EvidenceProf Blog

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

Friday, October 30, 2015

A Law Student Was in Charge of Subpoenaing Don's Work Records From LensCrafters

A commenter on my post yesterday asked the following question: "Can you please clarify by what you mean that the clerk was 'in charge' of his alibi defense?" I'm glad the question was asked because it caused me to re-examine a defense file for the first time in a while. That file has a chart with the following columns:

Screen Shot 2015-10-30 at 6.38.50 AM

In the chart, the alibi task was assigned to a law student. That same law student was assigned with the following task, among other tasks:

Screen Shot 2015-10-30 at 6.40.52 AM

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October 30, 2015 | Permalink | Comments (27)

Thursday, October 29, 2015

The Clerks With Primary Responsibilities in Adnan's Murder Case Were Law Students

I've recently been talking with a couple of students who have offers to work as either prosecutors or defense attorneys upon their graduation from law school. They're both interning/externing and working on misdemeanor cases. This is great experience for when they graduate and will be working on felony cases, including murder cases. Talking with one of these students yesterday made me realize something that I should have realized a long time ago: The people given the primary responsibilities in preparing Adnan's murder trial were law students.

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October 29, 2015 | Permalink | Comments (28)

Wednesday, October 28, 2015

The Board Game Clue & the Question of Whether a Rope is a Deadly/Dangerous Weapon

Perhaps unsurprisingly, my favorite board game is Clue, or, as it is called in other countries, Cluedo. Part of it is the history of the game:

In 1944, Anthony E. Pratt, an English solicitor's clerk, filed for a patent of his invention of a murder/mystery-themed game, originally named "Murder!" The game was originally invented as a new game to play during sometimes lengthy air raid drills in underground bunkers. Shortly thereafter, Pratt and his wife presented the game to Waddingtons' executive, Norman Watson, who immediately purchased the game and provided its trademark name of "Cluedo" (a play on "clue" and "Ludo", which is Latin for "I play"). Though the patent was granted in 1947, due to post-war shortages, the game was not officially launched until 1949, at which time the game was simultaneously licensed to Parker Brothers in the United States for publication, where it was re-named "Clue" along with other minor changes.

Part of it is the 1985 movie version, in which a perfectly puckish Tim Curry chews the scenery and commits the murder, at least in one of the three alternate endings, which my nine year-old self regarded as a genius move. The movie led me to write my first film review as part of an assignment for English class. I think I still have a copy of it somewhere. The board game has even come up in a few court cases, including one that involves a very interesting question.

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October 28, 2015 | Permalink | Comments (3)

Tuesday, October 27, 2015

More Drama at Cristina Gutierrez's Law Firm in 1999/2000

In my last two posts (here and here), I noted how at least two associates and a named partner departed from Cristina Gutierrez's law firm back in 1999. It turns out that there was additional drama occurring at Gutierrez's law firm during her representation of Adnan.

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October 27, 2015 | Permalink | Comments (5)

Monday, October 26, 2015

More Turnover at Cristina Gutierrez's Law Firm in 1999

Following up on my post from Friday, it looks like there was additional turnover at Cristina Gutierrez's law firm in 1999. In this case, the turnover seems like it might have had a greater detrimental effect on Adnan's case.

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October 26, 2015 | Permalink | Comments (7)

Friday, October 23, 2015

The Departure of a Named Partner From Cristina Gutierrez's Law Firm in Fall 1999

I've started preparing a draft for the "Cristina Gutierrez" episode of the Undisclosed Podcast. In doing so, I stumbled upon something interesting but not important enough to include in the episode (I think). Here's a discovery letter, sent by Gutierrez on September 7, 1999. As you can see, the name of the law firm at the time is Redmond, Burgin & Gutierrez, P.A., indicating the three named partners at the firm. Next, here's Adnan's alibi notice, submitted less than a month later, on October 4, 1999. Now, the name of the law firm is Redmond & Gutierrez, P.A. Burgin is still listed as an attorney, but he's no longer a named partner.

Finally, here's the top of a letter dated November 24, 1999, in which Gutierrez is sending Mr. S's polygraph results to an expert:

Screen Shot 2015-10-23 at 4.55.13 PM

So, now, about a month and a half later, Burgin is no longer working at the law firm, and a new attorney has been hired. 

I don't think that this has any huge bearing on Adnan's case, but I'm always interested in getting as much context as possible. Burgin was a named partner when Gutierrez joined the law firm in 1995 and one of only six attorneys at the firm. It's not an insignificant thing for a named partner to leave a firm, especially a firm this small. I have little doubt that Gutierrez was spending a good deal of time in the fall of 1999 on the departure of Burgin* and the hiring of his replacement. What I don't know is whether Burgin had any role in Adnan's case and whether his departure might have had any direct or indirect effect on its outcome. 



*For example, the departure could have meant that Gutierrez was picking up new clients/work from Burgin. It also could have meant that Gutierrez was working hard to keep clients who had a good working relationship with Burgin.

October 23, 2015 | Permalink | Comments (12)

Wednesday, October 21, 2015

Back to the Future Day and the Effect of Pop Culture on Legal Proceedings

Happy Back to the Future Day. After traveling back in time from 1985 to 1955 in Back to the Future, Marty McFly traveled from 1985 to October 21, 2015 in Back to the Future Part II. There have been any number of articles about what BTTF2 got right and wrong about the future and at least one case on the same subject. That case deals with one of my favorite intersections: the intersection between law and pop culture.

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October 21, 2015 | Permalink | Comments (10)

Tuesday, October 20, 2015

Professor Colbert's Affidavit About the Thoughts of the Jurors After Adnan's Mistrial

In the Addendum to the 11th Episode of the Undisclosed Podcast, we made the argument that the State's misleading disclosures in connection with Exhibit 31 and the cell tower evidence was a Brady violation because the cell tower evidence could very well have been the difference between a "guilty" and a "not guilty" verdict. As support, we cited to Professor Colbert's affidavit, in which he noted that the majority of jurors were prepared to return a "not guilty" verdict when the first trial ended in a mistrial. That mistrial was after the State had presented most of its case and the defense had presented none of its case. At the time of the mistrial, the only State's witnesses who had not testified were Jennifer Pusateri and the AT&T cell tower expert. Therefore, there is strong evidence that the cell tower expert was the key to the State's case. 

In response to the Addendum episode, however, I got a few e-mails asking about Professor Colbert's affidavit and realized that we hadn't posted it to the Undisclosed website. Here is his affidavit:


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October 20, 2015 | Permalink | Comments (25)

Monday, October 19, 2015

Guardian Lawsuit Shines a Light on Homan Square Detention Facility in Chicago

The Good Wife is my favorite legal TV show ever. I've written about it before at least a few times (see, e.g., here and here). I feel like one of the most important posts I've written on this blog was prompted by the show: The Good Wife, The Alford Plea, The Jewish Ban On Confessions, & The Times Of Emergency Necessity Exception. Part of what makes The Good Wife great is its focus on the current legal milieu. A big chunk of last season's finale, Wanna Partner?, was based upon something that is very much part of the Chicago legal milieu: Homan Sqaure.

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October 19, 2015 | Permalink | Comments (4)

Thursday, October 15, 2015

Exhibit 31 Was the Cause of the Mistrial at Adnan's First Trial

Last night, we premiered "Exhibit 31," the Addendum to the 12th episode of the Undisclosed Podcast. The episode's title is based upon the key cell tower exhibit that now forms the basis for Adnan's claim that there was a Brady violation. Exhibit 31 was also the exhibit that led to the mistrial at Adnan's first trial. It is also further evidence of Gutierrez's ineffective assistance.

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October 15, 2015 | Permalink | Comments (25)

Wednesday, October 14, 2015

Ware v. State & Misleading Disclosures as Brady Violations in Maryland

Yesterday, Adnan's attorney filed his reply brief. That brief was accompanied by some very interesting exhibits. You can hear my thoughts about the reply brief when this week's Addendum episode of the Undisclosed Podcast premieres tonight at around 6:00 P.M. In this post, I will address something that we didn't discuss on the episode.

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October 14, 2015 | Permalink | Comments (22)

Tuesday, October 13, 2015

Cristina Gutierrez's 1999 Maine Murder Case & Adnan's Library Alibi

Previously, I've written about how Cristina Gutierrez was involved in 6 first-degree murder cases in 4 different jurisdictions back in 1999/2000. Well, it turns out that she was actually involved in a seventh murder case in a fifth jurisdiction back in 1999. This one took place in Maine, and it possibly answers one of the biggest questions I have about this case.

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October 13, 2015 | Permalink | Comments (20)

Monday, October 12, 2015

The Chain of Custody Form For the Windshield Wiper Lever in Hae's Sentra

I have written before about the chain of custody issues involving the windshield wiper lever in Hae Min Lee's Nissan Sentra. Now that I have seen the chain of custody form for the lever, the evidentiary problem has come into sharper focus.

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October 12, 2015 | Permalink | Comments (13)

Thursday, October 8, 2015

Analyzing the Progress Report on Jay's Third Police Interview

Yesterday, I posted an entry about a document in the defense files in which a clerk or associate was alerting Cristina Gutierrez ("Tina") to the existence of Jay's third statement to detectives on April 13, 1999, right after Adnan was indicted by the grand jury. That document referenced an attachment, making me think that there might be a transcription of Jay's interview or at least notes of what he said. With an assist from Susan Simpson, I now think I have a better understanding of what was going on.

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October 8, 2015 | Permalink | Comments (22)

Wednesday, October 7, 2015

Are There Notes of Jay's April 13th Interview With Detectives?

As I've noted before, Jay was officially interviewed* three times by detectives: (1) on February 28, 1999; (2) on March 15, 1999; and (3) on April 13, 1999, after Adnan was indicted by the grand jury. I had always been under the impression that the State never turned over anything to the defense regarding this third interview, with the defense's only knowledge of it coming from Jay's testimony at trial. During a deep dive into the defense files, however, I found this document:

Screen Shot 2015-10-07 at 7.35.06 AM

As you can see, this document, presumably written by a clerk or fellow attorney, states: "See attached -- this is a 3rd interview in which the detect cleared up more 'inconsistencies' -- on 4/13/99." Unfortunately, I haven't been able to locate this attachment, and Gutierrez seemingly referenced no such attachment at trial. 

I hope that I'm able to track it down at some point. Jay's trial narrative was very different from the narrative in either his March 15th interview or March 18th ride along. Thus, his April 13th interview is the key missing link that could explain the evolution of his story. We now have some indication that there is some documentation of this interview, but we still lack that documentation.


*Of course, there was also the ride along that Jay did with detectives on March 18, 1999.


October 7, 2015 | Permalink | Comments (12)

Tuesday, October 6, 2015

Undisclosed Episode 12 & the Prisoners' Dilemma in the American Criminal Justice System

Last night, we premiered Episode 12 of the Undisclosed Podcast: "Prisoners' Dilemma." I suggested the title in part because of the classic prisoners' dilemma problem from game theory. The prisoners' dilemma, however, is not something merely relegated the realm of the theoretical. It is something that plays out every day in a criminal justice system dominated by plea bargaining.

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October 6, 2015 | Permalink | Comments (10)

Friday, October 2, 2015

Recent Court of Special Appeals of Maryland Case Deals with Authentication & Cell Phone/Tower Issues

In today's post, I will talk about the recent opinion of the Court of Special Appeals of Maryland in Baker v. State, 117 A.3d 676 (Md. 2015). The case discusses a couple of the topics we've been discussing on the Undisclosed Podcast: cell phone/tower evidence and authentication.

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October 2, 2015 | Permalink | Comments (23)

Thursday, October 1, 2015

An Addendum to Susan's Post About Crime Scene Photos & Lividity

Yesterday, Susan Simpson did a post about the crime scene photos and lividity. I write to join Susan in hoping that nobody attempts to post the crime scene photos for obvious reasons. As far as I understand things, (1) we have received 8 crime scene photos that were authenticated and admitted at trial; and (2) other people have obtained 22 crime scene photos, which may be (a) 22 entirely separate photos that were not authenticated or admitted into evidence; or (b) 14 unauthenticated photos and the 8 photos that were authenticated and admitted into evidence. 

Those who have viewed the 8 authenticated photos believe that Hae's upper chest and face were less prone. Those who have viewed the 22 photos believe that Hae's upper body and chest were more prone. There are also other points of disagreement, such as the positioning of Hae's arms and whether her hand was visible before excavation had begun. 

There doesn't, however, appear to be any disagreement about Hae's abdomen. In both of the diagrams above, Hae's abdominal area is clearly not parallel to the ground. This is significant because, after seeing the crime scene photos, Dr. Hlavaty was able to detect anterior abdominal lividity: "There is red fluid on the face that came from the nose and mouth and is decomposition fluid, and there is a pink color to the skin on the exposed abdomen that is lividity." This is confirmed by the poster claiming the alternate positioning of the body, with the poster even noting that this pink coloration is at the center of the abdomen: "The center of the abdomen is a light pink color, somewhat darker than the white skin running down the midline of the chest." It also is consistent with the autopsy report, which stated that "[l]ividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure." 

The only way that this front/center abdominal lividity would make sense is if Hae's abdomen were parallel to the ground. Under both renderings, it isn't. One rendering must be closer to reality than the other, but this seems like a distinction without a meaning. In either case, the abdominal lividity is inconsistent with the body's position, and I hope that everyone involved leaves it at that.



October 1, 2015 | Permalink | Comments (28)