Tuesday, August 25, 2015
In last night's Episode 10 of the Undisclosed Podcast, we noted that a tip was made to Metro CrimeStoppers on February 1, 1999 that led to the tipster receiving the full reward amount of $3,075 on November 1, 1999. In this post, I will provide further information about the tip and its possible legal consequences.
Can Those Involved in the Crime Recover a CrimeStoppers Tip?
On the podcast, I answered this question in the affirmative. This is based upon information from our source at MetroCrimeStoppers (MCS). According to the source, it's not particularly unusual for an accomplice/partner in a crime to turn on the person with whom he or she committed the offense--this is true in non-rewarded LE and it's true on the hotline. MCS doesn't get into a communication exchange, and the payout is blind. That messiness is for the prosecutors to figure out. Tipsters who are involved in the crime in question have collected and do collect rewards--again, as long as the tip leads to the apprehension + indictment of a/the perpetrator(s). MCS is not interested in the tipsters involvement, or in whether charges have been or are eventually brought against the tipster. That's why the process, at least on the MCS end, is anonymous.
Is There Any Maryland Precedent on the Issue?
Not really. There are no reported Maryland cases involving the failure to disclose a CrimeStoppers tip/reward. There is, however, a mention of such a fact pattern in a brief. In Bolding v. State, 2012 WL 6838594 (Ct.App.Md. 2012), the Appellant argued in his brief that
The fact that Stauffer received a $10,000 reward and the letter from detective Jernigan to Crime Stoppers, Inc. were not disclosed by the State until September 3, 2011 - days after the initial discovery deadline in this case. On the last day of trial, Mr. Bolding uncovered the fact that the State had authorized the release of the funds to Stauffer on January 31, 2011, as a result of Mr. Bolding's subpoenaing Crime Stoppers Inc.'s records. (Trial T. vol. 9, pp. 18, 21-22). Unfortunately, because Stauffer testified on October 5, 2011, (R. 176) Mr. Bolding could not use the information to further impeach Stauffer on cross-examination.
So, in Bolding, the State actually did disclose a CrimeStoppers reward to the defense; according to the defense, this disclosure came too late. I don't know how the court ultimately ruled on the issue.
Maryland is in the Fourth Circuit, and there is one Fourth Circuit case on point: Gardner v. Dixon, 966 F.2d 1442 (4th Cir. 1992). In Dixon, the defendant was convicted of two counts of first-degree murder and later appealed, claiming that the State failed to disclose that a key witness for the prosecution and possible participant in the crime -- Jeff Royal -- received a CrimeStoppers reward of $600. There was just one problem for the defendant:
Crime-stoppers, an organization independent of the city of Winston-Salem, had in fact offered Royal $600.00 for the information. This fact, and the fact that Royal anticipated the possibility of receiving additional reward money from another non-governmental reward source, were fully revealed during Royal's testimony. The jury, therefore, had a full opportunity to weigh such information in evaluating Royal's testimony and his credibility. Thus, even if the prosecutor had a duty to disclose information about these awards, no prejudice is apparent in the record.
In other words, even though the State didn't disclose that Royal had received the CrimeStoppers reward, there was no prejudice because this fact was made evident during Royal's testimony.
The opinion in Dixon preceded the Supreme Court's 1995 opinion in Kyles v. Whitley, which I discussed on the podcast. That's the case in which the Supreme Court found a Brady violation based, inter alia, upon the State's failure to disclose that the man who implicated the defendant in a murder had received a $1,000 CrimeStoppers reward (and $600 instead of $400 for the car he'd purchased from the defendant). It's also the case that was cited favorably by the Court of Appeals of Maryland in State v. Williams, the case in which Detective Massey failed to disclose that a jailhouse snitch was a confidential informant and that an eyewitness was legally blind.
The only case that might give anyone pause on the Brady issue is Kopycinski v. Scott, 64 F.3d 223 (5th Cir. 1995), in which the Fifth Circuit didn't reverse despite the State's failure to disclose that the key witness for the prosecution received a CrimeStoppers reward. That case, however, was very different from Adnan's case. According to the court,
We have scoured this record, but we have not found any suggestion, let alone a scintilla of evidence, that links [the tipster] to the murder. The only other possibility is that [the tipster] told the truth.
Obviously, there was quite a bit of evidence that linked Jay to the murder, and we have many reasons to believe that Jay's shifting story wasn't the truth.
Who Was the Tipster?
Of course, this all assumes that Jay was the tipster. We laid out the facts in the podcast. I'm most persuaded by the ride-along notes, and I will be very interested at the reaction when we dig into the actual substance of those notes. Simply put, if it's Jay, I'm close to 100% certain that there was a Brady violation. But could it have been someone else?
The most obvious next option would be Jenn, who was Jay's alibi and (somewhat) corroborated some of the important aspects of Jay's story, including the burial and its aftermath. Given that defense counsel's strategy was to claim that Jay killed Hae, it's hard to see how nondisclosure of Jenn as the tipster would be anything other than a Brady violation.
What about Cathy? It's tough to see her having enough information to qualify for the full $3,075 reward. If she somehow did, there would need to be further investigation of the issue we discussed in our first Addendum. If it turned out the tip to Cathy's place did not occur on January 13th and she were the tipster, that would seemingly be a Brady violation.
Could it have been another witness for the prosecution? I can't think of anyone else who would qualify. Could it have been someone Jay told about the crime, like Chris? If so, there would still be a great argument for a Brady violation. Chris, you might recall, said during Serial that Jay told him Adnan called Jay while he was at a pool hall and told him he strangled Hae in the library parking lot. If Chris said something similar while giving a tip on February 1st, that would clearly be Brady material. It would be a statement that was very much inconsistent with Jay's trial story and clearly undermine his trial alibi.
The final possibility would seem to be that the call was made by someone to whom Adnan confessed. Is this likely? As I said on the podcast, I don't see it. The prosecution was well aware that the first trial ended with many jurors indicating that they didn't believe Jay and would have voted to acquit. I can't see the State having someone who could have testified about Adnan confessing and left him or her in the dugout both during trial and the Serial brouhaha.
If this were somehow the case, though, Adnan would still have a decent claim of a Brady violation. As noted on last night's episode, a big part of the defense strategy was the claim that the State put on blinders after the January February 12th anonymous call and failed to conduct a proper investigation. As the Supreme Court noted in Kyles v. Whitley, non-disclosure by the State was a Brady violation in part because it could be used to question "the thoroughness and even the good faith of the investigation, as well."