Friday, August 28, 2015
Over the past week, I've been following up on Monday's episode of the Undisclosed Podcast and digging into the possible legal implications of the State's failure to disclose that a CrimeStoppers tipster received the full $3,075 reward for information supplied in connection with the death of Hae Min Lee. In today's post, I will delve even deeper into the weeds by answering a couple of questions.
What if the tip pointed to Jay?
A few people have written asking about the possibility that the CrimeStoppers tip was a tip about Jay and not a tip about Adnan. This would provide an alternate explanation for the November 1st payout despite the fact that Adnan was indicted in April.
I will certainly admit that this is a possibility, and I will continue to claim that the non-disclosure of such information could very easily be a Brady violation. In my research on CrimeStoppers, I've come across several cases in which the State failed to disclose that CrimeStoppers tipsters pointed the finger at alternate suspects. In many of these cases, courts have deemed this information to be material exculpatory evidence, justifying a new trial under Brady.
For instance, in Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014), Darryl Gumm was convicted of the kidnapping, attempted rape, and murder of a ten year-old victim. Obviously, this is pretty disturbing territory, but what's also disturbing in a different sense is that the State failed to disclose "Crimestopper reports, lead and tip sheets, and investigation notes and summaries memorializing information received and gathered by the police during their investigation." This evidence tended to point in the direction of two alternate suspects, prompting the Sixth Circuit to find a Brady violation. According to the court, "[p]rosecutors are not necessarily required to disclose every stray lead and anonymous tip, but they must disclose the existence of 'legitimate suspect[s].'"
Given that the primary alternate suspect put forward by Gutierrez at Adnan's trial was Jay, a CrimeStoppers tip pointing to Jay obviously could have been Brady material. Of course, the devil is in the details. If the tipster pointed to Jay and Adnan, obviously this would weaken Adnan's claim. Conversely, if the tip pointed to Jay and relayed one of Jay's stories that did not match his trial testimony (e.g., the murder was in the library parking lot; Jay got Adnan's call while at a pool hall), this would strengthen Adnan's claim. As the court noted in Gumm, tip information that could be used to impeach a key prosecution witness is often Brady material.
Gumm also partially answers the second question, which is...
Did the tip have to come from a testifying witness?
In yesterday's post, I cited to a Fiscal and Policy Note accompanying a bill that would have limited the admissibility and discoverability of CrimeStoppers information in Maryland. This bill recognized that law enforcement in Maryland has such information and thus attempted, inter alia, to "prohibit law enforcement from revealing the tipster’s identity.
The bill failed, but the accompanying Note indicated that "information pertaining to confidential informants not intending to testify is not discoverable," prompting some to question whether tipster testimony is necessary for disclosure. As Gumm makes clear, the answer is "no." In Gumm, as in similar cases, the tipsters pointed to alternate suspects and thus were obviously not called at witnesses at trial by the prosecution (or the defense, which didn't know of their existence).
I'm assuming that the Note was written with the best of intentions, but it is simply an inaccurate statement of the law. This is further made clear by the Supreme Court case I cited on the podcast: Kyles v. Whitley. Again, this is the case in which "Beanie" received a CrimeStoppers reward and (excessive) reimbursement for a car he had purchased from the defendant, whom he implicated in a murder. In Whitley, "Beanie did not testify as a witness for either the defense or the prosecution" because he was a dangerous witness for both sides. Of course, the Supreme Court ultimately found a Brady violation in Whitley, proving that tipster testimony is not required to establish a Constitutional violation.
This is where things kind of get interesting. You might look at a tip and initially conclude that it is inculpatory as opposed to exculpatory. Take Whitley as an example: Beanie said in his tip that the defendant killed the victim, which seems inculpatory and beyond the scope of Brady. But it turned out to be exculpatory because the other reasonable inference is that Beanie himself committed the crime.
Let's now apply this to Adnan's case. Assume that the tipster was a fellow Woodlawn student who told CrimeStoppers on February 1st that Adnan strangled Hae. That sounds inculpatory, right? Your assumption might be that Adnan confessed to the tipster or that Adnan confessed to someone else, who relayed this information to the tipster.
But you could also draw the opposite inference. If Adnan didn't tell the tipster or the tipster's source that he strangled Hae, then someone else somehow knew that Hae was strangled before her body was found. Could the tipster have been the murderer? Could the tipster's source of information have been the murderer?
This is where I start to get uncomfortable with CrimeStoppers. Undoubtedly, in any number of cases, it leads reluctant witnesses to come forward and implicate legitimately guilty criminals based upon the shield of anonymity and the promise of a possible payout. On the other hand, in any number of cases, it leads those looking for a payout or looking to shift blame to someone else to come forward and finger an innocent person.
Under the Sixth Amendment, the accused has the right "to be confronted with the witnesses against him." If a tipster implicates the defendant in a crime but does not testify against him at trial, does the defendant have the right to confront him? CrimeStoppers is seemingly based upon the proposition that this question should be answered in the negative. On the other hand, Brady requires the disclosure of material exculpatory information. So, here's the problem: How can a defendant make the claim that a CrimeStoppers tip is exculpatory without being confronted with the tip that was made and the tipster who made it?