Tuesday, August 25, 2015
Long Way Round: More on CrimeStoppers and Episode 10 of Undisclosed
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."
-CM
https://lawprofessors.typepad.com/evidenceprof/2015/08/long-way-round-more-on-crimestoppers-and-episode-10.html
Comments
What was the date the police approved payout on the reward?
Posted by: Seamus_Duncan | Aug 25, 2015 7:15:17 AM
If Adnan's attorney submits a subpoena for the Crimstoppers info, how long will it take for this info to become public?
Posted by: Sassy | Aug 25, 2015 7:17:09 AM
Homer: We'll be hearing from NB soon enough on Serial Dynasty, so we'll hear his take. There's a key piece of information about NB that I find pretty interesting which we'll be covering as well.
Seamus: I don't know. That would be for the BPD to answer. CrimeStoppers just knows when they got the tip and paid it out.
Sassy: That depends on how long it takes for the State to respind.
Posted by: Colin | Aug 25, 2015 7:22:30 AM
Jay is a likely tipster but I wouldn’t discount Jenn and Mark P. as possibilities.
Mark P. disappears from the investigation. Jenn retains an attorney with ties to the detective. Jenn is willing to implicate herself in the cover up of a crime? If they were the tipsters, and they implicated both Adnan and Jay, then the payout wouldn’t occur until after Jay is charged with a crime in September.
Rabia stated the reward was rumored to be $25,000. That might be enough for someone to turn in their friend.
Finally, the ride along happened so much later than the anonymous call, that I wonder if it just dawned on Jay that there could possibly be a reward and he brought it up to the cops then. He doesn’t seem to be the sharpest tool in the shed.
Posted by: John | Aug 25, 2015 7:44:58 AM
John: Jenn is certainly a possibility. As noted in the post, if she got the reward, it's almost certainly a Brady violation. Mark seems like less of a possibility, but, if he were, that would open up a whole new can of worms.
Posted by: Colin | Aug 25, 2015 7:47:57 AM
Another great post, Professor. Thank you. In your final paragraph you reference the "...January 12th anonymous call..." but you mean February 12th, right?
Posted by: LizB | Aug 25, 2015 7:49:37 AM
Neighbor Boy, who allegedly claimed to have seen Hae's body in the trunk of her Nissa Sentra on 1/13.
Posted by: Colin | Aug 25, 2015 7:59:05 AM
I'm curious as to whether Adnan was actually implicated in the 2/1 tip. If Jay were implicated that would explain why the reward wasn't posted until Jay was charged. It would also explain the lengths that Massy would go though to avoid being called to the witness stand. It would also give the police a lot of leverage against Jay, whether or not he was actually involved in the murder or its aftermath. Of course, the motorcycle subplot stays unexplained, as well as the identity of the informant.
Posted by: Jeff | Aug 25, 2015 8:07:18 AM
So if I understand correctly:
1. Not revealing the tip is most likely a Brady violation irrespective of who gave the tip.
2. The first tip should have said something pertinent to the case. Otherwise, why pay?
3. If the tipster is not Jay then Adnan is most likely guilty of the crime; given point number 2.
This might be the most important piece of information discovered so far.
Posted by: S | Aug 25, 2015 8:15:50 AM
Here is xtrialatty's response to the podcast today. Ask yourself, How can someone who claims to be a lawyer have such an incredible interpretation of the law?
"I don't understand what law would require that information to be given to the defense. There are Crime Stoppers organizations all over the country and they are built on the concept of anonymous tips, but I don't know of any court rule, statutes, or case authority that has ever required disclosure of the tip(s) or rewards to defense lawyers.
It doesn't fit under the category of being discovery, because an anonymous tip can't be evidence in a court of law.
And it isn't covered by Brady, because Brady only covers information that is exculpatory. "Some person we don't know called an anonymous tip line and said that the defendant killed the victim" ....isn't exculpatory. "
Posted by: shameless_drunken | Aug 25, 2015 9:17:31 AM
Excellent, clarifying post. Do we know anything more about the disgruntled fellow mosque attendee, interviewed in the Serial "Rumors" episode, who accused Adnan of major thefts of mosque collections?
Posted by: Sato Moughalian | Aug 25, 2015 9:38:49 AM
1) Can Jay recant?
2) Why didn't Justin Brown wait to include the "Crimestopper" information in the latest motion?
3) Why weren't the DNA results included in the latest motion?
Posted by: Sheri | Aug 25, 2015 9:44:08 AM
The following is from Moore v. State, 195 Md.App. 695 (Md. App. 2010), explaining the applicable law in Maryland at pp. 731-733. If the source is a mere tipster (i.e., not involved in the crime, not a witness to the crime, will not be testifying), the prosecution is not required to disclose the identity of the tipster. This is assuming the police/prosecution knows the identity of the tipster. It seems most Crime Stoppers programs assign a control # to the tipster to allow them to call in with more information and to track the status of the reward; the tipster is not to disclose his identity or identifying information to the Crime Stoppers representative or to law enforcement; doing so makes them ineligible for reward.
"Under Rule 4–263(g)(2):
The State's Attorney is not required to disclose the identity of a confidential informant unless the State's Attorney intends to call the informant as a State's witness or unless the failure to disclose the informant's identity would infringe a constitutional right of the defendant.
In Edwards v. State, 350 Md. 433, 440–41, 713 A.2d 342 (1998), the Court of Appeals stated:
'The modern law governing the circumstances in which the State must disclose the identity of a confidential informant derives largely from three principles enunciated in Roviaro v. United States, [ ] 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 [ (1957) ]. The first principle was a reaffirmation of the well-established common law privilege possessed by the Government “to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law[.]” Id. at 59, 77 S.Ct. at 627, 1 L.Ed.2d at 644. That privilege, the Court said, is designed to encourage citizens to communicate their knowledge of criminal activity to law enforcement officials by preserving their anonymity and thus has as its purpose “the furtherance and protection of the public interest in effective law enforcement.” Id. The second principle announced in Roviaro was that the privilege of non-disclosure is limited by its underlying purpose and is further constrained by “fundamental requirements of fairness.” Thus, the Court held, “where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60–61, 77 S.Ct. at 628, 1 L.Ed.2d at 645. Integration of those two principles produced the third—the requirement that, when presented with a defendant's demand for disclosure, courts must “balance the public interest in protecting the flow of information against the individual's right to prepare his defense.” Whether the balance requires disclosure, the Court added, “must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.” Id. at 62, 77 S.Ct. at 629, 1 L.Ed.2d at 646.
The Roviaro balancing process focuses on “ ‘the materiality of the informer's testimony to the determination of the accused's guilt.’ ” Edwards, 350 Md. at 442, 713 A.2d 342 (quoting Warrick v. State, 326 Md. 696, 701, 607 A.2d 24 (1992)). As the Court explained:
'In that regard, courts have (1) drawn a distinction between an informant who actually participated in the criminal activity with which the defendant is charged, who may, as a result, have direct knowledge of what occurred and of the defendant's criminal agency, and who therefore may be a critical witness with respect to the defendant's guilt or innocence, on the one hand, and, on the other, an informant who is a mere “tipster”—a person who did nothing more than supply information to a law enforcement officer, who did not participate in the criminal activity and may not even have been present when it occurred, and who has little or no knowledge of the defendant's guilt or innocence, and (2) tended to require disclosure in the first situation but not in the second.
Id.
Posted by: Nine9fifty50 | Aug 25, 2015 9:49:22 AM
Did Jay know about Don beforehand? I'm curious, if he possibly was the tipster, he could have heard Hae's friends saying they thought she might be with her boyfriend (which was Don), and Jay could have thought they meant Adnan.
Posted by: KC | Aug 25, 2015 9:59:00 AM
I am still confused as to why the payout was made in November and not April. Is it because both Adnan and Jay were named in the tip and both had to be indicted?
Posted by: Mary | Aug 25, 2015 10:37:38 AM
Is it possible that Jay was informally asked if he had any knowledge of Hae’s disappearance when arrested for disorderly conduct (once the police realised his links with Woodlawn)? Perhaps along with information about a reward on the off chance he did ‘remember’ something? Is there any way of subpoenaing any interview tapes or notes from this arrest, even though not directly related to the investigation into Hae?
Posted by: Cupcake | Aug 25, 2015 11:26:04 AM
Or... is it in any way possible that only Jay was mentioned in the tip? Could pay-out still be made if only accessories were identified and indicted? And would withholding this information this still be a Brady violation if only Jay was mentioned?
Posted by: Cupcake | Aug 25, 2015 11:33:40 AM
In the podcast yesterday, there was speculation about why the precise amount of $3075 was offered as a reward. We know $2500 was given by the local community; is it possible the other (admittedly odd) amount that was put up by CrimeStoppers based on some equation that they use to determine the amount they can offer, a matching formula, or some other set rate for payouts? It seems that legal, institutional, or other constraints on CrimeStoppers when determining reward amount were not mentioned. Does anyone know how they determine the amount of reward offered?
Posted by: Andreana | Aug 25, 2015 11:45:13 AM
If only Jay was mentioned in the tip, does Adnan's counsel still have a right to request the identity of the tipster? Would it still constitute a Brady violation (as it's evidence suggesting that solely Jay was involved, but no mention of Adnan?)
Posted by: Cupcake | Aug 25, 2015 11:57:19 AM
Andreana: Good question, and, of course, we'd need to know the standards back in 1999. At this point, we should have enough evidence to get the CrimeStoppers information, so that will answer all questions.
Cupcake: That would be a strong case for a Brady violation. When a tip is about someone other then the suspect, it has to be disclosed (especially if the other person is the defense's alternate suspect).
Posted by: Colin | Aug 25, 2015 12:02:16 PM
Would that be the case even if the tip didn't mention the actual murder or didn't preclude 3rd party involvement e.g. 'I have information that Jay helped someone to bury a body' or 'I saw Jay in Hae's car - someone else was driving'.
Posted by: Cupcake | Aug 25, 2015 12:11:17 PM
Thanks. Since I am not a lawyer, I was going by your co-host of Undisclosed, who said that if this is not a Brady violation then she does not know what is.
Posted by: S | Aug 25, 2015 12:55:04 PM
I see this case going one of two ways at this point:
Either the State puts up a fight and this case drags on for years and years in the courts; or, due to recent efforts to clean things up and reform in the DA's office, Adnan gets sent home very quickly pending a retrial.
Is this legaly possible Professor?
Posted by: anon | Aug 25, 2015 1:01:57 PM
Thanks for explaining all this, Professor. 2 questions. Why do you think the BPD would conceal the existence of the 2/1 tip yet go on to admit the existence of the 2/12 "tip" via the anonymous call? What is the utility of this concealment? Next, there is speculation on Reddit that NB could have been the source of the Crimestoppers tip. What are your thoughts? Great post!
Posted by: Homer | Aug 25, 2015 7:14:50 AM