EvidenceProf Blog

Undisclosed Mega-Update Thread 7

On December 17, 2020 North Carolina Governor Roy Cooper issued a Pardon of Innocence for Ronnie Long. And yesterday, a settlement was reached, pursuant to which Chester Hollman III will be awarded $9.8 million for his 28 years of wrongful conviction.

Given this terrific turn of events, I wanted to do a final 2020 update on the status of all of the cases we've covered on Undisclosed.

Total cases covered: 23 cases.

Relief granted: 14 cases: 10 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; (7) Jonathan Irons; (8) Dennis Perry; (9) Ronnie Long; and (10) Joseph Webster. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 4 cases. (1) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (2) Pedro Reynoso's CIU petition; (3) Fred Freeman/Temujin Kensu's CIU petition; and (4) John Brookins's DNA petition and Board of Pardons hearing.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

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The Difference Between Federal & Texas Rule of Evidence 609(e)

Federal Rule of Evidence 609(e) states that

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Conversely, Texas Rule of Evidence 609(e) states that

A conviction for which an appeal is pending is not admissible under this rule.

So, what does this rule mean and what doesn't it mean?

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Supreme Court of Illinois Finds Defendants Who Pleaded Guilty Can Bring Freestanding Claims of Actual Innocence

Illinois and a number of other states allow for a convicted defendant to bring a freestanding claim of actual innocence. The issue that has divided the states is whether such a claim can only be made by defendants convicted after trials or whether such a claim can also be made by a defendant after a guilty (or nolo contendere) plea. I wrote an article on the split among courts, and its title makes my position clear: Why States Must Consider Innocence Claims After Guilty Pleas. As far as I can tell, Illinois is the first state to consider the issue since that article, and...the news is good.

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Supreme Court of Oregon Finds Jury Instructions Allowing for Nonunanimous Verdicts Are (Harmless) Error

In Ramos v. Louisiana, the Supreme Court held that "if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court." In State v. Ulery, 464 P.3d 1123 (Oregon 2020), the Supreme Court of Oregon subsequently held that the receipt of a nonunanimous guilty verdict always entitles a defendant to reversal, meaning that defendants convicted on 11-1 or 10-2 jury verdicts are always entitled to new trials.

On Christmas Eve, in its opinion in State v. Ramos, 2020 WL 7654196 (Oregon 2020), the Supreme Court of Oregon added that "the Sixth Amendment [i]s violated when the jury was instructed that it could return a nonunanimous guilty verdict," but that such errors are subject to harmless error review. So what does that mean?

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7th Circuit Finds Jury Coercion When Juror Said During Post-Verdict Polling That He Was "Forced Into" Voting Guilty

It is well established that 

“Any criminal defendant...being tried by a jury is entitled to the uncoerced verdict of that body.”...Impermissible coercion occurs “when jurors surrender their honest opinions for the mere purpose of returning a verdict.” United States v. Banks, 2020 WL 7414646 (7th Cir. 2020).

So, what should a judge do when she believes that there might have been jury coercion? According to the Seventh Circuit, not what the district judge did in Banks.

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Is Rule 106 a Rule of Timing or a Rule of Admissibility?

Federal Rule of Evidence 106 states that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

For years, there has been a debate raging about whether Rule 106 is a rule of timing or a rule of admissibility. The Fifth Circuit had its chance to address this debate in its recent opinion in United States v. Torres, 808 Fed.Appx. 270 (5th Cir. 2020).

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Court of Appeals of Kentucky Grapples With Former Testimony Hearsay Exception

Similar to its federal counterpart, Kentucky Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

In its recent opinion in Estate of Karen Burden v. Hardison, 2020 WL 7640000 (Ky.App. 2000), the Court of Appeals of Kentucky dealt with one element of this exception and left another element for another day.

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Court of Appeals of Maryland Finds Rap Lyrics Were Admissible Against Defendant Charged With Murder

Should a defendant's rap lyrics be admissible against him at a murder or attempted murder trial? After a New Jersey court found that Vonte Skinner's rap lyrics were admissible against him at his attempted murder trial, I wrote an essay, Freedom of Character: Creating a Constitutional Character Evidence Test, arguing that such lyrics should be admissible due to a combination of First Amendment and character evidence concerns (and concerns regarding racism). Subsequently, as. noted in a blog post, the Supreme Court of New Jersey reversed Skinner's conviction, concluding in State v. Skinner, 2014 WL 3798993 (N.J. 2014) that the rap lyrics were improperly admitted.

Now, however, in Montague v. State, the Court of Appeals of Maryland has held that rap lyrics by Lawrence Montague were properly admitted at his murder trial, allowing for his conviction to stand.

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The Key Difference Between the Federal and Illinois Dying Declaration Exceptions

Similar to its federal counterpart, Illinois Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide, [for] a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

But there's a key difference between the federal and state rules.

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Appellate Court of Illinois Finds Victim's Use of a Service Dog While Testifying Did Not Create Undue Sympathy For Her

The Americans With Disabilities Act defines a "service animal" as

any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

So, assume that a trial judge allows a victim/witness to testify with a service dog sitting with him in the service box. Would this create undue sympathy for the victim and prejudice the defendant? This was the question addressed by the Appellate Court of Illinois, Second District, in its recent opinion in People v. Tapley, 2020 WL 7417620

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Supreme Court of North Dakota Finds Designation of a Witness as a Party Representative Doesn't Obviate the Need to Prove Personal Knowledge

Like its federal counterpart, North Dakota Rule of Evidence 615 states that

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony, or the court may do so on its own. This rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or

(d) a person authorized by law to be present.

And, like its federal counterpart, North Dakota Evidence Rule 602 states that

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

So, does designating a witness as a party representative under Rule 615(b) obviate the need to establish their personal knowledge under Rule 602? This was the question of first impression addressed by the Supreme Court of North Dakota in its recent decision in Rentz v. BNSF Railway Company, 2020 WL 7395389 (N.D. 2020).

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Supreme Court of Texas Finds Exoneree Alfred Dewayne Brown is Entitled to Compensation Under the Tim Cole Act

In April 2003, three men robbed a check-cashing store in Houston, TX, where they fatally shot the store clerk and the police officer who responded to the scene. The following day, police arrested three men on capital murder charges: 21-year-old Alfred Dewayne Brown, 21-year-old Dashan Glaspie and 23-year-old Elijah Joubert.

When Brown was arrested, he told police he was asleep on his girlfriend’s couch at the time of the crime. Brown’s girlfriend, Ericka Dockery, corroborated his alibi at the grand jury proceedings. She also corroborated Brown’s statement that he’d called Dockery from her home phone at the same time police believed he was with Joubert and Glaspie.

Later,

In 2013, a homicide detective found records from the case in his garage and notified Brown’s attorneys. In the records was a telephone log showing that a call was made from Dockery’s home telephone to her workplace at 10:08 a.m. — just as Brown had said from the beginning.

Subsequently, "[i]n November 2014, the Texas Court of Criminal Appeals vacated Brown's conviction and ordered a new trial because the “State withheld evidence that was both favorable and material to [Brown]'s case in violation of Brady [v. Maryland].” The State then declined to retry Brown, and he was set free.

Next, Brown filed for compensation for his wrongful conviction under the Tim Cole Act (named for posthumous exoneree Tim Cole), but "[t]he Comptroller denied Brown's first application for wrongful-incarceration compensation under the Tim Cole Act because habeas relief was not based on his actual innocence."

But then,

In the meantime, the Harris County District Attorney appointed a special prosecutor to “analyze [1] whether Brown should be re-indicted, [2] whether he should be declared actually innocent, or [3] whether the status quo of dismissed charges with no formal declaration of innocence should continue.” The special prosecutor's ten-month investigation culminated in a detailed 179-page report in which he concluded Brown “could not physically have been at the crime scene.” The report further added that Brown “[met] the legal definition of ‘actual innocence,’ ” because “[b]y clear and convincing evidence, no reasonable juror would fail to have a reasonable doubt about whether Brown is guilty of murder.”

Agreeing this report, "the District Attorney filed an amended motion to dismiss in March 2019, stating (1) no credible evidence inculpates Brown in the capital murder crime for which he was convicted and sentenced to death, and (2) he 'is actually innocent' of that crime." The district court granted this motion, and "[t]he court's formal declaration of actual innocence became final when no appeal was taken."

And yet, the Comptroller still found that Brown was not entitled to compensation under the Tim Cole Act. Why?

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Supreme Court of Kansas Finds Prosecutor's "Self-Deprecating Lawyer Joke" at Murder Trial Wasn't Prosecutorial Error

Although you may disagree with their methodology, social psychologists have found that it takes 36 days after a tragedy before jokes about it become funny. What about jokes by a lawyer at a murder trial? Well, who knows about whether jokes by a prosecutors at such a trial are funny, but are they objectionable? That was the question that the Supreme Court of Kansas referenced in its recent opinion in State v. Willis, 475 P.3d 324 (Kan. 2020).

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Supreme Court of Minnesota Finds Less Risk of Prejudice With Judicial Interrogation at a Bench Trial

Similar to its federal counterpart, Minnesota Rule of Evidence 614(b) states that "[t]he court may interrogate witnesses, whether called by itself or by a party." The Supreme Court of Minnesota has found that "courts ordinarily should exercise that authority 'with great caution, particularly when the credibility of [a] key witness[] is at issue.'” State ex rel. Hastings v. Denny, 296 N.W.2d 378, 379 (Minn. 1980). But does this analysis change for a bench trial vs. a jury trial?

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North Carolina Governor Roy Cooper Gives a Pardon of Innocence to Ronnie Long

Today, North Carolina Governor Roy Cooper issued a Pardon of Innocence for Ronnie Long, whose case we covered on the Undisclosed Podcast:

So, why is this a big deal?

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3rd Circuit Finds That the Prosecution's Use of a Defendant's Alias in an Indictment or at Trial is Generally Permissible

Federal Rule of Evidence 403 states that 

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, is evidence that a defendant used an alias admissible or inadmissible under Rule 403? That was the question of first impression addressed by the Third Circuit in its recent opinion in United States v. Williams, 974 F.3d 320 (3rd Cir. 2020).

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Tenth Circuit Finds Defendant's Use of Memes About Pimping on the Website "Tagged" Were Admissible Intrinsic Evidence in Prosecution for Facilitating Prostitution

Federal Rule of Evidence 404(b)(1) & (2) state the following:

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

That said, 

“Because Rule 404(b) only limits evidence of ‘other’ crimes-those extrinsic to the charged crime-evidence of acts or events that are part of the crime itself, or evidence essential to the context of the crime, does not fall under the other crimes limitations of Rule 404(b).”.... “Evidence is considered ‘intrinsic’ when it is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury, and ‘extrinsic’ when it is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.”

In United States v. Alfred, 2020 WL 7329980 (10th Cir. 2020), the prosecution claimed that "memes contain[ing] laudatory references to pimping and pimping culture and also...graphic depictions suggesting dire consequences of engaging in prostitution without a pimp" were admissible as intrinsic evidence against a defendant charged with (1) coercion and enticement; and (2) facilitating prostitution. So, how did the court rule?

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Supreme Court of Indiana Upholds Murder Conviction Despite Evidence of Gross Misconduct by Juror

In its recent opinion in Loehrlein v. State, 2020 WL 7238307 (Ind. 2020), the Supreme Court of Indiana correctly noted that

“Generally, proof that a juror was biased against the defendant or lied during voir dire entitles a defendant to a new trial.” State v. Dye, 784 N.E.2d 469, 473 (Ind. 2003) (quoting Warner v. State, 773 N.E.2d 239, 246 (Ind. 2002)). A defendant seeking a new trial because of juror misconduct must show two things: 1) gross misconduct; and 2) that the gross misconduct probably harmed the defendant. Id. 

So, why do I think the court botched its analysis?

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Supreme Court of Iowa Reverses Murder Conviction, Finds Evidence of Suicidal Tendencies is Not Character Evidence

Iowa Rule of Evidence 5.404(a) states that

Evidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion.

As the Supreme Court of Iowa stated in its opinion on Friday in State v. Buelow, 2020 WL 7270258 (Iowa 2020),

This court has said, “[r]oughly stated, character is what a man actually is, while reputation is what his neighbors say he is.”...On the other end of the spectrum, evidence used to prove a person's traits for “honesty, integrity, and good citizenship” or “peacefulness and nonviolence” is considered character evidence.

But is "evidence of a person's suicidal disposition...properly characterized as character evidence"? That was the question the court had to address in Buelow.

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Court of Appeals of Iowa Creates Objective Juror Test for When Racist Jurors Comments Require a New Trial

In Pena-Rodriguez v. Colorado, the Supreme Court held

that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee.

In State v. Spates, 2020 WL 6156739 (Iowa App. 2020), an African-American defendant was convicted of murder and related crimes, and it was later discovered that jurors made the following statements during deliberations:

The district court denied the defendant's motion for a new trial, finding that these statements did not trigger the Constitutional exception contained in Pena-Rodriguez v. Colorado. So, how did the appellate curt rule?

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