EvidenceProf Blog

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

Friday, February 22, 2019

Governor Gavin Newsom Orders Additional DNA Testing in the Kevin Cooper Case

At one point, Kevin Cooper was eight hours away from execution. Now, he might be closer than ever to being released. 

[Kevin] Cooper was convicted of the first-degree murders of Franklyn Douglas Ryen, Peggy Ryen, his wife, Jessica Ryen, their 10–year old daughter, and Christopher Hughes, an 11–year old neighborhood friend of Joshua Ryen, the Ryen's 8–year old son who was brutally assaulted but lived. Following his conviction, Cooper was sentenced to death.

I've been reporting on the Kevin Cooper case since January 2016 when I first noted the parallels between his case and the Steven Avery case, the biggest one being that both men have claimed that the presence of the preservative EDTA in blood found on key items proves that their blood was planted by the police. In the Cooper case, this led to poorly handled blood testing, with a report by the Inter-American Commission on Human Rights (IACHR) concluding that "[s]erious issues remain with respect to the conditions under which the testing was done and the withdrawal of the results that would have been favorable to Mr. Cooper by the state-appointed lab with no possibility for the defense to probe or challenge the reasons or validity of the withdrawal."

My last report on the Kevin Cooper case came in December 2018, where I noted that outgoing Governor Jerry Brown 

ordered new tests of physical evidence in the case of Kevin Cooper, whose high-profile quadruple-murder conviction three decades ago has come into question in recent years.

Brown said in a statement that he was directing “limited retesting of certain physical evidence in the case [a tan T-shirt, an orange towel, a hatchet handle and a hatchet sheath] and appointing a retired judge as a special master to oversee this testing, its scope and protocols.”

Today, new Governor Gavin Newsom went even farther.


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February 22, 2019 | Permalink | Comments (2)

Tuesday, February 19, 2019

Western District of New York Finds Drug Court Felony Conviction Reduced to a Misdemeanor Doesn't Qualify for Admission Under Felony Impeachment Rule

Drug courts are an interesting component of the criminal justice system. Typically, drug court allow a defendant charged with a drug offense who completes a treatment program to have (1) his conviction thrown out; or (2) his felony conviction reduced to a misdemeanor conviction. Meanwhile, Federal Rule of Evidence 609(a)(1) provides that

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant

In other words, Rule 609(a)(1) allows a party to use prior felony convictions to impeach a witness. So, assume a witness goes to drug court, is convicted of a felony, and later has his conviction reduced to a misdemeanor after completing his treatment program. Can that witness be impeached with his prior conviction? That was the question addressed by the United States District Court for the Western District of New York in United States v. Krug, 2019 WL 416946 (W.D.N.Y 2019)

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February 19, 2019 | Permalink | Comments (0)

Saturday, February 16, 2019

The Parallels Between the Malcolm Bryant Case and the Adnan Syed Case

On the evening of November 20, 1998, 16-year-old Toni Bullock was fatally stabbed in Baltimore, Maryland. 24 year-old Malcolm Bryant was subsequently convicted of her murder. Thereafter,

In 2009, a petition for DNA testing was filed and in 2011, fingernail clippings taken from Bullock were sent for testing. The testing revealed a partial DNA profile of a male, which had a rare identifier, which Bryant did not have. Several more rounds of DNA tests were performed and in 2015, a full DNA profile was obtained from Bullock’s t-shirt—where the fatal wound was inflicted. That profile contained the same rare identifier and matched the partial profile taken from the fingernail clippings.

Finally, in May 2016, Bryant was granted a new trial, and the charges against him were dismissed. Tragically, less than a year later, Bryant died from a stroke.

Recently, Bryant's family brought a lawsuit against parties such as the Baltimore Police Department, lead investigator William F. Ritz, and forensic analyst Barry Verger. At the end of this post, I will detail the allegations in this lawsuit, which of course will be contested.

But what's interesting about this case is that it's already produced a report by the Baltimore Event Review Team, which

is a voluntary collaboration among the Baltimore City State’s Attorney’s Office (SAO), the Baltimore Police Department (BPD), the Maryland Office of the Public Defender in Baltimore City (OPD), and the University of Baltimore Innocence Project (UBIP), a collaborative effort of the Office of the Public Defender and the University of Baltimore School of Law, coordinated by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.

And that report deals, inter alia, with the investigation of Bryant's alibi beginning with a memo from Assistant District Attorney Vickie Wash to Detective Ritz on January 12, 1999. This is important because Wash and Ritz were the team assigned to investigate Adnan Syed's movements, including a possible alibi, on January 13, 1999, the day that Hae Min Lee disappeared, meaning that these investigations were occurring simultaneously.


Malcolm Bryant

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February 16, 2019 | Permalink | Comments (5)

Wednesday, February 13, 2019

Supreme Court of Wisconsin Recalibrates the Brady Doctrine in What Might Be the Most Important Brady Opinion in 17 Years

Last week, the Supreme Court of Wisconsin issued an opinion that might have huge implications for the Brady doctrine. Under that doctrine the prosecution has an affirmative obligation under the Due Process Clause to disclose material exculpatory evidence to the defense. In its opinion in State v. Wayerski, 2019 WL 471276 (Wis. 2019), however, the Supreme Court of Wisconsin held that Wisconsin courts had shifted the focus from the State's misconduct to the defense's due diligence and issued a course correction. And it's a course correction that could apply to courts across the country.

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February 13, 2019 | Permalink | Comments (8)

Tuesday, February 12, 2019

William Kidder Posts "(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings" on SSRN

William Kidder (UCLA Civil Rights Project) has posted "(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings" on SSRN. Here is the abstract:

Prevention of sexual assault and sexual harassment are major challenges at U.S. colleges and universities today. In recent years a vigorous law and policy debate emerged within the higher education community about Title IX and whether the “preponderance of evidence” or “clear and convincing” evidence represents the more appropriate standard of evidence in campus sexual violence and sexual harassment disciplinary procedures. During the Obama administration the Office for Civil Rights in the U.S. Department of Education issued a 2011 “Dear Colleague” letter recognizing that the preponderance of evidence standard was the appropriate standard for Title IX investigations. The Trump administration's Office for Civil Rights rescinded this earlier guidance and in November 2018 issued a notice of proposed rulemaking regarding Title IX regulations. The new proposed regulation reflects a “you can have more discretion, if you rachet up” policy: a college can only use the preponderance of evidence standard if it adopts that same standard across-the-board in similarly serious non-Title IX student misconduct cases and in both Title IX and non-Title IX cases where the accused/respondent is a faculty member or employee. If a campus chooses to adopt the clear and convincing evidence standard in Title IX cases, the proposed regulation would not restrict campus discretion in non-Title IX student cases. 

While the relationship between the burden of proof and outcomes is complicated and dynamic, the main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors (student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive” errors. By implication, a shift to the clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.

This article also aims to inform the debate about Title IX and faculty and student disciplinary cases by objectively identifying whether the preponderance of evidence or clear and convincing evidence standard is used in most domains that are reasonably analogous to faculty Title IX-related misconduct proceedings (a more stringent test than looking only at student-to-student Title IX cases). This review includes U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases. In a large majority of these areas, preponderance of evidence is used as the standard of evidence. This pattern highlights concerns about the Office for Civil Rights selectively referencing cases that support its proposed Title IX regulation and questionable claims about the clear and convincing evidence standard and stigma. This article also raises questions, depending on how the notice-and-comment process unfolds, about the proposed Title IX regulation and the Administrative Procedure Act. 


February 12, 2019 | Permalink | Comments (0)

Monday, February 11, 2019

Supreme Court of New Jersey Finds a Brady Violation Based on Late Disclosure of Nineteen Pieces of Exculpatory Evidence

Pursuant to the Supreme Court's opinion in Brady v. Maryland, the State has an affirmative duty under the Due Process Clause to timely disclose material exculpatory evidence. The typical opinion involving a Brady violation involves the State's complete failure to disclose exculpatory evidence, with the main question being that evidence was material, i.e, whether it undermines our confidence in the jury's verdict. In this sense, the recent opinion of the Supreme Court of New Jersey in State v. Brown, 2019 WL 418076 (N.J. 2019), is a bit of an outlier because the State did disclose exculpatory evidence to the accused...but not until a week had passed in his murder trial.

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February 11, 2019 | Permalink | Comments (0)

Wednesday, February 6, 2019

The Wrongful Conviction of Kelvin Bradley & How a Private Bill Could Get Him Compensation

Currently, 33 states have laws that allow the wrongfully convicted to receive compensation based upon their years of imprisonment. Georgia is not one of those states. What this means is that a state representative must submit what's known as a “private bill” to compensate one individual, rather than creating a policy for compensation any time someone is proven innocent. 

One example of such a bill can be found in the case of Clarence Harrison, who was convicted of rape and robbery in 1987 but was later released in 2004 based upon the conclusion that "DNA evidence obtained from Harrison could not possibly belong to the same man whose DNA was in the rape kit." After Harrison was released, several Georgia representatives filed a private bill that gave Harrison $1 million in compensation.

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The beginning of the private bill in the Clarence Harrison case.

This then takes us to the recent exoneration of Kelvin Bradley.*


Kelvin Bradley

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February 6, 2019 | Permalink | Comments (0)

Monday, February 4, 2019

Inaugural Evidence Summer Workshop at Vanderbilt Law School in Nashville, TN, May 23-24, 2019

This workshop should be of interest to all Evidence law scholars:

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We are delighted to announce the inaugural Evidence Summer Workshop to be held at Vanderbilt Law School in Nashville, TN, on May 23-24, 2019.

The Workshop aims to provide evidence scholars a regular venue to present their latest projects, share ideas, and develop lasting relationships among each other. We hope this summer’s workshop will be the first of many to be held on an annual basis.

The conference will include both plenary paper sessions at which papers will be discussed by designated commentators and smaller group sessions.

All evidence scholars are welcome to register and attend the Workshop. Those wishing to present papers should submit an abstract (not to exceed 500 words) by March 15, 2019 on the conference webpage, which can be found at evidenceworkshop.com. We welcome submissions from scholars at all stages of their careers. Preference will be given to those within their first decade of teaching. Selection decisions will be made by mid-April.

The Workshop includes all meals (dinner, breakfast, lunch) for registrants. Participants are responsible for their own housing and travel costs. A block of rooms has been reserved at the Loews Vanderbilt for Workshop participants. More details are available at evidenceworkshop.com.

The 2019 Evidence Summer Workshop is generously made possible by Vanderbilt Law School’s Branstetter Litigation and Dispute Resolution Program.

If you have any questions, please contact any member of the Program Committee.

Ed Cheng (Vanderbilt), edward.cheng@vanderbilt.edu

Alex Nunn (Arkansas), ganunn@uark.edu

Julia Simon-Kerr (Connecticut), julia.simon-kerr@uconn.edu

Maggie Wittlin (Nebraska), maggie.wittlin@unl.edu

February 4, 2019 | Permalink | Comments (0)