EvidenceProf Blog

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

Friday, February 12, 2016

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.


*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.



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TV claimed that Adnan's lawyers did not initially know Jay was cooperating, and that Asia's letter contains information from the search warrant. Do you have these docs so we can confirm that?

Posted by: Seamus_Duncan | Feb 12, 2016 12:57:05 PM

This is excellent, Colin! Thank you!

Posted by: Stella Hawkins | Feb 12, 2016 1:11:20 PM

Seamus: Susan already posted the search warrant affidavit:


I have no idea what Thiru was referencing regarding not knowing about Jay cooperating. There are notes from 3/1 referencing the police telling Adnan about Jay cooperating that are consistent with what Adnan told SK on Serial. We referenced these on Episode 7 of Undisclosed. This is where there is the note about the police asking Adnan, "Why would you trust a black guy who puts pins through his mouth?"

Stella: Thanks.

Posted by: Colin Miller | Feb 12, 2016 1:22:39 PM

That's the only page related to a search warrant? There appear to be several more redacted in the MPIA file.

Posted by: Seamus_Duncan | Feb 12, 2016 1:50:37 PM

The odd thing is that Thiru also seemed to cite a warrant affidavit that isn't in the MPIA disclosures and that reveals yet another version of Jay's story. Once the PCR video is produced, it will be interesting to see whether Thiru was indeed referencing an additional affidavit.

Posted by: Colin Miller | Feb 12, 2016 1:54:05 PM

Hi Colin, thanks for all your hard work! I was wondering about your opinion of Judge Welch. Do you think it's a help to the defense that he came out of retirement for this? Or would it have been better for the defense to have "fresh" eyes on this stuff?

Posted by: CeeJay | Feb 12, 2016 1:59:39 PM

Hi Colin,

Thanks again for your thoughtful analysis and entertaining all our questions. I commented the other day, but it was after the cutoff comment.

Some questions:
1. While I know the defense is looking at a new trial, hypothetically would he be impacted at all by the recent Supreme Court decision for cruel and unusual punishment for minors? I thought I remembered he was 17 when arrested/indicted.

2. Did the judge permit wide latitude to Justin Brown's questioning of witnesses? Susan's passionate commentary in the minipodcasts indicated he was overruling some understandable objections to the oral testimony to the benefit of the State. I was wondering if it was a strategy by the judge to have everything answered/on the record for potential appeal. Since it's a judicial hearing and not a jury trial, even though it's on the record may not mean he'll put as much stock in the "objectionable" testimony in his decision.

3. One thing that caught me in the press reports (I'm local to Balt) was the FBI (Fitzgerald?) expert accusing the defense of doctoring the exhibit. Is there proof (trial exhibit) or something that proves what the defense was showing FBI expert was what was provided by the State--or ATT? I understand it's what you and presumably the defense have been working from that seems to bolster the defense claim that the prosecution played fast and loose with cell info (Brady claim/bad faith), but it may be a weakness in the defense's case if it's not "proven" that it's what the defense was given and not something CG or someone in the office may have done something to for whatever reason. (I'm not suggesting anything nefarious, just a concern on burden of proof issues).

Posted by: Aurora | Feb 12, 2016 4:11:54 PM

Hi Colin,

I'm from South Australia. Over here, we have case law which stands for the proposition that a Judge can draw an adverse inference from one party in a matter *not* calling a witness, (the inference being, the witness would not help their case). Does the US (and in particular Maryland I suppose) have similar precedent and if so, will the Judge in Adnan's case be entitled to draw such an inference from the State's decision not to call Kevin Urick?

Thx :)

Posted by: Kaetrin | Feb 12, 2016 11:18:06 PM

What amazing information design by that company. Showing exhibit 31 against what the original document should have looked like and in addition why it's inaccurate anyway. The picture highlighting the high school and library is powerful!

Posted by: Megan Pawlak | Feb 13, 2016 5:38:40 AM

CeeJay: If we’re talking strictly about fairness, he was the best choice. He was the one who saw Urick and others testify at the first PCR hearing; anyone else would be relying solely on a transcript.

Aurora: 1. That only covers life without parole. Adnan technically could be paroled. 2. I can’t really say without being there. 3. The document that Justin showed Fitzgerald was taken directly from the defense files.

Kaetrin: Interesting rule. No, there’s nothing like that in Maryland.

Megan: Indeed.

Posted by: Colin Miller | Feb 14, 2016 3:45:38 AM

I realize this excerpt from The New York Times is not precisely on this subject, but perhaps worthy of thought:
Justice Scalia was also dismissive of unhelpful Supreme Court opinions. Concurring in a 2010 privacy decision that gave lower courts only vague guidance, he wrote: “The court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) — or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions — is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Posted by: Richard Garrett | Feb 14, 2016 7:11:34 AM

Re: This is where there is the note about the police asking Adnan, "Why would you trust a black guy who puts pins through his mouth?"

Colin - Do you have docs so that we can confirm the cops were talking about Jay? Do you have any docs to prove that Jay is, in fact, "black" and had pins through his mouth in Feb/March of 1999?

Posted by: Dan | Feb 15, 2016 10:48:24 AM

@Colin - in case you're interested, there's some discussion of it here: http://thebluebag.com.au/2012/11/08/the-rule-injones-v-dunkel/

Posted by: Kaetrin | Feb 16, 2016 10:19:45 PM

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