EvidenceProf Blog

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

Tuesday, February 23, 2016

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

In the recent reopened PCR proceedings, Adnan made the claim that the State violated the Brady doctrine by failing to disclose that an AT&T disclaimer about incoming calls being unreliable for determining location applied to Exhibit 31 (which did not include the disclaimer or the page indicating that the exhibit was a Subscriber Activity report). So, is there an analogous case finding a Brady violation under similar circumstances? Absolutely. 

In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010),

Sykes, Urquhart, and a third individual, Kimberly Holmes, arrived at their place of employment, a Sprint PCS store, in Detroit, Michigan shortly before 8:00 a.m. in order to open the store for business. As Urquhart disabled the alarm and the three women entered the store, two men approached and forced their way into the store's foyer despite Sykes's and Urquhart's attempt to close and lock the door behind them. Once inside, one of the men told the women to “shut the F up before somebody get[s] shot” and revealed a gun that he had been concealing under his shirt....The two men then marched the women at gun point through the employee door to the back of the store where they were ordered to lie on the floor....Urquhart, who was three months pregnant at the time, was the only one who had the combination to open the safe. She was led at gunpoint to the room where the safe was located and was ordered to enter the room and remove the money contained inside the safe. In compliance with the armed robber's demand, Urquhart crossed the small room to the safe, “pulled out a money bag and [] slid it across [the floor] to the man at the door.”... The two robbers fled with approximately $27,000....

During the ensuing police investigation, Sgt. Nichols began to suspect that the robbery was an inside job and that the three women had staged the crime. In addition to finding suspicious both Urquhart's agitation at being interviewed and Sykes's witness statement, Sgt. Nichols also had uncovered that Holmes was a frequent gambler at a local casino, which possibly supplied a motive. On March 11, 2002, Sgt. Nichols prepared a subpoena to serve on MotorCity Casino (“Casino”). Ten days later, on March 21, 2002, the Casino faxed to Sgt. Nichols's attention at the police station Holmes's gaming records for the three days immediately following the robbery: March 8, March 9, and March 10. Those records indicated that Holmes's “player's card” was used to gamble $23,116 at the Casino over those three days. Importantly, however, the Casino cautioned in a disclaimer letter included with the gaming records that the amount of money wagered with a player's card was not reliable as to (1) the amount of money wagered or (2) the identity of the gambler. The Casino further disclosed that the records were estimates developed for marketing purposes and “would not establish in any reliable manner the dates of attendance, gambling activities, or winnings or losses of a player.” (emphasis added).

Sgt. Nichols, however, "never received the Casino records because she had been replaced as the officer in charge by Defendant Sergeant Derrick Anderson. It was thus Sgt. Anderson who retrieved the fax." But Sgt. Anderson "never revealed—to either the prosecution or the defense—that the gaming records had been accompanied by a disclaimer letter, and in direct conflict with that letter, Sgt. Anderson testified that the records established conclusively that Holmes had gambled approximately the same amount of money taken in the robbery in the three days following the robbery."

After she was convicted, Sykes appealed, claiming that the State violated Brady, based on failing to disclose the disclaimer/cover sheet. The Sixth Circuit agreed, finding that the disclaimer/cover sheet was Brady material. The court also found that the misleading way that the State created its trial exhibit of the gaming records made it impossible for the defense to realize the issue and challenge the use of the records at trial:

[A]s compared to the original nine-page document that the Casino had sent in response to the subpoena, the one page from the Casino that the prosecution introduced as evidence had been magnified and cropped in a manner that removed the fax time stamps and page numbers, erasing any evidence that it was only one page of a much lengthier document. In other words, there was nothing to put Urquhart or Sykes on notice that the information that Sgt. Anderson was presenting from the Casino on this one page was incomplete.

Remember when FBI Special Agent testified that the cell tower evidence was manipulated because certain key information was cropped, prompting Justin Brown to note that this was the same evidence turned over to the defense back in 1999? That's exactly the type of information that led the Sixth Circuit to find a Brady violation in Sykes.



| Permalink


Please, please let Judge Welch be following you on Twitter!

Posted by: Cathy | Feb 23, 2016 9:37:08 AM

If Judge Welch rules a Brady violation occurred, will the charge of prosecutorial misconduct be an automatic against Urick?

Posted by: Ajija Van Gieson | Feb 23, 2016 9:53:22 AM

Can you address whether there is credible evidence as whether the phone records are unreliable? The FBI witness clearly stated that incoming calls are only unreliable when the calls go to the voicemail. As far as I understand, Justin Brown never contradicted that part.

This would mean that Adnan was in Leakin Park at the alleged time. I think that is a big deal.

Posted by: S | Feb 23, 2016 10:00:03 AM

In this case it seems to be more of a technicality, doesn't it? As in, it seems likely that they perhaps were involved in the crime which seems quite different from Adnan's case where it's much more ambiguous.

Posted by: Andrea | Feb 23, 2016 10:25:13 AM

The fact that AT&T authenticated a version of the cell records that had fax header information, and Urick then substituted those documents for unauthenticated copies that did not have the fax header info, makes this case directly on point.

Posted by: Susan | Feb 23, 2016 10:57:43 AM

Cathy: I’m guessing that his (or his clerk’s) research will lead him to this case.

Ajija Van Gieson: When a court finds a Brady violation, it means that the court found prosecutorial misconduct.

S: (1) Under the Frye test, the technique or technology must be reliable and reliably applied in the case at hand. If Subscriber Activity Reports had issues with incoming call pings in some circumstances, the evidence should have been deemed inadmissible. (2) I wasn’t at the hearing, but it’s my understanding that the Zumot case was referenced, where an AT&T radio frequency engineer testified that sometimes calls that went to voicemail showed the tower pinged by the caller AND showed up as connected. (3) There were/are other issues with incoming calls. I’m not sure how much this was addressed at the hearing. (4) Even if the incoming pings were reliable in this case, all this would mean was that Adnan’s phone was within 2-5 miles of Leakin Park, depending upon how precise you believe the technology to be,

Andrea: Yes, Adnan seems to have a much stronger claim.

Susan: Right. This is about as good as it gets.

Posted by: Colin Miller | Feb 23, 2016 12:16:53 PM

Has anyone contacted Dr. William C. Rodriguez to discuss his findings or to explain why he didn't take notes at the burial site of HML?

Posted by: mairinmaureen | Feb 23, 2016 12:31:18 PM


Dr Rodriguez later went to work for the Maryland Medical Examiners Office. I doubt he would say anything detrimental to the State.

Posted by: HaeFan | Feb 23, 2016 1:52:19 PM

I've been digging into the phone records of the Steven Avery case. There are equally anomalous aspects of the phone records for Teresa Halbach and Avery's records.

For example,

Exhibit 361 -- a couple days of Halbach phone call records, including numbers called (subscriber activity report)
Note, only ONE of those list as CFNA, call forward no answer. How can that be? How did voicemail fill up (several people testified to this)? This would need explaining from Cingular. Perhaps inability to connect does that automatically.

Exhibit 372 -- Halbach voice mail records including incoming number source I *think*
Note on last page - zero expired messages.
BIG note: there is NO message listed for 16:37 (4.37pm) on 10/31.

**** WHERE did that CFNA message go that is listed on the SAR?

Avery's phone records do show a call to TH's phone at 4.37, but it's not reconciled with the voicemail records, which he says he left, or someone purports that he said he left. I can't remember.

I think there are more problems with phone records than just cell tower pings. It takes two for a call, not just one, and you can see problems when compared.

Posted by: JLWhitaker | Feb 23, 2016 4:15:52 PM

A Brady violation does not equal prosecutorial misconduct. There can be a Brady violation even if the prosecutor failed to turn over exculpatory materials known only to the police; inadvertently failed to turn something over; or acted in good faith by failing to turn over evidence. It is the failure to turn over the evidence coupled with its materiality that amounts to a Brady violation.

Posted by: Jane | Feb 23, 2016 7:11:09 PM

If the judge rules that there was a Brady violation or three, and prosecutor misconduct therefore, are there any sanctions levelled against the prosecutor? It seems like there is nothing in the system to prevent this from happening; no fines, no charges, not even a slap on the wrist. There seems to be no cost to the prosecution NOT to do their job correctly

Posted by: Sarah | Feb 23, 2016 7:49:19 PM

Is this the new info you tweeted about, the new info that could break the case wide open? ("this" meaning discovery of an on-point case that establishes that failure to turn over a fax cover sheet containing a disclosure about the unreliability of evidence is, in fact, a Brady Violation?

Posted by: Flower | Feb 23, 2016 9:05:03 PM

Mairinmaureen: Possibly, but it wasn’t me. I know that Dr. Korell has been unwilling to talk.

JLWhitaker: Interesting, thanks.

Jane: From Kyles v. Whitley: “This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Therefore, it is prosecutorial misconduct for the prosecutor not to learn of exculpatory evidence in police possession.

Sarah: There aren’t automatic sanctions, but there could be sanctions.

Flower: No, this isn’t what I tweeted about.

Posted by: Colin Miller | Feb 24, 2016 3:07:24 AM

(4) Even if the incoming pings were reliable in this case, all this would mean was that Adnan’s phone was within 2-5 miles of Leakin Park, depending upon how precise you believe the technology to be,...

Colin - may I suggest you that you add to point 4) something along the lines of "during a time period for which there is no credible evidence that Hae was buried or wrongdoing of any sort took place"?

Posted by: Dan | Feb 24, 2016 10:26:53 AM

In what way does the judge use those analogous cases? Is it something he uses together with the PCR evidence and his experience to form his decision, or does it have more to do with supporting his PCR reaction with cases that are similar, to give it more weight.

And is it something that both parties can suggest to the judge, or is that considered 'not done', as it maybe undermines the authority of the judge. So is it something to use in a PCR to say "look at these similar cases, this is almost exaclty the case here"

Posted by: Martin | Feb 25, 2016 12:52:28 AM

Dan: Good point.

Martin: It depends. In some cases, the judge will have a pretty clear idea of what he wants to do. Based upon that decision, he will try to distinguish precedent that seems to help the “losing” party and analogize precedent that seems to help the “winning” party. In many cases, though, the judge doesn’t know which we he will rule and will (have his clerk) review the cases cited by the parties and research additional precedent to see which side should win given the facts he’s adduced.

Posted by: Colin Miller | Feb 25, 2016 6:27:13 AM

Colin: Thanks

Also, re: Martin's question. Do we know what cases the prosecution cited during the PCR? Are they necessarily the same as were cited in their briefs? Also, if Adnan loses and appeals, can his team present evidence of other Brady violations upon appeal or are they limited to the incidents covered at the PCR?

Posted by: Dan | Feb 25, 2016 1:59:02 PM

Post a comment