news article: claim of failing to present an expert....

[Identify]

http://www.leagle.com/unsecure/page.htm ... 0100701099

"In 1973, the State presented at the first trial testimony from Steven Leddell, who was employed by the Louisiana State Police and who participated in the investigation after the murder. Leddell testified that he examined the crime scene and located a bloody fingerprint on the door to the Pine 1 dorm, which he photographed. Leddell explained that although the print was identifiable, it did not match the fingerprints on file for either Woodfox or any of the other defendants charged in the case. Relying on the exculpatory nature of this prior testimony, defense counsel at the second trial in 1998 argued in his opening statement to the jury that, although a bloody fingerprint was found at the scene, there would be no evidence at trial linking that fingerprint to Woodfox.

The State then presented testimony from Carol Richard, a State Police fingerprint examiner, who testified for the first time that she thought the print, previously long believed to be a fingerprint, was actually a palm print. The exculpatory nature of the print would be affected if it was from a palm instead of a finger because Richard testified that no comparisons had been made between anyone's palm prints and the print found at the scene. Therefore Woodfox would no longer be positively excluded as the source of the print.

Defense counsel objected to Richard's testimony on the basis of undue surprise because all along the State had represented the print was from a finger. The trial court overruled the objection. The court held that rather than simply rely on the expert opinion from 1973, Woodfox could have obtained his own expert to independently examine the print and either confirm or refute the State's experts. Woodfox subsequently presented as part of his defense the prior testimony of Leddell, who, like so many other witnesses, was no longer available for the second trial.

The district court here held that defense counsel rendered ineffective assistance for failing to investigate and obtain a fingerprint expert. The court noted that the state trial court had even discussed the fact that funds were available for the court to appoint an expert. The district court reasoned that if defense counsel had consulted his own expert rather than rely on the 1973 testimony of Leddell, counsel could have known before trial whether the print was from a finger or palm and been prepared to refute Richard's testimony. The district court also noted that Woodfox presented in both his state habeas application and his § 2254 petition a declaration from a fingerprint expert, who disagreed with Richard and opined that the print was from a finger, specifically a thumb, rather than a palm. Assuming the print was from a palm, however, the expert also compared the print to Woodfox's palm prints and concluded there was no match.

We disagree with the district court's finding of ineffective assistance. First, as with his claims respecting the failure to call experts to evaluate the testing of the bloody clothes, Woodfox has not shown that his fingerprint expert was available to testify at the 1998 trial. The claim of failing to present an expert witness is therefore unavailing. See Day, 566 F.3d at 538.

Second, after eliminating the distorting effects of hindsight, we find no deficiency in counsel's performance. Counsel knew in 1998 that the 1973 expert had given sworn testimony that the bloody print was a fingerprint and that it matched neither Woodfox nor anyone else charged in the case. Counsel could have obtained an expert to confirm that opinion, but had he done so counsel also risked potentially uncovering damaging information depending on what the retained expert found. Counsel was thus faced with a dilemma: he could do nothing in the face of evidence that did not inculpate Woodfox and in fact exculpated him, or he could retain an expert who possibly might disagree with the prior sworn testimony. "Counsel's decision not to pursue evidence that could be `double-edged in nature [was] objectively reasonable and therefore does not amount to deficient performance.'" Drones, 218 F.3d at 501 (quoting Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999)) (other citations omitted).

It is axiomatic that the State bears the burden of proof in any criminal case, and a defendant need prove nothing. See United States v. Manetta, 551 F.2d 1352, 1357 (5th Cir. 1977). Unless there was some reason for counsel to reasonably doubt that the bloody print was a fingerprint, which is not apparent from the record, we see no deficiency in counsel's decision to hold the State to its burden and to rely on the prior sworn testimony that in no way inculpated Woodfox.

In support of its decision that counsel rendered deficient performance by failing to obtain an expert, the district court relied largely on the Sixth Circuit's decision in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). The court there held that counsel for a defendant convicted of arson rendered ineffective assistance because he did not conduct a reasonable investigation or adequately consult experts to test the State's scientific evidence that a fire was caused by the use of accelerants. We find Richey and other similar cases cited in the district court's opinion inapposite because they concerned expert opinions from government witnesses that inculpate the defendant. But here the State's previously presented expert provided testimony that tended to exonerate Woodfox. Counsel's duty is to reasonably investigate or make a reasonable decision that no further investigation is necessary. See Strickland, 466 U.S. at 691. Given the information known to counsel at the time, we see no reason for counsel to have believed further investigation of the bloody print was necessary. See Wiggins, 539 U.S. at 527.

Finally, we also conclude that the absence of a fingerprint expert did not cause Woodfox prejudice that warrants habeas relief. The district court held that a fingerprint expert could have provided support for the theory that the print was a fingerprint, and not a palm print, so that the print retained some exculpatory value. But although the print-as-a-palm-print theory may have reduced the print's exculpatory nature, it did not eliminate it altogether. Counsel argued to the jury in his opening statement that there was no bloody print evidence linking Woodfox to the crime scene. That remained true even if the print was a palm print because no match was made to Woodfox. Even after Richard's testimony the jury was left to wonder why the print was not tested against Woodfox's prints. Richard testified that palm prints were not routinely included on a prisoner's fingerprint card at Angola, and that the print was not sufficiently detailed to run it through the State's automated fingerprint database, which went online in 1988. However, defense counsel elicited testimony from Richard that the print was identifiable and could be compared manually with other prints. Thus, even accepting Richard's testimony that the print came from a palm, it did not inculpate Woodfox, and it likely would have caused the jury to wonder why the State did not manually compare it with Woodfox's prints. Furthermore, defense counsel presented the prior testimony of Leddell as part of the defense case, which contradicted Richard's testimony. Although Richard testified about the improvement and evolution of fingerprint examination since the first trial in 1973, the jury was still presented with two State witnesses who gave contrary opinions.

We conclude from the totality of the circumstances that the state court's denial of habeas relief on the claim that counsel should have retained a fingerprint expert was not an unreasonable application of clearly established federal law."

[Pat A. Wertheim]

How does this comport with the NAS observation that the defense in a case does not enjoy the same accessibility to forensic experts as does the prosecution?

In a case such as this, should the defense have to prove on appeal that a different verdict may have been reached had a defense expert been retained? There are an awful lot of "what ifs" that might be postulated. What if a defense expert had analyzed the latent print and noticed some detail the police experts had overlooked? What if a defense expert had made an identification? What if a defense expert had made an exclusion?

NAS suggests defendants should have the same access to experts as the police. Should that be applied retroactively? Should it be applied from this point forward? Should it be ignored, as this appellate ruling seems to imply?

[L.J.Steele]

It is complicated.

The issue before the 5th Circuit is whether to affirm the District Court's conclusion that trial counsel in 1998 was ineffective for not having an expert review the 1973 State's expert's conclusion. Remember that the standard here is whether trial counsel (1) fell below the standard of an ordinary, fallible defense attorney and (2) the client was thereby harmed. Burden of proof in habeas is on the defendant/petitioner.

The Court is saying that there is some evidence that there were funds for an expert in 1998, but the habeas attorney failed to establish that the expert it presented at the hearing was available in 1998 (or that a similar expert would have been available) and would have given the same testimony at that time.

It then seems to say that assuming there was such an expert, it was a reasonable tactical decision by trial counsel not to hire such an expert because of the risk that the expert's opinion might have been inculpatory, not exculpatory.

Finally, it seems to think the defendant was not harmed by the decision.

I'm troubled by it, but this is a different question from the one Pat W is posing about the defense access to experts.

I think, in an ideal case, the Court would want (1) testimony that an appropriate expert was available in 1998, (2) that the expert in 1998 would have given exculpatory testimony and/or information that would have helped the defense, and (3) a discussion by the expert of whether there was any risk that the expert would come to an unfavorable decision. It also probably wanted testimony from the trial attorney about why he made that decision -- if he expressly said he was worried about an unfavorable result, then it would depend on why he came to that decision. (His decision is reasonable to the extent it is backed up by a reasonable investigation and/or experience). If he said he didn't think about the possiblity of an unfavorable result, then the Court's speculation seems odd.

[Gerald Clough]

It would be dangerous to interpret this opinion as suggesting a defendant's access to expertise can be ignored as an issue. In fact, it may be just the filtration through the news story, but I'd be leery of reading much into this case at all. The fingerprint evidence was both not conclusive of anything and was therefore not a big factor, considering that the conviction was obtained mainly on the testimony of an inmate-eyewitness who saw the murder or the prison guard take place. And there were a number of other issues in the ineffective assistance claim.

And it's worth noting this case as an example of how high is the hurdle for federal habeas of this sort. Note that the petitioner has to show that a specific witness would have testified in a specific way at the time of the trial and would have been sufficiently favorable to the defendant. The circuit court articulates that in the section previous to the bloody fingerprint discussion, which is why it isn't more explicit in the extract that was posted. They chose to concentrate on the questionable effect of any alternate expert analysis as failing to show it would have favored the defendant. And this was a relatively close call. The federal district court, applying the same rules, had already granted relief before the 5th circuit reversed.

So, when a question arises post conviction about whether defense counsel should have sought an expert, it does not come down to playing "what-if?" The petitioner can't just speculate about what the defense expert would have said. It doesn't matter that the expert might have found something to prove him innocent. He has say who the expert would have been, has to demonstrate what the results would have been and show that they could reasonably have changed the verdict. Which of course means that the particular kind of analysis was available at the time. (If it wasn't and now is AND it can be shown that new analysis will prove innocence, he can go with that, but not as ineffective assistance.)

This issue of whether defense counsel should seek expertise is different from the issue of whether the court should grant funds when counsel does ask for them. Had the attorney in this case asked for an expert and had been refused, the outcome might have been very different. Of course, here, the trial court had openly invited counsel to seek an expert. The NAS Report changed nothing here. This is established federal law, and it is applied as far back retroactively as needed.

Aside from the legal proceedings, there is a question about making fingerprint (and all forensic) evidence more reliable. The most effective way to fairly use that evidence is to get another analysis before trial. That deals with every possible failure on the official side. But the defendant has to seek it, because as we see in this case, it's extremely hard to do anything past conviction.


L.J.,

You posted while I was writing this. Does it seem to you that the opinion kind of sounds like crediting this to strategy, without mentioning anything from the defense counsel stating that it was? I think in the end it was just that the central evidence for conviction wasn't that questionable, but it seems to lack some detail. Maybe it's more clear when you see the district court record, and that just didn't read through into the circuit opinion.