EvidenceProf Blog

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

Tuesday, May 31, 2016

Bill Modernizing Ohio Domestic Violence Laws to Cover Dating Violence Passes House

According to an article on wkyc.com, last week, the

Ohio House of Representatives... passed HB 392, legislation to modernize Ohio’s domestic violence laws, according to a press release from State Rep. Emilia Strong Sykes. House Bill 392 passed the House with bipartisan support with a vote of 89-0. The bill now goes to the Senate for further consideration.

The bill would allow "victims of domestic violence at the hands of an intimate partner to obtain civil protective orders against their attacker." Currently, a domestic violence victim in a dating relationship cannot obtain such a protective order under Ohio law.

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May 31, 2016 | Permalink | Comments (1)

Monday, May 30, 2016

Seventh Circuit Finds Defense Counsel Unreasonably Failed to Contact Additional Alibi Witness in Murder Case

My initial prediction was that Judge Welch would issue his opinion in the Adnan Syed case between June and August. With two days left in May, that would mean we are about to enter the three month period when I would expect his ruling. I've already written about the nine cases used by the defense to establish that Cristina Gutierrez was ineffective in failing to contact prospective alibi witness Asia McClain. Just last week, though, the Seventh Circuit issued an opinion that Judge Welch might also find useful. That opinion is Blackmon v. Williams, 2016 WL 3007212 (7th Cir. 2016).*

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May 30, 2016 | Permalink | Comments (17)

Friday, May 27, 2016

Florida Court Grants Qualified Immunity to Officers Who Tackled Suspect Holding Knives "Kind of Like Wolverine"

Today marks the release of "X-Men: Apocalypse." If you were to expect one X-Man to show up in a judicial opinion, which one would it be? If your answer was this guy


you'd be correct, at least in Prevatt v. City of Gainesville, Florida, 2016 WL 154107 (N.D.Fla. 2016).

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May 27, 2016 | Permalink | Comments (1)

Thursday, May 26, 2016

Supreme Court of Washington Find Prosecutor Improperly Used Music on Defendant's Phone to Prove Gang Affiliation

In State v. DeLeon,

Ignacio Cardenas was outside his home in Sunnyside with his cousin and a friend around 11:00 p.m. waiting for another friend, Jose Barajas. They saw a silver Ford Taurus drove by. Thinking that the car belonged to a friend, Cardenas's cousin flashed a sign associated with their gang at the car. The car did not belong to a friend, and after driving by, it made a U-turn and drove by the house again. Several shots were then fired from the car, hitting Cardenas. He survived, but lost one of his kidneys.

Anthony DeLeon, his brother Ricardo DeLeon, and their friend Octavio Robledo were eventually charged in connection with the shooting, with the State's theory of the case being that the shooting was gang related. One of the pieces of evidence that the prosecution used to prove gang involvement was the music stored on Anthony's phone. And that's part of the reason why the three men will be getting a new trial. 

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May 26, 2016 | Permalink | Comments (2)

Wednesday, May 25, 2016

10th Circuit Reverses Child Sexual Abuse Conviction Based on Brady Violation

Pursuant to the Supreme Court's opinion in Brady v. Maryland, the prosecution violates the Due Process Clause by failing to timely disclose material exculpatory evidence to the defense. But what happens if a sexual assault nurse examiner (SANE) misrepresents her credentials at trial, with correction by the unknowing prosecutor? Is that SANE nurse part of the prosecution team, meaning that there is a Brady violation. According to the recent opinion of the Tenth Circuit in McCormick v. Parker, 2016 WL 1743388 (10th Cir. 2016), the answer is "yes." 

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May 25, 2016 | Permalink | Comments (2)

Tuesday, May 24, 2016

My New Podster Article, "The Debbie Dilemma"

Today, Podster Magazine released its May 2016 issue. My article, "The Debbie Dilemma," appears on pages 46-47 (or 49/57). It deals with the police statements and testimony of Debbie Warren at Adnan's two trials.


May 24, 2016 | Permalink | Comments (24)

Monday, May 23, 2016

What Types of Attorney Behavior are Per Se Ineffective Assistance of Counsel?

Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant establishes a claim of ineffective assistance of counsel by proving (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice,i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." I've gotten a lot of questions about whether there are types of attorney conduct that per se constitute unreasonable performance under Strickland's first prong. The answer is a definite "yes."

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May 23, 2016 | Permalink | Comments (29)

Friday, May 20, 2016

Will Missouri Adopt the Daubert Test for Expert Evidence?

Missouri is currently one of a minority of states that still applies the Frye test for determining the admissibility of expert evidence. This Frye test uses a single criterion: Does the technique or technology used by the expert have general acceptance in the relevant expert community? By way of contrast, a majority of states have adopted the Daubert test used in federal court. Under Daubert, judges serve as gatekeepers and determine the reliability/admissibility of expert evidence by looking at factors such as

(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

Will Missouri soon join the ranks of the states applying the Daubert test?

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May 20, 2016 | Permalink | Comments (0)

Wednesday, May 18, 2016

WVU Law Professor Valena Beety Secures New Trial For Stepfather Convicted in Shaken Baby Syndrome Case

According to an article in the Charleston Gazette-Mail

After serving 11 years of the 40-year prison sentence he was handed in 2005, a Hampshire County judge threw out [Jeremiah] Mongold’s conviction in connection with the death of his 2-year-old stepdaughter

This ruling came after Hampshire Circuit Judge Charles Parsons

found that Mongold’s trial counsel, Romney attorney Larry Sherman, was “extremely lax in his investigation” and committed “grievous error” on matters related to the pertinent evidence in the case. 

Parsons ruled that “by any objective standard of reasonableness trial counsel performance was substantially deficient” and “that there is a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different.”

As with Cristina Gutierrez in the Adnan Syed case, this deficient performance was not limited to one case. Instead,  

Sherman has had 45 complaints filed against him with the West Virginia Office of Disciplinary Counsel, which oversees lawyers in the state, and...11 of those complaints were filed during the time he was representing Mongold

The West Virginia College of Law Innocence Project attorneys for Mongold are law professor Valena Beety, adjunct faculty member Melissa Giggenbach, and 2016 West Virginia  graduates Jenny Thoma and Lia Deane. Long-time readers might recall that I did a review of Beety's terrific essay, The Case of Trayvon Martin and the Need for Eyewitness Identification Reform, in a post back in 2012.

Mongold's case, however, does not involve eyewitness identification. Instead, it involves shaken baby syndrome, a diagnosis that is increasingly being called into question.

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May 18, 2016 | Permalink | Comments (0)

Tuesday, May 17, 2016

Wrongfully Imprisoned Man Released After 18 Years Based on Innocence Project/Conviction Integrity Unity Collaboration

According to an article in the Dallas Morning News,

A man who spent the last 18 years in a Texas prison will walk away a free man today, after a Tarrant County judge acknowledged this morning that he shouldn’t have been convicted of killing a Bedford woman.

“I feel blessed; thank you,” John Nolley, now 42, told reporters waiting outside Judge Louis Sturns’ courtroom before hugging his mother for the first time since he was convicted of murder in May 1998.

This result was a result of a collaboration among the Tarrant County's Conviction Integrity Unit, the Innocence Project and Fort Worth attorney Reagan Wynn.

The collaboration netted new evidence using new forensic technology revealing that Nolley was not the source of a bloody palm print found on a piece of paper recovered on the victim’s body. The CIU also discovered and turned over numerous pieces of previously undisclosed evidence significantly discrediting the testimony of two informants (both of whom were facing criminal charges during the original murder investigation) who had claimed to have critical evidence supporting the state’s case at trial.  The case is the first conviction that the newly formed Conviction Integrity Unit has recommended be reversed.

Importantly, it appears as if this case will also lead to systematic changes regarding how Tarrant County handles jailhouse informants.

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May 17, 2016 | Permalink | Comments (1)

Sunday, May 15, 2016

PA Court Finds IAC in Murder Case Based on Defense Counsel Failing to Contact Alibi Witness He Didn't Trust

A few days ago, the Philadelphia Inquirer published the story, "Free after 10 years in prison, former lifer still feels trapped." The article is about the release of Edward Stewart after he served 10 years for a murder he did not commit. Why was he wrongfully convicted? His trial counsel decided that Stewart's fiancee was not credible and would have hurt his alibi. Importantly, he reached these conclusions without ever interviewing the fiancee as a potential alibi witness. And that's why his conviction was thrown out.

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May 15, 2016 | Permalink | Comments (19)

Friday, May 13, 2016

The New Show Conviction & Conviction Integrity Units

Yesterday, ABC ordered the TV show "Conviction" to series. According to "The Hollywood Reporter,"

Conviction tells the story of Carter Morrison ([Hayley] Atwell), the brilliant but ne'er-do-well daughter of a former president, who is blackmailed into taking a job as the head of Los Angeles' newly created Conviction Integrity Unit. She, along with her team of lawyers, investigators and forensic experts, work together to examine cases where there's credible suspicion that the wrong person may have been convicted of a crime. Eddie Cahill, Shawn Ashmore and Emily Kinney co-star.


The show was co-created by Liz Friedlander, a veteran tv and music video director, and Liz Friedman ("Jessica Jones;" "House"), and my hope is that it will fill the void created by the end of "The Good Wife." Interestingly, before producing "The Good Wife," Michelle and Robert King created "In Justice," with Kyle MacLachlan as the head of the National Justice Project, which "undoubtedly had as its model the Innocence Project or Northwestern University's Center on Wrongful Convictions."

A Conviction Integrity Unit, however, is a different ball of wax from the Innocence Project, as is made clear from this description of Kinney's character:

Kinney will play Tess Thompson, the CIU’s bright-but-naive paralegal who hides an underlying dark sadness. A former employee of the Innocence Project, Tess is a true believer in the cause of wrongful convictions and thinks she can make a bigger impact working more cases from inside the system

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May 13, 2016 | Permalink | Comments (1)

Thursday, May 12, 2016

Detective Ritz and the Wrongful Conviction of Malcolm Bryant

Yesterday, Malcolm Jabbar Bryant was released from prison after serving seventeen years of a life sentence for the murder of 16 year-old Toni Bullock in Baltimore City. The lead detective on the case was William Ritz, one of the lead detectives on Adnan's case. There was one* eyewitness to the murder: Tyeisha Powell. Based on the description that Powell gave of the perpetrator, the Baltimore Police created a composite sketch, which Ritz posted, along with the enticement of a Metro Crimestoppers reward, for information leading to an arrest/indictment:

Screen Shot 2016-05-12 at 10.47.34 AM


Ritz began getting calls after the distribution of the composite....The police then began “accumulating names and eliminating those individuals as suspects.”...Ultimately, a photographic array was prepared and on December 1, 1998, Powell identified [Bryant]'s photograph.

So, where did things go wrong, and how were they eventually set right(ish)?

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May 12, 2016 | Permalink | Comments (17)

Wednesday, May 11, 2016

Motion to Reopen: Musings on "The Good Wife" Finale

The final episode of "The Good Wife" aired on Sunday night. I rank the show as the best legal TV series of all time, with the Michelle and Robert King production getting a slight nod over various iterations of the "Law & Order" franchise. As with "Buffy the Vampire Slayer," the show might have ended stronger after five seasons and a climactic death (Buffy/Will Gardner). But, in both cases, there was a lot to like about their sixth and seventh season denouements (e.g., "Once More, with Feeling;" bond court).

Good Wife

Continuing this theme, Sunday night's finale was almost a coda, with Alicia scrambling to find precedent to reopen her husband's corruption trial and receiving counsel from her deceased former colleague.

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May 11, 2016 | Permalink | Comments (4)

Tuesday, May 10, 2016

NJ Court Remands Murder/IAC Case So Alibi Witness Who Didn't Testify at 1st PCR Hearing Can Testify

In State v. Jackson, 2016 WL 2350517 (N.J.App. 2016), Amir Wilkins was fatally shot near the intersection of 18th Avenue and Alexander Street in Newark, New Jersey on March 8, 2004 between about 10:20 and 10:35 P.M. Terrell Jackson was charged with his murder and convicted despite testifying that he was at his friend Yakiemah Burks's sister's apartment at the time of the shooting. Thereafter,

In March 2011, defendant filed a PCR petition alleging he was denied the effective assistance of counsel because his trial counsel failed...to subpoena Burks as an alibi witness. In support of his petition, defendant submitted a November 1, 2011 affidavit from Burks in which she asserted the following: on March 8, 2004, defendant was with her from 6:00 p.m. to "approximately 10:30 p.m. and 11:00 p.m."; in June 2006, following defendant's trial but before he was sentenced, she wrote a letter to the court advising that she had just learned about the charges against defendant and knew that he did not commit the crimes resulting in Wilkins's death; defendant was with her at the time Wilkins was shot; she had been willing to testify at defendant's trial; and she was never contacted or subpoenaed by defendant's counsel.

Burks, however, did not appear at the initial PCR hearing.

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May 10, 2016 | Permalink | Comments (0)

Monday, May 9, 2016

Court of Appeals of Kentucky Finds Alford Plea Admissible in Insurance Dispute

A few weeks ago, I did a post about the Supreme Court of Minnesota finding that an Alford Plea was inadmissible in a subsequent civil trial. In its recent opinion in Eberle v. Nationwide Mutual Insurance Co., 2016 WL 2609311 (Ky.App. 2016), the Court of Appeals of Kentucky reached the opposite conclusion.

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May 9, 2016 | Permalink | Comments (0)

Friday, May 6, 2016

Tennessee Case Reveals Recent Changes to Volunteer State's Dying Declaration Exception

The opinion of the Court of Criminal Appeals of Tennessee in State v. Crockett, 2016 WL 769890 (Tenn.Crim.App. 2016), contains a pretty straightforward application of the dying declaration exception to the rule against hearsay. The case, however, also noted two important recent additions to the exception and one remaining question.

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May 6, 2016 | Permalink | Comments (1)

Wednesday, May 4, 2016

Court of Appeals of Maryland Throws Out Sexual Abuse Convictions Based on Failure to Satisfy Corpus Delicti Rule

The Latin term “corpus delicti” translates into the “body of the crime” and refers to “[t]he fact of a transgression; ACTUS REUS.”... The corpus delicti for the crime of sexual abuse of a minor, pursuant to § 3-602 of the Criminal Law Article, is evidence of sexual molestation or exploitation of a minor. The “corpus delicti rule” is a “doctrine that in order to secure a conviction, the prosecution must establish the corpus delicti with corroborating evidence. [] The doctrine prohibits the prosecution from proving the corpus delicti based solely on a defendant’s extrajudicial statements.”

This quote comes from today's opinion by the Court of Appeals of Maryland in Grimm v. State. Because the State failed to satisfy the corpus delicti rule, the Court reversed Grimm's conviction. Do you agree?

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May 4, 2016 | Permalink | Comments (11)

Monday, May 2, 2016

Colorado Court Finds Prosecutor Erred By Speaking to Jury in 1st Person As If He Were Victim During Opening

For a substantial part of his opening statement, the prosecutor assumed the identity of the victim. He began by saying, “My name is [the victim]. I was 55 years old when I was ambushed, murdered and set up by Traci Adams and Mark Manyik, the Defendant.”

The prosecutor then described the victim's relationship with Adams, the end of the relationship, and the events leading up to the shooting, all in the voice of the victim. Regarding the shooting, he said, “I see Mark raise a shotgun, this 12–gauge shotgun. I look at Mark. I'm scared. I say to him, ‘Mark, please don't shoot.’ I didn't stop him. He fired one single 12–gauge round directly into my belly. I fall backwards....”

The prosecutor went on to narrate, as the victim, Manyik's and Adams' actions after the shooting, including speaking with the 911 operator and taking the victim's cell phone. In the same way, the prosecutor described the police arriving and the victim's death:

I can hear sirens arriving.... I'm still barely alive, but not really conscious.... [The] [d]eputy eventually comes up to my near lifeless body.... He calls Flight for Life.... A few minutes later the helicopter lands and the medical staff and the police get me into the helicopter, take me to the hospital. Somewhere between that flight from the Manyik residence to the hospital I die.

The prosecutor then switched to his own voice and point of view, which he used for the remainder of his opening. At no point did Manyik object to the opening statement.

This language comes from the recent opinion of the Colorado Court of Appeals in People v. Manyik, 2016 WL 1165332 (Colo.App. 2016). So, were the prosecutor's actions objectionable? And should the defendant have been given a new trial even in the absence of an objection?  

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May 2, 2016 | Permalink | Comments (8)