EvidenceProf Blog

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

Thursday, October 25, 2018

My Second Post on the State's New Brief in the Adnan Syed Case

In yesterday's post, I covered the State's Reply Brief of Petitioner/Cross-Respondent in the Adnan Syed case and its allegation that the defense was engaging in a bait-and-switch. Specifically, 

the State is claiming that (1) the defense's bait is to claim that Cristina Gutierrez was deficient because she merely had to pick up the phone and call alibi witness Asia McClain; and (2) the defense's switch is then to claim that Adnan Syed was prejudiced based upon Gutierrez's failure to use Asia McClain as an alibi witness at trial. In other words, the State is claiming that contacting Asia McClain wouldn't have necessarily led to Gutierrez calling her at trial.

In yesterday's post, I noted how the Fourth Circuit's opinion in Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), belies this claim. I used Griffin because it is a Fourth Circuit case originating out of Baltimore, but it turns out the one of my favorite IAC/alibi cases -- Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988) -- makes things even clearer.

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October 25, 2018 | Permalink | Comments (1)

Wednesday, October 24, 2018

My First Take on the State's New Brief in the Adnan Syed Case

Today, the State filed its Reply Brief of Petitioner/Cross-Respondent in the Adnan Syed case. This will likely the penultimate brief in this case before oral arguments are held in the Court of Appeals of Maryland on November 29th. In this post, I will quickly address the State's claim that the defense is trying to pull a bait-and-switch on the court.

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October 24, 2018 | Permalink | Comments (27)

Tuesday, October 23, 2018

Should Evidence of a Defendant's Suicide Attempt While Awaiting Trial be Admissible?

Assume that a defendant who has been charged with a crime attempts suicide while detained prior to trial. Should evidence of this suicide attempt be admissible at the defendant's ensuing trial? This was the question of first impression addressed by the Supreme Court of South Carolina in its recent opinion in State v. Cartwright, 2018 WL 4609386 (S.C. 2018).

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October 23, 2018 | Permalink | Comments (1)

Monday, October 22, 2018

Project DNA: Wyoming

Wyoming

The pertinent portion of Wyoming's postconviction DNA testing statute, W.S. 7-12-303(d), states that 

The court may not order DNA testing in cases in which the trial or a plea of guilty or nolo contendere occurred after January 1, 2000 and the person did not request DNA testing or present DNA evidence for strategic or tactical reasons or as a result of a lack of due diligence, unless the failure to exercise due diligence is found to be a result of ineffective assistance of counsel. A person convicted before January 1, 2000 shall not be required to make a showing of due diligence under this subsection.

So, where does that leave pleading defendants? 

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October 22, 2018 | Permalink | Comments (1)

Thursday, October 18, 2018

Project DNA: Pennsylvania Update

I noted in a prior post that Pennsylvania is among the states in which pleading defendants are not allowed to seek postconviction DNA testing. I also noted that the was legislation in the works that might get rid of this pleading defendant prohibition. Well, that legislation is now one step away from passing, and you can help get it across the finish line. Yesterday, the Pennsylvania House approved Senate Bills 915 and 916.

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October 18, 2018 | Permalink | Comments (1)

Wednesday, October 17, 2018

Project DNA: Wisconsin

Wisconsin

The pertinent portion of Wisconsin's postconviction DNA testing statute, Wisconsin Statutes Section 974.07(7)(b)(1),  states that after a petition for postconviction DNA testing is filed

It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

So, where does that leave pleading defendants? 

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October 17, 2018 | Permalink | Comments (0)

Tuesday, October 16, 2018

Project DNA: West Virginia

West Virginia

The pertinent portion of West Virginia's postconviction DNA testing statute, W. Va. Code, § 15-2B-14(c)(1)(E), states that after a petition for postconviction DNA testing is filed

(e) The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial or accepted the convicted person's plea, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.

So, where does that leave pleading defendants? 

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October 16, 2018 | Permalink | Comments (0)

Monday, October 15, 2018

The John Marshall Law School Seeks Spring 2019 Full-Time Faculty Podium Visitors

Spring 2019 Full-Time Faculty Podium Visitors

The John Marshall Law School in Chicago seeks one or two full-time visiting faculty members for the Spring 2019 semester. We need coverage in the areas of Civil Procedure (evening course), Secured Transactions, and Estates & Trusts. The appointment is for one semester, but we will be seeking visitors for the 2019–2020 academic year in these areas plus some combination of Evidence, Criminal Law, and Property.

Candidates should have taught full-time at an ABA-approved law school.

To Apply:

Submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at 7sorkin@jmls.edu. The review will begin immediately and continue on a rolling basis until one or both positions are filled. We may request a Skype or in-person interview and submission of prior teaching evaluations.

The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.

October 15, 2018 | Permalink | Comments (1)

Friday, October 12, 2018

Project DNA: Washington

Washington

The pertinent portion of Washington's postconviction DNA testing statute, Wash. Rev. Code Ann. § 10.73.170(2)(b), states that a petition for postconviction DNA testing must

Explain why DNA evidence is material to the identity of the perpetrator of, or accomplice to, the crime, or to sentence enhancement

So, where does that leave pleading defendants? 

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October 12, 2018 | Permalink | Comments (0)

Tuesday, October 9, 2018

Project DNA: Virginia

Virginia

The pertinent portion of Virginia's postconviction DNA testing statute, VA ST § 19.2-327.1(A), states that a defendant can seek postconviction DNA testing if

(i) the evidence was not known or available at the time the conviction or adjudication of delinquency became final in the circuit court or the evidence was not previously subjected to testing because the testing procedure was not available at the Department of Forensic Science at the time the conviction or adjudication of delinquency became final in the circuit court; (ii) the evidence is subject to a chain of custody sufficient to establish that the evidence has not been altered, tampered with, or substituted in any way; (iii) the testing is materially relevant, noncumulative, and necessary and may prove the actual innocence of the convicted person or the person adjudicated delinquent; (iv) the testing requested involves a scientific method employed by the Department of Forensic Science; and (v) the person convicted or adjudicated delinquent has not unreasonably delayed the filing of the petition after the evidence or the test for the evidence became available at the Department of Forensic Science.

So, where does that leave pleading defendants? 

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October 9, 2018 | Permalink | Comments (0)

Friday, October 5, 2018

Project DNA: Vermont

Vermont

The pertinent portion of Vermont's postconviction DNA testing statute, 13 V.S.A. § 5561(c)(1), states that

The petition [for postconviction DNA testing] shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial.

So, where does that leave pleading defendants? 

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October 5, 2018 | Permalink | Comments (4)

Thursday, October 4, 2018

Project DNA: Utah

Utah

The pertinent portion of Utah's postconviction DNA testing statute, Utah Code Ann. § 78-35a-301(2)(c), states that:

 (2) A person convicted of a felony offense may at any time file a petition for postconviction DNA testing in the trial court that entered the judgment of conviction against him if the person asserts his actual innocence under oath and the petition alleges:

 (c) the person identifies the specific evidence to be tested and states a theory of defense, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support.

So, where does that leave pleading defendants? 

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October 4, 2018 | Permalink | Comments (0)

Wednesday, October 3, 2018

Project DNA: Texas

Texas

The pertinent portion of Texas's postconviction DNA testing statute, Tex. Code Crim. Proc. Ann. art. 64.03(b), states that a petition for postconviction DNA testing must

A convicted person who pleaded guilty or nolo contendere or, whether before or after conviction, made a confession or similar admission in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea, confession, or admission, as applicable.

So, where does that leave pleading defendants? 

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October 3, 2018 | Permalink | Comments (0)

Tuesday, October 2, 2018

Project DNA: Tennessee

Tennessee

The pertinent portion of Tennessee's postconviction DNA testing statute, Tenn. Code Crim. Pro. Section 40-30-305, states that a petition for postconviction DNA testing must

After notice to the prosecution and an opportunity to respond, the court may order DNA analysis if it finds that:

(1)  A reasonable probability exists that analysis of the evidence will produce DNA results that would have rendered the petitioner's verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;

(2)  The evidence is still in existence and in such a condition that DNA analysis may be conducted;

(3)  The evidence was never previously subjected to DNA analysis, or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and

(4)  The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

So, where does that leave pleading defendants? 

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October 2, 2018 | Permalink | Comments (0)