EvidenceProf Blog

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

Monday, July 16, 2018

Introducing Project DNA: a 50 State Survey on Whether Pleading Defendants Can Seek Postconviction DNA Testing

Today, I'm starting a new series of 51 posts that I'm calling "Project DNA." It relates to an article I've been writing titled, "A Right to Prove Innocence After Pleading Guilty." The article addresses the fact that many states have statutes that preclude pleading defendants from seeking postconviction DNA testing.* To set up this series of posts, consider the following hypotheticals:

1. An African-American defendant is charged with sexual assaulting and murdering a brunette woman, convicted after a jury trial, and given a life sentence. Later, the State finds evidence that it had misplaced: four blond hairs with hair follicles recovered from the victim's underwear. The defendant seeks postconviction DNA testing of the hairs.

2. An African-American defendant is charged sexual assaulting and murdering a brunette woman, pleads guilty, and given a life sentence. Later, the State finds evidence that it had misplaced: four blond hairs with hair follicles recovered from the victim's underwear. The defendant seeks postconviction DNA testing of the hairs.

In hypothetical 1, every state and the District of Columbia is going to allow the defendant to seek postconviction DNA testing. Conversely, several states will not allow the defendant in hypothetical 2 to seek DNA testing. This is despite the fact that (1) this country's first DNA exoneration involved a pleading defendant;** and (2)  65 out of 149 DNA and non-DNA exonorees (44%) in 2015 had been convicted after guilty pleas.

In this series of posts, I will look at who can apply for postconviction DNA testing in each of the fifty states and the District of Columbia.

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July 16, 2018 | Permalink | Comments (0)

Thursday, July 12, 2018

Court of Appeals of Maryland Grants Cert in the Adnan Syed Case

Today, the Court of Appeals of Maryland granted cert (agreed to hear the appeal(s)) in the Adnan Syed case. So, what does this mean going forward?

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July 12, 2018 | Permalink | Comments (9)

Monday, July 2, 2018

"In the Dark," "Undisclosed," and Brady Violations Connected to Alternate Suspects

The second season of "In the Dark" by APM Reports/Madeleine Baran has been terrific. It covers the case of Curtis Flowers, who has been prosecuted (a record) six times in connection with the shooting deaths of four people inside Tardy Furniture store in downtown Winona, Mississippi. Flowers's first five trials results in hung juries or convictions that were later thrown out due to Constitutional violations. And now, there's reason to believe that Flowers's latest conviction will be reversed based upon evidence discovered by Baran and her team. Interestingly, that evidence is similar to evidence from one of our recent Undisclosed cases being used to fight for a new trial for Willie "Pee Wee" Veasy.

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July 2, 2018 | Permalink | Comments (5)

Wednesday, June 20, 2018

An Update on the Adnan Syed Case

Steve Klepper (@MDAppeal) has a great mega-thread on the appeal in the Adnan Syed case that coincides with a significant development in that appeal. So, where do we currently stand, and what can Klepper's thread tell us about the future of Adnan's case?

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June 20, 2018 | Permalink | Comments (3)

Friday, June 15, 2018

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can't Remember Making Them?

The leading cause of wrongful convictions in this country is eyewitness misidentifications. Specifically, "eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions." So, can we square this empirical data with a rule of evidence that applies across this country?

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June 15, 2018 | Permalink | Comments (0)

Monday, June 11, 2018

Court Finds Hostility & Pressure on Holdout Juror Not Enough to Undo Defendant's Death Sentence

Similar to its federal counterpart, Section 24-6-606(b) of the Georgia Code provides that

Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror's statements be received in evidence as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the jury deliberations or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.

This rule basically has an external dichotomy. Jurors can testify about non-jurors influencing them (e.g., through threats) or about being exposed to evidence not presented in the courtroom (e.g., the juror in the Joey Watkins case doing a drive test). Conversely, jurors generally can't testify about behavior by other jurors, no matter how offensive. A good example of this can be found in the recent case, Sears v. Sellers, 2018 WL 2364283 (N.D.Ga 2018).

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June 11, 2018 | Permalink | Comments (5)

Thursday, June 7, 2018

Court of Appeals of Utah Finds That Evidence Tampering is a Crime of Dishonesty or False Statement

Similar to its federal counterpart, Utah Rule of Evidence 609(a)(2) provides that

[F]or any crime regardless of the punishment, the evidence [of a prior conviction] must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

So, does a conviction for evidence tampering qualify as a crime with a dishonest act or false statement? That was the question addressed by the Court of Appeals of Utah in its recent opinion in State v. York, 2018 WL 2276129 (Utah App. 2018).

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June 7, 2018 | Permalink | Comments (1)

Wednesday, May 30, 2018

Cert Petitions and Finding Where the Truth Lies in the Adnan Syed Appeal

Petitions for writs of certiorari can be funny things. As I noted in yesterday's post,

Certiorari is reserved for issues of "public importance[.]"...Certiorari is generally denied where the "questions presented, the analysis, and the outcome are wholly unremarkable and of interest solely to the litigants." 

What this means is that you will often see litigants taking positions in cert petitions (and answers) that are diametrically opposed to the positions that they will take in later cases. We can see a good example of this in the Adnan Syed case.

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May 30, 2018 | Permalink | Comments (12)

Tuesday, May 29, 2018

A First Take on Today's Filing in the Adnan Syed Case

Today, Justin Brown filed the defense's Answer in Opposition to Petition for Writ of Certiorari with Conditional Cross-Petition in the Adnan Syed case. This first post on this filing will explain what it means and discuss one of its key points. 

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May 29, 2018 | Permalink | Comments (5)

Friday, May 18, 2018

Why the State's "Alibi-by-Routine" Claim in the Adnan Syed Case is an Oxymoron and Why it Matters

Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. Thus, in order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.As I noted in a prior post, in its petition for writ of certiorari in the Adnan Syed case, the State set up a false dichotomy: that Cristina Gutierrez had the choice to either (1) present an "alibi-by-routine" defense, whereby witnesses would claim that it was Adnan's routine to remain at school between the end of classes and the start of track practice; or (2) present Asia McClain as an alibi witness who would testify that she saw Adnan at the Woodlawn Public library between the end of classes and the start of track practice on January 13, 1999.

I labeled this false dichotomy because it was factually false; Gutierrez presented no witnesses who testified that it was Adnan's routine to remain at school between the end of classes and the start of track practice. Upon thinking about it further, though, this supposed dichotomy is also legally false because the phrase "alibi-by-routine" is an oxymoron. And this isn't just me being didactic; it has significance for the current appeal.

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May 18, 2018 | Permalink | Comments (6)

Thursday, May 17, 2018

The Importance of the Michael Skakel Case for the Adnan Syed Case

In a comment on yesterday's post, Jayne asked "Do you see similarities with the Michael Skakel case? Both involve failure to contact an alibi." Jayne is referring to the recent opinion of the Supreme Court of Connecticut in Skakel v. Commissioner of Correction, 2018 WL 2104577 (Ct. 2018). Having now looked at this case (which cites the Court of Special Appeals's opinion in the Adnan Syed case three times), I can now say that this is a very important opinion for Adnan's case.

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May 17, 2018 | Permalink | Comments (2)

Wednesday, May 16, 2018

The One Case the State Can't Seem to Distinguish in its Cert Petition in the Adnan Syed Case

"Indeed, if counsel had taken the few steps necessary to identify and interview the Sears clerk, he may well have formed a more favorable view of his client's veracity." Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988).

This single sentence might be the key to the Court of Appeals of Maryland denying certiorari to the State or affirming the opinion of the Court of Special Appeals of Maryland in the Adnan Syed case. 

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May 16, 2018 | Permalink | Comments (3)

Tuesday, May 15, 2018

The 2 Falsehoods at the Center of the State's Cert Petition in the Adnan Syed Case

I think there are two falsehoods at the center of the State's petition for writ of certiorari in the Adnan Syed case. These apparent falsehoods are significant because I think of them as necessary but not sufficient conditions for the State to win on appeal. So, what are these two likely falsehoods?

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May 15, 2018 | Permalink | Comments (4)

A Primer on the State's Petition for Writ of Certiorari in the Adnan Syed Case

Yesterday, the State filed its Petition for Writ of Certiorari in the Adnan Syed case. In this first post on the Petition, I will break down what it means. 

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May 15, 2018 | Permalink | Comments (10)

Thursday, April 26, 2018

Supreme Court of Utah Finds Mother at Home w/Newborn on Oxygen & a Heart Monitor Wasn't "Unavailable" for Hearsay Purposes

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) allows for the admission of "former testimony" by an unavailable declarant, including a declarant who "cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness."* Clearly a declarant is "unavailable" if she is deceased. Meanwhile, if a declarant has an illness, we have to compare the severity and duration of the illness with the likely duration of the trial (and the the possibility of a continuance). 

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April 26, 2018 | Permalink | Comments (0)

Tuesday, April 17, 2018

Seventh Circuit Finds That Failure to Disclose Inadmissible Recording of Loan Officer Was a Brady Violation

Pursuant to Brady v. Maryland, the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defendant. Since the Supreme Court's opinion in Wood v. Bartholomew, a circuit split has developed over whether the failure to disclose inadmissible evidence can ever be the basis for a Brady violation. In my first law review article, I argued that inadmissible evidence can be material for Brady purposes because, inter alia, inadmissible evidence can still sometimes be used at trial, e.g., to impeach a witness. In its recent opinion in United States v. Ballard, 885 F.3d 500 (7th Cir. 2018), the Seventh Circuit reached the same conclusion.

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April 17, 2018 | Permalink | Comments (0)

Monday, April 9, 2018

Evidence of State Misconduct in the Adnan Syed Case

We currently have two judicial findings that Adnan Syed's trial counsel rendered ineffective assistance: (1) Judge Welch's ruling* that she was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) the Court of Special Appeals's ruling that she was ineffective based on failure to contact prospective alibi witness Asia McClain. In response to these rulings, some have claimed that, while there is evidence that defense counsel was ineffective, there is no evidence of State misconduct connected to Adnan's trials.** 

This point, however, is simply not true. In this post, I will point to the clearest evidence of State misconduct in the case.

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April 9, 2018 | Permalink | Comments (6)

Thursday, April 5, 2018

COSA's Finding of Prejudice in the Adnan Syed Case and Actual Innocence

In its opinion affirming Judge Welch's order granting Adnan Syed a new trial, the Court of Special Appeals of Maryland was able to find prejudice, i.e., that Cristina Gutierrez's failure to contact Asia McClain undermines our confidence in the jury's verdict. Specifically, the court held that

With little forensic evidence, the case was largely dependent on witness testimony of events before and after Hae’s death. Testimony of these witnesses often conflicted with the State’s corroborating evidence, i.e., the cell phone records and the cell tower location testimony by its expert, Waranowitz. The State’s key witness, Wilds, also was problematic; something the State readily admitted during its opening statement. Wilds had given three different statements to police about the events surrounding Hae’s death.

The State’s case was weakest when it came to the time it theorized that Syed killed Hae. As the post-conviction court highlighted in its opinion, Wilds’s own testimony conflicted with the State’s timeline of the murder. Moreover, there was no video surveillance outside the Best Buy parking lot placing Hae and Syed together at the Best Buy parking lot during the afternoon of the murder; no eyewitness testimony placing Syed and Hae together leaving school or at the Best Buy parking lot; no eyewitness testimony, video surveillance, or confession of the actual murder; no forensic evidence linking Syed to the act of strangling Hae or putting Hae’s body in the trunk of her car; and no records from the Best Buy payphone documenting a phone call to Syed’s cell phone. In short, at trial the State adduced no direct evidence of the exact time that Hae was killed, the location where she was killed, the acts of the killer immediately before and after Hae was strangled, and of course, the identity of the person who killed Hae.

Many will correctly observe that this language is not a finding of actual innocence. On the other hand, this language is still pretty important. It means that the court was able to find that the case against Adnan was weak...so weak that one error by trial counsel was enough, in and of itself, to undermine our confidence in the jury's verdict.

How rare is such a finding? Well, let's look at cases in which defendants were indeed declared actually innocent.

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April 5, 2018 | Permalink | Comments (5)

Tuesday, April 3, 2018

An Important COSA Opinion That Might Mean Adnan Syed's Cell Tower Claim Wasn't Waived

In their opinion affirming Judge Welch's order granting a new trial to Adnan Syed, all three judges of the Court of Special Appeals found that Adnan had waived his claim that Cristina Gutierrez was ineffective based upon failing to cross-examine the State's cell tower expert with the AT&T disclaimer. In doing so, the judges recognized that there was no Maryland case law directly on point. That said, the Court did cite Wyche v. State, 53 Md.App. 403 (Md.App. 1983), in which the Court of Special Appeals held in dicta that

If an allegation concerning a fundamental right has been made and considered at a prior proceeding, a petitioner may not again raise that same allegation in a subsequent post conviction petition by assigning new reasons as to why the right had been violated, unless the court finds that those new reasons could not have been presented in the prior proceeding.

The Court of Special Appeals then noted that Adnan had raised ineffective assistance of counsel claims at his first PCR proceeding (e.g., based on trial counsel's failure to contact an alibi witness), meaning that he could not use the reopened PCR proceeding to a assign a new reason why his right to the effective assistance of counsel had been violated (based on failure to use the AT&T disclaimer).

As it turns out, there is actually a Court of Special Appeals of Maryland opinion that directly supports the conclusion that Adnan has not waived his cell tower claim. The opinion is not precedential, but the same can be said about the dicta in Wyche v. State. And, factually speaking, the case is nearly identical to the Adnan Syed case.

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April 3, 2018 | Permalink | Comments (1)

Monday, April 2, 2018

Does Judge Graeff's Test in Her Adnan Syed Dissent Ever Allow a Defendant to Prove IAC Against a Deceased Attorney?

In her dissenting opinion in the Adnan Syed case, Judge Graeff notes the following:

Here,...there was no testimony by trial counsel regarding why she did not contact Ms. McClain. Although this was because counsel was deceased at the time the post-conviction hearing occurred, this did not relieve Syed of his duty to satisfy the Strickland test....

The absence of testimony by trial counsel makes it difficult for Syed to meet his burden of showing deficient performance. As the court stated in Broadnax..., it is “extremely difficult” for a petitioner "to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record." Similarly, in Williams v. Head,...the court stated that, "where the record is incomplete or unclear about [counsel’s] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment," noting that the "district court correctly refused to 'turn that presumption on its head by giving Williams the benefit of the doubt when it is unclear what [counsel] did or did not do.'"...

To be sure, there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel. This case, however, does not present such circumstances. Syed has pointed to no evidence in the record indicating that trial counsel’s decision not to interview Ms. McClain was based on anything other than reasonable trial strategy, relying instead on his blanket assertion that it is unreasonable in every case for trial counsel to fail to contact a potential alibi witness identified by the defense.

Although possible reasons for counsel's decision have been discussed, we do not know if these were the reasons that counsel decided not to contact Ms. McClain (emphasis added).

As noted, Judge Graeff concluded that "there could be circumstances where the record is sufficient for the defendant to overcome the presumption that counsel acted reasonably, without questioning trial counsel." My question in this post is: What would those circumstances be? 

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April 2, 2018 | Permalink | Comments (11)