Inadequate use of Defense Experts

[Pat]

In the vein of a couple of other threads currently being discussed on this forum, I offer this case in today's news regarding an innocent man who served 30 years on death row before being released this week:
http://www.washingtonpost.com/news/morn ... unraveled/

In summary, Anthony Ray Hinton was convicted of murder based solely on firearms evidence. Bullets were said to have been fired from a gun his mother owned and to which he had access. Hinton's original defense attorney was given a very limited budget by the court for a firearms expert. He could not get a qualified FA/TM examiner who would take the case for the approved fee and ended up hiring a quack who could not refute the prosecution's case. Hinton was convicted and sentenced to death. For three decades, Hinton proclaimed his innocence. Finally, an appellate attorney was able to obtain a more competent firearms examination. There was no basis for identifying the bullets as having come from Hinton's mother's gun after all. He was released from prison with no intention on the part of prosecution to refile the case.

The inadequacy of funding for defense experts is a serious problem. During the years I did defense consulting, I believe I did more pro bono cases than cases I got paid for. In one case, a death penalty case, I worked extensively with the defense attorney for a year and a half, holding several day long meetings. Finally, the prosecution dismissed the charges and the client was released from jail where he had sat awaiting trial. My bill was for around $1,800, but the court cut my fee to around $1,200. The defense attorney was so embarrassed that he paid me the full amount, making up the difference out of his firm's account. Of course, they could well afford it. But the fact that the court would not approve a reasonable fee for an expert that helped win dismissal of a case was typical of the problem that defense attorneys and defendants face. The prosecution has virtually unlimited funds to prove their case with forensic evidence, but the defense is severely restricted and can seldom afford a competent review of the forensic evidence against the defendant.

I know there is another side to the coin. Given unlimited funding, many defense attorneys would go overboard spending money grasping at straws and hiring outlandish consultants to attack good forensic evidence. I don't know where the balance lies, but I do know that much bad forensic evidence goes unchallenged because of the lopsided funding resources available to prosecution and defense.

[L.J.Steele]

I agree that it's not a level playing field and that that's a problem.

Another is that most cases settle by plea long before either side takes a strong look at the evidence. In many cases, that's ok. The forensics are likely good, the client is likely guilty of something close to what he's accused of, and that's why the deal is struck. In others tho, the defendant takes a deal because if he goes to trial and loses, he's going to get a higher sentence than if he pleads. And the offer may not be on the table long enough for a thorough investigation.

And another part of the problem is trying to fix the mess, post-conviction and get a court to pay attention to experts. For an example of what a disaster this can turn into, check out this week's Connecticut Supreme Court opinion in LaPointe v. Commissioner. The problem at stake is arson evidence and when the fire (set to cover a murder) started -- State failed to disclose a report that supported defendant's alibi. Defendant convicted, missed the death penalty by a quirk of his sentencing hearing. First habeas attorney apparently bobbled the arson report. Second habeas attorney got two experts who testified that the report was significant and their testimony would have supported the defense. State's expert apparently disagreed. Habeas court accepted the state's expert's science over the defense experts's science and said not good enough to send back for re-trial to offer this to a jury. Majority of the Supreme Court disagrees, finding defense experts' science good enough for retrial. Minority, Zarella and Espinosa, vehemently disagree. Some of the most heated exchanges I've seen in years follow in the majority's case (particularly fn 69) and the dissenting opinions.

Underlying all of this is a false confession problem and whether police improperly pressured a developmentally disabled man into falsely confessing (and whether it was a good idea for the Court to have upheld an elaborate scheme used by police to convince the Df they had an ironclad case against him).

The decisions are long, but may be worth reading for how the justices approach disagreeing technical/scientific experts

Majority
https://www.jud.ct.gov/external/supapp/ ... 16CR84.pdf

Zarella's dissent
https://www.jud.ct.gov/external/supapp/ ... 16CR84.pdf

Espinosa's dissent
https://www.jud.ct.gov/external/supapp/ ... 6CR84F.pdf

Rogers' concurrence
https://www.jud.ct.gov/external/supapp/ ... 6CR84A.pdf

[calvinmollett]

I know there is another side to the coin. Given unlimited funding, many defense attorneys would go overboard spending money grasping at straws and hiring outlandish consultants to attack good forensic evidence. I don't know where the balance lies, but I do know that much bad forensic evidence goes unchallenged because of the lopsided funding resources available to prosecution and defense.

Pat, like Louis van der Vyver hiring you to propagate the outlandish drinking glass theory in the Inge Lotz case? Talking about grasping at straws.