Wednesday, October 25, 2017
A reader/listener e-mailed me recently to ask about the implications of various permutations of Debbie's police statements/testimony in the Adnan Syed case. You might recall that Debbie gave three police statements and testified at both of Adnan's trials:
Police Statement to Detective O'Shea: On January 28, 1999, Debbie said that she saw Hae at school at approximately 3:00 P.M. on January 13th and that "Hae told Debbie she was going to see Donald at the mall."
Police Statement to Detectives MacGillivary and O'Shea: On March 2, 1999, Debbie went to the police station for a recorded interview. The State has only been able to locate the cover sheet for this interview.
Police Statement to Detectives Ritz and MacGillivary: On March 26, 1999, Debbie said that
(1) she saw Adnan outside the guidance counselor's office at about 2:45 P.M. on January 13th; Adnan had his "track stuff with him, his gym bag," and they talked about school and Adnan "going to practice;"
(2) she saw Hae and their classmate "Takera" between 2:45 and 3:15 P.M., with "Takera" (and no one else that Debbie can remember) asking Hae for a ride and Hae responding that "she couldn't because she had to pick up her cousins after school, and she had to meet them about 3 O'CLOCK, so she didn't have time;"
Trial #1 Testimony: At Adnan's first trial, Debbie testified on December 13, 1999 that she remembered telling the detectives that she saw Adnan outside the guidance counselor's office on January 13th. She was not asked about seeing Hae after school on January 13th.
Trial #2 Testimony: At Adnan's second trial, Debbie testified on February 16-17, 2000 that she saw Hae at about 3:00 P.M. on January 13th, with Hae telling her that she was going to see Don at the mall. Debbie was not asked about "Takera" and testified that she did not recall telling detectives that she saw Adnan outside the guidance counselor's office on January 13th.
The reader/listener's question was about the implications of various permutations of these statements. So, let's look at the four likeliest permutations and their implications.
Wednesday, October 18, 2017
A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.
It seems fairly easy to determine when a statement is made during the course of a conspiracy, but when is such a statement made in furtherance of a conspiracy? That was the question addressed by the Supreme Court of Georgia in its recent opinion in State v. Wilkins, 2017 WL 4341400 (Ga. 2017).
Wednesday, October 11, 2017
Two defendants -- Lawrence L. Bruce and Justin McKinley -- are jointly tried in connection with "their alleged involvement in and benefit from the activities of a prostitute, the complaining witness (CW). In response to the prosecutor's comment during rebuttal closing
that CW was “somebody's daughter, she's somebody's friend, she's a mother, she's a woman, she is a person,” McKinley objected on grounds that “this is a little bit far beyond arguing the evidence.” Bruce did not join McKinley's objection, nor did he raise one of his own. McKinley's objection was overruled.
Has Bruce reserved the issue for appellate review? This was the question of first impression that the Supreme Court of Hawai'i addressed in its recent opinion in State v. Bruce, 2017 WL 4480038 (Hawai'l 2017).
Friday, October 6, 2017
We finally got Judge Culbertson's order in the Jamar Huggins case, and Judge Culbertson has denied him Jamar's motion for a new trial (Download Huggins Order). This was not unexpected based upon oral arguments. The question was whether Deaungela Montgomery's post-trial statement identifying someone else as the true perpetrator of the home invasion was "new evidence," and Judge Culbertson seemed pretty skeptical of this claim. And now, in his order, Judge Culbertson clearly concludes that this information could have been obtained before trial or during trial with due diligence.
That's bad for the motion for a new trial, but it seems to strongly support a claim of ineffective assistance of trial counsel. But, before we get to that appeal, there will be an appeal of the Judge Culbertson's order. So, it could take a while, but I'm still confident that justice will ultimately be served.
Maybe the biggest current legal question in the Adnan Syed case is the question of whether Adnan has waived his claim that trial counsel was ineffective based upon her failure to use the AT&T disclaimer to cross-examine the State's cell tower expert. In his opinion granting Adnan a new trial on this ground, Judge Welch found that (1) claims of ineffective assistance of counsel require knowing and intelligent waiver pursuant to Curtis v. State; and (2) Adnan had not knowingly and intelligently waived his cell tower claim. Thereafter, in its appeal to the Court of Special Appeals of Maryland, the State claimed that (1) the "knowing and intelligent" waiver standard from Curtis has not been applied in another ineffective assistance of counsel case in the thirty-nine years since it was decided; and (2) Maryland courts should accordingly no longer apply this standard to ineffective assistance claims.
This takes us to the recent opinion of the Court of Special Appeals of Maryland in Thomas v. State, 2017 WL 4073754 (Md.App. 2016).
Thursday, October 5, 2017
"Facilitated communication is defined as follows: a method of helping an individual produce typewritten material on a keyboard or communication device with the intention of compensating for difficulties in motor control."...“The technique was developed by Rosemary Crossley in Australia in the 1970's and introduced to the United States by Dr. Douglas Biklin in 1989."...When facilitated communication is initially being used, the communicator typically is supported above or below the wrist by the facilitator....The goal is for the facilitator, over time, to move the support further back on the arm or shoulder so that there is less direct contact until there is no contact....That technique is known as "fading."...The facilitator applies backward pressure and centers the communicator after each letter is typed to prevent the communicator from repeatedly striking the same key, one of the manifestations of behavior also known as perseveration....Because facilitated communication is a joint activity, however, there is potential for what is known as "cuing," where the facilitator may knowingly or unknowingly anticipate or in another way assist the communicator in selecting certain letters.
Given the above, should testimony obtained by facilitated communication be admissible? That is the issue of first impression addressed by the Court of Appeals of Indiana in its recent opinion in Hope Source v. B.T. by Troutman, 2017 WL 4159715 (Ind.App. 2017).