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Is Memory Reliable?
Posted: 11/30/2011

Earlier this month the Supreme Court heard oral argument in Perry v. New Hampshire, a case questioning the reliability of eyewitness testimony. The New York Times has a good article summarizing some of the psychology studies on this issue.

Read more: The Certainty of Memory Has Its Day in Court

Posted by Debby Merritt

Judge Imposes Maximum Sentence Against Conrad Murray
Posted: 11/30/2011

On Tuesday, November 29, 2011, California Judge Michael Pastor imposed the maximum sentence against Conrad Murray for the involuntary manslaughter of Michael Jackson. He rejected the suggested penalty proposed by the Defense – probation, and followed the sentence urged by the People of the State of California – four years incarceration. Judge Pastor indicated that Dr. Murray had engaged in “money for medicine madness.” He also stated that Murray showed “absolutely no sense of remorse, absolutely no sense of fault;” and that he “is and remains dangerous” to society.

Interestingly, he cited to a documentary in which Dr. Murray participated that was filmed while the trial was ongoing, but was not released until after the guilty verdict. The jury of course never considered the documentary in reaching its verdict, and instead, according to a juror, relied on the fact that Murray delayed calling 911, failed to have life-saving equipment available, and left the room the evening of Mr. Jackson’s death. See: view article. One of Murray’s defense attorneys (Michael Flanagan) told TMZ that it was a mistake for Dr. Murray to appear in the documentary, but that Murray needed the money to pay for his defense. See: view article Pastor was unable to order the incarceration in a California prison, due to the California Criminal Justice Realignment Act – part of the Budget Act of 2011. See: view article Murray was sentenced to serve his time in the Los Angeles County Jail. Additionally, Judge Pastor indicated that he needed more detailed information in order to consider the very large restitution request of the People ($101 million). He will set a restitution hearing in the future to consider the People’s request. He also decided against a contempt citation for attorney Matthew Alford, one of the members of Murray’s defense team for his interview on the Today Show during the trial, in violation of the Court’s gag order.


Read more: Link to Part of the Sentencing Hearing for Conrad Murray

Posted by Ann M. Murphy

Sentencing Memorandum - State of California v. Conrad Murray
Posted: 11/27/2011

The State of California has filed a Sentencing Memorandum on November 23, 2011 in the Conrad Murray case. Dr. Murray was found guilty on November 7, 2011 of involuntary manslaughter for the death of Michael Jackson. His sentencing is scheduled for Tuesday, November 29, 2011 before the Honorable Michael Pastor in Los Angeles County Superior Court.
The State is seeking the maximum sentence of four years in state prison, and restitution. Specifically, the restitution requested is the amount of income Mr. Jackson would have made from the concert series (estimated at $100 million) and the costs of burial and the memorial service (estimated at approximately $1.8 million).

Read more: Sentencing Memorandum - State v. Murray

Posted by Ann M. Murphy

Retrial of Griffin (MySpace Authentication Issue)
Posted: 11/21/2011

The State of Maryland v. Antoine Levar Griffin is set for a retrial this week in the Circuit Court for Cecil County (#K-05-000531 – Judge Sweeney). Mr. Griffin’s conviction for murder was reversed by the Court of Appeals of Maryland on April 28, 2011 due to the improper authentication of a MySpace entry allegedly posted by Mr. Griffin’s girlfriend, Ms. Barber. The Appellate Court split 5-2 on the issue.

Mr. Griffin was charged with shooting and killing Darvell Guest at Ferrari’s Bar. At trial, the State introduced several pages from a MySpace profile allegedly belonging to Ms. Barber. The profile contained the following entry: FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!! Mr. Griffin’s nickname was “Boozy.”

Instead of introducing the page through Ms. Barber (who did in fact testify at trial), the State introduced the copied pages through Sergeant John Cook, the lead investigator in the case. He relied on a photo (allegedly showing Ms. Barber and Mr. Griffin together) and her birthdate on the site.

The Appellate Court cited to noted authority on electronically stored information Magistrate Judge Grimm and indicated that anyone may “create a fictitious account and masquerade under another person’s name.” The majority also noted the “potential for fabricating or tampering with electronically stored information a social networking site.”

How to authenticate correctly? Introduce extrinsic evidence or otherwise link the profile and posting to the author of the post. The Court suggested three methods – ask the creator of the profile (perhaps the State believed Ms. Barber would not admit it was her post); search the computer of the person in question; and/or obtain the information directly from the social networking website (MySpace).

Read more: Link to case

Posted by Ann M. Murphy

Jeff Ashton, Lead Prosecutor in Casey Anthony Trial Blames "Coddled" Jury
Posted: 11/20/2011

In what may only be described as lightning speed, Jeff Ashton, the lead prosecutor in the Casey Anthony trial (who has since retired from the Prosecutor's Office and has joined the Troum & Wallsh law firm) published a book on the trial - "Imperfect Justice: Prosecuting Casey Anthony." He is currently making the rounds of the television talk show circuit.

In his book, Ashton blames a "coddled" jury and a "smarmy" and arrogant lead defense attorney (Jose Baez).

Mr. Ashton, along with Mr. Baez was scolded by Judge Belvin Perry for behavior during Baez's closing argument. Baez referred to Ashton as the "laughing guy." Mr. Ashton could barely contain his laughter.

See:view article.

Read more: Link to an article on Jeff Ashton

Posted by Ann M. Murphy

NPR story on 11/19/2011 about science in arson cases
Posted: 11/19/2011

Interesting story on National Public Radio on Saturday, November 19, 2011. The story features John Lentini, an expert on arson investigations who has testified in over 200 cases. He is a Certified Fire Investigator (CFI) and a Diplomate on the American Board of Criminalistics (D-ABC).

Mr. Lentini explains how the science of fire investigation has replaced the prior "anecdotal" fire investigations.

Mr. Lentini was previously featured on the Frontline story "Death by Fire," Available at: view article as well as in "Forensic Sciences and Miscarriage of Justice" (five parts), available at: view article.

Read more: Link to NPR story

Posted by Ann M. Murphy

Leave the Social Media, Take the Cannoli
Posted: 11/19/2011

Social media postings, like other types of courtroom evidence, are subject to legal and ethical standards governing spoliation. A recent ruling illustrates the costs that both clients and lawyers face if they destroy relevant social media evidence.

Isaiah Lester sued a concrete company for the wrongful death of his wife; evidence showed that one of the company's drivers recklessly killed Jessica Lester. While the suit was pending, Lester's lawyer (Matthew B. Murray of Charlottesville, Virginia) noticed pictures on his client's Facebook page that might undermine his image as a grieving widower. One photo showed Lester holding a beer and wearing a t-shirt that announced "I [heart] hot moms." Murray's assistant instructed Lester to "clean up" his social media accounts. "We do not want blow ups of other pics at trial," the assistant emailed Lester, "so please, please clean up your Facebook and Myspace.

Lester originally secured $10 million in the wrongful death action, but the judge discovered that Lester had destroyed social media evidence at Murray's instruction. The judge also found that the two deceived the court about their actions.

In response, the judge reduced Lester's award by $4.13 million and imposed additional sanctions on both Lester and Murray. Lawyer Murray had to pay $542,000 in legal fees, while client Lester had to pay $180,000. Murray reportedly has also left law practice.

Read more: Hat Tip to next generation

Posted by Debby Merritt

MySpace in LawSpace
Posted: 11/16/2011

The eDiscovery Law and Tech Blog searched published court opinions to see how many referred to evidence drawn from MySpace, Facebook, Twitter, or LinkedIn. During the last 22 months, 674 cases referred to evidence from one of these social media sources. MySpace figured prominently in criminal prosecutions, while Twitter and LinkedIn were more likely to inform trade secret, employment, and other civil matters.

The numbers include both state and federal opinions, but that's a lot of tweets and posts. The blog suggests an ongoing need for attorneys to focus on how they authenticate these communications.

Read more: Published Cases on Social Media

Posted by Debby Merritt

Juror Comparison of Voice on 911 Call
Posted: 11/15/2011

Patrick Evans, a Fortune 500 company executive was convicted this past week of the murder of his estranged wife and her boyfriend in Clearwater, Florida. The jury has recommended the death penalty for Mr. Evans.

During the trial, the prosecution played a 911 tape recorded call from a cell phone that originated from the condominium where Elizabeth Evans (his estranged wife) lived. In response, the defense had Mr. Evans repeat many of the phrases from the tape - in an attempt to convince the jury that the voice on the tape was actually not Mr. Evans' voice. Mr. Evans said again and again, "sit on the bed, Jerry!"

Not only did the jury apparently not believe him, members of the jury actually giggled. Below is the recreation in court. The original text of the 911 tape is here:view article. The jury deliberated on his guilt for only one hour.

Read more: Comparison of voices

Posted by Ann M. Murphy

Interesting Ineffective Assistance of Counsel Case
Posted: 11/13/2011

This is a Texas case and is over a year old, but is interesting because of some of the evidence that was introduced. State of Texas v. Susan Wright.

Susan Wright was convicted of stabbing her husband 193 times - she is now in prison. She had a retrial in the fall 2010 because her attorneys did not present expert evidence on "Battered Woman Syndrome."

An interesting "48 Hours Mystery" episode - see minutes 16:30, 19:30 and minute 27. The prosecutor (Kelly Siegler) actually brought the bloody mattress and frame into court and "stabbed" her co-worker 193 times in front of the jury. One wonders if this would be allowed under Federal Rule of Evidence 403. During the appeal of the sentence, they brought in a new mattress because the bloody mattress was destroyed according to Court order - because it was a biohazard.

Read more: 48 Hours Mystery link - see evidence issues

Posted by Ann M. Murphy

 
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