experts: some thoughts on locating and cultivating expert assistance

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  • EDUCATING THE LAWYERWhen confronted with a field outside our expertise, many of us have the impulse to call an expert and leave the driving to them. What we really need to do is educate ourselves first, so that we know the right expert to call, ask the right questions, make sure our expert does the best job, find the holes in opposing counsel's expert's opinion, etc. Airlie Primer 2004.

  • The result of ignorance

    The prosecutor at the last minute called to the witness stand a putative expert who testified about a syndrome of sexual dysfunction that appeared to account for the particular, gruesome circumstances of the crime. It is now clear that the expert's qualifications were largely perjured, and that the syndrome, dubbed picquerism, is referenced nowhere but in a true-crime paperback.Drake v. Portuondo, 321 F. 3d 338 (2d Cir. 2003)

  • Ineffective Assistance of CounselLindstadt v. Keane, 239 F.3d 191 (2nd Cir. 2001)( [D]efense counsels failure to consult an expert, failure to conduct any relevant research, and failure even to request copies of the underlying studies relied on by [the states expert] contributed significantly to his ineffectiveness.)

  • IAC in presenting defense expertsTurpin v. Bennett, 525 S.E.2d 354 (Ga. 2000) [Trial counsel rendered ineffective assistance in failing to seek a continuance in response to the conduct of the defense expert, who was suffering from AIDS-related dementia at the time of his testimony, and whose trial testimony contradicted his favorable pretrial conclusions. Counsels failure to act deprived petitioner of a fair trial because his insanity defense was completely undermined by the experts testimony.

  • IAC in presenting defense expertsCombs v. Coyle, 205 F.3d 269 (6th Cir. 2000) [Where the defense was intoxication, trial counsel acted unreasonably in presenting an expert who opined on cross-examination that petitioners intoxication did not impair his ability to act purposefully and intentionally.

  • IAC in presenting defense expertsMiller v. Anderson, 255 F.3d 455 (7th Cir. 2001) [Trial counsel provided constitutionally deficient representation in calling a psychologist to testify that petitioner was incapable of the kind of violence that had been perpetrated against victim, although counsel was aware that Miller had been previously convicted of kidnapping, rape, and sodomy. The state brought these facts out on cross-examination of the psychologist and they not only destroyed the psychologists credibility but almost certainly and perhaps decisively bolstered the jurys confidence in Millers guilt. Court of appeals holds that if no reason is or can be given for a tactic, the label tactic will not prevent it from being used as evidence of ineffective assistance of counsel.]

  • IAC PENALTY PHASE EXPERTGlenn v. Tate, 71 F. 3d 1204 (6th Cir. 1995) Counsel was ineffective for failing to request the appointment of an expert to assist the defense in the mitigation phase. Instead defense counsel agreed to the appointment of a neutral expert. Once the court appointed the expert, defense counsel did not have any contact with the expert. Counsel further did not object to the reports of the experts being given willy-nilly to the jury.

  • IAC PENALTY PHASE EXPERTSkaggs v. Parker, 235 F. 3d 261, (6th Cir. 2000) Client request the appointment of a mental health expert who was neither licensed nor had any relevant degrees. The expert testified incoherently in the trial phase. Defense counsel, then requested additional funding for the expert to testify in the mitigation phase, the court granted the request and the expert once blathered to the jury.

  • Skaggs, cont.Despite acknowledging that Bresler was not a competent witness and, in fact, made a mockery of the first trial, defense counsel nevertheless called him to testify at the second penalty phase, primarily because counsel waited until the eleventh hour to prepare for the penalty phase and to line up a psychiatric expert to testify on Skaggs's behalf.

  • Skaggs, cont.Counsel's decision to call Bresler at the retrial of the penalty phase, despite their belief that Bresler's testimony could realistically be more harmful than helpful, simply because counsel believed it would not be worth their time to request additional money from the court, cannot be deemed to have been a reasonable exercise of professional judgment. . . . counsel's decision to present Bresler's testimony as crucial mitigating evidence at the penalty phase of the trial, having had the advantage of witnessing Bresler's previous bizarre performance and, more importantly, counsel's complete failure to present other mitigating evidence on Skaggs's behalf, fell below an objective standard of reasonableness.

  • IAC PENALTY PHASE EXPERTPowell v. Collins, 332 F. 3d 376 (6th Cir. 2003) The appointment of a mental health expert from the court clinic does not satisfy the due process clause. The defendants juvenile court records made a sufficient showing of the need for such an appointment. In this case the court clinic was not qualified to render an opinion.

  • IAC PENALTY PHASE EXPERTRichey v. Mitchell, 395 F. 3d 660 (6th Cir. 2005) The attorney selected the expert from a flyer or advertising brochure. The attorney needed an arson expert. The expert chosen from the brochure was an expert in metals. Counsel limited the expert by setting an arbitrary number of hours and then failed to give the expert critical materials. (reversed on other grounds and remanded for re-examination of iac claim, Bradshaw v. Richey, 126 S. Ct. 602 (2006))

  • IACWilliams v. Taylor, 529 U.S. 362 (2000)Wiggins v. Smith, 539 U.S. 510 (2003)Rompilla v. Beard, 125 S. Ct. 2456 (2005)

  • Right to an ExpertState v. Mason, 82 Ohio St. 3d 144 (1998)Accordingly, we hold that due process, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution, requires that an indigent criminal defendant be provided funds to obtain expert assistance at state expense only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial.

  • Right to an ExpertPaul C. Gianelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev 1305 (2004)

  • Current Standards Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.

    American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003 ed.), Standard 10.7

  • Current StandardsCounsel must:investigate the case thoroughlyinvestigate and re-investigate all possible defensesseek out and interview potential witnessesconduct extensive and generally unparalleled investigation into personal and family historyexplore social history (includingneighborhood environment; experiences of racism or other social or ethnic bias; cultural or religious influences; [and ] failures of governments or social intervention

    American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003 ed.), Commentary to Standard 10.7; Standard 10.10.2

  • EDUCATING YOURSELFRandom Thoughts/IdeasNot Comprehensive

  • Educating YourselfThis SeminarDaubert/Kumho tireDigital ImagingMitigationDNADrugs and Mental IllnessCross-Examining Experts etcOrganization

  • Educating YourselfNACDL 11/2005 Santa Fe, NMDigital ImagesDepicting Complicated Expert Testimony with Graphics on a Big or Low BudgetUsing the Internet to Find Dirt on Governments ExpertsCultural Experts

  • Educating YourselfHabeas Assistance and Training Group San Antonio, TX 1/2006Deconstructing the Reid MethodFalse ConfessionsNew DNA developmentsBoundaries of Forensic PathologyEvaluating the Integrity of the Crime SceneArson ChargesFirearms IdentificationUnderstanding and Evaluating Fingerprint EvidenceUnreliable Prosecution Mental Health Testimony

  • Educating YourselfOACDL Superstar Seminar 10/6/06 Columbus focus on Forensic EvidenceOACDL Death Penalty Seminar Deconstructing Reid Method, False Confessions,

  • SeminarsNational Seminar Development and Integration of Mitigation Evidence in Capital Cases AO-US Courts April 27-30, 2006, Washington,

  • ResourcesOACDL Web-Cite oacdl.orgOhio Public Defenders OfficeOACDL listserve

  • VenueJuryworks: Systematic Techniques by the National Jury Project, Inc.Beth Bonora and Elissa Krauss, general editorsNew York, N.Y. : Boardman, 1983 2nd editionSurveys: Standards for Survey Research in connection with Motions to Change Venue, May 24, 1999 National Jury Project.

  • Venue, cont.OhioJack Arbuthnot Ohio University Athens; arbuthno@ohio.eduMark Alicke, Ph.D. Ohio University;

  • Venue If the state goes to the trouble of bringing someone to trial, the person is probably guilty.a. Agree Strongly24.0%b. Agree Somewhat22.9%c. Disagree Somewhat24.1%d. Disagree Strongly28.9%

  • VenueEven the worst criminal should be considered for mercy.a. Agree Strongly20.5%b. Agree Somewhat28.9%c. Disagree Somewhat24.1%d. Disagree Strongly22.9%e. No Opinion 1.2%

  • VenueRegardless of what the law says, a defendant in a criminal trial should be required t

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