's house? And the fact that Jay wasn't working that night? Or did she?
Are any of Gutierrez' clerks or staff able to comment on the questions we all have about her missteps in this case? Have any of the jurors spoken of the trial?

Posted by: KC | Jul 15, 2015 8:04:29 AM

MKay - That definitely sounds plausible to me. And maybe once he started cooperating, he came to believe that Adnan was responsible and therefore justified the lies to himself.

Posted by: gc | Jul 15, 2015 8:04:52 AM

carnotbrown: In that case, Adnan could have pleaded guilty or claimed that the confession was coerced.

poldebruin: Thanks.

Traci: As Ella said, this is common practice. Where Adnan quite possibly got very unlucky was that the clerk who typically visited him was unavailable on July 13th. This clerk always followed up on her handwritten notes with typewritten memos to Gutierrez. The clerk who visited on July 13th took handwritten notes on Asia but never followed up with a memo. That could be why she fell through the cracks. That and the fact that the clerk handling alibi issues never visited Adnan in prison.

MKay: Yes, that’s some good speculation. Thanks.

Fancy Nancy: Yes. That was very inappropriate.

NT: Thanks.

KC: Gutierrez didn’t really hammer home these inconsistencies.

Posted by: Colin Miller | Jul 15, 2015 9:37:12 AM

MK: I think it is most likely that Jay had NOTHING to do with the murder of HML, just he was an easy mark for the police to lazily/unethically craft their case. The police probably believed the Adnan was guilty but could not find evidence to prove it, so instead they busted Jay on an unrelated drug charge, made threats against him, possibly even invoking a federal prosecution with huge mandatory minimums.

Posted by: mushmouth | Jul 15, 2015 2:07:20 PM

If it turns out that Adnan is given a new trial, what is the likelihood that the State, knowing that this is now a high profile case, will want to save face and offer Adnan an attractive plea deal? What would such a proffer likely be? My guess is that it would require Adnan to admit to having some involvement in HML's disappearance and death, but the punishment would be of time-past-served, and thus Adnan could be nearly immediately set free, albeit having confessed to some crime. I can imagine a discussion between his lawyer and Adnan, where the lawyer would point out that, while not the exoneration Adnan may deserve, not taking the plea deal will mean months to years staying in prison while legal appeals continue, and, well, Adnan's past hopes that the legal system would clear him didn't work out so well. There is always some risk to a defendant going to trial. Who knows who the prosecution can find that will testify against Adnan in a future trial? While lots of people would want him cleared, I wouldn't fault him at all for taking a deal, reuniting with his family and friends, and getting this terrible experience behind him.

Posted by: Ken | Jul 15, 2015 3:36:25 PM

In episode 3 of Undisclosed, they mention another case in which at least one of the detectives (I think it was Ritz) was involved. It was the case against Ezra Mabel. I looked it up and it appears that in that case, the detectives were staking out their potential "witness" and eventually pulled her over and found drugs on her. Using the potential drug charge against her, they essentially black mailed her into saying that she saw Mabel committing the murder. Later it turned out that the killer was someone else and Mabel was exonerated. Wasn't Jay picked up on disorderly conduct charges just before he gave his first official statement to the police? Seems possible that they were following him to try to catch him in a crime that they could use against him. It wouldn't be surprising if they actually had found drugs on him and could have also charged him with something more serious if he didn't cooperate.

Posted by: gc | Jul 15, 2015 5:10:44 PM

MKay - I have been thinking along those lines as well. I also think that if Jay fabricated the whole thing, at some point either he or the cops realized that in order to make it "stick," Jay had to implicate himself and say he was involved in some way. If all he says was that he had nothing to do with it but Adnan told him he did it, then it is just hearsay and not enough to base a case on. Also, since Jay had Adnan's car and phone, there wouldn't be any plausible way for Adnan to have done it without Jay knowing about it or being involved at the time. And since Jay never contacted police, the "reason" has to be because he was involved (rather than that neither of them had anything to do with the murder). I think it is very interesting that in his first police interview, Jay involves himself as minimally as he could - saying he knew about it, but had nothing to do with the actual murder and did not ever drive Hae's car, or touch her body, etc. I think he even initially says that he didn't help dig the hole either. That way, he can be an eyewitness and give much more credible (and damning) testimony about Adnan committing the crime instead of just saying after the fact that Adnan told him everything that happened.

Posted by: Ann | Jul 15, 2015 7:35:21 PM

Post a comment