July 15, 2019 Scientific Evidence

Ignorance of Science

Jules Epstein

When must counsel consult with an expert, particularly an expert on forensic pathology? The US Supreme Court has acknowledged that in at least some cases, an expert must be consulted to ensure effective representation, although it tempers that command with respect for counsel’s choices:

Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both. There are, however, “countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Rare are the situations in which the “wide latitude counsel must have in making tactical decisions” will be limited to any one technique or approach.

(Harrington v. Richter, 562 U.S. 86, 106, 131 S. Ct. 770, 788–789 (2011).) But when examined in the crucible of actual case performance, the answer should be that consulting with a pathologist is the rule, rather than the exception, when cause and mechanics of death are at issue.

The necessity of expert consultation is grounded in a number of sources: the Model Rules of Professional Conduct; the Strickland standard for ineffectiveness of counsel; and the fundamentals of trial advocacy, in particular the need to develop a cogent and credible theory of the case. The question is also answered by seeing the consequences of when this does not occur.

The Rules are clear: Competent advocacy “requires the . . . thoroughness and preparation reasonably necessary for the representation. . . .” (Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n, Discussion Draft 1983).) The Strickland standard, while in application extraordinarily deferential to counsel’s choices, still mandates some inquiry because “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (Strickland v. Washington, 466 U.S. 668, 691 (1984).) Finally, the sine qua non of trial advocacy is ensuring a persuasive story, one that “accounts for or explains all of the known or undeniable facts. . . .” (Steven Lubet & J.C. Lore, Modern Trial Advocacy 13 (Law Sch.ed., 4th ed. 2016).)

When lawyers disregard this duty in the face of medical/scientific facts, and they have no way around them, they hurt their clients when they just say the facts can’t be true. What’s the proof? In a recent habeas grant of relief, the Third Circuit Court of Appeals found error in just such conduct. In a homicide trial, the victim had already been shot repeatedly by one perpetrator when the defendant fired a shot that ricocheted and also hit the victim. That last shot could have been fatal.

Although the medical examiner testified without equivocation that the victim was still alive when the ricochet hit, and with no expert or lay testimony to the contrary,

counsel moved for a judgment of acquittal. He argued that because Moses fired first and because “to a reasonable medical certainty the first bullet killed” Hunt, Workman could not be convicted because “he has fired into the body of a man that is dead and you can’t kill a dead man.” He made this argument despite [the pathologist’s] testimony, which included the opinion that Hunt was alive when struck by Workman’s bullet. The [prosecutor] pointed out that inconsistency. The trial court denied the motion.

Things only got worse. Trial counsel, who had reserved his opening statement, said only the following after the prosecution case ended and it was time for the defense:

Ladies and gentlemen of the jury, you’ve been very patient for six or seven days. I will inform you now as the judge will later charge you, Jeffrey Workman will not present any evidence. So I’m opening to you and not saying that we’re presenting anything. You’ll get the full impact of that when the judge charges you later in the case. Thank you very much.

With no defense evidence, closing statements followed quickly. The alternate “facts” were then argued:

He’s dead from the first bullet. And when the doctor has—and this is the last thing I‘m going to say about that—the unmitigated gall in his position as a Philadelphia medical examiner to come into this courtroom and tell you the man was alive when the ricochet hit him and he doesn’t know where the ricochet shot comes from . . . at that given point you must conclude that they have not proved their case beyond a reasonable doubt because the doctor’s testimony is absolutely incredulous.

Suffice it to say, this was deemed a denial of the right to effective representation. The court found an accumulation of errors, all grounded in the notion of “defiance of science”:

[T]rial counsel’s utter and complete failure to test the Commonwealth’s case with appropriate cross-examination of Lieberman, his failure to present witnesses (either fact or expert) in support of his position, or to adapt his argument to the testimony in evidence instead of simply asserting the contrary statement that “[Hunt is] dead. He’s dead from the first bullet.”

And the result, even under the forgiving standard of presuming counsel’s reasonableness? A complete denial of effective representation:

[T]rial counsel acted as an advocate not of his client but of his theory—that one cannot kill a dead man, and therefore the jury could not convict Workman of homicide—all contrary to the facts and testimony before the jury. Any objective standard of reasonableness requires counsel to understand facts and testimony and adapt to them, even at the expense of purportedly clever theories. Workman’s trial counsel appears to have misunderstood or willfully neglected this when faced with Lieberman’s testimony. This falls below an objective standard of reasonable performance.

The case is Workman v. Superintendent Albion SCI, No. 16-1969, 2018 U.S. App. LEXIS 25690 (3d Cir. Sept. 11, 2018). While seemingly an extreme case of neglect, it does not stand in isolation. (See, e.g., Thomas v. Clements, 789 F.3d 760, 770 (7th Cir. 2015); Rogers v. Israel, 746 F.2d 1288 (7th Cir. 1984).)

What Workman and similar cases show is that it is foolish for defense counsel to assume they know the science and can work their way through or around it. Lawyers are not physicians and should not presume otherwise.


Jules Epstein

Jules Epstein is professor of law and director of advocacy programs at Temple Beasley School of Law and served as a member of the National Commission on Forensic Science.