EvidenceProf Blog

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

Wednesday, March 23, 2016

Attorney From Maryland AG's Office Tries to Claim Suppressed Statements in Richard Nicolas Case Weren't Favorable

I've written before about the Richard Nicolas case. It's the case in which the State claimed that Richard Nicolas (1) drove his daughter Aja to the mall and got his picture taken with her at a photo booth at 7:00 P.M.; (2) bought tickets to the movie "Pinocchio;" (3) returned to his car with Aja and fatally shot her at about 7:45 P.M.; (4) went to the movie by himself to fabricate an alibi; and then (5) created a story about a road-raged driver fatally shooting Aja at about 10:00 P.M. 

It wasn't until years later that the defense learned that (1) witnesses at a hotel close to the site where Nicolas claimed the shooting occurred told detectives, including Detective Massey,* that they had heard a loud sound/gunshot at about 10:00 P.M.; and (2) the prosecutor had sent the medical examiner a letter after trial indicating that the lividity evidence was the whole case and that he had learned from an "unimpeachable source" that defense counsel -- Cristina Gutierrez -- did not spot the significance of the lividity evidence.

That lividity evidence consisted of 

the expert testimony of Dr. Dennis Chute, the Medical Examiner, who testified that the lividity (or pooling of blood) in [the daughter]'s left side and back indicated a time of death two hours earlier than Petitioner claimed.

I've already addressed why Dr. Chute's testimony seemingly contradicts the timeline given by both the defense and the State, and Gutierrez's failure to challenge that evidence wasn't really the issue when the Fourth Circuit heard oral arguments in the case yesterday. Instead, the question was whether the State committed a Brady violation by failing to disclose the witness statements given to Detective Massey and others.

In order to establish a Brady violation, the defense must prove that the State failed to disclose material exculpatory evidence, i.e., evidence that was favorable to the defense and would have created the reasonable probability of a different outcome at trial. When a defendant makes a Brady claim, we can assume that the evidence at issue is favorable, and the only question was whether it was also  material.

And yet, Edward Kelley, from the Maryland Attorney General's Office, tried to claim that the suppressed statements by the hotel guests were not favorable to the defense and were in fact favorable to the State. This prompted an interesting response from Judge Diana Motz, who has the following professional profile:

-attorney at Piper & Marbury in Baltimore from 1968-1971;

-Maryland assistant state attorney general from 1972-1986;

-attorney in private practice in Baltimore from 1986-1991;

-Associate Judge, Court of Special Appeals of Maryland from 1991-1994;

-Judge on the United States Court of Appeals for the Fourth Circuit from 1994-today.

That response starts at 3:13:

Can you tell me the case that you'd rely on...that's talks about...that comes out and...find that there's no Brady violation because the evidence was not favorable. I mean, I just, [laughs] before this case, I have never seen the State assert that particular claim. It's always been about materiality.

Interestingly enough, a similar argument was made just about a month ago, and it was made by an attorney in the same Attorney General's office that employs Kelley and used to employ Judge Motz for a decade and a half. In the reopened PCR proceedings in the Adnan Syed case, Deputy Attorney General Thiru Vignarajah tried to claim that testimony by alibi witness Asia McClain would have been favorable to the State not the defense:

Screen Shot 2016-03-23 at 3.32.47 PM

But that's not all. As I reported about a month ago, there was another recent case in which an attorney from the Maryland Attorney General's office (Mary Ann Ince) tried to make the same argument in another alibi case. That case ended with the defendant's petition for a writ of actual innocence being granted. Meanwhile, if you continue listening to the oral arguments in Nicolas, you will see that Judge Motz basically gets Kelley to admit that the case is about materiality, not favorability.

Now, was the suppressed evidence in Nicolas material? It's tough to say. In the oral arguments, there is reference to the witness statements, maps, and other documents that are not publicly available. As a result, it's impossible to say what outcome the Fourth Circuit will reach, but we know that the district court has already said that there was a Brady violation requiring a new trial.


*The detective who claimed he received the anonymous calls in the Adnan Syed case and who was able to evade the defense's attempts to get him to testify at trial.



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Interesting post thanks Colin. I still can't believe Massey got out of testifying in the HML case, maybe he will have to in future?

Posted by: Jennie | Mar 23, 2016 2:38:28 PM

Let's just hope that Judge Welch is as on the ball as Judge Motz.

Posted by: FarFarAway | Mar 23, 2016 4:54:28 PM

Seems like CG didn't realize how much she didn't know.

Posted by: margee | Mar 24, 2016 5:35:49 AM

But, wait. I'm confused. How could the state even try to say witnesses corroborating the defendant's version of events, and contradicting the state's, be considered in any way favourable to the state's case?

(I suppose in the same way Asia claiming to have seen Adnan in the library at the time the state claimed he was killing her in a Best Buy parking lot is favorable to the state. ?)

Is this real life?

Posted by: A nonny nonny | Mar 24, 2016 6:27:42 AM

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