EvidenceProf Blog

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

Friday, October 18, 2019

My Take on the State of Maryland's Brief in Opposition in the Adnan Syed Case

Today, the State of Maryland filed its Brief in Opposition to Adnan Syed's petition for writ of certiorari to the United States Supreme Court. The Brief in Opposition is 31 pages, but the dispute between the defense and the State is clear from two paragraphs in the State's brief:

Under the “majority approach” touted by Syed, a court’s prejudice inquiry should “take the State’s evidence of guilt as the jury heard it,” examine “the theory the State advanced at trial,” and “consider the difference between the case that was and the case that should have been.”...This is precisely what the Maryland Court of Appeals did here....

At no point did the Maryland Court of Appeals “reject[] the majority approach” to analyzing prejudice, as Syed contends....The “split” identified by Syed is instead implied from a single sentence in the opinion, which states that “the jury could have disbelieved that Mr. Syed killed Ms. Lee by 2:36 p.m., as the State’s timeline suggested, yet still believed that Mr. Syed had the opportunity to kill Ms. Lee after 2:40 p.m.”....Syed reads far too much into this single sentence, which represents neither a departure from Strickland nor the “majority approach” identified by Syed.

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October 18, 2019 | Permalink | Comments (3)

Thursday, October 10, 2019

Mega Update on All Undisclosed Cases

On October 9th, Willie Veasy's conviction for murdering John Lewis was vacated, and all of the charges against him were dropped Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Adnan Syed


Adnan Syed was convicted of the 1999 murder of his ex-girlfriend Hae Min Lee (Undisclosed series). After the Circuit Court and the Court of Special Appeals of Maryland granted him a new trial, the Court of Appeals reversed in a 4-3 ruling. Adnan's team has now filed a cert petition to the United States Supreme Court, and the State's response is due October 21st. If the Supreme Court does not grant cert, this will likely be followed by a claim of ineffective assistance of postconviction counsel based on the AT&T disclaimer that will very likely succeed, lead to his conviction being thrown out.

Joey Watkins


Joey Watkins was convicted of the 2000 murder of Isaac Dawkins (Undisclosed series). He currently has two appellate claims that are active. I think his stronger argument is that a juror improperly did a drive test during deliberations to see if she could make the cell tower pings work. Substantively, this is a clear winning argument for a new trial. The Circuit Court, however, found that the argument was procedurally barred due to waiver. This ruling was appealed to Supreme Court of Georgia, which initially declined to hear it. In a stunning turn of events, however, the Supreme Court of Georgia granted Joey's motion for reconsideration. Joey filed his brief with the Supreme Court of Georgia on August 29th, and the State  filed its response on September 25th. We should be hearing soon about oral arguments.

Jamar Huggins


The one witness to implicate Jamar Huggins in a home invasion in Conway, South Carolina in 2014 has since recanted and named the actual person who committed the crime (Undisclosed series). The initial claim was that this was "new evidence" allowing for a new trial. But the Circuit Court found this recantation was known and not used by trial counsel. That decision was recently affirmed by the Court of Appeals of South Carolina. This was all expected and sets up a pretty compelling argument for ineffective assistance of trial counsel. I'm currently working on that argument with Jamar's attorney.

Marcellus Williams


Marcellus Williams was convicted of the 1998 murder of Felicia Gayle. Governor Eric Greitens  stayed Marcellus Williams's execution in August 2017 (Undisclosed special episode). He also appointed a Board of Inquiry to review his case. That Board has not yet issued its report.

Shaurn Thomas


Shaurn Thomas was convicted of the 1990 murder of Domingo Martinez (Undisclosed series). In March 2017, the Conviction Integrity Unit in Philadelphia threw out Shaurn Thomas's conviction.

Willie Veasy


Willie Veasy was convicted of the 1992 murder of John Lewis (Undisclosed series). Yesterday, a judge vacated his conviction and the State dropped the charges against him due to compeelling evidence of his innocence.

Terrance Lewis


Judge Barbara McDermott declared Terrance innocent in May, leading to his release from prison (Undisclosed series).

Chester Hollman III


Chester Hollman III was convicted of the 1991 murder of Tae Jung Ho (Undisclosed series). On July 15, 2019, he was released based on a finding that Hollman was innocent, and all charges against him were subsequently dropped on July 30th.

Cyntoia Brown


Cyntoia Brown was convicted of the 2004 murder and robbery of Johnny Michael Allen (Undisclosed special episode). Govenor Bill Haslam granted Cyntoia Brown clemency, and she was released August 7th.

Ronnie Long


Ronnie Long was convicted of the 1976 rape of Gray Bost (Undisclosed series). A three judge panel of the United States Court of Appeals for the Fourth Circuit recently heard oral arguments on Ronnie's claim of Brady violations. A decision should be imminent.

William Montgomery


William Montgomery was convicted of the 1986 murder of  Debra Ogle (Undisclosed special addendum interview). Governor John Kasich commuted William's death sentence to a life without parole sentence in March 2018 .

Pamela Lanier


Pam Lanier was convicted of the 1997 murder of her husband Dorian (Undisclosed series). In the near future, expect a motion for a new trial from the Wake Forest team based on new scientific evidence that Pam's husband died from arsenic poisoning based on ingesting turkey medication rather than being poisoned by her.

Dennis Perry

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Dennis Perry was convicted of the 1985 murders of Harold and Thelma Swain (Undisclosed series). The Georgia Innocence Project file a habeas petition in June based on many of the issues we raised in our most recent series.

Charles Ray Finch


Charles Ray Finch was convicted of the 1976 murder of Richard Holloman (Undisclosed special episode). The Fourth Circuit first found that Charles Ray Finch had proven his "actual innocence."  Then, a federal district court granted his habeas petition and set him free in May.

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Rocky Myers


We recently finished our series on Rocky Myers, who has no ability to appeal his conviction for murdering Ludie Mae Tucker in 1991 due to his abandonment by appellate counsel. As a result, it is difficult to see a path toward exoneration in the courts. That said, we hope that his death sentence can be commuted to a life sentence due to the use of judicial override in his case, and we also hope that we can convince Governor Kay Ivey to stay execution if and when that execution is scheduled (Undisclosed series).

Joseph Webster


We recently finished our series on Joseph Webster, who was convicted of the 1998 murder of Leroy Owens (Undisclosed series). Webster's case is currently being reviewed the Davidson County District Attorney’s Conviction Review Unit. We expect to have an update on his case in the next few weeks.


October 10, 2019 | Permalink | Comments (2)

Monday, October 7, 2019

An Introduction to the Jonathan Irons Case & His Brady Claim Based on an Undisclosed Fingerprints Report

On June 30th, I read a New York Times article about WNBA player Maya Moore taking a one year leave of absence to work on the case of Jonathan Irons, who she believes was wrongfully convicted. I reached out to see if I could help, and I've been working on the case ever since for a future series on Undisclosed. That series will premiere next year, but this Wednesday, October 10th, Jonathan has a hearing on his petition for writ of habeas corpus that could decide whether his case moves forward. In this post, I will do a brief introduction to his case and highlight one of the issues he raises in his petition: an alleged Brady violation.


Jonathan Irons

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October 7, 2019 | Permalink | Comments (20)

Saturday, October 5, 2019

How Long is Too Long?: Fifth Circuit Finds Phone Call 5 Months After Slip-and-Fall Was Not a Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

So, how much time can pass before a matter is no longer fresh in a witness's memory? That was the question addressed by the Eleventh Circuit in its recent opinion in Garrison v. Sam's East, Inc., 2019 WL 4785526 (11th Cir. 2019).

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October 5, 2019 | Permalink | Comments (2)

Friday, October 4, 2019

First Circuit Finds Special Social Media Authentication Rules Don't Apply to Photographs Retrieved From Facebook

Federal Rule of Evidence 901(a) states that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

So, let's say that someone retrieves photographs from a Facebook page. Does the rules regarding authenticating social media evidence apply in such a case?

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October 4, 2019 | Permalink | Comments (0)