Serial: Lies, Damned Lies, and Closing Arguments

Note: Rabia Chaudry (Split the Moon), Colin Miller (Evidence Prof Blog), and I started a podcast. It’s called Undisclosed, and it follows Adnan Syed’s case and current appeal. New episodes will be released every other week, on Mondays, and in case that is too long to wait, on the off-weeks we will be releasing short addendum episodes with updates and previews.

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Before reading the post below, I recommend at least listening to Addendum 1, as some of the new information covered there is discussed in this post. And be sure to check us out next Monday, for Episode 2


In closing arguments, the prosecution “is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence.” United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991)). However, this latitude does not permit a prosecutor to make false and factually unsupported claims during closing arguments, as “[i]t is a fundamental tenet of the law that attorneys may not make material misstatements of fact in summation.” Davis v. Zant, 36 F.3d 1538, 1548 n. 15 (11th Cir. 1994). Accordingly, prosecutors have an “obligation [ ] to avoid making statements of fact to the jury not supported by proper evidence introduced during trial,” as “the interest of the Government in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’ and that ‘the average jury . . . has confidence that these obligations [of fairness and accuracy] will be faithfully observed.'”  Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969),  (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

In the case against Adnan Syed, this obligation was not respected. Prosecutors Kathleen Murphy and Kevin Urick displayed a reckless disregard for the truth in their closing arguments to the jury, both by making material misrepresentations about the physical evidence and by misstating witness testimony. For many of the misrepresentations made in closing, it is difficult to see how the prosecutors could have been unaware of the falsity of their arguments. Regardless of whether those misrepresentations were made intentionally or not, however, the prosecutors in Adnan’s case were “exceedingly reckless, and paid too short shrift to the prosecutors’ ‘obligation’ to seek a conviction only on the basis of facts in the record.” United States v. Mageno, 762 F. 3d 933 (9th Cir. 2014) (quoting Gaither, 413 F.2d at 1079).

Below, I have set forth (in blue) a selection of claims made in the State’s closing arguments, by Murphy, and rebuttal closing, by Urick, and provided an analysis of the accuracy of their representations to the jury.

Continue reading

Serial: The Above Average Investigations of Detectives Ritz and MacGillivary

Two big updates before today’s post:

First, Rabia Chaudry, Colin Miller, and I will be launching a new podcast to cover all the new developments in Adnan’s case. The first episode of Undisclosed will be released on April 13th, so check us out then.

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Second, Rabia and I were back on The Docket this morning, this time for a special on the Science of Serial. Clint Van Zandt and Dr. William Manion joined us to discuss the crime scene analysis and the autopsy report:

The Science of ‘Serial’ Part I: Crime Scene
Physical evidence is missing from the 1999 murder of Hae Min Lee according to crime analyst Clint Van Zandt who states the murder, method of transportation and body disposal are not linked. Attorneys Seema Iyer, Rabia Chaudry, and Susan Simpson discuss.

The Science of ‘Serial’ Part II: Autopsy
Forensic Pathologist Dr. Bill Manion has problems with livor mortis when determining an approximate time of death of Hae Min Lee. Attorneys Seema Iyer, Rabia Chaudry, and Susan Simpson discuss.


The murder of Hae Min Lee was investigated by Detectives William Ritz and Gregory MacGillivary. To date, three defendants who were convicted of murder pursuant to investigations by either Ritz or MacGillivary have since been released from prison, after it was determined that they had been wrongfully convicted.

Those defendants are Ezra Mable, Sabein Burgess, and Rodney Addison. As the civil complaint filed last week by Burgess aptly summarizes, the convictions in all three cases were

the result of the Baltimore Police Department’s policies and practices of pursuing wrongful convictions through reliance on profoundly flawed investigations. In a race to clear murder cases, the Department cut corners and rushed to judgment.

The problems in the underlying investigations ranged from simple incompetence — such as failure to interview obvious witnesses or to properly preserve forensic evidence — to intentional distortions of the evidentiary record — such as the fabrication of witness reports. In each of these cases, the investigators’ tunnel vision led them to either ignore or avoid evidence that contradicted their chosen theory of the case, and to withhold any exculpatory evidence they accidentally stumbled upon. Moreover, in both the Mable and Burgess cases, allegations have been made of deliberate wrongdoing by police officers who prioritized clearing cases over identifying the actual perpetrators of the murders they were investigating. Improving the detectives’ numbers became a higher goal than identifying criminals and building solid cases against them.

Cleared

The prioritization of good statistics over good investigations can be seen not just in the resulting false convictions, but also in the resulting murder charges that were so unsupportable that they never resulted in prosecution by the State. Even though these cases were voluntarily dismissed by prosecutors who determined there was an insufficient basis to try the defendant, each charge was nevertheless recorded as a “cleared” case for purposes of the detective’s track record. For example, from 1998 and 1999, Detective Ritz was involved in at least 42 investigations which resulted in charges of first- or second-degree murder. Of those 42  murder charges, however, 15 were nolled or otherwise dismissed voluntarily by the State after it was determined that the evidence was insufficient to permit the prosecution to proceed. This “charge them all and let the prosecutor sort them out” style of policing was a major cause of a schism that developed between the State’s Attorney’s Office and the BPD. It was also a major contributor to each of the false convictions discussed herein. Continue reading