Supreme Court Action: Incompetence of Counsel When Using An Expert

[Note:  The link to the opinion seems to have changed since this morning.  Try getting it here.]

The Supreme Court issued one opinion today.  It involves whether counsel is competent under the standard of Washington v. Strickland, 466 U.S. 668 (1984) in the context of the selection and use of expert witnesses in a criminal trial.  The case is Hinton v. Alabama (13-6440).  Hinton was tried for murder stemming from a number of robberies at restaurants.  The managers at two restaurants were shot and killed while a third survived.  The surviving manager identified Hinton as the perpetrator.  The police search Hinton’s house and recovered a .38 caliber revolver belonging to his mother.

The State’s forensic experts concluded that all six bullets recovered from the crime scenes were shot from the same gun which they identified as the one recovered from Hinton’s residence.  Hinton’s attorney concluded that he needed expert testimony to counter that presented by the State.  He filed motions requesting money for that purpose.  The judge granted $1,000 as both he and Hinton’s attorney mistakenly believed the statute in effect capped the available fees that could be awarded.  The Judge invited Hinton’s attorney to file additional fee requests during the trial.  Hinton’s attorney did not take the Judge up on the offer.

The defense hired Andrew Payne as the best expert available for $1,000.  No other expert would take the case at such a low fee.  Payne’s qualifications were scant.  He testified in cases as an expert on firearms and toolmark identification just twice in the last eight years.  One of the two cases involved a shotgun rather than a handgun.  Payne testified that the barrel of the gun was corroded and that it was impossible to say with certainty that the bullets were fired from Hinton’s gun.  He also testified that the bullets did not match one another.

The State successfully attacked Payne’s credibility on his background and his analysis.  Payne’s expertise was in military ordinance and not firearm and toolmark identification.  His degree, awarded some 50 years before the trial, was in civil engineering.  Further, Payne sought assistance from one the State’s experts in using a microscope as he had only one functioning eye.   The jury ultimately convicted Hinton and recommended the death penalty.

Hinton filed a postconviction petition contending that his attorney’s handling of the expert and failure to request more money rendered him incompetent.  He produced three experts who were exceptionally qualified including one who had worked at the FBI forensic laboratory for 6 years.  The other two worked at the Dallas County Crime Laboratory and had testified in several hundred cases.  All of them stated that they could not conclude that the bullets had been fired from Hinton’s gun.  The Court denied the petition because the experts had not departed from Payne’s conclusion.

The Alabama Court of Criminal Appeals affirmed the denial.  The Alabama Supreme Court reversed.  It said the issue for the case was whether Payne was qualified to testify as a firearms expert.  The Circuit Court concluded that Payne was qualified under Alabama evidentiary rules.  The appellate court affirmed and the Alabama Supreme Court denied review.  Hinton petitioned the Supreme Court.

The Supreme Court examined the record and found that it was unreasonable for Hinton’s attorney not to seek further expert fees.  This was compounded by his belief that Payne was not a very good expert but felt he was stuck with Payne because of the $1,000 limitation.  The Court clarified how it viewed the situation:

We wish to be clear that 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. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.

The Court reversed and remanded the case per curiam.  The moral of the story:  use legal research for due diligence.  –Mark

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