Author Archives: Kimberly DelMonico

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

gun

Struggle to Prove Expert Witness is Qualified in Walter Scott Shooting Trial

The prosecution was met with strong resistance as they tried to prove the qualifications of their forensic scene analysis and recreation expert in the trial of former North Charleston officer Michael Slager for the shooting of Walter Scott.

Expert Testimony

Bill Williams, owner of a forensic consulting business, was called to testify as an expert in the field of forensic scene analysis and recreation. Williams claimed that he was qualified as an expert in his field because of his years of professional experience. Williams told the court that he had spent more than 500 hours compiling a timeline of the events leading up to the shooting of Walter Scott.  Williams examined recordings from the dash camera of Slager’s patrol car, his police radio, and Feidin Santana’s eyewitness video of the shooting. Williams testified that the State Law Enforcement Division’s measurements of the site of the shooting with a laser scanner known as a FARO camera were slightly off and that he did not use them.

Williams presented his proposed testimony to Circuit Court Judge Clifton Newman outside the presence of a jury because Judge Newman had not yet decided whether Williams qualified as an expert witness. Williams provided an approximation of the order of events, as well the proximity of the two men when Slager opened fire. Williams also compiled various pieces of footage with police dispatch recordings into a video that included an animated scene of Scott running from Slager into an empty lot before their struggle.

The Defense

Slager’s defense team challenged Williams’ qualifications as an expert. They pointed to his lack of formal education or training in the field of forensics and video analysis.

Defense attorney Donald McCune questioned Williams about a previous trial in which he had testified as an expert witness, offering testimony as an expert on automobile cruise-control systems in regard to the Ford Explorer.

In 2010, the South Carolina Supreme Court overturned the ruling in a case against the Ford Motor Company. The South Carolina Supreme Court held that the trial court made a mistake by allowing Williams’ testimony, stating, “In our view, there is no evidence to support the trial court’s qualification of Williams as an expert in cruise control systems. Williams had no knowledge, skill, experience, training, or education specifically related to cruise control systems. Rather, it appears he merely studied the Explorer’s system just before trial, which he indicated in his testimony to the jury: ‘This is how I taught myself the [Explorer’s] cruise control, or speed control system.’”

Lead prosecutor Scarlett Wilson continued advocating to have Williams included as her final witness, stating that he “has skills that the common man doesn’t have” and noting the hundreds of crime and accident scenes that Williams has examined. Citing the state Supreme Court’s ruling regarding Williams’ previous testimony in the Ford case, Judge Newman questioned Wilson’s confidence in Williams, but ultimately found him fit to testify as an expert witness.

Update

In late 2016, a five-week trial ended in a mistrial due to a hung jury. A retrial is scheduled for March 1, 2017.

Prison, Barbed Wire

Expert Witness Says Former Guard’s Actions Against Inmate Unlawful

An expert for the state has testified that a Bexar County detention officer did not follow proper training techniques when he punched an inmate during a fight inside the jail’s annex in 2014.

The Incident

On July 13, 2014, Avery Lawrence was working as a detention officer at the Bexar County Detention Center Annex. Lawrence got into a verbal confrontation with one of the inmates, John Cory Garcia.

During the confrontation, Garcia shoved Lawrence. Lawrence reportedly responded by punching Garcia in the face.

According to trial testimony, Lawrence pushed Garcia to the floor and struck him in the back with his knee. Garcia suffered a broken rib, punctured lung, and facial injuries.

After the incident, Lawrence was indicted, arrested and released on bond.

The Trial

Lawrence has been charged with three misdemeanors: two counts of official oppression and a charge of violation of civil rights.

At trial, Prosecutor Edward Flores argued that “(Garcia’s) injuries were so serious that if his injuries were not medically attended to, he could have died.” Flores and Chris DeMartino are the two Assistant District Attorneys prosecuting Lawrence’s case.

Extraneous Offenses

Flores and DeMartino filed court papers asking to introduce evidence of 16 extraneous offenses, or conduct for which Lawrence has not been charged. The offenses that prosecutors requested to introduce included allegations that Lawrence lied in incident reports, that he left out important details, and that he did not follow proper prison procedures. According to the documents filed by the prosecution, Lawrence has been involved in at least two cases where inmates were left with serious cuts, one requiring stitches and another that resulted in the inmate having repeated seizures.

Lawrence’s defense team argued that allowing the extraneous offenses to come in was prejudicial to Lawrence.

The documents show that before joining the Bexar County Detention Center Annex, Lawrence supervised juvenile wards. His July 2012 performance review, states that Lawrence “appears a bit aggressive when dealing with residents and…must be mindful of…actions and in control (of) demeanor at all times.”

Expert Testimony

Flores called expert witness Chuck Joiner to testify that Lawrence did not follow proper law enforcement training, “Officer Lawrence is not the first officer to ever be pushed. … And what officers are trained to do when they’re pushed is not to immediately come in and strike someone. It’s not lawful to start punching and beating a person because they pushed you.”

Joiner further testified about what the proper procedure would have been, “What is taught is that officers first give a verbal command, because then you have time and space. … And if that doesn’t work, the next thing is to come in with soft hand techniques.”

Lawrence’s attorney, Marilyn Bradley, argued that this was a case of assault on a public servant, not official oppression, “There was an assault that day, absolutely. … But it was the inmate on the officer. … He’s just been assaulted by an inmate. … He’s got to defend himself.”

Trial Outcome

After six hours of deliberations, a jury found Lawrence guilty of official oppression and of violating the inmate’s civil rights. The jury’s rejection of Lawrence’s self-defense claim was consistent with the testimony provided by the prosecution’s expert witness.

Montana Death-row Inmates Question Expert Witness Testimony

Death-row inmates Ronald Allen Smith and William Gollehon are “questioning whether state Department of Justice officials told an expert witness to change his testimony to bolster their failed argument that a substitute drug met the legal requirements for use in executions,” according to AP News.

The Trial

Montana previously used sodium pentothal in its lethal injections, but that drug is no longer available in the U.S. for executions. Montana officials named pentobarbital as a substitute. Montana law requires an “ultra-fast-acting” drug for executions but that is not a precise or scientifically defined term. At Smith and Gollehon’s trial, State attorneys argued unsuccessfully that pentobarbital, which has never been used in a Montana execution, meets the “ultra-fast-acting” requirement.

The State’s expert, Auburn University pharmacy school dean Roswell Lee Evans, wrote an expert declaration in March 2015 that did not address the “ultra-fast acting” requirement. In April 2015, he supplemented that declaration by adding pentobarbital could be considered “ultra-fast acting” but that it is classified differently.

District Judge Jeffrey Sherlock effectively stopped all executions in the State of Montana by ruling that one of the two drugs that the state used in its lethal injections did not meet the requirement that it be an “ultra-fast-acting barbiturate.” Montana does not have alternative barbiturates available for use in lethal injections.

Request to Reopen Case

According to ACLU of Montana Legal Director Jim Taylor, one of the attorneys representing Ronald Allen Smith and William Gollehon, “Had the expert not changed his testimony, we would not have gotten to trial…We want to know what happened. We just want a hearing and we’ve been trying to get a hearing for a year.”

Taylor claims that Evans testified in a separate case in Tennessee in which he was asked about his testimony in the Montana case. According to a transcript of that case, Evans was asked whether the Montana attorney general needed him to say pentobarbital was ultra-fast acting and he wrote that it could be. Evans responded, “Could be…That’s not how it’s classified.”

Based on Evans’ testimony, Taylor argues that it appears state attorneys persuaded Evans to change his original declaration. “A fair reading of Evans’ testimony … is that someone from the Montana Attorney General’s Office told Evans that what he had said in his first expert report was insufficient, and that he needed to change his opinion to fit what the defense required.”

The Response

In court documents filed in response to the inmates’ request to preserve evidence and re-open the case, Assistant Attorney General Ben Reed stated the accusation is groundless and that their expert, Evans, gave consistent testimony. Reed argued that Evans’ testimony was consistent because barbiturates are typically classified by their duration (“ultra-short acting”) and not rapidity (“ultra-fast acting”). Reed claims that when Evans’ statements are read together, they are consistent and explain that while it is not classified as “ultra-fast acting” it could be described that way because the drug’s onset is incredibly fast.

Judge’s Action

District Judge Deann Cooney agreed that “Dr. Evans’ testimony in [the Tennessee case] raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true.” The judge granted a request to require the state to preserve all relevant documents so that the change in Dr. Evans’ testimony could be fully investigated.

Scales of justice

Louisiana Court of Appeals Orders Hearing on Request for Public Funds to Pay for “Use-of-Force” Expert

The Louisiana 3rd Circuit Court of Appeals has overturned a district court’s rejection of Derrick Stafford’s request for funds for a “use-of-force” expert and ordered the district court to hold a hearing on the matter.

Death of Jeremy Mardis

In November 2015, 6-year-old Jeremy Mardis was shot and killed in an incident involving two Marksville City Marshals, Derrick Stafford and Norris Greenhouse Jr. Jeremy suffered from autism and died after being shot six times during an alleged traffic stop. Jeremy’s father, Chris Few, was also critically injured in the same incident.

Stafford and Greenhouse were arrested on counts of second-degree murder and attempted murder. The town of Marksville, the town and city court, the Parish of Avoyelles, the city court marshal and deputy marshals, along with Stafford and Greenhouse, are also being sued in a federal court by the family of Jeremy Mardis.

District Court’s Rulings

Derrick Stafford’s criminal case is being heard by 12th Judicial District Judge William “Billy” Bennett. Stafford requested public funds for a “use-of-force expert” and an accident scene reconstruction expert.

Under Louisiana law, “If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for the additional witnesses.”

Judge Bennett declared Stafford met criteria to be considered indigent, thus making him eligible for public funds for his defense. Stafford’s attorneys filed a motion requesting for the court to pay for accident scene reconstruction expert Victor Holloman, of Sugarland, Texas.

On October 12, Judge Bennett ordered the Police Jury to pay $4,368 for Holloman. However, Judge Bennett denied the request of defense attorneys Jonathan Goins and Christopher LaCour for funds to hire a use-of-force expert.

The Police Jury voted not to approve the funds to pay for the accident scene reconstruction expert and appealed the court order approving funds for the expert on October 21. In its motion, the Police Jury argued that Stafford is either not indigent or that the parish is not the appropriate party to pay for those costs. The motion states that if Stafford “is indigent, as determined by this court, then any expert witness fees and expenses should be paid by the Louisiana Public Defender Board, through the 12th Judicial District Court Public Defender District, not the Avoyelles Parish Police Jury.”

Third Circuit Ruling

On appeal, the Third Circuit ruled that Stafford “is entitled to a hearing on his motion for funds to hire a use-of-force expert” and “the trial court’s ruling denying the motion for funds to hire a use-of-force expert is vacated and this matter is remanded for a contradictory hearing on the motion.” The Third Circuit has yet to rule on the appeal of the order for the Police Jury to pay for Stafford’s accident scene reconstruction expert.

Public Reaction

Marksville residents have stated that they view Jeremy’s death as an indicator of the ongoing problems with local law enforcement. Describing a number of run-ins with Marksville authorities, Ruby Ivory, a resident of nearby Mansura, has stated, “Y’all just don’t know what the hell we go through around here.”

Immigration Law

Judge Orders New Trial For Ramsea Odeh to Allow Her to Present Expert Witness

US District Judge Gerswhin Drain allowed clinical psychologist and torture expert Dr. Mary Fabri to testify as an expert witness in the trial of Ramsea Odeh.

Odeh’s Indictment

In October 2013, federal prosecutors indicted 69-year-old Palestinean leader Ramsea Odeh, associate director of the Chicago nonprofit the Arab American Action Network, for unlawful procurement of naturalization, nine years after she became a US citizen and just one year short of the statute of limitations.

Odeh’s indictment followed a series of FBI raids on the homes of community and political activists in Chicago and other cities that led to the subpoena of Arab American Action Network records. Six years after these raids and subpoenas, no indictments have ever been filed against any of the original targets.

Although Odeh was not one of the original subjects of the investigation, her 45-year-old record from Israel was discovered in thousands of documents the US government obtained from Israeli authorities.

In 1969, Odeh was convicted by an Israeli military court of helping to coordinate a series of bombings in Jerusalem that killed two young men. She served 10 years in an Israeli prison before being released in a prisoner exchange. Her attorneys have maintained that she was convicted based on a confession that followed prolonged torture.

When Odeh filled out her 2004 application for US citizenship, she responded “No” to a series of questions asking if she had “ever” been arrested, charged, convicted or imprisoned.

Odeh’s First Trial

In November 2014, Odeh was tried in a week-long trial in federal district court in Detroit, Michigan. In March 2015, Odeh was found guilty of immigration fraud. Odeh was sentenced to 18 months in prison. She was subsequently to be stripped of her citizenship and deported.

During her trial, Odeh’s defense team attempted to present Dr. Mary Fabri as an expert witness. Dr. Mary Fabri is a torture expert and psychologist. Fabri examined Odeh over the course of several months in 2014 and concluded that Odeh suffers from PTSD as a result of torture, including rape, by Israeli interrogators nearly 50 years ago.

Based on her examination, Fabri believes Odeh could have filtered out the traumatic memories when she filled out her immigration and naturalization applications.

Odeh’s legal team argued that, as a result of her PTSD, Odeh understood the questions to be asking whether she had any criminal record in the United States.

The Appeal

Odeh filed an appeal, arguing that the district court has erred by not allowing Odeh or her expert to testify about her post-traumatic stress disorder (PTSD).

The prosecution argued against allowing a new trial, arguing that Fabri’s testimony was irrelevant and that Fabri was not a qualified expert.

In February 2016, the Sixth Circuit Court of Appeals ruled that the district court had erred by barring Fabri or Odeh from testifying during the trial about Odeh’s post-traumatic stress disorder as part of her defense. The appellate court held that the expert testimony was “potentially admissible because it is relevant to whether Odeh knew that her statements were false, which is an element of a prosecution.”

Drain’s Decision

The appellate court sent the case back to Judge Drain to decide whether Fabri’s expert testimony would satisfy federal standards of admissibility. Contending that PTSD cannot cause people to filter their memories, prosecutors continued to object to Fabri’s testimony. Recognizing that Fabri’s opinions concerning the relationship between PTSD and memory are widely accepted by neuroscientists and mental health professionals, the judge deemed the government’s objection to be “puzzling.” The judge also rejected prosecution claims that Fabri is not qualified to give expert testimony.

Odeh’s new trial is scheduled to begin in January 2017.

Car Crash

Expert Challenged in Will Smith Murder Trial

The defense team of the man charged with the murder of New Orleans Saints football star Will Smith challenged Michael Sunseri, a crash reconstruction expert called by the prosecution, to discuss “black box” data. Criminal District Judge Camille Buras allowed him to testify as an expert witness.

The Incident

On April 9, 2015, New Orleans Saints football player Will Smith was shot and killed. Cardell Hayes, 29, who fatally shot Smith, said that he shot Smith in self-defense — and only after a drunken, irate Smith retrieved a gun from his car following a car crash. Hayes claimed that, “I knew for a fact that I was going to get shot” and that he heard a sound that sounded like a gunshot before he fired.

The Trial

At trial, Hayes’ defense team accused former NOPD Capt. Billy Ceravolo of removing Will Smith’s gun from his SUV while he was investigating Smith’s slaying.

Captain Ceravolo testified under oath that he did no such thing when prosecutor Jason Napoli asked him “point blank” if he tampered with any evidence. Ceravolo testified that he’s been accused of many things, “I’ve taken guns, moved guns, kicked guns into the drain…I’ve been accused of everything.”

Prosecutors showed a jury surveillance video that recorded Ceravolo at the Windsor Court waiting for Smith, his wife, former Saints player Pierre Thomas and other friends to arrive for a night at the hotel bar. The video reportedly showed Ceravolo leaving the hotel to head to the scene after Thomas called to tell him Smith had been shot and killed.

Defense attorney John Fuller questioned Ceravolo, asking him if he was a “fixer” sent to clean up the scene to protect Smith’s reputation. Fuller claims that there was a witness at the scene who saw Ceravolo tamper with the scene.

Assistant District Attorney Jason Napoli said that the FBI contacted Fuller to look for the “mystery witness” who claimed Ceravolo took Smith’s gun. Napoli noted that the mystery witness has never been made available, and the defense was never able to prove any tampering.

Ceravolo’s attorney, Tanya Picou Faia, described the accusations as a sideshow by Fuller and stressed that her client did not tamper with any evidence. “It’s a very serious crime that he was accused of… What rubbed salt in the wounds is that this was the murder scene of one of his best friends.”

The Expert

The prosecution called Michael Sunseri as an expert witness. Sunseri is a crash reconstruction expert called to discuss “black box” data from the Mercedes and Hummer. The defense team challenged Sunseri, but Criminal District Judge Camille Buras  allowed him to testify as an expert witness.

According to his website, Sunseri has investigated and reported over 800 motor vehicle accidents for the Louisiana State Police (1973-1987); supervised the investigation, including the reconstruction, of approximately 500 serious injury or fatal motor vehicle accidents (1979-1994); and consulted privately in over one thousand accident cases since 1982 in the area of accident reconstruction.

Concept about driving under influence of medicines and alcohol

Michigan Woman’s Sleep Driving Defense Fails

Kathleen Bailey of Rockford, Michigan, was found guilty of driving while intoxicated, despite her defense team’s use of experts who testified that she was “sleep driving.”

The Incident

On November 24, 2015, Kathleen Bailey of Rockford, Michigan, got in her car with her dog and drove from her home to a nearby Walgreen’s pharmacy drive-thru. Multiple witnesses reported seeing Bailey driving erratically. Some witnesses reported seeing Bailey blow through a stop sign at the corner of Northland and Wolverine at noon at a high speed. Additionally, multiple witnesses called 911 to describe the situation. One witness, David Burns, told a dispatcher, “She just missed four people and she’s driving all over the road here… She is not to be driving because she is going to kill somebody.”

Kent County deputies report that when they arrived on the scene to confront Bailey, she appeared to be under the influence of something. Tests showed that Bailey did not have alcohol in her system; however, the reporting deputies says that they believe that Bailey was under the influence of some substance.

The dash camera footage shows that the deputies performed numerous sobriety tests on Bailey and that she failed most of them. She was unable to recite the alphabet from “E to P.”

Bailey was placed under arrest and charged with operating while intoxicated. Kent County prosecutors decided to pursue a case against Bailey.

Bailey’s Defense

Bailey maintained her innocence. She claimed that she was “sleep-driving.” Bailey explained that she had been ill with the stomach flu for days and took the prescription sleep aid Ambien to try to fall asleep on the morning of the incident. Bailey maintained that she was following her doctor’s orders in taking the correct amount of Ambien and that she did not do anything illegal. “I didn’t do anything illegal… I had been so sick and I hadn’t had a shower in two days…. I then took an Ambien to get some sleep and the next thing I know I am being fingerprinted.”

Bailey says that she does not remember driving at all: “I literally do not know what happened.” She blames Ambien for the incident and says that she did nothing wrong. “The drug is very dangerous… Why would I have to fight for my freedom if I took a medication prescribed by my doctor… This is a medical thing, this is not a criminal thing.”

The Trial

At trial, an expert from Michigan State Police lab in Lansing testified that Bailey had an additional muscle relaxer and antidepressant in her system in addition to the Ambien.

Dr. Daniel Mayman testifed for the defense that he believed Baily was sleep-driving even though her eyes were open and she spoke to the deputies. Mayman said, “The problem is the higher functions of the brain where our judgment comes from are not working well, they’re only working a little bit.”

The jury unanimously found Bailey guilty. She will be sentenced on November 21, where she faces the possibility of a driving suspension, a fine, and jail time.

Penn State Logo

Jury Awards $7.3 Million After Experts Battle Over Whether Penn State’s Actions Toward McQueary Damaged His Career

A jury has awarded former Penn State University assistant football coach Michael McQueary over $7 million in damages in his suit against the university for firing him after he implicated Jerry Sandusky as a sexual predator. This award comes after the expert witnesses for each of the parties arrived at drastically different estimates of the financial impact that Penn State’s actions after the Sandusky scandal had on McQueary’s career prospects.

Sandusky Scandal

McQueary was an assistant football coach for Penn State University. He claims that he saw former coach Jerry Sandusky raping a young boy in the shower in 2001. McQueary said that he quickly reported it, but no action was taken. McQueary also implicated the university athletic director Timothy Curley and a Penn State vice president, Gary Schultz, in the cover-up.

In 2012, Sandusky was convicted of molesting 10 boys and sentenced to 30 to 60 years in prison.

Also in 2012, McQueary lost his $140,000-a-year coaching job for his role as a whistleblower in the scandal. After his dismissal, McCreary was unable to obtain other employment, which he attributed to other schools viewing him as “damaged goods.”

McQueary’s Lawsuit

McQueary filed a defamation lawsuit against Penn State, arguing that the school fired him in retaliation for being a whistleblower in the Sandusky scandal. Initially, McQueary sought $4 million in damages along with a rider to cover the potential income he could have made over 25 more years working as an assistant football coach.

McQueary claimed that Penn State did not inform him that he was no longer a university employee, did not offer to cover his legal fees, and delayed his severance payments and insurance benefits. McQueary also claimed that the school defamed him when it issued a public statement supporting the two university administrators who were charged with perjury and failure to report abuse.

Penn State argued that it had treated McQueary fairly and pointed to its agreement to pay him an 18-month severance benefit upon the expiration of his last contract.

At trial, economics expert Samuel Kursh testified for the defendants that the Jerry Sandusky scandal cost McQueary a maximum of $590,000 in future earnings. Kursh also testified that it was possible that McQueary suffered no loss at all.

Kursh’s estimate was in sharp contrast to McQueary’s expert, forensic accountant James Stavros, who testified that McQueary’s potential for future earning had been diminished by $1.8 million to $7.4 million. Stavros’ estimates were based upon the assumption that McQueary would have been able to continue his career as a high-level college position coach for the next 20 years.

At the conclusion of the trial, the jury ruled on the defamation and misrepresentation claims and awarded McQueary $7.3 million in compensatory and punitive damages. Judge Thomas Gavin reserved his ruling the whistleblower claim.

Attorneys for all parties have declined to comment on the case, citing the gag order that Judge Gavin has placed on the case.

Update: Judge Gavin ruled in McQueary’s favor on his whistleblower claim and awarded him an additional “$3.97 million in past and future economic losses and $1 million in non-economic losses for harm to his reputation and humiliation. Penn State also was ordered to pay legal fees and the bonus he would have received for coaching in the 2012 Ticket City Bowl.”

Photo Credit: Pennsylvania State University

Donald Trump

Unprecedented Lawsuits Against President-Elect Donald Trump Spark Examination of Executive Privilege

Mark Rozell, an expert on executive privilege, opines on the limits of the executive privilege as it applies to President-Elect Donald Trump.

President-Elect Donald Trump’s Numerous Lawsuits

President-Elect Donald Trump is involved in numerous pending lawsuits, including the breach-of-contract suit against celebrity chef and Food Network star Geoffrey Zakarian and several civil cases involving his now-defunct real estate seminar program, Trump University.

One of the Trump University lawsuits is set to go to trial on November 28. In that suit, Donald Trump will confront charges from students in California, New York, and Florida who will say that they were tricked into paying up to $35,000 for real estate seminars.

U.S. District Court Judge Gonzalo Curiel will preside over this trial, which will take place in San Diego. This past summer, Trump accused Judge Curiel of bias because he is Mexican-American and Trump made numerous derogatory comments about Mexican immigrants.

Judge Curiel denied a request by Trump’s attorneys to exclude as admissible evident in the case comments that Trump and his and his team made during his presidential campaign.

Because this case and others may go on after Trump’s inauguration in January, the executive privilege may become a problem.

[UPDATE:  Donald Trump agreed to pay $25 million to settle three lawsuits, including two class-actions, against Trump University. As is common in settlements of civil disputes, Trump admitted no wrongdoing.]

The Executive Privilege

The executive privilege refers to the privilege that allows the president and other high officials in the executive branch of government keep certain communications private where disclosing those communications would disrupt to functions or decisions of that branch of government.

According to Mark Rozell, an expert on executive privilege and the Dean of the Schar School of Policy and Government at George Mason University, “Trump and his legal team could try to test the limits of his legal privilege, but I think such a claim would be very shaky. … The precedent suggests that people still deserve their day in court. … As long as [the alleged action] occurred before he is inaugurated.”

Past Attempts at Claiming Executive Privilege

The Supreme Court does not allow the president to use his office and this privilege to shield himself from litigation over actions prior to assuming office. This precedent was set over accusations against then-President Bill Clinton in 1997. At the time, the Supreme Court ruled that Paula Jones’ allegations of sexual harassment against Clinton could be heard, rejecting Clinton’s arguments that his responsibilities as president would prevent him from properly defending himself in a private lawsuit.

President Richard Nixon attempted to claim executive privilege in an effort to conceal incriminating White House tapes. The Supreme Court rejected President Nixon’s claim, but affirmed that the Constitution-based principle of executive privilege was legitimate under appropriate circumstances.

In the unanimous decision, Justice John Paul Stevens wrote, “Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable to accommodate the President’s needs or unfaithful to the tradition — especially in matters involving national security of giving ‘the utmost deference to Presidential responsibilities. … We have confidence in the ability of our federal justices to deal with both of these concerns.”

Serial Podcast

Serial’s Adnan Syed Files Motion for Bail Pending Appeal

Adnan Syed was granted a new trial on the ground that he received ineffective counsel in 2000 from a defense attorney who failed to cross-examine a state cellphone expert witness on key evidence. His counsel has now filed a motion for bail pending his appeal.

Syed’s Conviction

In 2000, Adnan Syed was convicted of the kidnapping and murder of his high school girlfriend, Hae Min Lee. Lee was a student at Woodlawn High School in Baltimore County. Lee went missing in January 1999. Lee’s body was found nearly a month later. The cause of death was strangulation.

Syed was sentenced to life in prison.

Serial Podcast

In 2004, a podcast called “Serial” went on the air. The premise of the award-winning podcast is that it “tells one story — a true story — over the course of a season. Each season, we follow a plot and characters wherever they take us. We won’t know what happens at the end until we get there, not long before you get there with us.“

Rabia Chaudry, a friend of Syed’s, introduced the host of “Serial,” Sarah Koenig, to Syed’s story. The first season examined the details of Syed’s story in detail. To tell Syed’s story, “Sarah Koenig sorted through thousands of documents, listened to trial testimony and police interrogations, and talked to everyone she could find who remembered what happened between Adnan Syed and Hae Min Lee. She discovered that the trial covered up a far more complicated story than the jury — or the public — ever got to hear. The high school scene, the shifting statements to police, the prejudices, the sketchy alibis, the scant forensic evidence — all of it leads back to the most basic questions: How can you know a person’s character? How can you tell what they’re capable of?”

The explosive popularity of “Serial” caused a renewed interest in Syed’s case.

New Trial Granted

The popularity of “Serial” caused an alibi witness, who was previously ignored by Syed’s trial counsel to come forward. Additional investigation uncovered new evidence that undermined the reliability of the cell phone records that were the center of the State’s case against Syed.

Judge Martin P. Welch ordered a new trial, ruling that Syed deserved a new trial because his lawyer’s failure to adequately cross-examine the State’s cellphone expert witness was a mistake so egregious that it violated Syed’s right to effective assistance of counsel.

Motion for Release Pending Appeal

On October 24, 2016, Syed’s legal team filed a Motion for Release Pending Appeal. In this motion, Syed requested that the court order his release during the pendency of the State’s appeal of the Order vacating his conviction and granting a new trial.

The motion argues that, “Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit. He has no history of violence other than the state’s allegation in this case, and if released he would pose no danger to the community. He is also not a flight risk; it makes no sense that he would run from the case he has spent more than half his life trying to disprove.”

Photo Credit: Serial Podcast by Casey Fiesler from Atlanta. (CC By 2.0)