EvidenceProf Blog

A Hypothetical to Explain & Assess COSA's Waiver Ruling in the Adnan Syed Case

In their opinion affirming Judge Welch's order granting a new trial to Adnan Syed, all three judges of the Court of Special Appeals found that Adnan had waived his claim that Cristina Gutierrez was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer. In doing so, the judges recognized that there was no case law directly on point. So, did they rule correctly in breaking new ground? Let's break that question down by considering a hypothetical:

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Hypothetical: Alice, Beth, and Carla are convicted of three separate murder in fall 2015, largely based upon expert testimony by FBI agents that hair recovered from the three crime scenes were matches for their hair. Thereafter:

1. Alice brings a PCR petition, claiming that the jury instructions were improper and there was jury misconduct;

2. Beth brings a PCR petition, claiming that the jury instructions were improper and that trial counsel was ineffective based on failing to contact an alibi witness; and

3. Carla brings a PCR petition, claiming that the jury instructions were improper and that trial counsel was ineffective in failing to use a 2015 report indicating that FBI examiners gave inaccurate testimony in 96% of forensic hair comparison cases to move to exclude testimony by the FBI agent at a Frye or Daubert hearing.

All three PCR petitions are denied. Alice, Beth, and Carla thereafter seek to bring successor PCR petitions, claiming that trial counsel in their cases was ineffective based upon failing to cross-examine their FBI agents. Which of these defendants should be able to bring a successor PCR petition?

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Analyzing the Four Cases Cited by Judge Graeff in Her Dissenting Opinion That Would Have Denied Adnan Relief

As I noted in yesterday's post, Judge Graeff dissented from the Court of Special Appeals Maryland granting Adnan a new trial. Judge Graeff dissented based upon the conclusion that the defense had failed to prove that Cristina Gutierrez was deficient in failing to contact prospective alibi witness Asia McClain. I've previously noted on this blog that I've been unable to locate a single case in which a court found that an attorney acted properly despite failing to contact an alibi witness brought to her attention by a defendant who maintains his innocence. In its briefing and oral arguments, the State also cited no such cases. 

In her opinion, Judge Graeff cited four cases, and these cases are likely to be at the heart of briefing and oral argument if the Court of Appeals of Maryland allows the State to appeal. So, what are those cases?

 

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My First Take on COSA's Opinion Affirming a New Trial for Adnan Syed

Today, the Court of Special Appeals of Maryland issued an opinion affirming Judge Welch's order granting Adnan Syed a new trial. It was a split decision, with two judges -- Chief Judge Woodward and Judge Wright -- affirming Judge Welch's order and one judge -- Judge Graeff -- dissenting. Judges Woodward and Wright, however, reversed Judge Welch's reasoning, finding that (1) the cell tower issue was waived; and (2) Cristina Gutierrez's failure to contact alibi witness Asia McClain was prejudicial, meaning that contacting her would have created the reasonable probability of a different outcome at trial.

The opinion by Judges Woodward and Wright isn't a declaration that Adnan is actually innocent, but it does a pretty good job of showing the weakness of the State's case against him at trial.

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6th Circuit Orders Evidentiary Hearing Based on Juror's Live-In Boyfriend Visiting Defendant's LinkedIn Page

Federal Rule of Evidence 606(b) generally provides that jurors are not allowed to impeach their verdict, but subsection (2)(A) provides an exception allowing jurors to testify that "extraneous prejudicial information was improperly brought to the jury’s attention." A recent case out of the Sixth Circuit shows how social media searches can support a claim that this exception applies.

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Court of Appeals of South Carolina Grants Man a New Trial Based on Improper Exclusion of Dying Declaration in Which the Victim Named Someone Else as His Shooter

Like its federal counterpart, South Carolina Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, dying declarations consist of the victim saying that the defendant harmed him (e.g., Vince/victim telling an EMT that Dan/defendant shot him). Sometimes, however, a defendant will seek to present a dying declaration in which the victim identified someone else as the assailant. These exculpatory dying declarations are just as admissible as their inculpatory counterparts, which is why a South Carolina man just won a new trial.

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