EvidenceProf Blog

Project DNA: Montana

Montana

The pertinent portion of Montana's postconviction DNA testing statute, Mont. Code Ann. § 46-21-110(5)(b), states that

The court shall grant the petition if it determines that the petition is not made for the purpose of delay and that:...

the identity of the perpetrator of the felony was or should have been a significant issue in the case.

So, where does that leave pleading defendants? 

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Project DNA: Missouri

Missouri

The pertinent portion of Missouri's postconviction DNA testing statute, Mo. Rev. State Section 547.035(5), states that

Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.

So, where does that leave pleading defendants? 

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Project DNA: Mississippi

Mississippi

The pertinent portion of Mississippi's postconviction DNA testing statute, Miss. Code Ann. § 99-39-5(2)(ii), allows for postconviction DNA testing

even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime.

So, where does that leave pleading defendants? 

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Project DNA: Minnesota

Minnesota

The pertinent portion of Minnesota's postconviction DNA testing statute, Minn. Stat. Ann. § 590.01, Subdivision 1a(b)(1) provides that the defendant must present a prima facie case that, inter alia,

identity was an issue in the trial.

So, where does that leave pleading defendants? 

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Project DNA: Michigan

Michigan

The pertinent portion of Michigan's postconviction DNA testing statute, Mich. Comp. Laws Ann. § 770.16(4)(b)(iii), provides that the defendant must establish by clear and convincing evidence that, inter alia,

The identity of the defendant as the perpetrator of the crime was at issue during his or her trial.

So, where does that leave pleading defendants? 

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THE Most Important Case for the Alibi Issue in the Adnan Syed Case

In a comment on yesterday's post, a reader asked me to comment on Cullen v. Pinholster, 563 U.S. 170 (U.S. 2011), the Supreme Court case the State cites extensively in its brief in the Adnan Syed case. Pinholster is what I would regard as a garden variety ineffective assistance of counsel case. Scott Pinholster was convicted of first-degree murder. During Pinholster's sentencing hearing,

[d]efense counsel did not call a psychiatrist, though they had consulted Dr. John Stalberg at least six weeks earlier. Dr. Stalberg noted Pinholster's “psychopathic personality traits,” diagnosed him with antisocial personality disorder, and concluded that he “was not under the influence of extreme mental or emotional disturbance” at the time of the murders.

After he was given the death penalty, Pinholster claimed that the failure to call a psychiatrist at sentencing was ineffective assistance of counsel, and the Ninth Circuit Court of Appeals partially granted him relief. The Supreme Court, however, reversed, concluding that

[t]he Court of Appeals was required not simply to “give [the] attorneys the benefit of the doubt”...but to affirmatively entertain the range of possible “reasons Pinholster's counsel may have had for proceeding as they did.”

The State claims that the courts in Maryland are similarly required to affirmatively entertain the range of possible reasons Cristina Gutierrez might not have contacted Asia McClain. I would contend, however, that this reasoning is wrong. This is the analysis that applies when trial counsel has done the necessary investigation.

In Pinholster, trial counsel consulted with an expert -- Dr. John Stalberg -- before making the strategic decision not to call him at the sentencing hearing, meaning that the courts needed to entertain the range of reasons why trial counsel might not have called him. Similarly, there are manifold cases in which trial counsel contacts a prospective alibi witness and decides against calling him/her at trial, with the courts thereafter having to entertain the range of reasons why trial counsel might have decided not to call the alibi witness. In both of these cases, trial counsel did the legwork needed to make such a decision.

These cases stand in stark contrast to cases like Adnan's case in which trial counsel fails to make initial contact with the alibi witness. In these cases, the courts aren't required to entertain the range of possible reasons why trial counsel didn't contact the alibi witness; instead, “it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense.” Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991).

But let's say that the Court of Appeals of Maryland does apply Cullen v. Pinholster. I did a Westlaw search of adv: "Cullen v. Pinholster" and alibi, and the first result after Cullen itself was Foster v. Wolfenbarger, 687 F.3d 702 (6th Cir. 2012), and it's pretty much the perfect case for Adnan.

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The Missing Link in the State's Court of Appeals Brief in the Adnan Syed Case

As I noted in a prior post, two days ago, the State filed its Brief of Petitioner to the Court of Appeals of Maryland in the Adnan Syed case. That brief was accompanied by an Appendix of supporting documents.  To prove a claim of ineffective assistance of counsel, the defendant must establish (1) deficient performance; and (2) prejudice, i.e., that adequate performance by trial counsel would have created the reasonable probability of a different outcome at trial. In this second post on the State's brief, I will focus on the State's arguments with regard to deficient performance. 

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Dissecting the Facts of the State's "Alibi-by-Routine" Claim in the Adnan Syed Case

As I noted in my prior post, yesterday, the State filed its Brief of Petitioner to the Court of Appeals of Maryland in the Adnan Syed case. That brief was accompanied by an Appendix of supporting documents. The State's Brief includes the following "Question Presented" to the Court of Appeals: "Did the Court of Special Appeals err in holding that defense counsel pursuing an alibi strategy without speaking to one specific potential witness violates the Sixth Amendment’s guarantee of effective assistance of counsel? " So, what was that strategy?

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My Initial Thoughts on the State's Opening Brief to the Court of Appeals in the Adnan Syed Case

Yesterday, the State filed its Brief of Petitioner to the Court of Appeals of Maryland in the Adnan Syed case. That brief was accompanied by an Appendix of supporting documents.  To prove a claim of ineffective assistance of counsel, the defendant must establish (1) deficient performance; and (2) prejudice, i.e., that adequate performance by trial counsel would have created the reasonable probability of a different outcome at trial. In this first post on the State's brief, I will focus on the State's arguments with regard to prejudice.

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Project DNA: Massachusetts

Massachusetts

The pertinent portion of Massachusetts's postconviction DNA testing statute, Mass. Gen. Laws ch. 278A Section 3(d), provides that the court shall order postconviction DNA testing if, inter alia,

The moving party shall file with the motion an affidavit stating that the moving party is factually innocent of the offense of conviction and that the requested forensic or scientific analysis will support the claim of innocence. A person who pleaded guilty or nolo contendere in the underlying case may file a motion. The court shall not find that identity was not or could not have been a material issue in the underlying case because of the plea. A person who is alleged to have, or admits to having, made a statement that is or could be incriminating may file a motion under this chapter. The court shall not find that identity was not or should not have been a material issue in the underlying case because the moving party made, or is alleged to have made, an incriminating statement. If the moving party entered a plea of guilty or nolo contendere to the offense of conviction or made an incriminating statement, the moving party shall state in the affidavit that the claim of factual innocence is made notwithstanding the plea or incriminating statement (emphasis added)

So, where does that leave pleading defendants? 

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My Updated Likeliest Scenarios for the Death of Hae Min Lee

Tomorrow is the due date for the State's initial brief to the Court of Appeals of Maryland in the Adnan Syed case. The defense's first brief is due about a month later, on September 20th, oral arguments will be held in late November or early December, and we'll have the final ruling from Maryland's highest court about a year from now or earlier. In other words, we're reaching the home stretch of the appeal...and that has me thinking back to my overall theory of what actually happened to Hae Min Lee. It's hard to believe that it's been almost four years since the final episode of Serial, Season One aired. That same day, I posted my most logical scenarios for the death of Hae Min Lee, and I find that little has changed in terms of the big picture.

I still believe that (1) Adnan asked Hae for a ride on the morning of January 13, 1999; (2) Hae initially agreed to give Adnan a ride; (3) someone else got Hae to change her plans before the end of school; and (4) Hae told Adnan at/right after the end of school that she could no longer give him a ride because something had come up and she had "something else" to do. This last event was initially reported by Becky, and Adnan and Hae's friend Krista later reported to me that Aisha said something similar  on the night of January 13th about Hae telling Adnan she couldn't give him a ride because "something came up."

Assuming that 1-4 are true, the question then becomes (a) did Hae in fact leave Woodlawn right after school to meet up with the person who got her to change her plans; or (b) did Adnan ultimately convince Hae to give him a ride? In situation (a), the person who got Hae to change her plans was very likely her killer. And, in situation (b), Adnan was very likely her killer. Based on all of my work on the case over the past four years, I think that (a) is clearly the likeliest scenario.

The biggest question mark in this whole case is Jay. If you think Jay killed Hae, the legitimate question often asked is how Adnan can be innocent when Adnan spent a good deal of the day with Jay and loaned him his car. And, if you think Jay was completely uninvolved, the legitimate question is how Jay knew the location of Hae's car. There are certainly answers to both questions, which have been discussed both here and on Undisclosed, but these are legitimate questions nonetheless.

But what if there were a scenario which removed any questions from the equation and would seemingly fully explain all of the aspects of the case? This is the scenario I've been mulling for a while.

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Project DNA: Maryland

Maryland

Maryland used to preclude pleading defendants from seeking postconviction DNA testing. In 2016, Maryland’s highest court found in Jamison v. State, 148 A.3d 1267, 1283–84 (Md. 2016), that the state’s postconviction DNA testing statute did not apply to pleading defendants. In 1990, William Jamison had been charged with various sex offenses in Maryland and entered an Alford plea.Eighteen years later, Jamison filed a petition for DNA testing of newly discovered slides containing cellular material taken from the victim.The circuit court granted the motion, and DNA testing produced debatable results. Jamison’s experts claimed that the testing pointed to someone else as the perpetrator while the State’s experts alleged that the results were too ambiguous to be meaningful.

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Project DNA: Maine

Maine

The pertinent portion of Maine's postconviction DNA testing statute, Me. Rev. Stat. Ann. tit. 15, § 2138, requires a defendant seeking postconviction DNA testing to prove, inter alia, that

The identity of the person as the perpetrator of the crime that resulted in the conviction was at issue during the person's trial.

So, where does that leave pleading defendants? 

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Project DNA: Louisiana

Louisiana

The pertinent portion of Louisiana's postconviction DNA testing statute, La. Code Crim. Proc. Ann. art. 926.1(B)(1), provides that a defendant seeking postconviction DNA testing  must provide, inter alia, 

A factual explanation of why there is an articulable doubt, based on competent evidence whether or not introduced at trial, as to the guilt of the petitioner in that DNA testing will resolve the doubt and establish the innocence of the petitioner.

So, where does that leave pleading defendants? 

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Project DNA: Kentucky

Kentucky

The pertinent portion of Kentucky's postconviction DNA testing statute, Ky. Rev. Stat. Ann. § 422.285(5)(d), provides that the court shall order postconviction DNA testing if, inter alia,

Except for a petitioner sentenced to death, the petitioner was convicted of the offense after a trial or after entering an Alford plea....

So, where does that leave pleading defendants? 

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Are Legal Fiction Pleas Constitutional and/or Desirable?

I just e-mailed this to the Criminal Law Professor listserv. I'd be interested to hear if readers have any thoughts on the issue: 

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Project DNA: Kansas

Kansas

The pertinent portion of Kansas's postconviction DNA testing statute, Kan. Stat. Ann. § 21-2512(a), provides that a defendant can petition for postconviction DNA testing of biological material that

(1) Is related to the investigation or prosecution that resulted in the conviction; 

(2) is in the actual or constructive possession of the state; and 

(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results. 

So, where does that leave pleading defendants? 

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Project DNA: Iowa

Iowa

The pertinent portion of Iowa's postconviction DNA testing statute, I.C.A. § 81.10(2)(b), provides in relevant part that a petition for postconviction DNA shall state

The facts of the underlying case, as proven at trial or admitted to during a guilty plea proceeding.

So, where does that leave pleading defendants? 

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My New Article, "A Right to Prove Innocence After Pleading Guilty"

Today, I posted the working draft of my new article, A Right to Prove Innocence After Pleading Guilty, on SSRN. Here is the abstract:

The first DNA exoneree in this country was a man with a sub-70 IQ who pleaded guilty to avoid the death penalty, and a total of 139 out of 315 (44.1%) DNA and non-DNA exonerees in 2015 and 2016 had been convicted after guilty pleas. Nonetheless, a number of states have pleading defendant prohibitions in their postconviction statutes that preclude defendants who pleaded guilty from (1) seeking DNA testing; and/or (2) presenting freestanding claims of actual innocence based on non-DNA evidence. Existing Constitutional challenges to these statutes have been largely foreclosed by the Supreme Court’s opinion in District Attorney’s Office for the Third Judicial District v. Osborne. This article advances a new theory for a right to prove innocence after pleading guilty. Through a series of cases, the Supreme Court has created a right known as the “right to access the courts.” A state violates this right to access the courts by creating a right to appellate review but precluding certain classes of defendants from having the actual or constructive ability to exercise that right. Most notably, in Halbert v. Michigan, the Supreme Court found that Michigan violated the right to access the courts by providing the right to appellate counsel to defendants found guilty after trials but withholding that right from pleading defendants. This article contends that similar reasoning requires recognition of a right to access the courts for defendants who plead guilty and later seek to use DNA or non-DNA evidence to prove their actual innocence.

Any feedback/comments would be appreciated.

-CM

Project DNA: Indiana

Indiana

The pertinent portion of Indiana's postconviction DNA testing statute, Ind. Code Ann. § 35-38-7-8(4), provides in relevant part that the court shall order postconviction DNA testing if

(4) A reasonable probability exists that the petitioner would not have:

(A) been:

(i) prosecuted for; or

(ii) convicted of;

the offense; or

(B) received as severe a sentence for the offense;

if exculpatory results had been obtained through the requested DNA testing and analysis.

So, where does that leave pleading defendants? 

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