EvidenceProf Blog

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

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 (0)

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)

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.

ON THIS DAY AT APPROXIMATELY 2115 A MALE SUBJECT BY THE NAME OF ALVAREZ, GEORGE WAS BROUGHT INTO CITY JAIL FOR THE CHARGE OF BURGLARY OF MOTOR VEHICLE X 2 AND WHILE IN CELL 101 ALVAREZ WAS OBSERVED BANGING PHONE RECIEVER AND WAS THEN MOVED TO CELL #114 IN THE PROCESS OF TRANSFERING HIM HE BECAME VIOLENT WITH D.O ARIAS #4831-MENDOZA #5950- SALINAS #5989. WHILE IN STRUGGLE I D.O MENDOZA PLACED MY KNEE OVER HIS BACK WHILE TRYING TO PLACE HANDCUFFS ON INDIVIDUAL TO REGAIN CONTROL TO SUBDUE HIM AND WAS PLACED IN CELL #114 WITH SHACKLES AND HANDCUFFS. NO FURTHER ACTION TAKEN BY THIS D.O.

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).

Innocent(1)

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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:

Spencer

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.

-CM

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)