EvidenceProf Blog

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

Friday, January 29, 2016

The Inter-American Commission on Human Rights & EDTA Misconduct in the Kevin Cooper Case

I have written two previous posts (here and here) about the Kevin Cooper case, in which Cooper claimed that the presence of EDTA in the blood on a t-shirt recovered near the murder site proved that the police had planted the blood, calling into question all of the evidence against him. My prior posts dealt with the opinions of the Ninth Circuit denying Cooper relief. In that second opinion, four justices dissented from the decision to deny Cooper en banc review, concluding that, inter alia, there were serious concerns with the EDTA testing protocol approved by the district court. 

After the court's opinion, Cooper sent a clemency petition to

Governor Schwarzenegger. This petition laid out new developments in the evidence that had not been known when the first petition was denied in 2004.The second clemency petition also cited the conclusions and observations of [dissenting] appellate judges of the Ninth Circuit Court of Appeals, including the fact that blood taken from Cooper after he was arrested was contaminated with the DNA of another person, that a sheriff’s deputy had lied at Cooper’s trial about destruction of key evidence, and that three witnesses, never interviewed by the prosecution, had come forward with strong evidence of other possible perpetrators.

Just before Governor Schwarzenegger left office in January 2010, his office wrote a letter to Cooper’s lawyer stating that the application “raises many evidentiary concerns which deserve a thorough and careful review of voluminous records”. The letter further stated that since the Governor had only two weeks left in office, he had decided to leave the matter for Governor-elect Jerry Brown's determination.

Brown, however, did not act upon the petition. That left Cooper with one action: go international.

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January 29, 2016 | Permalink | Comments (0)

Thursday, January 28, 2016

Judge Finds Illinois Man's Lawyer Ineffective Based on Failure to Contact Alibi Witness

We're less than a week away from the reopened postconviction proceeding in the Adnan Syed case. One of the issues that the court will consider is whether Cristina Gutierrez's failure to contact Asia McClain constituted ineffective assistance of counsel. I've written numerous times about case law from across the country standing for the proposition that the failure to contact a known alibi witness constitutes ineffective assistance of counsel. The most recent example involves a case out of Cook County, Illinois.

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January 28, 2016 | Permalink | Comments (1)

Wednesday, January 27, 2016

Another Dr. Rodriguez Case, Another Disclosure Issue...and Lividity Evidence

Before becoming the Forensic Anthropologist and Chief Deputy Medical Examiner for the Armed Forces Institute of Pathology, Dr. William Rodriguez was a Deputy Chief Coroner

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Through this work, Dr. Rodriguez became known as "a time-of-death specialist." State v. Willie, 559 So.2d 1321, 1334 (La. 1990). It was in this capacity that he was called as an expert witness at the murder trial of Sean Esty, a trial that involved late disclosure of Dr. Rodriguez and conflicting lividity testimony.

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January 27, 2016 | Permalink | Comments (19)

Tuesday, January 26, 2016

Another Case, Another Dr. Rodriguez Report...and the Prosecution's Failure to Turn it Over

Yesterday, I posted an entry about Dr. William Rodriguez preparing a report in a case that bore striking similarities to the Adnan Syed case. In today's post, I will discuss another Maryland case in which Dr. Rodriguez prepared a report...and the prosecution failed to turn it over.

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January 26, 2016 | Permalink | Comments (5)

Monday, January 25, 2016

Dr. Rodriguez's Lack of a Report & Missing Interview Notes in the Adnan Syed Case

A few days ago, a redditor named pdxkat posted a pretty interesting entry on the Undisclosed Subreddit about Dr. William Rodriguez. Dr. Rodriguez was the Forensic Anthropologist and Chief Deputy Medical Examiner for the Armed Forces Institute of Pathology who supervised the disinterment of Hae Min Lee's body from Leakin Park. Among other things, pdxkat's post references a case in which (1) the victim was strangled; (2) her killer buried her in a very shallow grave in a wooded area in Baltimore City; (3) Dr. Rodriguez supervised the disinterment; and (4) Dr. Margarita Korell performed the autopsy. So, why did Dr. Rodriguez act so differently in that case than he did in Adnan's case?

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January 25, 2016 | Permalink | Comments (12)

Friday, January 22, 2016

Do You Agree With the UK's Decision to Scale Back its Prohibition on Double Jeopardy?

The Double Jeopardy Clause of the Fifth Amendment states:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

As the Court of Criminal Appeals of Texas noted in Ex Parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986):

Historians have traced the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes...[T]he principle of double jeopardy is at least 2,340 years old, and its roots can be traced to Greek, Roman, canon, and Hebrew law, with its evolution traceable back literally through the ages—from the Constitutional Convention, to the common law of England, through the Dark Ages....”

In 2003, however, the United Kingdom passed the Criminal Justice Act of 2003, which, inter alia, allows for an acquitted defendant to be retried for certain serious offenses if there is "new and compelling" evidence. In other words, the Act allows for the government to try to cure wrongful exonerations. So, does this exception to the prohibition on double jeopardy make sense?

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January 22, 2016 | Permalink | Comments (16)

Thursday, January 21, 2016

Is an ATF Forensic Chemist an Investigative or Law Enforcement Officer?

In yesterday's post, I discussed Kristine Guerra's new "Stolen Freedom" series and specifically the case of Kristine Bunch, whose felony murder conviction was thrown out after sixteen years based on a Brady violation. Thereafter, Bunch filed a couple of lawsuits, including a lawsuit against William Kinard, a forensic chemist with the ATF. This lawsuit was brought under the Federal Tort Claims Act (FTCA), asserting claims of malicious prosecution and intentional infliction of emotional distress. The  lawsuits were eventually consolidated, and the question of whether the consolidated lawsuit will go forward might hinge on an interesting question: Is the forensic chemist an investigative or law enforcement officer?

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January 21, 2016 | Permalink | Comments (10)

Wednesday, January 20, 2016

A Compelling New Series on Wrongful Convictions by Kristine Guerra of the Indy Star

Kristine Guerra, the primary courts reporter for the Indianapolis Star, has started "Stolen Freedom," "an occasional Star series that examines the issue of wrongful imprisonment and shares the stories of people who have suffered this injustice." Her first entry dealt with the case of Keith Cooper, who is still waiting for a pardon eleven years after "DNA evidence implicated another man" of the armed robbery that led to Cooper's conviction. He's not alone. According to the article, "[s]ixteen pardon petitions, including Cooper's, are awaiting [Governor] Pence's decision."

Yesterday, Guerra posted her second entry in this series, and it contains some distressing allegations about falsifying evidence.

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January 20, 2016 | Permalink | Comments (7)

Tuesday, January 19, 2016

Follow-up on the New Information About Hae's Plans on January 13, 1999

Last Thursday, I posted an entry with new information about Hae's plans on January 13, 1999, which tended to establish that:

1. Hae picking up her cousin was a daily, prearranged task, not something she only did occasionally or as needed;

2. On January 13th, after picking up her cousin, Hae was supposed to take her cousin to her uncle's workplace, not home; and

3. On January 13th, after taking her cousin to her uncle's workplace, Hae was supposed to babysit her cousin for some period of time.

The entry was posted on reddit, prompting the following response by Hae's brother:

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I believe Hae's brother, which makes the information I received all the more confounding. I previously said that I would not name the source of my information, but the last thing that I want is Hae's brother thinking that I might be making something up. I also don't want misinformation to be out there.

The source of my information is the Director of The Enehey Group, who, among other things, consulted with Detective O'Shea on a daily basis during the Missing Persons Investigation. Here is a relevant excerpt from her:

"I knew Hae Min through her family, who were my friends at that time. I was asked by them to help find her the day she failed to show up to babysit her cousin after school. Her family was frantic and I am an investigative researcher, I knew PI's and law enforcement professionals, and I occasionally worked on cold cases and missing person cases. Hae Min's failure to show up was reported by her uncle (she lived with her uncle and mother) to the police in the county where she lived; as is the norm, the authorities did not take the matter seriously because she had not been missing for 36 hours. Her family contacted me to call the police and beg for immediate action and so I impressed upon the police that Hae Min was not a US Citizen, her Embassy would be contacted and this could look very very bad if they did not take this more seriously. It was unlike Hae Min to fail to be home at the right time, clearly something was wrong, she was a dutiful daughter, responsible family member, and daily picked up her cousin after school to take to her uncle's business." 

Given that some of this information seemed at odds with what had been reported, I of course confirmed with her the three pieces of information that formed the basis for my prior post. I know that the Director has received negative attention in the wake of Serial, and I hope that readers see that, at least in this instance, she was trying to be helpful, even if that helpfulness tends to establish that the investigation of this case might have been fundamentally flawed from day one.

[Edit: I just wanted to note that the information in my prior post (and the information in this post) was not given under the promise of anonymity. I left my source unnamed in the initial post because I thought that the information spoke for itself. Given today's response, I decided that the source needed to be identified.].


January 19, 2016 | Permalink | Comments (37)

What if Abraham Lincoln Cross-Examined Jay Wilds?

At Adnan's trial, Jay gave the following testimony about the 7:09 P.M. call on Adnan's call log:

Urick When you pulled off and parked the vehicle, what if anything did you take back into the woods with you ?

Jay: Shovels.

Urick: About what time of night was this?

Jay: About 7:00 because, like I said, I had paged Jenn and while we were digging, she had called back [at 7:09], and he just told her he was busy now and hung up the phone. We dug for a little bit and he said that’s good enough. We took the shovels

Urick: What was the light like?

Jay: It was pretty dark but the moon was out, and I remember there was little bits of snow on the ground. So you could see a little bit. It wasn’t too bad

You can use any number of webpages on the internet to establish that Jay's testimony can't be correct. For instance, Susan Simpson used timeanddate.com to establish that "moonrise was at 4:37 a.m. that night, and was a bare sliver, with around 10% illumination."

Of course, Cristina Gutierrez did no such thing to impeach Jay's testimony at trial, just like she didn't use similar information to establish that Coach Sye in all likelihood remembered that Adnan arrived on time at track practice on January 13, 1999. But what if Adnan's attorney were Abraham Lincoln?

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January 19, 2016 | Permalink | Comments (17)

Monday, January 18, 2016

Cream City Chronicles: Episode 7 of Unsolved & Low Copy Number DNA vs. Touch DNA

I have written five posts (herehereherehere, 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 the seventh episode of the podcast, which deals in part with a possible alternate suspect: James Lee Crummel. The episode also deals with the possibility of touch DNA uncovering Zera's killer.


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January 18, 2016 | Permalink | Comments (9)

Saturday, January 16, 2016

Is Jerry Buting's Claim About Sweat DNA Correct?

One of the trial attorneys for "Making a Murder" subject Steven Avery

called out former District Attorney Ken Kratz for “continuing his public misinformation campaign.” 

“He is making statements he should know are untrue, like claims about Steven Avery’s ‘sweat DNA’ being found on the hood latch of the Rav4,” says [Jerry] Buting. “There is no such thing as ‘sweat DNA.’ DNA is found in all nucleated cells, but there has never been a test to determine that a sample of DNA came specifically from perspiration.” 

He adds: “What Attorney Kratz also has not mentioned is that there are many studies that show ‘touch DNA’ can be innocently transferred from one object to another, or one person to another, without any connection to a crime. 

Is he right?

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January 16, 2016 | Permalink | Comments (19)

Friday, January 15, 2016

More About the EDTA Case That's Crazier Than the Steven Avery/"Making a Murderer" Case

This is my third in a series of posts about EDTA testing in the Steven Avery/"Making a Murderer" case (prior posts herehere, and here). It's also my second post about the Kevin Cooper case, in which Cooper claimed that the presence of EDTA in the blood on a t-shirt recovered near the murder site proved that the police had planted the blood, calling into question all of the evidence against him. On the eve of Cooper's execution, the Ninth Circuit granted his successor petition and remanded Cooper's case to district court for EDTA testing. In Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007), a three judge panel of the Ninth Circuit found that this EDTA testing was (1) properly done but inadmissible; and (2) unhelpful to Cooper. 

Cooper than moved for rehearing en banc by the entire Ninth Circuit. That Ninth Circuit denied Cooper's request in Cooper v. Brown, 565 F3d 581 (9th Cir 2009), but five judges dissented in an opinion written by Judge Fletcher. Here is a portion of the introduction of Judge Fletcher's dissent, which hits the high points. The rest of the post after the page break will delve into some of the details. According to Judge Fletcher:

As will be described in greater detail below, the district court impeded and obstructed Cooper's attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.

The most egregious, but by no means the only, example is the testing of Cooper's blood on the t-shirt for the presence of EDTA. As will be described in greater detail below, the district court so interfered with the design of the testing protocol that one of Cooper's scientific experts refused to participate in the testing. The district court allowed the state-designated representative to help choose the samples to be tested from the t-shirt. The court refused to allow Cooper's scientific experts to participate in the choice of samples. Indeed, the court refused to allow Cooper's experts even to see the t-shirt. The state-designated lab obtained a test result showing an extremely high level of EDTA in the sample that was supposed to contain Cooper's blood. If that test result was valid, it showed that Cooper's blood had been planted on the t-shirt, just as Cooper has maintained.

A careful analysis of the evidence before the district court strongly suggests that the result obtained by the state-designated lab was valid. However, the court allowed the state-designated lab to withdraw the test result on the ground of claimed contamination in the lab. The court refused to allow any inquiry into the alleged contamination. The court refused to allow Cooper's experts to review the bench notes of the state-designated lab. The court then refused to allow further testing of the t-shirt, even though such testing was feasible.*

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January 15, 2016 | Permalink | Comments (4)

Thursday, January 14, 2016

New Information About Hae's Plans on January 13th

[Update: Please read this before reading the rest of this post.].

I have been corresponding with someone I believe to be a trustworthy source with credible  new information about Hae's plans on January 13, 1999. With good reason, this source does not want to go on the record, but the information could be helpful in triggering someone else's memory of what happened on that day. It also answers a few of the questions that many of us have had for the past year. Here are three things that I have confirmed with this source:

1. Hae picking up her cousin was a daily, prearranged task, not something she only did occasionally or as needed;

2. On January 13th, after picking up her cousin, Hae was supposed to take her cousin to her uncle's workplace, not home; and

3. On January 13th, after taking her cousin to her uncle's workplace, Hae was supposed to babysit her cousin for some period of time.

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January 14, 2016 | Permalink | Comments (36)

Wednesday, January 13, 2016

The EDTA Case That May be Even Crazier Than the Steven Avery/"Making a Murderer" Case

This is my third in a series of posts about EDTA testing in the Steven Avery/"Making a Murderer" case (prior posts here and here). As I noted in my last post,

In 2007, another California man sought to introduce evidence of EDTA. His is a fascinating case, deserving of its own podcast or Netflix series.

This post deals with the first of three opinions in that case.

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January 13, 2016 | Permalink | Comments (2)

Tuesday, January 12, 2016

Supreme Court Finds Florida's Death Penalty System Unconstitutional

Today, the United States Supreme Court declared Florida's death penalty system unconstitutional in Hurst v. Florida. According to the Court,

First-degree murder is a capital felony in Florida....Under state law, the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment...."A person who has been convicted of a capital felony shall be punished by death" only if an additional sentencing proceeding "results in findings by the court that such person shall be punished by death."..."[O]therwise such person shall be punished by life imprisonment and shall be ineligible for parole."...

The additional sentencing proceeding Florida employs is a "hybrid" proceeding "in which [a] jury renders an advisory verdict but the judge makes the ultimate sentencing determinations." Ring v. Arizona, 536 U. S. 584, 608, n. 6 (2002). First, the sentencing judge conducts an evidentiary hearing before a jury....Next, the jury renders an "advisory sentence" of life or death without specifying the factual basis of its recommendation. ... "Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death."... If the court imposes death, it must "set forth in writing its findings upon which the sentence of death is based."...Although the judge must give the jury recommendation "great weight,"...the sentencing order must “reflect the trial judge’s independent judgment about the existence of aggravating and mitigating factors."

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January 12, 2016 | Permalink | Comments (1)

The Case Where EDTA Evidence Was Excluded & the EDTA Exhibit in the Steven Avery Case

This post is following up on my prior post (here) about EDTA testing in the Steven Avery/"Making a Murderer" case. A lot has been made of the fact that "Marc LeBeau, head of the chemistry unit at FBI headquarters in Virginia,...used...EDTA testing that the FBI had used only once before — in [O.J.] Simpson's 1995 murder trial." This is literally true. Evidence of EDTA testing had only been used at trial once before. But it wasn't the only attempt to introduce such evidence.

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January 12, 2016 | Permalink | Comments (18)

Monday, January 11, 2016

Supreme Court Oddity: The Use of David Bowie Lyrics in the Recent Hobby Lobby Case

Like many around the world, I was saddened to hear about the passing of David Bowie. Probably may favorite Bowie memory comes from my first year of college at the University of Virginia. In my suite in the Watson dorm, we made a shrine to Bowie and played "Space Oddity" on a loop for 24 hours straight. Why? Probably for the same reason that they got him to judge the "walk-off" in Zoolander: he's David frickin' Bowie.

I'm not exactly sure when I first became aware of Bowie. If I had to guess, it was in 1986, when my nine year-old self watched "Labyrinth." I've read the interpretation that "Labyrinth" "was specifically constructed for mind control purposes." It's not the only strange interpretation of one of Bowie's works, as is made clear by one of the amicus briefs in the recent Hobby Lobby/Supreme Court case.

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January 11, 2016 | Permalink | Comments (5)

Friday, January 8, 2016

An Introductory Post on the EDTA Testing Done in the Steven Avery Case

Several readers have asked me questions about the ethylenediaminetetraacetic acid (EDTA) evidence used in the Steven Avery/"Making a Murderer" case. This is an introductory post, which will focus upon the use of this evidence at Avery's trial.

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January 8, 2016 | Permalink | Comments (55)

Thursday, January 7, 2016

How Did the Detectives Know to Ask for Jenn on February 26th?

Over the last few days, I've done a couple of posts (here and here) about the evidence supporting the theory that the detectives were aware of Jay and possibly interviewed him (multiple times) before they interviewed Jenn on February 26th and 27th. In short, this evidence consists of (1) Jay's Intercept interview, in which he says he was already sick of talking to the police before they ever talked to Jenn; (2) Sis's statement to the defense PI, in which she says that Jay told her that he missed work on February 26th and February 20th, 21st, or 22nd, with Jay saying that at least the earlier interview was about Hae; (3) Neighbor Boy's statement to the defense PI about seeing Jay in a police car about a week after Hae's body was found (e.g., around February 16th); and (4) a police document in which (a) Jay's name is identified next to the account holder for a phone line, but (b) Jenn's name is not. 

There's another piece of evidence that might also support this theory, depending on who you believe.

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January 7, 2016 | Permalink | Comments (22)