Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 3
Paul C. Giannelli
Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western Reserve University in Cleveland, Ohio. He is coauthor of Scientific Evidence (LEXIS 3d ed., 1999). He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.
Everything That’s Wrong—in One Case
Troedel v. Wainwright, 667 F. Supp. 1456 (S.D. Fla. 1986), aff’d, 828 F.2d 670 (11th Cir. 1987), a capital murder case, illustrates just about all the problems associated with the improper use of expert testimony—a pliable expert, an overreaching prosecutor, and an incompetent defense attorney.
In Troedel, a report of a gunshot residue test based on neutron activation analysis concluded that swabs "from the hands of Troedel and Hawkins contained antimony and barium in amounts typically found on the hands of a person who has discharged a firearm or has had his hands in close proximity to a discharging firearm." ( Id. at 1458.) The FBI expert testified in accordance with this report at Hawkins’s trial but enhanced his testimony at Troedel’s trial, where he testified that "Troedel had fired the murder weapon." ( Id.) During federal habeas proceedings, the expert testified in a deposition that "he could not, from the results of his tests, determine or say to a scientific certainty who had fired the murder weapon" and that the "amount of barium and antimony on the hands of Troedel and Hawkins were basically insignificant." ( Id. at 1459). The district court found the trial testimony, "at the very least, was misleading."
Moreover, the expert claimed that the prosecutor had "pushed" him further in Troedel’s trial, a claim the prosecutor substantiated: "[A]t the March 26th evidentiary hearing held before this Court, one of the prosecutors testified that, at Troedel’s trial, after Mr. Riley [the expert] had rendered his opinion which was contained in his written report, the prosecutor pushed to ‘see if more could have been gotten out of this witness.’ When questioned why, in the Hawkins trial, he did not use Mr. Riley’s opinion that Troedel had fired the weapon, the prosecutor responded he did not know why." ( Id.) In granting habeas relief, the court found:
In light of this admission, the above testimony received at the evidentiary hearing and the inconsistent positions taken by the prosecution at Hawkins’ and Troedel’s trials, respectively, the Court concludes that the opinion Troedel had fired the weapon was known by the prosecution not to be based on the results of the neutron activation analysis tests, or on any scientific certainty or even probability. Thus, the subject testimony was not only misleading, but also was used by the State knowing it to be misleading.
( Id. at 1459–60.)
The bylaws of the American Academy of Forensic Sciences contain a code of ethics and conduct: (1) "Every member of the AAFS shall refrain from providing any material misrepresentation of education, training, experience or area of expertise." (2) "Every member of the AAFS shall refrain from providing any material misrepresentation of [evidence or] data upon which an expert opinion or conclusion is based." The expert’s conduct raises troublesome issues under the second precept.
It is not surprising in an adversary system that attorneys sometimes pressure experts to "push the envelope." ABA Criminal Justice Standard 3-3.3(a), however, addresses this problem. It provides: "A prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert’s opinion on the subject. To the extent necessary, the prosecutor should explain to the expert his or her role in the trial as an impartial expert called to aid the fact finders. . . ." The commentary to this Standard states: "Statements made by physicians, psychiatrists, and other experts about their experiences as witnesses in criminal cases indicate the need for circumspection on the part of prosecutors who engage experts. Nothing should be done by the prosecutor to cast suspicion on the process of justice by suggesting that the expert color an opinion to favor the interests of the prosecutor." (Commentary, ABA Standards for Criminal Justice, Prosecution and Defense Function and Defense Function 59 (3d ed. 1993).) A comparable provision for the defense is found in Standard 4-4.4(a).
The first duty of an attorney is competence. Thus, ABA Model Rule 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Moreover, "[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel." ( McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). See also Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984); Powell v. Alabama, 287 U.S. 45, 71 (1932).)
In Troedel, the district court also found ineffective assistance:
[U]nder the facts as developed in this case, a most crucial aspect of the trial was the question of who fired the gun which actually resulted in the death of the victims. Defense counsel testified, through deposition, that he knew pretrial this issue would be critical. Nevertheless, he neither deposed Mr. Riley, the State’s expert witness, nor bothered to consult with an expert in the field prior to trial. It is apparent from his deposition testimony that defense counsel himself had no special knowledge in this field.
(667 F. Supp. at 1461.)
No attorney can try criminal cases today without a grounding in scientific evidence. Yet, Troedel is not uncommon in this regard. Incompetence of counsel cases involving scientific evidence are not hard to find:
• Baylor v. Estelle, 94 F.3d 1321, 1324 (9th Cir. 1996) ("We have difficulty understanding how reasonably competent counsel would not recognize ‘the obvious exculpatory potential of semen evidence in a sexual assault case,’ particularly when the criminalist’s report plainly indicates that the donor was an ABO nonsecretor whereas Baylor was an ABO type ‘O’ secretor and that this ‘would thus eliminate Baylor as the perpetrator unless a test . . . on a liquid semen sample showed that he mimicked a nonsecretor. . . .’ Whether or not Stockwell’s report was itself conclusive, it was one test away from tilting the scale powerfully in Baylor’s direction.") (citations omitted).
• Bloom v. Calderon, 132 F.3d 1267, 1278 (9th Cir. 1997) ("Even the third-year law student knew the defense needed a psychiatric expert witness. That witness was to be Dr. Kling. As a result of trial counsel’s woefully deficient performance, however, Dr. Kling was not provided with sufficient information and, as a result, his testimony not only failed to help the defense, it significantly hindered it. Kling’s report (which he now acknowledges was inaccurate) permitted the prosecution to turn Kling’s trial testimony against Bloom, and it gave the prosecution the ammunition it needed to secure guilty verdicts of first degree murder with special circumstances [death penalty] on all three counts.").
• Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995) (In a capital murder case whether the alleged murder weapon "had blood matching the victim’s constituted an issue of the utmost importance. Under these circumstances, a reasonable defense lawyer would take some measures to understand the laboratory tests performed and the inferences that one could logically draw from the results. At the very least, any reasonable attorney under the circumstances would study the state’s laboratory report with sufficient care so that if the prosecution advanced a theory at trial that was at odds with the serology evidence, the defense would be in a position to expose it on cross-examination.").
• Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993) (failure to pursue an impotency defense in a rape case).
• Moore v. State, 827 S.W.2d 213, 214 (Mo. 1992) (counsel ineffective for failing to request serological test).
• State v. Hicks, 536 N.W.2d 487, 491 (Wis. App. 1995) ("Before the trial, [defense counsel] knew that the root tissue of hair specimens could be subject to DNA testing at certain out-of-state laboratories and he knew of the technology used for that testing. He did not discuss this with his client or with the district attorney, or petition the court to have this test performed or do anything to pursue such testing"; failure to obtain DNA analysis was not a strategic or tactical decision).
A U.S. Department of Justice study on DNA exonerations also underscored this point. A professor of forensic science wrote:
One problem that DNA testing will not remedy is inadequate legal counsel. In case after case reported here, defense counsel failed to consult competent scientific experts. Even a neophyte forensic serologist would have detected the problems with the prosecution’s serological evidence in the Dotson case. It is also clear that in case after case, defense counsel failed to review the case notes of the prosecution’s forensic serologists. Even a layperson would have seen Fred Zains’s written reports and sworn testimony were contradicted by his case notes. Again, one has to reflect on the likelihood that numerous innocent persons are presently incarcerated because of the inadequacy of their attorneys.
(Walter F. Rowe, Commentary, in Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial xvii-xviii (1996). See also id. at 67-68 ("ineffective counsel at [Piszek’s] trial (trial counsel never requested DNA testing").)