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  • Does the Supreme Court Rule Defense Counsel Must Now Hire “Believable” Expert Witnesses?
Does the Supreme Court Rule Defense Counsel Must Now Hire “Believable” Expert Witnesses? February 25, 2014

The U.S. Supreme Court ruled this week that Anthony Ray Hinton’s criminal trial attorney rendered ineffective assistance of counsel when he failed to utilize available funding to hire a “competent expert to counter theFirerarms and Toolmark Evidence testimony of the prosecution’s expert witnesses.” Note Mr. Hinton’s trial counsel did hire an expert. Trial counsel did call this expert to testify. And trial counsel’s expert did testify in a way exculpating Mr. Hinton. However, the Supremes were not satisfied with trial counsel’s choice of expert . . . so they reversed.

 

This was an Alabama death penalty case where the prosecution’s case hinged on “firearms and tool-mark” evidence.  Firearm examiners attempt to determine whether a bullet recovered from a crime scene was fired from a particular gun by comparing microscopic markings on the recovered bullet to the markings on a bullet known to have been fired from that gun. There were no eye-witnesses to connect Mr. Hinton to the murder scene. Consequently, the government’s strategy was to link him to the murder using tool-mark evidence from bullets in a similar robbery case where Mr. Hinton had been identified. Hinton’s trial lawyer hired an “expert” to testify in opposition to the prosecution. At trial Hinton’s expert testified that tool-marks in the barrel of the Hinton revolver had been corroded away so that it would be impossible to say with certainty whether a particular bullet had been fired from that gun. He further testified the bullets in question did not match one another. However, the Hinton expert was successfully discredited on cross-examination.

 

Hinton’s lawyer had been mistaken about the funding available to hire experts. As a result, his budget for an expert in this case was remarkably small. In the post-conviction evidentiary hearing Hinton’s attorney admitted the defense expert was not his first choice, but that he believed his ability to hire some better was limited by the funds available. The Supremes said this mistaken belief by trial counsel and counsel’s “failure to request additional funding to replace an expert he knew to be inadequate . . . constituted deficient performance.” The Court was quick to say the “inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough.” They said further, “[w]e do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired.”

 

I don’t see how this ruling does anything but launch state and federal courts into such inquires. I wonder if this ruling would be the same had Hinton not been a death penalty case.

 

Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

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