EvidenceProf Blog

My Second Supplement to the Request for Review for Michelle Heale

On February 15, 2022, I filed a Request for Review with the New Jersey Attorney General’s Conviction Review Unit on behalf of Michelle Heale. Here was the Introduction to that Request:

On April 17, 2015, Michelle Heale was convicted of aggravated manslaughter and child endangerment based on the death of fourteen-month old Mason Hess, whom she had been babysitting. Michelle Heale is actually innocent of these crimes and would have been acquitted at trial if not for an error by her trial counsel in failing to present testimony and a report by the leading expert who could have proven her defense. Moreover, new evidence calling into question the use of the traditional triad of symptoms to diagnose Shaken Baby Syndrome – a diagnosis of exclusion, not inclusion – supports a finding of actual innocence. Indeed, this new evidence has led a New Jersey court to conclude that the evidence used to convict Ms. Heale is insufficiently reliable to even be admissible at trial.

In April 2022, I filed a First Supplement to that Request. I have now filed a Second Supplement (Download Heale Second Supplement) to the CRU based upon the recent opinion of the Superior Court of New Jersey, Appellate Devision finding that the theory of Shaken Baby Syndrome without impact has never been proven through biomechanical testing and fails to satisfy the Frye test for admissibility of expert evidence. This opinion was based largely upon testimony by Dr. Chris Van Ee, who was contacted by Heale's trial attorney and prepared a draft report in her defense, but who was ignored by Heale's trial attorney after Dr. Van Ee let him know he had written the report. It is my hope that this new opinion leads to Heale being fully exonerated.

-CM

Undisclosed Mega-Update Thread 14

Last week, the State of Michigan agreed to pay Jeff Titus $1.03 million for his 20+ years of wrongful conviction. Given this terrific turn of events, I wanted to do an update on the status of all of the cases we covered on Undisclosed.

Total cases covered: 27 cases.

Relief granted: 19 cases: 14 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; (10) Joseph Webster; (11) Darrell Ewing; (12) Joey Watkins; (13) Adnan Syed; and (14) Jeff Titus; 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson. 1 vacated conviction/Alford plea: Wayne Braddy and Karl Willis.

Currently pending: 4 cases. (1) Pedro Reynoso's CIU petition; (2) Pam Lanier's motion for a new trial; (3) Jamar Huggins's PCR petition; and (4) Greg Lance's DNA/fingerprint testing.

New appeals expected soon: 1 case: Jason Carroll

Options being explored: 3 cases: (1) Rocky Myers (2) Fred Freeman/Temujin Kensu; (3) John Brookins.

1. Adnan Syed

Adnan Syed was convicted of the 1999 murder of his ex-girlfriend Hae Min Lee (Undisclosed series). On September 19, 2022, Judge Melissa Phinn vacated his conviction and set him free. Subsequently, on October 11, 2022, Baltimore prosecutors dropped all charges against him. Hae Minn Lee's family appealed Judge Phinn's order. In a 2-1 ruling in March 2023, the Appellate Court of Maryland reinstated Adnan's conviction, but issuance of that mandate has been stayed while Adnan appeals to the Supreme Court of Maryland. Oral arguments in the case are currently scheduled for October 5th.

2. Joey Watkins

Joey Watkins was convicted of the 2000 murder of Isaac Dawkins (Undisclosed series). Judge Don W. Thompson of the Superior Court of Walker County granted Joey Watkins's petition for writ of habeas corpus on April 11, 2022, meaning that Joey's conviction for murdering Isaac Dawkins has been tossed. The Supreme Court of Georgia upheld that ruling. 

3. 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 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. Jamar has an evidentiary hearing on that claim that was scheduled for May 2023 but was delayed.

4. 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. Without that Board ever issuing a report, the Missouri governor lifted the stay of execution in July 2023.

5. 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. Philadelphia officials later agreed to pay him $4.15 million.

6. Willie Veasy

Willie Veasy was convicted of the 1992 murder of John Lewis (Undisclosed series). On October 9, 2019, a judge vacated his conviction, and the State later dropped the charges against him due to compelling evidence of his innocence. Willie ultimately settled with the State for $5 million.

7. Terrance Lewis

Terrance Lewis was convicted of the murder of Hulon Bernard Howard in 1996. Judge Barbara McDermott declared Terrance innocent in May 2019, leading to his release from prison (Undisclosed series). On June 30, 2020, it was announced that he had reached a settlement in which the city would pay him $6.25 million. Terrance has since started the Terrance Lewis Foundation, "a non-profit organization dedicated to advocating for wrongfully convicted people who are seeking legal representation."

8. 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. Subsequently, on December 30, 2020, a settlement was reached, pursuant to which Chester Hollman III will be awarded $9.8 million for his 28 years of wrongful conviction.

9. Cyntoia Brown

Cyntoia Brown was convicted of the 2004 murder and robbery of Johnny Michael Allen (Undisclosed special episode). Governor Bill Haslam granted Cyntoia Brown clemency, and she was released August 7, 2019.

10. Ronnie Long

Long was convicted of the 1976 rape of Gray Bost (Undisclosed series). In August, 2020, the United States District Court for the Eastern District of North Carolina entered an order vacating Ronnie Long's convictions for first-degree rape and burglary. In September 2020, he was released from prison. On December 17, 2020 North Carolina Governor Roy Cooper issued a Pardon of Innocence for Ronnie Long, making him eligible for $750,000 in compensation. On May 3, 2021, Long filed a civil action, seeking additional compensation for his decades of wrongful conviction.

11. 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.

12. Pamela Lanier

Pam Lanier was convicted of the 1997 murder of her husband Dorian (Undisclosed series). Pam's team at Wake Forest has filed motion for a new trial  based on new scientific evidence that Pam's husband died from arsenic poisoning based on ingesting turkey medication rather than being poisoned by her. A hearing that was scheduled for June 27, 2022 was postponed.

13. Dennis Perry

Dennis Perry was convicted of the 1985 murders of Harold and Thelma Swain (Undisclosed series). In April 2020, it was reported that glasses likely left at the crime scene by the killer had hairs that returned a DNA match for alternate suspect Erik Sparre. A hearing on Dennis's motion for extraordinary relief was held on July 13, 2020. The result of that hearing was Dennis Perry being granted a new trial. On July 23, 2020, he was released from prison. Legislators in Georgia recently cleared legislation that "would pay 60-year-old Dennis Perry $1.23 million for the 20 years he spent in state custody."

14. 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 2019. Finch recently died in January.

On June 16, 2021, Governor Roy Cooper issued a Pardon of Innocence for Finch.

15. Rocky Myers

Rocky Myers was convicted of murdering Ludie Mae Tucker in 1991 and given a death sentence as a result of judicial override, despite the jury voting 9-3 for a life sentence. 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).

16. Joseph Webster

Joseph Webster was convicted of the 1998 murder of Leroy Owens (Undisclosed series). Webster was exonerated after a judge agreed with the Davidson County Conviction Review Unit that he was wrongfully convicted, and he was released on November 10, 2020. Based on a GoFundMe fundraiser, Joseph will be able to move into his own apartment.

17. Cyrus Wilson

Cyrus Wilson was convicted of the 1992 murder of Christopher Luckett (Undisclosed special episode). On October 23, 2019, he was granted parole by the Tennessee Board of Parole.

18. Greg Lance

Greg Lance was convicted of the murders of Victor and Alla Kolesnikow in 1998 (Undisclosed series). On December 16, 2022, a Tennessee judge approved DNA testing of crime scene evidence as well as fingerprint testing of a battery found in a flashlight connected to the crime.

19. Pedro Reynoso

Pedro Reynoso was convicted of the 1991 murders of Charles Rivera and Carlos Torres (Undisclosed special episode). In December, the Pennsylvania Board of Pardons voted to hold his case under advisement to determine if they are allowed to consider actual innocence claims. His case is also being reviewed by Philadelphia's Conviction Integrity Unit.

20. Theophalis Wilson

Theophalis Wilson was convicted of the 1989 murders of Otis Reynolds, Gavin Anderson, and Kevin Anderson (Undisclosed special episode). On January 21, 2020, a judge declared him innocent of these murders and set him free. Earlier this year, Wilson filed a civil action seeking compensation for his decades of wrongful conviction.

21. Fred Freeman/Temujin Kensu

Fred Freeman/Temujin Kensu was convicted of the murder of Scott Macklem in 1986 (Undisclosed series). His clemency request was denied by Governor Gretchen Whitmer in 2021.

22. Jonathan Irons

Jonathan Irons was convicted of a burglary and shooting that occurred at the home of Stanley Stotler in O'Fallon, Missouri back in 1997 (Undisclosed series). On June 30, 2020, the Supreme Court of Missouri refused to hear the State's appeal from Judge Daniel Green's opinion granting Jonathan Irons a new trial. On July 1, 2020, Jonathan was released from prison. The following day, the prosecutor announced that he would not take Jonathan's case back to trial. Jonathan was then released from prison. On March 8, 2021, Irons filed a civil action seeking compensation for his decades of wrongful conviction.

23. John Brookins

John Brookins was convicted of the 1990 murder of Sheila Ginsberg (Undisclosed series). John is currently appealing the denial of his DNA petition.

24. Jeff Titus

Jeff Titus was convicted of the 1990 murders of Doug Estes and James Bennett in the Fulton State Game Area in Kalamazoo County (Undisclosed series). Earlier this year, a federal judge signed an order releasing Jeff Titus from prison and granting him a new trial. Subsequently, prosecutors dropped the charges against him. As noted, last week, he was awarded $1.03 million. Today, it was announced that he filed a $100 million lawsuit against the cold case detectives who withheld material exculpatory evidence against him.

25. Darrell Ewing

Darrell Ewing was convicted of the 2009 murder of J.B. Watson in Detroit, Michigan (Undisclosed series). Ewing was eventually granted a new trial based upon jury misconduct, and the State ran out of appeals for that ruling on March 2, 2021. The State is currently trying to take Ewing's case back to trial.

26. Jason Carroll

Jason Carroll was convicted of the July 1988 murder of Sharon Johnson in New Hampshire (Undisclosed series). Appellate options are currently being explored, and his case will be covered on the Bear Brook podcast.

27. Wayne Braddy and Karl Willis

Karl Willis and Wayne Braddy were convicted of the murder Maurice Purifie on June 15, 1998 in Toledo, Ohio (Undisclosed series). While their latest appeal was pending, the prosecutor offered a deal in which their convictions would be vacated in exchange for Alford pleas. In March, Willis and Braddy accepted this deal and were released.

-CM

The Straightforward Case For Adnan Syed's Innocence

Oral arguments in the Adnan Syed/Hae Min Lee case are right around the corner (October 5th) in the Supreme Court of Maryland. The case has been dissected and analyzed all across the media, so much so that it gets difficult to see the forest for the trees. When we take a step back, though, things are much more straightforward in this case than a typical case because we had a mistrial at Adnan's first trial. This makes it very easy to see what has always been "the crux" of the State's case against Adnan and why that center could not hold.

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Louisiana Only Allows Evidence of the Victim's Bad Character for Violence if There's Evidence (S)he Committed an Overt Act at the Time of the Crime Charged

Federal Rule of Evidence 404(a)(2)(B) provides that 

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait

By way of contrast, Louisiana Article of Evidence 404(A)(2)(a) contains additional restrictions. It states that

Except as provided in Article 412, evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence;  provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible;  provided further that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including specific instances of conduct and domestic violence;  and further provided that an expert's opinion as to the effects of the prior assaultive acts on the accused's state of mind is admissible (emphasis added).

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Southwestern Law School Seeks an Evidence Professor

SOUTHWESTERN LAW SCHOOL in Los Angeles invites applications for the following positions:

• Multiple full-time entry-level and lateral tenure/tenure-track positions. Our primary curricular needs include Business Associations, Civil Procedure, Criminal Law/Criminal Procedure, Evidence, and Property. 
• Full-time entry-level or experienced Associate Professors of Academic Success and Bar Preparation
• Full-time entry-level or experienced Associate Professors or Professors of Legal Analysis, Writing, and Skills.

Founded in 1911, Southwestern is an ABA-accredited, independent law school located in the center of Los Angeles. Our mission includes educating lawyers ready to serve clients, the profession, and our society with excellence, empowering students to reach their potential, cultivating inclusion and belonging, and shaping the law and public policy through teaching, scholarship, and service.

To apply, please send your CV, professional references, research agenda, and preferred areas of teaching via email to [email protected] and put "Faculty Application" in the email subject line. Review of applications will begin in mid-August. Initial interviews will be held via Zoom, and callback interviews will be held in person. 

Court Finds Husband "Tagging" His Wife on Facebook Posts Was a "Communication," Violating Her Protective Order Against Him

Does "tagging" someone on Facebook constitute a communication for purposes of a protective order? This was the question of first impression addressed by the Court of Appeals of Texas in its recent opinion in Boes v. State, 2023 WL 5242592 (Tex. App. 2023),

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Why It's Highly Likely Becky Heard Hae Tell Adnan She Couldn't Give Him a Ride b/c She Had "Something Else to Do" on January 13, 1999

There has been a good bit of discussion about the Adnan Syed case on Twitter/X recently, and a good deal of it has dealt with Becky, a classmate and friend of both Adnan and Hae Min Lee. I've written before on this blog about Becky, but I don't think I've ever done a full post on why it is highly likely that the critical event she remembers in fact occurred on January 13, 1999, the day Hae disappeared.

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Eighth Circuit Finds Testimony at Plea Hearing to be Inadmissible Hearsay

Assume that a defendant testifies at a plea hearing in a way that incriminates himself and tends to exonerate someone else. If that other person is later prosecuted and the testifying defendant pleads the Fifth, is his testimony inadmissible or admissible as (1) former testimony; (2) a statement against interest; or (3) satisfying the residual hearsay exception? In its opinion yesterday in United States v. Dunn, 2023 WL 5065149 (8th Cir. 2022), the Eighth Circuit found such testimony inadmissible.

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Should Evidence of Sobriety Qualify as Habit Evidence?

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

One of the classic cases involving Rule 406 is Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir. 1985), in which the Eleventh Circuit found that the plaintiff's habit of drinking on the job constituted habit evidence. In reaching this ruling, the court cited McCormick on Evidence regarding the distinction between inadmissible character evidence and admissible character evidence (under Rule 406):

Character and habit are close akin. Character is a generalized description of one's disposition, or one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic (emphasis added).

I get honesty and peacefulness, but I'm not sure I agree with temperance.

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How Much Time Can Pass Before a Present Sense Impression is Given?

Similar to its federal counterpart, Texas Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

It's clear what constitutes a statement made while perceiving an event or condition. If Dana (declarant) says, "My head hurts," or tells her friend on the phone, "Doug is attacking Vince," it constitutes a present sense impression under Rule 803(1). But how much time can pass before a statement is no longer made "immediately after" the declarant perceives it.

Usually, courts says a few minutes at most. Before today, the longest I think I had ever seen was 23 minutes. But then I read Martin v. State, 2023 WL 3115779 (Tex. App. 2023).

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Should the Residual Hearsay Exception Apply to Narrow Misses Under the Dying Declaration Hearsay Exception?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Usually, it is the prosecution using this "dying declaration" exception to introduce statements implicating a defendant (e.g., dying victim saying, "Defendant shot me"). United States v. Berrios, 2023 WL 4745951 (D.V.I. 2023), is the rare example of a defendant trying to use the "dying declaration" exception, and it makes me wonder about using another exception if such an attempt fails.

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Supreme Court of Nebraska Finds Juror's Statements About Reputation of Victim's Family During Deliberations Didn't Allow For Jury Impeachment

Similar to its Federal Rule of Evidence 606(b), Nebraska Rule of Evidence 27-606(2) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

So, are a juror's statements about the reputation of the victim's family "extraneous prejudicial information" allowing for jury impeachment? According to the recent opinion of the Supreme Court of Nebraska in State v. Allen, 992 N.W.2d 712 (Neb. 2023), the answer is "no."

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LSU Looking to Hire an Evidence Professor

The LSU Paul M. Hebert Law Center seeks to hire multiple faculty for tenure-track or tenured positions. The Law Center has needs in a wide variety of areas, including but not limited to the following areas: administrative law, legal writing, artificial intelligence and cyber security, business law including contracts as well as upper-level business electives, environmental law, constitutional law, criminal law, criminal procedure, civil procedure, evidence, family law, legislation, professional responsibility, and food and agriculture. Applicants should have a J.D. from an ABA-accredited law school, some practice experience, superior academic credentials and legal scholarship, as well as a commitment to outstanding teaching.

The Law Center embraces Louisiana’s bijural legal system and endeavors to train lawyers ready to practice anywhere in the world. Our faculty have the opportunity to teach internationally including in our summer program in Lyon, France. LSU is committed to providing equal opportunity for all qualified persons in employment opportunities without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity/equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. All applicants must apply through Workday. https://lsu.wd1.myworkdayjobs.com/LSU/job/0448-Hebert-Law-Center/Assistant-Professor-of-Law-Associate-Professor-of-Law-Professor-of-Law_R00084134

Questions may be directed to Missy Lonegrass, Chair of the Faculty Appointments Committee, [email protected].

The University of Iowa College of Law: Faculty Hiring Announcement

The University of Iowa College of Law

Faculty Hiring Announcement 

The University of Iowa College of Law anticipates hiring multiple entry-level or lateral faculty members, in a search that considers candidates specializing in a broad range of first-year and advanced subjects, including evidence.

QUALIFICATIONS: Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are (or have the potential to become) recognized scholars and teachers and who will participate actively in the intellectual life of the College of Law.  In addition, we desire candidates who would bring valuable depth or breadth to the College of Law’s curriculum and to our institutional scholarly profile. We also desire candidates with a demonstrated ability to maintain effective and respectful working relationships with the campus community to uphold a standard of cultural competency and respect for differences in identity and perspective.

APPLICATION PROCEDURE: Candidates should apply either through the AALS Faculty Recruitment Services or by submitting a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu (refer to Requisition #74858).  When submitting their application materials, we invite candidates to draw attention to their strengths with respect to all the qualifications we are seeking.

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, religion, national origin, age, sex, pregnancy (including childbirth and related conditions), disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, or associational preferences.

For questions, please contact Faculty Appointments Committee at: [email protected].

Supreme Court of Kentucky Holds Subsequent Remedial Measure Rule Can Apply in Criminal Cases

Similar to its federal counterpart, Kentucky Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

It is clear that Rule 407 applies in civil cases, but does it apply in criminal cases? As I've noted before, courts are split on the issue. Now, the Supreme Court of Kentucky has weighed in on the issue.

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Undisclosed Mega-Update Thread 13

Yesterday, prosecutors dropped murder charges against Jeff Titus in connection with the deaths of Doug Estes and Jim Bennett. Now, Titus has been completely cleared of any wrongdoing in the case after 22 years of wrongful conviction. Given this terrific turn of events, I wanted to do an update on the status of all of the cases we covered on Undisclosed.

Total cases covered: 27 cases.

Relief granted: 19 cases: 14 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; (10) Joseph Webster; (11) Darrell Ewing; (12) Joey Watkins; (13) Adnan Syed; and (14) Jeff Titus; 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson. 1 vacated conviction/Alford plea: Wayne Braddy and Karl Willis.

Currently pending: 6 cases. (1) Pedro Reynoso's CIU petition; (2) Fred Freeman/Temujin Kensu's CIU petition; (3) John Brookins's DNA petition; (4) Pam Lanier's motion for a new trial; (5) Jamar Huggins's PCR petition; and (6) Greg Lance's DNA/fingerprint testing.

New appeals expected soon: 1 case: Jason Carroll

Options being explored: 1 case: Rocky Myers

1. Adnan Syed

Adnan Syed was convicted of the 1999 murder of his ex-girlfriend Hae Min Lee (Undisclosed series). On September 19, 2022, Judge Melissa Phinn vacated his conviction and set him free. Subsequently, on October 11, 2022, Baltimore prosecutors dropped all charges against him. Hae Minn Lee's family appealed Judge Phinn's order. In a 2-1 ruling in March 2023, the Appellate Court of Maryland reinstated Adnan's conviction, but issuance of that mandate has been stayed while Adnan appeals to the Supreme Court of Maryland. Therefore, Adnan's conviction has not been reinstated yet. The next steps in the case are (1) seeing whether the Supreme Court of Maryland agrees to hear/reverses the lower court's opinion; and, if that fails (2) holding a new hearing in the Brady issue that initially led to Adnan's exoneration, with sufficient notice to Hae Min Lee's family.

2. Joey Watkins

Joey Watkins was convicted of the 2000 murder of Isaac Dawkins (Undisclosed series). Judge Don W. Thompson of the Superior Court of Walker County granted Joey Watkins's petition for writ of habeas corpus on April 11, 2022, meaning that Joey's conviction for murdering Isaac Dawkins has been tossed. The Supreme Court of Georgia upheld that ruling. 

3. 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 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. Jamar has an evidentiary hearing on that claim scheduled for May 2023.

4. 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.

5. 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. Philadelphia officials later agreed to pay him $4.15 million.

6. Willie Veasy

Willie Veasy was convicted of the 1992 murder of John Lewis (Undisclosed series). On October 9, 2019, a judge vacated his conviction, and the State later dropped the charges against him due to compelling evidence of his innocence. Willie ultimately settled with the State for $5 million.

7. Terrance Lewis

Terrance Lewis was convicted of the murder of Hulon Bernard Howard in 1996. Judge Barbara McDermott declared Terrance innocent in May 2019, leading to his release from prison (Undisclosed series). On June 30, 2020, it was announced that he had reached a settlement in which the city would pay him $6.25 million. Terrance has since started the Terrance Lewis Foundation, "a non-profit organization dedicated to advocating for wrongfully convicted people who are seeking legal representation."

8. 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. Subsequently, on December 30, 2020, a settlement was reached, pursuant to which Chester Hollman III will be awarded $9.8 million for his 28 years of wrongful conviction.

9. Cyntoia Brown

Cyntoia Brown was convicted of the 2004 murder and robbery of Johnny Michael Allen (Undisclosed special episode). Governor Bill Haslam granted Cyntoia Brown clemency, and she was released August 7, 2019.

10. Ronnie Long

Long was convicted of the 1976 rape of Gray Bost (Undisclosed series). In August, 2020, the United States District Court for the Eastern District of North Carolina entered an order vacating Ronnie Long's convictions for first-degree rape and burglary. In September 2020, he was released from prison. On December 17, 2020 North Carolina Governor Roy Cooper issued a Pardon of Innocence for Ronnie Long, making him eligible for $750,000 in compensation. On May 3, 2021, Long filed a civil action, seeking additional compensation for his decades of wrongful conviction.

11. 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.

12. Pamela Lanier

Pam Lanier was convicted of the 1997 murder of her husband Dorian (Undisclosed series). Pam's team at Wake Forest has filed motion for a new trial  based on new scientific evidence that Pam's husband died from arsenic poisoning based on ingesting turkey medication rather than being poisoned by her. A hearing that was scheduled for June 27, 2022 was postponed.

13. Dennis Perry

Dennis Perry was convicted of the 1985 murders of Harold and Thelma Swain (Undisclosed series). In April 2020, it was reported that glasses likely left at the crime scene by the killer had hairs that returned a DNA match for alternate suspect Erik Sparre. A hearing on Dennis's motion for extraordinary relief was held on July 13, 2020. The result of that hearing was Dennis Perry being granted a new trial. On July 23, 2020, he was released from prison. Legislators in Georgia recently cleared legislation that "would pay 60-year-old Dennis Perry $1.23 million for the 20 years he spent in state custody."

14. 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 2019. Finch recently died in January.

On June 16, 2021, Governor Roy Cooper issued a Pardon of Innocence for Finch.

15. Rocky Myers

Rocky Myers was convicted of murdering Ludie Mae Tucker in 1991 and given a death sentence as a result of judicial override, despite the jury voting 9-3 for a life sentence. 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).

16. Joseph Webster

Joseph Webster was convicted of the 1998 murder of Leroy Owens (Undisclosed series). Webster was exonerated after a judge agreed with the Davidson County Conviction Review Unit that he was wrongfully convicted, and he was released on November 10, 2020. Based on a GoFundMe fundraiser, Joseph will be able to move into his own apartment.

17. Cyrus Wilson

Cyrus Wilson was convicted of the 1992 murder of Christopher Luckett (Undisclosed special episode). On October 23, 2019, he was granted parole by the Tennessee Board of Parole.

18. Greg Lance

Greg Lance was convicted of the murders of Victor and Alla Kolesnikow in 1998 (Undisclosed series). On December 16, 2022, a Tennessee judge approved DNA testing of crime scene evidence as well as fingerprint testing of a battery found in a flashlight connected to the crime.

19. Pedro Reynoso

Pedro Reynoso was convicted of the 1991 murders of Charles Rivera and Carlos Torres (Undisclosed special episode). In December, the Pennsylvania Board of Pardons voted to hold his case under advisement to determine if they are allowed to consider actual innocence claims. His case is also being reviewed by Philadelphia's Conviction Integrity Unit.

20. Theophalis Wilson

Theophalis Wilson was convicted of the 1989 murders of Otis Reynolds, Gavin Anderson, and Kevin Anderson (Undisclosed special episode). On January 21, 2020, a judge declared him innocent of these murders and set him free. Earlier this year, Wilson filed a civil action seeking compensation for his decades of wrongful conviction.

21. Fred Freeman/Temujin Kensu

Fred Freeman was convicted of the murder of Scott Macklem in 1986 (Undisclosed series). His clemency request is on the desk of Governor Gretchen Whitmer.

22. Jonathan Irons

Jonathan Irons was convicted of a burglary and shooting that occurred at the home of Stanley Stotler in O'Fallon, Missouri back in 1997 (Undisclosed series). On June 30, 2020, the Supreme Court of Missouri refused to hear the State's appeal from Judge Daniel Green's opinion granting Jonathan Irons a new trial. On July 1, 2020, Jonathan was released from prison. The following day, the prosecutor announced that he would not take Jonathan's case back to trial. Jonathan was then released from prison. On March 8, 2021, Irons filed a civil action seeking compensation for his decades of wrongful conviction.

23. John Brookins

John Brookins was convicted of the 1990 murder of Sheila Ginsberg (Undisclosed series). John is currently appealing the denial of his DNA petition.

24. Jeff Titus

Jeff Titus was convicted of the 1990 murders of Doug Estes and James Bennett in the Fulton State Game Area in Kalamazoo County (Undisclosed series). Earlier this year, a federal judge signed an order releasing Jeff Titus from prison and granting him a new trial. As noted above, yesterday, prosecutors dropped the charges against him.

25. Darrell Ewing

Darrell Ewing was convicted of the 2009 murder of J.B. Watson in Detroit, Michigan (Undisclosed series). Ewing was eventually granted a new trial based upon jury misconduct, and the State ran out of appeals for that ruling on March 2, 2021. The State is currently trying to take Ewing's case back to trial.

26. Jason Carroll

Jason Carroll was convicted of the July 1988 murder of Sharon Johnson in New Hampshire (Undisclosed series). Appellate options are currently being explored, and his case will be covered on the Bear Brook podcast.

27. Wayne Braddy and Karl Willis

Karl Willis and Wayne Braddy were convicted of the murder Maurice Purifie on June 15, 1998 in Toledo, Ohio (Undisclosed series). While their latest appeal was pending, the prosecutor offered a deal in which their convictions would be vacated in exchange for Alford pleas. In March, Willis and Braddy accepted this deal and were released.

-CM

Court of Appeals of Arkansas Finds No Error With Leading Questions to Child Witness

Similar to its federal counterpart, Arkansas Rule of Evidence 611(c) provides that

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Typically, courts apply the "necessary to develop his testimony" exception in cases involving testimony by children, especially vulnerable ones. A good example can be found in the recent opinion of the Court of Appeals of Arkansas in Standridge v. State, 2023 WL 2395918 (Ark.App. 2023).

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11th Circuit Finds Asking Expert Whether the Defendant Was Unable to Appreciate the Nature of His Actions Violated Rule 704(b)

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

So, assume that a defendant asserts an insanity defense. Can the prosecution call an expert and ask her whether the defendant was "unable to appreciate the nature of his actions" at the time of the crime? That was the question addressed by the Eleventh Circuit in its recent opinion in United States v. Turner, 2023 WL 2291362 (11th Cir. 2023).

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Supreme Court Finds Jury Instruction Analogizing Reasonable Doubt to Surgery Involving a "Precious One" Was Improper

Imagine that a judge's instruction on guilty beyond a reasonable doubt includes the following paragraphs:

Now, ladies and gentlemen, I find it helpful to think about reasonable doubt in this way. Because I had the great fortune to speak with every one of you individually, I know that each of you has someone in your life that you love, a precious one, a spouse, a significant other, a sibling, a niece, a nephew, a grandchild. Each of you loves somebody.

If you were told by your precious one that they had a life-threatening condition and the doctor was calling for surgery, you would probably say, stop. Wait a minute. Tell me about this condition. What is this? You probably want to know what's the best protocol for treating this condition? Who is the best doctor in the region? No. You are my precious one. Who is the best doctor in the country? You will probably research the illness. You will research the people who handle this, the hospitals.

If you are like me, you will call everyone who you know who has anything to do with medicine in their life. Tell me what you know. Who is the best? Where do I go? But at some moment the question will be called. Do you go forward with the surgery or not? If you go forward, it is not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.

Would such an instruction be improper? According to the recent opinion of the Supreme Court of Pennsylvania in Commonwealth v. Drummond, 285 A.3d 625 (Pa. 2022), the answer is "yes."

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Court of Appeals of Maryland Finds "First Aggressor" Character Evidence Exception Isn't Triggered by Opening Statements

Similar to Federal Rule of Evidence 404(a)(2)(C), Maryland Rule of Evidence 5-404(a)(2)(C) provides that

In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

So, if defense counsel claims in her opening statement that the victim was the first aggressor, can the prosecution present evidence of the victim's character for peacefulness in its case-in-chief? According to the opinion of the Court of Appeals of Maryland in Ford v. State, 197 A.3d 1090 (Md. 2018), the answer is "no."

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