EvidenceProf Blog

Cream City Chronicles: Episode 5 of Unsolved and the Admissibility of Fetish Evidence

I've written three posts about (here, here, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 5 of the podcast, which addresses another suspect in the case, Michael Uporsky a full-time substitute teacher and hall monitor who helped coach girls basketball.* Specifically, this post is about the admissibility of fetish evidence.

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Cream City Chronicles: Episodes 3-4 of Unsolved & the Aphorism That a Criminal Always Returns to the Scene of the Crime

I've written two posts (here and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episodes 3-4, which deal with Daniel Acker, a swim coach who was viewed as a possible suspect in the case based in part upon a chilling tableau found in his basement which reminded me of a similar scene from the excellent/disturbing movie, "Prisoners."

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Cristina Gutierrez's Overuse of Law Student Summaries of Witness Statements in Adnan's Case

I've remarked before about Cristina Gutierrez's overuse of law clerks/students in her representation of Adnan Syed. Among other tasks that Gutierrez delegated to these law students, she assigned the task of reviewing many of the witness statements in the case and providing summaries. The implication is that Gutierrez did not herself read these witness statements and instead relied upon secondhand accounts by law students who might have missed key facts or misstated what a witness said. In this entry, I will post one of these summaries.

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The Refusal to Indict in the Tamir Rice Case & the Self-Defense Standard in Ohio

Yesterday, an Ohio grand jury decided not to indict the officers involved in the death of Tamir Rice: Timothy Loehmann, the officer-in-training who shot him, and Frank Garmback, who was training him. The charges against Loehmann were murder, involuntary manslaughter, reckless homicide, negligent homicide and dereliction of duty. These latter two charges contained negligent mens reas. Negligent homicide is a first-degree misdemeanor, and, according to the Ohio Code,

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.

Like other jurisdictions, the burden of proof before the grand jury is the low "probable cause" standard, which is why it is "incredibly rare" for grand jurors not to indict defendants.

What makes the decision not to indict especially odd in this case is Ohio's aberrational self-defense standard. In 49 states,* the prosecution must disprove a defendant's claim of self-defense beyond a reasonable doubt. In other words, a juror could think that it is highly unlikely that the defendant was acting is self-defense and still return a "not guilty" verdict as long as the juror had reasonable doubt about whether the defendant was acting in self-defense.

By way of contrast, in Ohio, the defendant affirmatively has to prove by a preponderance of the evidence (more likely than not) that he was acting in self-defense in order to receive an acquittal. Section 2901.05(A) of the Ohio Code reads as follows:

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Therefore, for the grand jurors to refuse to return an indictment in the Tamir Rice case, they must have found that there wasn't probable cause to believe (1) that Loehmann was acting negligently; and/or (2) that Loehmann would be unable to prove by a preponderance of the evidence that he was acting in self-defense.

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*I might need to fact check that number, but it's safe to say that the vast majority of states apply this standard.

-CM

Why Adnan's Reopened PCR Proceeding is Not About "Legal Technicalities"

We are now just a little over a month away from Adnan's reopened PCR proceeding. At the hearing, Adnan will present evidence and testimony on two claims: (1) he received the ineffective assistance of counsel based upon his trial attorney failing to contact a prospective alibi witness; and (2) the State violated Brady by failing to disclose to the defense (and its own expert) that Exhibit #31 was a Subscriber Activity Report governed by the disclaimer indicating that "[a]ny incoming calls will NOT be considered reliable information for location."

I've seen some label these issues as "legal technicalities" that don't go toward the issues of actual innocence and even the jury's finding of guilt beyond a reasonable doubt. In this post, I will counter these assertions.

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"Making a Murderer" and the "Legitimate Tendency" Test for Admitting Evidence of Alternate Suspects

In a prior post, I talked about how the Steven Avery case from "Making a Murderer" was one of the cases that led the ABA to amend its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor." In the comments to that post, a reader asked about the (in)ability of Avery to present evidence of possible alternate suspects. I still haven't watched "Making a Murderer," but the question of whether and when a defendant can present evidence of alternate suspects is an important one. In this post, I will look at the Wisconsin test.

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Cream City Chronicles: Episode 2 of Unsolved & The History of Lie Detector Evidence in Wisconsin

On Tuesday, I posted an entry about the first episode of the Unsolved Podcast, a deep dive into the unsolved 1976 death and disappearance of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episode 2 and the (in)admissibility of polygraph evidence in Wisconsin.

 

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Nevada Man Gets Chance to Argue Innocence Before State Supreme Court Based on New Evidence

A conviction that started with an anonymous tip might soon be overturned.

DeMarlo Berry was convicted of killing Charles Burkes, a Carl's Jr. restaurant manager, during a robbery in 1994. 

But in an opinion issued on Christmas Eve, a three-member panel of justices [of the Supreme Court of Nevada] said District Judge Michael Villani erred last year when he denied Berry's petition for a hearing to review new evidence that defense lawyers claim prove he was not the killer.

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Supreme Court of Virginia Rejects Criminal Discovery Revisions, Leaving Lawyers & Judges Flabbergasted

In 2014, the Supreme Court of Virginia appointed a special committee on criminal discovery rules. On March 3rd of this year, that Committee issued a 60 page report. That report asked for major revisions to Virginia's criminal discovery rules. The ACLU Foundation of Virginia* summarized three of those revisions in a letter to the Supreme Court of Virginia: 

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Steven Avery of "Making a Murderer" & the Special Responsibilities of a Prosecutor

Last week, the Netflix documentary series "Making a Murderer" was released to a rapturous response. The series, created by Laura Ricciardi and Moira Demos, follows the trials and tribulations of Steven Avery, a Wisconsin man who...well, I won't spoil anything for readers who haven't watched the series. Indeed, I haven't even watched the series yet because I don't have a Netflix subscription.

As a result, this post is not about Steven Avery; it's about the ethical rule that was created as a result of his case and other similar cases.

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Cream City Chronicles: My Take on Episode One of the Unsolved Podcast

“I always want to do stories that are going to in some way be helpful to people who have survived a crime like this.” Gina Barton, Milwaukee Journal Sentinel

Yesterday, we premiered the final episode of the first season of the Undisclosed Podcast (we will drop a bonus episode on January 4th). In some ways, it was a relief. On the other hand, I couldn't help but feel a bit overcome by emotion as I listened to the last few minutes of the episode. This was compounded by the fact that Adnan's brother Yusuf reported on Adnan's health issues in prison yesterday.*

After the episode, I was finally able to listen to the first episode of the Unsolved Podcast, and I was immediately struck by some of the parallels to Adnan's case, including a high school student who goes missing from school, his body stumbled upon in a park in February after intervening snow, high school wrestling, and different jurisdictions covering the missing persons and homicide cases.

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More on Hae Possibly Coming From Drama Tryouts on January 13th

Last week, I did a post speculating that Hae might have been coming from Drama tryouts on January 13th when Becky saw her tell Adnan that she couldn't give him a ride because she had "something else" to do. You can find most of the basis for my speculation in that post, including Becky seemingly saying that Hae was involved in Drama in January and Hae herself indicating in her diary that she had helped with Drama in the past. What we do know is that Becky said that she was going to pick up her sister Diane from Drama tryouts when she saw Hae. 

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Star Wars, X-Men, Mutant X, and Judicial Notice

Last night was the premiere of "The Force Awakens," Episode VII in the Star Wars saga. Star Wars will always have a special place in my heart. If memory serves, I first watched "Star Wars" and "The Empire Strikes Back" at the Ground Round in Columbus, Ohio. When Halloween 1982 rolled around, the choice of costume for my six year-old self was obvious: I went as Boba Fett, my favorite character. The following year, my parents took me to see "Return of the Jedi;" it's the first movie I can remember watching in a movie theater. I was devastated when Han Solo stumbled into knocking Boba Fett into the Sarlacc toward the beginning of Jedi. I can still recall vivid dreams about Star Wars from my childhood, and I have creative writing projects from elementary school that take place in its universe. I think that somewhere in my parents' house, there's still an old Empire Strikes Back popup book floating around.

Later, upon graduating from college in 1999, I took a job at a summer camp before working days at a law firm and nights as a LSAT instructor. I was in charge of a group of rising fifth graders, and they were all obsessed with "The Phantom Menace" (and Pokemon and Eminem). At the end of the summer, there was a talent show. We created a script in the Star Wars universe and performed our own intergalactic epic.

And now, there's a whole new generation interested in Star Wars. Last year, my niece was Yoda for Halloween. Just this weekend, I was at a friend's house and engaged in a Nerf light saber battle with their kid;* he was Yoda, and I was the dreaded Darth Sidious. It's safe to assume that Star Wars will continue to be part of our culture fabric for generations to come, and the same holds true for our legal fabric.

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A Quick Discussion of the Scheduling of Adnan's Reopened Postconviction Proceedings

Yesterday, Judge Martin Welch scheduled the post-conviction proceedings in the Adnan Syed case. Here is a copy of the order. You can replace most of the "2015"s in the order with "2016"s. First, there will be a status conference on January 12, 2016, during which both sides will likely inform Judge Welch of how everything is proceeding, whether there are any issues with witnesses, etc. Then, the actual proceedings will be held on two days: (1) Friday, February 5, 2016; and (2) Monday, February 8, 2016. As Adnan's attorney tweeted, "Maryland has a law that prohibits the broadcasting of court proceedings. No cameras allowed." As Rabia tweeted, "Adnan will be present at the hearing." Rabia and Susan will also likely be there. I will not.

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More on the Judge Ruling the School Nurse Unqualified to Testify About Catatonic States at the Adnan Syed Trial

In yesterday's Addendum episode of the Undisclosed Podcast, we talked a bit about the school nurse being precluded from testifying at Adnan's second trial. In this entry, I will post the relevant portions of the documents as well as some of the discussion of the issue that took place at trial. 

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Was Hae Coming from Drama Tryouts Just Before She Told Adnan She Had "Something Else" to Do?

We will be recording our final episode(s) of the first season of Undisclosed this week. Amazingly, just as we're winding down, I feel like I've stumbled across something that might change, or at least clarify, what I think about the events of January 13th. It was a loose strand I initially pulled at several months ago, but I soon gave up when I couldn't find any support for it. Now, I've found that support.

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Serial, Season 2, Episode 1: Is Bowe Bergdahl Guilty of the Two Charges Brought Against Him?

Last night, I had the chance to listen to the first episode of the second season of Serial. In the episode, Sarah Koenig plays a recording of Sergeant Robert (Bowe) Bowdrie Bergdahl talking to Mark Boal about his decision to leave his outpost, OP Mest, at night and run—or at least walk—to his base at FOB Sharana. According to Bergdahl, he left OP Mest

to create a "DUSTWUN" — short for duty status whereabouts unknown; a radio call issued when a soldier goes missing in combat or is taken captive. Bergdahl claims his actions were intended to call attention to a larger issue: his serious concerns over leadership in the military.

"What I was seeing from my first unit, all the way up into Afghanistan… was basically leadership failure to the point that the lives of the guys standing next to me were literally — from what I could see — in danger of something seriously going wrong and somebody being killed," Bergdahl says in one of the taped interviews with Boal.

So, what does this mean in terms of the two charges against Bergdahl that I discussed in yesterday's post? 

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Serial, Season 2 & A Legal Analysis of the Charges Against Bowe Bergdahl

Season 2 of the Serial Podcast premiered earlier today. Before listening to it, I thought that I would take a look at the charges against Sergeant Robert (Bowe) Bowdrie Bergdahl. Both of these charges were brought under the Uniform Code of Military Justice (UCMJ). From the charge sheet, we have:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85

 

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

 

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 99

 

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

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Assessing the LensCrafters Motion for an Ex Parte Subpoena in the Adnan Syed Case

In a prior post, I noted how a law student/clerk was put in charge of subpoenaing the work records from LensCrafters in the Adnan Syed case. In this post, I will go in more depth about the motion for an ex parte subpoena, some of its errors, and what effect those errors might have had.

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Scrutinizing Jay's Claim That Adnan Confessed to Somebody While Driving Jay to Work

Following up on last night's episode of Undisclosed, let's put another of Jay's claims under the microscope. This comes from Jay's second recorded police interview (pg. 64):

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