EvidenceProf Blog

A Proposed Test for How the Court Should Assess the Misleading Disclosure Brady Claim in Adnan's Case

There are three ways that the State can commit a Brady violation:

1. The State completely fails to disclose material exculpatory evidence to the defense. See Brady v. Maryland.

2. The State makes a misleading disclosure of material exculpatory evidence. See Ware v. State, 702 A.2d 699 (Md. 1997) ("If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well.")

3. The State makes an untimely disclosure of material exculpatory evidence. See infra.

In Adnan's case, Justin Brown is claiming that the State made a misleading disclosure of the AT&T cover sheet, with that cover sheet constituting material exculpatory evidence. As the Court of Appeals of Maryland noted in Ware, misleading disclosures of material exculpatory evidence will seldom, if ever, be excusable. That said, the Ware court neither fleshed out the definition of a misleading response/disclosure nor gave any indication of when such a response/disclosure might be excusable under Brady. In this post, I will argue that Maryland courts should use the same criterion for determining category 2 (misleading disclosure) violations that they use for determining category 3 (late disclosure) violations.

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The Game is Not Worth the Candle: Is Chad Fitzgerald's Testimony Enough For a New Trial?

In yesterday's post, I noted how Judge Welch can grant Adnan a new trial even without delving into the substantive issue of whether AT&T cell tower pings from incoming calls were (un)reliable back in 1999. Simply put, the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), requires an expert to vouch for the accuracy of such information, and the State's cell phone/tower expert at trial, Abraham Waranowitz, has now indicated that he would not have given such testimony if he had been shown the fax cover sheet/disclaimer.

If Judge Welch does delve into this substantive issue, it appears that there is a "battle of the experts." According to Keene Corp., Inc. v. Hall, 626 A.2d 997 (Md.App. 1993), this substantive issue should be resolved in Adnan's favor unless Judge Welch finds State expert Chad Fitzgerald more knowledgeable than Waranowitz and defense expert Gerald Grant. But even if Judge Welch does find Fitzgerald more knowledgeable, there is still a good chance that Judge Welch would rule in Adnan's favor.

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Court of Special Appeals of Maryland Opinion Implies Waranowitz's Affidavit Necessitates a New Trial

In connection with Adnan Syed's reopened postconviction review proceeding, Abraham Waranowitz submitted the following affidavit:

In any jurisdiction, this affidavit would have been tremendously important. Based upon the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), it might just be dispositive.

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Court of Appeals of Kansas Finds Alibi IAC Despite Concerns About Alibi Perjury, Hostility & Tampering

At the reopened PCR proceedings in the Adnan Syed case, the Deputy Attorney General tried to sell the following scenario to Judge Welch: Asia McClain's first letter was an offer to perjure herself as an alibi witness for Adnan. Meanwhile, her second letter was backdated to March 2nd despite being written at a later date based upon information provided by Adnan. Indeed, the Deputy AG even seemed to imply that the second letter might have been written by Adnan himself. 

According to the Deputy AG, under this scenario, which he admitted was "just a theory," Cristina Gutierrez certainly would have been relieved of her obligation to contact Asia McClain. Right? Wrong, at least according to the Court of Appeals of Kansas in State v. Sanford, 948 P.2d 1135 (Kan.App. 1997). 

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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. 

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The Order Denying Kesha Relief Had Nothing to do With Her Abuse Allegations Against Dr. Luke

I've gotten a lot of questions from readers about the order denying Kesha relief in her lawsuit against Dr. Luke (Lukasz Gottwald) and Sony. I haven't seen an actual copy of the order, but I have seen Kesha's motion, and the media seems to have missed an important part of the story: It has nothing to do with the abuse allegations against Dr. Luke.

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Live Tweeted Murder Case Raises Interesting Mixed Lividity Issues

The Adnan Syed PCR proceeding was probably the first that many people followed via Twitter. But it's certainly not the only court proceeding to receive social media attention. Yesterday, a reader sent me information regarding the Timoty McVay case, which apparently contained interesting testimony about mixed lividity. 

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Court of Appeals of Maryland Steps in to Sort out 5th Amendment Issue in Freddie Gray Trials

Yesterday, I posted an entry about the George Johnson case, in which Johnson has claimed that Thiruvendran Vignarajah violated the Fifth Amendment by calling his alleged co-conspirator, Derrick Toomer, knowing that Toomer would invoke his privilege against self-incrimination when asked about the crime. The State's response is that this was not inconsequential theater because Vignarajah had offered Toomer immunity, meaning that he was justified in calling him to the stand. In turn, Johnson has argued that such immunity couldn't protect Toomer against federal prosecution and that Toomer was appealing his conviction, meaning that there could be a retrial and the very real danger that Toomer's testimony could be used against him at that retrial.*

Hours later, it was reported that the Court of Appeals of Maryland "halt[ed] trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants." In other words, Maryland's highest court is addressing the same issue that is at the heart of Johnson's appeal.

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Appeal Claims Thiru Vignarajah Violated 5th Amendment & Brady in 1st Degree Murder Case

Today, I'm teaching the Fifth Amendment in my Criminal Adjudication class. Interestingly, there is a current appeal before the Court of Special Appeals of Maryland claiming that current Deputy Attorney General Thiruvendran Vignarajah (the Deputy AG from Adnan's case) violated the Fifth Amendment (as well as the Brady doctrine and the rules regarding closing arguments) in a murder trial. Also interesting is the fact that the attorney representing the appellant is one of the law clerks who worked on the Adnan Syed case for Cristina Gutierrez.

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Assessing the Lividity Decisions Made by Dr. Korell in Hae's Autopsy Report

According to the autopsy report for Hae Min Lee,

Lividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure.

I always presumed that the Office of the Chief Medical Examiner for the State of Maryland has a template that medical examiners use for creating autopsy reports. By looking at other Maryland autopsy reports, this indeed appears to be the case. If so, we can see what decisions Dr. Margarita Korell made while writing the above entry.

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South Carolina Courts Find Failure to Contact Alibi Witness Ineffective, Despite PI Investigation

Today, I'm teaching ineffective assistance of counsel in my Criminal Adjudication class. One of the cases I will be discussing is Walker v. State, 723 S.E.2d 610 (S.C. App. 2012), which was decided by Judge John Few, the Chief Judge of the Court of Appeals of South Carolina. Judge Few teaches Advanced Evidence at the law school, and I've had lunch with him a few times. During one of those lunches, we (and another judge) discussed Serial and Undisclosed. Walker is another in a long line of cases stating the duty of a lawyer to contact a prospective alibi witness. It has particular relevance to Adnan's case

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The Problems With the State Pivoting From the 2:36 Timeline to the 3:15 Timeline

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This language comes from footnote 8 on page 26 of the State's Brief of Appellee in the Adnan Syed case. The argument seeks to strike at the heart of the "prejudice" prong of the ineffective assistance of counsel standard. Adnan's claim is that testimony by Asia McClain that she saw Adnan until 2:40 P.M. on January 13, 1999 would have created the reasonable probability of a different outcome at trial given that the State claimed that the 2:36 P.M. call on Adnan's call log was the Best Buy call Adnan made to Jay after he had killed Hae.

The State's claim, both in its brief and at the reopened PCR proceedings, was that the prosecution could have claimed at trial that Debbie saw Hae at 3:00 P.M. at school, making the 3:15 P.M. call the Best Buy call, with Adnan possibly getting a ride from Hae after Asia saw him at the library. Indeed, according to the State, neither the 2:36 nor the 3:15 "timeline was more or less consistent with the rest of the State's case." In this post, I will test that claim. 

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Another Recent Case in Which the Maryland AG's Office Claimed an Alibi Hurt a Defendant

On January 27th, the Court of Appeals of Maryland issued its opinion in Seward v. State. In the case,

Around noon on July 26, 1984, a man knocked on Phyllis Diacont’s ("Diacont") door and asked to use her phone after claiming that his car had broken down. Shortly after entering her home, the man raped, robbed, and shot Diacont. Diacont survived and later identified George Cameron Seward (“Seward”) as her attacker.

At trial,

Louise Stamathis (“Stamathis”) testified that Seward had worked at her dog grooming shop during the summer of the attack on Diacont. Because she was caring for her ill husband, however, Stamathis was unable to locate employment records and state whether Seward was at work the week of the crime.

Consequently, Seward was convicted "of first degree rape, first degree sex offense, assault with intent to murder, breaking and entering of a dwelling house, using a handgun in the commission of a felony, and robbery with a dangerous and deadly weapon." Now, he had been found actually innocent based on evidence that the Maryland Attorney General's office claimed supported his guilt. 

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A Brady Violation in Pictures

I've gotten a lot of questions about whether Adnan's attorney, Justin Brown, raised a Brady/cell tower/Exhibit 31 claim at the reopened PCR proceedings. Sometimes, a picture really does tell a thousand words. Coreworkflow, the company that did some of the defense's exhibits for the PCR hearing, has now posted them online. The 26 documents posted on the website do a great job of illustrating the misleading/incomplete nature of Exhibit 31 and how the prosecution's arguments during closing (the most important evidence pursuant to Ware) establish the prejudice caused by the cell tower evidence and testimony at trial.* They also show how the Woodlawn Public Library was part of the school campus. Here's to great (pro bono) work by Coreworkflow and a terrific job by Justin Brown.

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*The documents also indicate the importance placed on the evidence at the initial PCR hearing, while talking to Asia, and during Urick's Intercept interview.

-CM

Wrap-Up of Adnan's Reopened PCR Proceedings: Addendum

While writing my post yesterday, I realized that Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992) is not only a very helpful case for Adnan under the "unreasonable performance" prong of the ineffective assistance of counsel test. It's also exceedingly helpful under the "prejudice" prong.

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Wrap-Up of Adnan's Reopened PCR Proceedings: It's All About the Case(law)

After five days of evidence and testimony at the reopened PCR proceedings for Adnan Syed, the case now shifts from facts to law on the issue of whether Cristina Gutierrez rendered ineffective assistance of counsel by failing to contact prospective alibi witness Asia McClain. In reaching that legal conclusion, Judge Welch will be able to rely on the testimony of (1) William Kanwisher; and (2) David Irwin, with both claiming that Gutierrez was ineffective and could not have been effective without contacting Asia McClain. 

Judge Welch will not have any countervailing testimony from a State's witness. The State listed renowned attorney Billy Martin on its Notice of Potential Witnesses, indicating that he might be called as an expert witness to testify "that the performance and tactical decisions of trial counsel for [Adnan] were objectively unreasonable and not constitutionally deficient." In my Day 1 preview, I predicted that there would be no way that Martin would render such testimony given the applicable case law, and he didn't. The State decided against calling him for obvious reasons.

The most obvious reason is precedent.

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Closing Argument Preview: The Difficulty the State Faces in Arguing Against Prejudice

Today, we can expect the closing arguments in Adnan Syed's reopened PCR proceeding. Based on the testimony by Asia McClain and multiple lawyers, I think that Adnan has made a very strong showing on the "unreasonable performance" prong of the Strickland/ineffective assistance of counsel test. Accordingly, I expect the State to try to argue that Adnan has not satisfied the prejudice prong. The seeming problem that the State faces is an opinion by Maryland's highest court.

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Did FBI Special Agent Chad Fitzgerald Just Prove the Defense's Brady Claim?

It's a busy day for me today, but, having just arrived back from class, I am intrigued by the reporting regarding Justin Brown's cross-examination of FBI Special Agent Chad Fitzgerald. Last Friday, the reopened PCR proceedings came to an abrupt end after Fiztgerald told the judge that he'd discovered something:

This morning, Fitzgerald ostensibly revealed his discovery.

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Debunking the Claim That a Teammate Said Adnan Was 20 Minutes Late to Practice

Yesterday, there was a moment when I thought that I might need to reassess my opinion regarding the innocence of Adnan Syed:

Later, Jessie did indeed grab a pic of the State's exhibit, and it turns out that the exhibit does not support the State's argument at all.

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Thoughts on the 2nd Day of Adnan's Reopened PCR

Last night, we had another special minisode of the Undisclosed Podcast based on the second day of the reopened postconviction review proceedings in the Adnan Syed case. In this post, I will expand upon some of the topics I covered in the minisode. First, however, I will touch upon the key cell tower testimony by Gerald R. Grant, Jr.

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