EXPERTS: SOME THOUGHTS ON LOCATING AND CULTIVATING EXPERT ASSISTANCE

1. EXPERTS:SOME THOUGHTS ON LOCATING AND CULTIVATING EXPERT ASSISTANCE DAVID STEBBINS RICHARD VICKERS

2. EDUCATING THE LAWYER • When 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.

3. 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)

4. Ineffective Assistance of Counsel Lindstadt v. Keane, 239 F.3d 191 (2nd Cir. 2001)( “[D]efense counsel’s 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 state’s expert] contributed significantly to his ineffectiveness.”)

5. IAC in presenting defense experts Turpin 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. Counsel’s failure to act deprived petitioner of a fair trial because his insanity defense was completely undermined by the expert’s testimony.

6. IAC in presenting defense experts Combs 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 petitioner’s intoxication did not impair his ability to act purposefully and intentionally.

7. IAC in presenting defense experts • Miller 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 psychologist’s credibility but almost certainly and perhaps decisively bolstered the jury’s confidence in Miller’s 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.”]

8. IAC – PENALTY PHASE EXPERT • Glenn 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.

9. IAC – PENALTY PHASE EXPERT • Skaggs 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.

10. 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.”

11. 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.”

12. IAC – PENALTY PHASE EXPERT • Powell 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 defendant’s 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.

13. IAC – PENALTY PHASE EXPERT • Richey 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))

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

15. Right to an Expert • State 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.

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

17. 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

18. Current Standards Counsel must: • “investigate the case thoroughly” • “investigate and re-investigate all possible defenses” • “seek out and interview potential witnesses” • conduct “extensive and generally unparalleled investigation into personal and family history” • explore “social history (including…neighborhood 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

19. EDUCATING YOURSELF • Random Thoughts/Ideas • Not Comprehensive

20. Educating Yourself • This Seminar • Daubert/Kumho tire • Digital Imaging • Mitigation • DNA • Drugs and Mental Illness • Cross-Examining Experts etc • Organization

21. Educating Yourself • NACDL – 11/2005 – Santa Fe, NM • Digital Images • Depicting Complicated Expert Testimony with Graphics on a Big or Low Budget • Using the Internet to Find Dirt on Government’s Experts • Cultural Experts

22. Educating Yourself • Habeas Assistance and Training Group – San Antonio, TX 1/2006 • Deconstructing the Reid Method • False Confessions • New DNA developments • Boundaries of Forensic Pathology • Evaluating the Integrity of the Crime Scene • Arson Charges • Firearms Identification • Understanding and Evaluating Fingerprint Evidence • Unreliable Prosecution Mental Health Testimony

23. Educating Yourself • OACDL Superstar Seminar – 10/6/06 – Columbus – focus on Forensic Evidence • OACDL – Death Penalty Seminar – Deconstructing Reid Method, False Confessions,………………

24. Seminars • National Seminar –Development and Integration of Mitigation Evidence in Capital Cases – AO-US Courts – April 27-30, 2006, Washington, D.C. • Jon_Sheldon@ao.uscourts.gov

25. Resources • OACDL Web-Cite – oacdl.org • Ohio Public Defenders Office • OACDL listserve

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

27. Venue, cont. • Ohio • Jack Arbuthnot – Ohio University – Athens; arbuthno@ohio.edu • Mark Alicke, Ph.D. – Ohio University; alicke@ohiou.edu

28. Venue If the state goes to the trouble of bringing someone to trial, the person is probably guilty. • a.Agree Strongly 24.0% • b.Agree Somewhat 22.9% • c.Disagree Somewhat 24.1% • d.Disagree Strongly 28.9%

29. Venue • Even the worst criminal should be considered for mercy. • a.Agree Strongly 20.5% • b.Agree Somewhat 28.9% • c.Disagree Somewhat 24.1% • d.Disagree Strongly 22.9% • e.No Opinion 1.2%

30. Venue • Regardless of what the law says, a defendant in a criminal trial should be required to prove his or her innocence. • a.Agree Strongly 47.0% • b.Agree Somewhat 12.0% • c.Disagree Somewhat 16.9% • d.Disagree Strongly 24.1%

31. Venue • The legal system is too lenient on criminals. • a.Agree Strongly 55.4% • b.Agree Somewhat 30.1% • c.Disagree Somewhat 7.2% • d.Disagree Strongly 4.8% e. No Opinion 2.4%

32. Venue • There is far more crime now than there was 50 years ago. • a.Agree Strongly 63.9% • b.Agree Somewhat 24.1% • c.Disagree Somewhat 7.2% • d.Disagree Strongly 2.4% e. No Opinion 1.2%

33. Juror Attitudes • “In the Face of Death”, Alex Kotlowitz, NY Times July 6, 2003 • A Life and Death Decision: A jury Weighs the Death Penalty, Scott E. Sundby, Published in April 2005.

34. Sundby – Juror Considerations • Death does not mean death • Life does not mean life • Future Danger – will kill again • Will get out and kill jurors • Prison life is easy • Did D have chance to turn life around • No remorse • Inconsistent theories Random Killings • Defense experts: psychobabble • Does not explain compelling life history • Has not testified for state • Does not believe in death penalty

35. Pathology • Spitz and Fisher: Medicolegal Investigation of Death, Charles C. Thomas Publisher. • 30th Medicolegal Investigation of DeathApril 26-28 8:00 a.m - 5:00 p.m.Contact: Gladys Chiarelli - (313) 577-1181Activity Director: Werner U. Spitz , M.D.Credit Hours: up to 17.25 hrs. Location: Dearborn, MI • Ronald K. Wright, MD JD, Forensic Pathologist, rkw@rkwrightmd.com

36. Crime Scene • Keith Inman - California • Kinman@forensica.com • “A Graphic Crime Scene: Daubert and the Evolving Standards for Forensic Evidence,” Jon Sands and Robyn Greenberg Varcoe, the Champion, September/October, 2003.www.nacdl.org • BLOOD SPATTER • “Interpretation of Blood Spatter for Defense Attorneys – Parts I and II, Louis L. Akin, the Champion, April – May , 2005 • Physical Evidence: Edited by Dr. Henry C. Lee (overview of physical evidence)

37. Crime Lab Investigation • Russell Stetler • Reltets@aol.com • Susan Herrero • Center for Equal Justice – New Orleans • Herrero1@aol.com

38. Arson • John Lentini, CFEI,F-ABC • Manager, Fire Investigations • Applied Technical Services, Inc – Atlanta • Jlentini@atslab.com

39. Firearms • Joan Griffin • Boston • Jgriffin@pscboston.com • Richard Vickers – Office of the Ohio Public Defender • 614.466.5394, Vickersd@OPD.State.OH.US • Jim Kersey • 216.241.3470, j.k2@att.net

40. Challenging Confessions • Deconstructing the Reid Method • James G.Connell, III, Esq.-Virginia • Jgc3@devineconnell.com • Law and Human BehaviorVol 15, no. 3, 1991, Kassin and McNall; • Law and Human Behavior Vol. 23, April 2003, Kassin, Goldstein and Savitsky; Behavioral Confirmation in the Interrogation Room • The Social Psychology of False Confessions, Psychological Science, vol 7, No. 3, May, 1996 - Kassin

41. Reid • www.reid.com • Inbau, Reid Buckley etc: Criminal Interrogations and Confessions. – The Reid Bible.

42. Reid • Show they used it properly – or • Show they used it improperly • Confessions are not spontaneous – demonstrate all of the factors surrounding the confession • Police Script • Police Policy • Police Training

43. Confessions -2 • False Confessions • Denny LeBoeuf – New Orleans • Dennylaw@cox.net • Pre Existing Vulnerabilities – Mitigating Factors – substance addiction – childhood abuse – mental deficiencies – anxiety • De-brief the client • Chronology of interrogation – timeline • Social History – drugs/alcohol, history of confessing, lying, bragging, taking blame for siblings, medical/ psych history

44. Confessions -2 • Stephen Drizin, Northwestern • NACDL – Task Force - Drizin • John Spirko • Solomon Fulero – Wright State • Particularly a problem with juveniles

45. Fingerprints • “. . .motion to exclude the testimony of . . . any other forensic fingerprint examiner . . . Defendant asks for a hearing on this Motion. At the conclusion of that hearing, Defendant asks the Court to apply the principles from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)(hereinafter Daubert) and the 2000 amendments to Rule 702 of the Federal Rules of Evidence, and to exclude all testimony from this witness.

46. Fingerprints • Michael Burt – San Francisco • michael.burt@prodigy.net • Philadelphia – Federal Public Defenders Office • Much recent literature • Brandon Mayfield

47. DNA • Dr. Krane – Forensic BioInformatic Services, Inc. • DNA – Diagnostics Center, 1-800-406-1940. • BCI - ???? • Barry Sheck - bcsinnocence@aol.com • Peter Neufeld

48. DNA • Principles of Forensic DNA for Officers of the Court – CD-Rom • National Institute of Justice – DOJ • “Part of President Bush’s initiative to ensure that the science of forensic DNA reaches its full potential in solving crimes, protecting the innocent, and identifying missing persons. • www.dna/gov/training/otc/. (See resources and innocence)

49. MENTAL HEALTH QUESTIONS • Forensic Psychologist – starting point • Specialist in Mental Retardation • School Psychologist – MR Behavior • Drugs and Mental Illness • Child Sexual Abuse – and its Effects • PTSD – from childhood abuse and otherwise • Brain Development – Ruben Gur – Philadelphia – neural basis of behavior.

50. CT Scans • Brain Imaging • Untreated Mental Illness in Children and Adolescents – Janice Stevenon, Ph.D – Maryland. Jstevens@goucher.edu • Intelligence Tests – reliability – look at the tests. Ed Cozza – Dublin – Call Dick Vickers.