EvidenceProf Blog

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

Sunday, September 30, 2018

The Case That Could Change the Course of Criminal Law: George Alvarez & the Right to Evidence of Actual Innocence

For some unknown reason, my Twitter account has been suspended since yesterday morning. I don't know whether the two are connected, but, just before it was suspended, I was tweeting about what might end up being the most important case of my career, and I'd like to give it some more attention here. I'm not an attorney for George Alvarez, but I am writing an amici curiae (friend of the court) brief on his behalf to the Supreme Court. 

In 2005, George Alvarez was a 9th grade, special education student. He was arrested on suspicion of committing misdemeanor burglary of a motor vehicle. Jail Officer Nelson W. Mendoza later wrote the following report on what happened at the Brownsville Detention Center after the arrest.


Alvarez would later plead guilty to assaulting a peace officer. Four years into Alvarez's eight year sentence, 

video footage came to light that prosecutors had never gathered from police officers, and thus never shown to the grand jury. The footage showed no such attack. Instead, the guard could be seen placing Alvarez in a choke hold and eventually a head lock while the young man flailed beneath him. His hands and arms were pinned down, nowhere near the guard’s throat. The Texas Court of Criminal Appeals found Alvarez to be “actually innocent” of the charges.

Alvarez, who could not read or write well prior to his incarceration, "couldn't even read his own innocence ruling when he received it in prison." See Appellee's Response to Appellant City of Brownsville's Brief, 2016 WL 7449286 (5th Cir. 2016).


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September 30, 2018 | Permalink | Comments (4)

Friday, September 28, 2018

Project DNA: South Dakota

South Dakota

The pertinent portions of Dakota's postconviction DNA testing statute, South Dakota Code Section 23-5B-1(9) & (10), state that a court will allow for postconviction DNA testing if

(9) The petitioner identifies a theory of defense that: (a) Is consistent with an affirmative defense presented at trial; or (b) Would establish the actual innocence of the petitioner of the felony offense referenced in the petitioner's assertion under subdivision (1); and

(10) If the petitioner was convicted following a trial, the identity of the perpetrator was at issue in the trial.

So, where does that leave pleading defendants? 

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September 28, 2018 | Permalink | Comments (0)

Thursday, September 27, 2018

Season 3, Episode 3 of Serial: The Battle of the Bulge & the Cleveland Haberdashery That Changed Criminal Law

Today was the premiere of Episode 3 of Season 3 of the Serial Podcast: "Misdemeanor, Meet Mr. Lawsuit." At the center of the episode was the case of Erimius Spencer, who "filed a civil lawsuit alleging he was kicked in the face and tased numerous times during a December 2016 arrest in Euclid," just outside of Cleveland.

Spencer said he was arrested inside his apartment building last year, after two Euclid officers, then-Officer Michael Amiott and Officer Shane Rivera, came up to him when he went to a friend’s apartment asking for a cigarette.

This encounter ended with Spencer looking like this:


The officers claimed that they conducted a valid stop-and-frisk of Spencer, resulting in the discovery of a blunt during a pat-down, a valid arrest, Spencer resisting arrest, and the ensuing injuries to Spencer. Spencer claims that the officers didn't have grounds for conducting a stop-and-frisk, that he wasn't resisting arrest, and that the officers used excessive force. Had the case gone to trial, the law governing it would have come from a famous Supreme Court case out of Cleveland 50 years ago.

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September 27, 2018 | Permalink | Comments (0)

Wednesday, September 26, 2018

Project DNA: South Carolina

South Carolina

The pertinent portion of South Carolina's postconviction DNA testing statute, S.C. Code Section 17-28-40(C)(5), states that a petition for postconviction DNA testing must

(5) explain why the identity of the applicant was or should have been a significant issue during the original court proceedings, notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity.

So, where does that leave pleading defendants? 

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September 26, 2018 | Permalink | Comments (0)

Tuesday, September 25, 2018

Project DNA: Rhode Island

Rhode Island

The pertinent portion of Rhode Island's postconviction DNA testing statute, R.I. Gen. Laws § 10-9.1-12(a)(1), states that a defendant seeking postconviction DNA testing must establish

[a] reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner’s sentence if the results had been available at the prior proceedings leading to the judgment of conviction.

So, where does that leave pleading defendants? 

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September 25, 2018 | Permalink | Comments (0)

Monday, September 24, 2018

Appendix to "Fingerprints and Miscarriages of Justice" Posted on SSRN

Simon Cole (University of California, Irvine) and Barry Scheck (Cardozo Law School/Innocence Project) have posted "Appendix to 'Fingerprints and Miscarriages of Justice: 'Other' Types of Error and a Post-Conviction Right to Database Searching'" on SSRN. Here is the abstract:

This Appendix gives one case example of each fingerprint error type discussed in Table 3 of the Article “Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and A Post-Conviction Right to Database Searching,” for which we know of an actual case. Cases were selected for recentness, novelty (not widely discussed elsewhere in the literature), and the degree to which they illustrate the problem we are discussing. In footnotes, we also list the other known cases of this error type.

Specifically, the Appendix lists 13 errors made in connection with fingerprints and gives a real world example of it. For instance, we have 

6. Error Type II-C. Missed Individualization: Non-Consensus Inconclusive. Seri.

Michael Seri was convicted of child sexual abuse in Connecticut in 2001. A latent print examiner reported that a comparison of a mark from the crime scene was “inconclusive.” Although the terminology was not in use at the time, this was an LCA type of inconclusive report; the examiner apparently believed the mark came from the palm, and was only provided with Seri’s fingerprints. Seri’s uncle, an FBI agent, unsuccessfully asked the police to search the mark in AFIS. Suspicion fell on Angel Laporte, when he was arrested for a very similar crime.20 Seri’s uncle commissioned an independent analysis which reported that Laporte was the source of the mark.21 Thus, the report to the fact finder was “inconclusive,” but the consensus is “individualization.” Seri was exonerated in 2003.


September 24, 2018 | Permalink | Comments (0)

Saturday, September 22, 2018

The Importance of the Amici Curiae Brief to the Adnan Syed Appeal

The defense brief was not the only brief submitted to the Court of Appeals of Maryland in the Adnan Syed case last week. It was accompanied by an amici curiae (friend of the court) brief written by Steven Klepper (@MdAppeal) on behalf of the Maryland Criminal Defense Attorneys' Association, the Maryland Office of the Public Defender, and various criminal defense attorneys from Maryland who were working in 1999-2000 (including Cristina Gutierrez's old colleague Billy Murphy). Other attorneys on the brief are Erica J. Suter (@SuterLaw), who we've had on Undisclosed, and Rachel Marblestone Kamins (@RachelKamins), whom I've worked with on the Richard Nicolas case.

At first blush, you might write off this brief as criminal defense attorneys supporting a criminal defendant, but the opposite seems to be the case when you think about it for a minute. 

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September 22, 2018 | Permalink | Comments (6)

Friday, September 21, 2018

Serial, Season 3, Episode 2: Judge Gaul & My Research on Judicial Participation in the Plea Bargaining Process

The second episode of the third season of Serial is interesting to me because it deals with one of my primary areas of research: judicial discretion. Sarah Koenig primarily explores the issue by looking at the behavior of Judge Daniel Gaul, whose name is even featured in the episode's title: "You've Got Some Gauls." This article from cleveland.com does a good job of laying out some of the many "colorful" decisions made by Judge Gaul based upon the discretion he's been given as a judge. In particular, the article discusses the Carlton Devon Heard case that Sarah Koenig mentions toward the end of the episode. Heard was charged with crimes such as attempted murder and felonious assault and ended up pleading guilty after Judge Gaul encouraged/coerced him to enter a guilty plea based upon saying he'd throw the book at him if he were convicted after a trial. Here's the end of Sarah's discussion of the Heard case on Serial

02 S03 Episode 02_ You_ve Got Some Gauls

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September 21, 2018 | Permalink | Comments (0)

The Important New Ineffective Assistance/Alibi Case Cited by the Defense in the Adnan Syed Case

In its opening brief to the Court of Appeals of Maryland yesterday, the defense in the Adnan Syed case highlighted an especially interesting case decided less than a year ago. That case addresses the main argument being advanced by the State and is factually similar to Adnan's case. It is People v. Upshaw, 89 N.E.3d 1049 (Ill.App. 1st Dist. 2017).

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September 21, 2018 | Permalink | Comments (0)

Thursday, September 20, 2018

My Opening Post on the Defense's Opening Brief in the Adnan Syed Case: Just the Facts Ma'am

Today, the defense filed its opening brief to the Court of Appeals of Maryland in the Adnan Syed case. By way of review, the Court of Appeals, Maryland's highest court, will hear oral arguments in the case in late November/early December and render its decision by August 31, 2019. There is a lot of law in the defense brief, but I want to focus on the facts in this first post on the brief.

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September 20, 2018 | Permalink | Comments (0)

Serial, Season 3, Episode 1: A Different Kind of Wrongful Conviction

Today, Serial premieres Episodes 1 and 2 of their 3rd season. This season differs from season 1 in that it's not a single story told week to week. Instead, it's a year in the life of the criminal courts in Cleveland, with the promise of exploring endemic issues in the criminal justice system. In Episode 1, Serial fulfills its promise by shining a light on a different type of wrongful conviction.

It tells the story of Anna, a 21 year-old woman in a bar who has her ass slapped repeatedly, is attacked by another woman, and ends up accidentally striking a police officer who tries to break up a bar fight. Pretty much everyone who watches the video of the incident (including the officer himself) thinks that Anna is innocent, and yet she charged with felony assault on an officer:

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September 20, 2018 | Permalink | Comments (0)

Wednesday, September 19, 2018

"Privileging Public Defense Research," by Janet Moore, Ellen Yaroshefsky, and Andrew Davies

Janet Moore (University of Cincinnati College of Law), Ellen Yaroshefsky (Hofstra University - Maurice A. Deane School of Law), and Andrew Davies (New York State Office of Indigent Legal Services) have posted "Privileging Public Defense Research," 69 Mercer L. Rev. 771 (2017-2018) on SSRN. Here is the abstract:

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect the very communication that is being studied. This Article discusses these problems and some responsive strategies. After assessing the available alternatives, the Article argues for judicial enforcement of an evidentiary privilege that protects and promotes empirical research on this high-priority topic.



September 19, 2018 | Permalink | Comments (0)

Project DNA: Pennsylvania


The pertinent portion of Pennsylvania's postconviction DNA testing statute, 42 Pa. Cons. Stat. Ann. § 9543.1(c)(3)(i), states that a defendant seeking postconviction DNA testing must

(3) present a prima facie case demonstrating that the:

(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant's conviction and sentencing

So, where does that leave pleading defendants? 

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September 19, 2018 | Permalink | Comments (1)

Tuesday, September 18, 2018

Project DNA: Oregon


The pertinent portion of Oregon's postconviction DNA testing statute, 2017 ORS § 138.690, states that

A person may file in the circuit court in which the judgment of conviction was entered a motion requesting the performance of DNA (deoxyribonucleic acid) testing on specific evidence if the person has been convicted of aggravated murder or a felony in which DNA evidence could exist and is relevant to establishing an element of the offense. 

So, where does that leave pleading defendants? 

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September 18, 2018 | Permalink | Comments (0)

Monday, September 17, 2018

Project DNA: Oklahoma


In 2013, Oklahoma became the 50th state to enact a postconviction DNA testing statute.  The pertinent portion of Oklahoma's postconviction DNA testing statute, 22 OK Stat § 22-1373.2(2), states that

Persons eligible for testing shall include any and all of the following:....

2. Persons convicted on a plea of not guilty, guilty or nolo contendere.

So, where does that leave pleading defendants? 

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September 17, 2018 | Permalink | Comments (0)

Friday, September 14, 2018

Project DNA: Ohio


Ohio is the only state with a postconviction DNA statute that explicitly precludes all pleading defendants from seeking testing. Its statute, Ohio Rev. Code Ann. § 2953.72(C)(2), provides that a defendant is not eligible for postconviction DNA testing “regarding any offense to which the offender pleaded guilty or no contest.” 

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September 14, 2018 | Permalink | Comments (0)

Thursday, September 13, 2018

Project DNA: North Dakota

North Dakota

The pertinent portion of North Carolina's postconviction DNA testing statute, N.D. Cent. Code § 29-32.1-15(1)(a), states that a petitioner seeking postconviction DNA testing must establish that

[t]he testing is to be performed on evidence secured in relation to the trial which resulted in the conviction.

So, where does that leave pleading defendants? 

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September 13, 2018 | Permalink | Comments (0)

Tuesday, September 11, 2018

Project DNA: North Carolina

North Carolina

The pertinent portion of North Carolina's postconviction DNA testing statute, NC Gen Stat § 15A-269(a), states that 

(a) A defendant may make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing and, if testing complies with FBI requirements and the data meets NDIS criteria, profiles obtained from the testing shall be searched and/or uploaded to CODIS if the biological evidence meets all of the following conditions:

(1) Is material to the defendant's defense.

(2) Is related to the investigation or prosecution that resulted in the judgment.

(3) Meets either of the following conditions:

a. It was not DNA tested previously.

b. It was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.

So, where does that leave pleading defendants? 

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September 11, 2018 | Permalink | Comments (0)

Monday, September 10, 2018

Project DNA: New York

New York

As the Court of Appeals of New York noted in its recent opinion in People v. Tiger:

In 2012, the legislature added CPL 440.10 (1) (g-1) to allow a specific form of newly discovered evidence — DNA evidence — as a basis to collaterally attack a guilty plea at the postconviction stage. Significantly, that provision is the only one in CPL 440.10 that specifically refers to actual innocence — requiring a factual demonstration that is not necessary for the granting of relief under CPL 440.10 (1) (g). In recognition of the import of a guilty plea conviction that was constitutionally obtained, the legislature enacted different standards that must be satisfied as between a defendant who has pleaded guilty and one who has been convicted upon a verdict after trial. Under CPL 440.10 (1) (g-1), based on DNA results, a defendant who has pleaded guilty must demonstrate a "substantial probability" that he or she is actually innocent, whereas a defendant convicted after trial is held to the lesser standard that there is a "reasonable probability" that the verdict would have been more favorable (CPL 440.10 [1] [g-1]). To be sure, the fact that the legislature has recently carved out a basis to vacate a guilty plea where new evidence of DNA demonstrates actual innocence lends support to the conclusion that CPL 440.10 does not contemplate a separate constitutional claim to vacate a guilty plea based on new evidence as to guilt or innocence (see e.g. Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995] ["an inference must be drawn that what is omitted or not included was intended to be omitted and excluded"] [citation and quotation marks omitted]). Indeed, the narrow exception for new DNA evidence as a basis to vacate a conviction in plea cases is undoubtedly due to the recognition of the exceptional nature of DNA evidence as a reliable scientific tool to conclusively determine the identity of an assailant.

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September 10, 2018 | Permalink | Comments (0)

Friday, September 7, 2018

Project DNA: New Mexico

New Mexico

The pertinent portion of New Mexico's postconviction DNA testing statute, N.M. Stat. Ann. § 31-1A-2(C)(5), states that a defendant seeking postconviction DNA testing must establish by a preponderance of the evidence that

identity was an issue in his case or that if the DNA testing he is requesting had been performed prior to his conviction and the results had been exculpatory, there is a reasonable probability that the petitioner would not have pled guilty or been found guilty.

So, where does that leave pleading defendants? 

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September 7, 2018 | Permalink | Comments (0)