EvidenceProf Blog

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

Wednesday, December 6, 2017

Thiru Vignarajah & the New Trials & Tossed 100+ Year Prison Terms For 2 Man Convicted of Killing a Prospective Witness

I hadn't noticed this Baltimore Sun article until seeing this tweet. The title of the article is provocative: "2 men sentenced to more than 100 years in killing of witness to receive new trial." Specifically, according to the article,

Derius Duncan, 27, and Clifford Butler, 25, were both convicted of first-degree murder of Ronald Givens* in 2015. But in an opinion issued on Feb. 2, the appeals court wrote that they should receive new trials because information was unfairly used against them from a proffer agreement Butler had made during the investigation.

So, what happened?

According to the article,

During the investigation, Butler spoke to the state during a proffer session and gave information that was later determined to be false, prosecutors said.

By lying, the state argued, he had voided the terms of the agreement and prosecutors could use any statements he made during the session against him.

But Butler's attorney argued that he had been given a "fresh start" at a second proffer session in exchange for useful information and that any lies he had told during the first session would be forgiven.

A circuit judge ruled in the prosecution's favor, finding that Butler had breached the proffer agreement by lying during the first session.

The Court of Special Appeals disagreed. It found that "a reasonable person in Butler's circumstances" would have thought that re-signing the proffer agreement, and speaking truthfully during the second session, would override any lies he might have told during the first.

Here is the opinion of the Court of Special Appeals of Maryland in the case, reaching the conclusion summarized in the article. So, how did the court reach the conclusion that a reasonable person in Butler's circumstances would have felt that he was being given a fresh start? Here are the relevant portions of Butler's appellate brief:

After Mr. Butler's arrest but prior to trial, he and his attorney, Jerry Tarud, contacted the State's Attorney's Office in Baltimore County and asked to meet with them. A meeting was orchestrated for December 1, 2011 between Mr. Tarud, Mr. Butler, Assistant State's Attorney Thiru Vignarajah, (who was the prosecutor in Mr. Butler's case), Detective Don Anderson and other prosecutors. Prior to any discussion, Mr. Butler was asked to, and did, sign a “Proffer Agreement.” (App. 1). According to the terms of the agreement, “no statements made or other information provided by [Mr. Butler]…during the proffer will be used against [him] in any criminal case,” except under two conditions. The statements made by Mr. Butler could be used by the state to pursue investigative leads or...[i]f the state should ever conclude that you have knowingly withheld material information from the state or otherwise have not been completely truthful and candid with the state

 Thereafter, it appears that Mr. Butler was not completely truthful. But then,

the December 1, 2011 proffer agreement was orally modified when, on December 5, 2011, he was told by Detective Anderson, without objection by Thiru Vignarajah, the prosecutor in Mr. Butler's case who was also present, that the parties were going to “start over”, (T1-43), that Mr. Butler was being given “an opportunity to start from the beginning”, (T1-43), and that “if he continues to lie…the proffer will be used against him.” (T1-44). This last statement is significant because any reasonable person, in light of the other statements, would interpret it to mean that if the truth is told, it would not be used against him (emphases in original). 

At trial, the State claimed that Butler breached the December 5th proffer agreement, meaning that his incriminatory statements were admissible against him. The defense countered that Detective Anderson explicitly told Butler, without objection by Vignarajah, that he was being given "an opportunity to start from the beginning. While the trial court somehow sided with the State, the Court of Special Appeals disagreed, finding that the State improperly admitted Butler's statements based upon the statements that Butler made with Vignarajah present.

And so, the murder convictions and 100+ year sentences for Duncan and Butler were thrown out.


*Givens had allegedly witnessed Baltimore police arrest Duncan on drug and gun charges


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Am I the only one who saw this headline and thought "Thiru Vignarajah & the New Trials" sounded like the name of a band?

Posted by: Anonymous | Dec 6, 2017 12:42:47 PM

What exactly is the purpose of this blog, Colin? To talk about relevant developments in the law and the cases on which you work, or to fuel Rabia Chaudry's sophomoric vendetta against every cop and prosecutor who worked on her poor friend Adnan's case? If this Court of Special Appeals opinion did not involve the appellate prosecutor from the Syed case, would you have thought it worthy of commentary?

Posted by: Sam | Dec 6, 2017 2:12:06 PM

Sam: On the blog, I do a combination of posts about evidentiary issues, criminal justice issues, and the cases we cover on the podcast. For example, on the current front page of the blog, I have posts on evidentiary issues, a series of posts on the criminal justice issues in the Cyntoia Brown case, and posts on the Jamar Huggins and Adnan Syed case. Thiru Vignarajah is the current attorney representing the State in the Adnan Syed appeal, so I did this most recent post about convictions in a case he prosecuted being overturned. This is information that I think readers/listeners will find interesting given the issues that many have had with how he has handled the appeal in Adnan’s case.

Posted by: Colin Miller | Dec 6, 2017 4:44:51 PM

Those of us who follow Colin's writings and the work of the Undisclosed podcast team are very interested in the cases covered in the blog, as well as similar cases and decisions. If you do not appreciate Colin's blog and all he covers, you can simply unsubscribe or not read specific posts. It is clear from Sam's tone that he/she is of the mindset "Adnan is guilty". Colin was blogging well before he became involved in Adnan's case. He doesn't need to fuel anything, instead he provides clarity to those of us who are intersted. Thank you Colin!

Posted by: Peggy Oakes | Dec 7, 2017 6:06:28 AM

I agree with Peggy: I was very interested in the subject of this post. Sam sounds like someone who shouldn’t spend so much time finding reasons to be angry because “people on the internet.... are WRONG! Must. Do. Something. If. Only. I. Was. Clever...”

I knew a Seamus back in the day with the exact same issue.

Posted by: Paul | Dec 7, 2017 2:06:48 PM

Sam: If you slide over to Mr. Miller's twitter account, pegged as the first item is an announcement that he's finished an early draft of a paper to be submitted (I suppose) to a law review with the working title: "Plea Agreements as Constitutional Contracts." Mr. Miller then (courageously in my opinion) invites comments on this draft (which, I confess, I have not read). What is the subject of of this blog post?: Issues arising from plea bargains, especially in the context of appeals processes. This is where "Evidence Profs" live, Sam.

To the point of your ad hominem attacks on Rabia (her "sophomoric vendetta against every cop and prosecutor who worked on her poor friend Adnan's case" well you really gotta provide examples ... evidence. I haven't seen her make any unearned attack on any (much less all) of the persons involved in Adnan's prosecution during this time period. Certainly not Thiru, who stands accused mainly of vindictively pursuing a very weak case for no apparent reason. He seems accused of incompetence more than any illegality or unethical behavior. Others may disagree, but you will not convince others her of your viewpont by a snide tone touting distracting innuendos as fact.

Posted by: Hal | Dec 7, 2017 3:40:12 PM

Mic drop Hal! Dang, I don’t think much more needs to be said, but I’ll just add that he likely cut his teeth in a forum where snide tone and ad hominem attacks are widely considered incontrovertible proof of being right: the SerialPodcastOrigins subreddit.

Posted by: Paul | Dec 7, 2017 8:28:52 PM

It might surprise you all to learn I have a fair bit of respect for Colin, both for his intellect and his composure when I’m criticizing him. I know full well, Hal, that Colin is a scholar who writes law review articles. I thought his medical Miranda piece from a couple years ago was pretty clever. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2574840

That’s why I think all of this is beneath him. His Undisclosed co-hosts are like 13-year-old girls with raging hormones, unable to carry on an adult conversation for long without resorting to petty personal insults. My acerbity on this blog, fairly uncharacteristic of my true nature, serves a purpose. It’s meant to remind Colin of the effect his cohorts’ language and behavior have on the lives of the very real people they so regularly and viciously attack. These are current and former public servants, many of them incapable of defending themselves on blogs, social media, or in the press. Whatever you think of their views of the evidence in this case or that, they are, by and large, trying in good faith to serve the public good. And Rabia, Susan, and Amelia would have you believe they’re one degree of moral separation from Heinrich Himmler.

I don’t think Colin gets it – that by lending legitimacy to the puerile invective of his co-hosts, he enables them to go farther and farther off the deep end, and to drag him with them.

This blog post is about nothing. Any lawyer could see that. It’s about an intermediate appellate court decision not unlike thousands of others across the country. It doesn’t involve a novel legal issue. It’s here on this blog because of the name of the prosecutor in the case. And Colin Miller can do better than support a childish campaign against some man who, by way of the internal workings of the Maryland Attorney General’s Office, happened to be the appellate prosecutor assigned to Adnan Syed’s case.

Posted by: Sam | Dec 8, 2017 7:29:18 PM

Sam: I’m not sure what you mean. I’ve been writing about pretty much all aspects of the Adnan Syed case for over three years as well as podcasting about it. My current research is on the idea of plea agreements as constitutional contracts. Assuming that the appellate courts in Maryland uphold Judge Welch’s order granting a new trial, there will likely be plea bargaining in the Adnan Syed case, with the questions being how good of an offer the State is willing to make and whether Adnan would accept it.

This post is about the attorney who has been handling the Adnan Syed appeal for over the last year, and it deals with what the Court of Special Appeals of Maryland (indeed, one of the judges on Adnan’s three judge panel) finding that this same attorney breached a plea agreement by improperly introducing proffer statements, resulting in two murder convictions being thrown out. Why wouldn’t I cover this on the blog?

Posted by: Colin Miller | Dec 9, 2017 8:31:19 AM

This makes no sense. If the Maryland appellate courts affirm the grant of a new trial, it will be up to the Baltimore City State’s Attorney’s Office to decide how to proceed. They’ll be the ones to drop the case, offer a plea deal, or prosecute the case at trial. Neither Vignarajah nor any member of the Maryland Attorney General’s Office will be involved.

Posted by: Sam | Dec 9, 2017 9:44:24 AM

Sam: I never said that Thiru would be involved in plea bargaining in the Adnan Syed case.

Posted by: Colin Miller | Dec 9, 2017 10:48:35 AM

Then your argument makes even less sense. It boils down to (1) this case is about plea bargaining; and (2) it’s relevant to the Syed matter because Syed might have to engage in plea bargaining down the road. This case is, in fact, NOT about a plea bargain; it’s about a proffer agreement (though analogous principles from plea agreement cases are discussed). You surely know this, because you use the word “plea” zero times in your original post and only offered that post hoc rationalization after Hal brought it up. Same goes for the plea-agreements-as-contracts nonsense. You make no mention of that in the post.

What you said the first time is the truth. You posted this because it’s about the appellate prosecutor in Syed’s case, your readers and listeners love to hate on the Syed prosecutors, and you knew they’d gobble up a story about how one of his convictions got overturned. That’s reflected in the title and the body of the post. If that’s how you want to use your stature as a tenured law professor with a large following, that’s your prerogative. But don’t piss on my leg and tell me it’s raining.

Posted by: Sam | Dec 9, 2017 12:15:31 PM

Sam: I do post for multiple reasons. I've already added this case to my article of plea agreements as constitutional contracts. The opinion delves into the topic pretty deeply.

Posted by: Colin Miller | Dec 9, 2017 2:19:33 PM

Sam I do NOT buy that you are a legal colleague who just happened upon this blog and through sheer osmosis happened to develop an opinion on Susan Simpson and Rabia Miller. I believe you have written scathing things about him, and are saying differently now because you created a new username and it suits your present argument.

In fact, I think I might try to determine precisely which reddit user you are. I started an extremely long project a while back using machine learning techniques to crunch thousands and thousands of text comments from reddit, because I had a hunch that there was a fair amount of sock purporting going on. Eventually though I was forced to conclude that my hypothesis was wrong: if there is sock puppeting going on there, it’s not very much.

This was a disappointment of course, and made the prospects of getting published poor (negative conclusions are no fun). But maybe I can try another hypothesis.

Here goes: I don’t believe you are a random bystander who happens to have such recently formed strong negative opinions that you just claimed. Rather, I think you are one of a handful of older commenters that started using a new handle. And if so, I’ll be able to figure out who that is. If not, then I’ll apologize sincerely and eat some crow.

I just think your explanation there is BS. We shall see.

Ps, if I had to take a wild stab, I’d say Seamus Duncan. But could be one of the others. You

Posted by: Paul | Dec 11, 2017 1:40:14 PM

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