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Forensics as Mitigation Michael N. Burt Office of the Public Defender 555 Seventh Street San Francisco, California 94103 415-553-9650 michael.burt@prodigy.net
I. Introduction
The topic Aforensics as mitigation@ is a large one, as the words >forensics@ and Amitigation@ cover a lot of territory. As used in this article, Aforensics@ means anything of a Ascientific@ nature that may be relevant in either the guilt or penalty phase of a capital case. AMitigation@ means any testimony, physical object, or any strategy adopted in either phase of the case, that contributes to the fact-finder reaching the conclusion that the death penalty is not appropriate. More specifically, mitigation as it relates to forensics usually focuses on creating reasonable doubt in the guilt phase, or creating lingering doubt or an affirmative case for life in the penalty phase. The goal in the guilt phase is to burst the bubble of scientific impartiality and infallibility which is sought to be conveyed by prosecution forensic evidence. The goal in the penalty phase is to set up the common and powerful mitigation theme that death is an absolute punishment that demands not only absolute proof of guilt, but also absolute proof that your client is the worst of the worst. By your forensic and lay evidence, you hope to show that your client is a human being with redeeming value, and that he or she suffered genetic, neurological, or psychological damage or was exposed to other risk factors that make him or her less than 100 percent morally culpable for his or her behavior.
In the guilt phase , forensic evidence encompasses the whole range of scientific evidence brought to bear on the question of guilt or innocence by either the prosecution or the defense. Latent print examinations, firearms/toolmarks and other impression evidence examinations, crime scene response and related examinations, postmortem toxicology and pathology, forensic biology and molecular biochemistry, and transfer (trace) evidence evaluation are just a few of the more common areas of forensic analysis encountered in a capital case. Usually, this type of evidence is brought forth by the prosecution and our role is the familiar one of attacking the prosecution=s case. How well have we as a group performed the essential function of subjecting the prosecution=s forensic case to exacting scrutiny? I suggest below that the answer is not well at all. Are there resources and techniques currently available that we could use to improve our performance? As documented below, the answer is clearly yes.
Although our involvement with forensic evidence is typically responsive, we also use forensic evidence affirmatively to make the case for innocence or, more importantly in most capital cases, to make the case for life. Eyewitness identification experts in the guilt phase and the use of a variety of forensic mental heath experts in the penalty phase, including sometimes the use of the latest neuroimaging techniques such as MRIs, EEGs, PET scans, and BEAMs are just a few examples of what is currently being used. But how well is this evidence being presented? Oftentimes, not well at all, as is evidenced by the increasing number of successful ineffective assistance of counsel claims based on the failure to hire, or the failure to properly utilize, forensic experts. See e.g., Smith v. Stewart (9th Cir. 8/31/99) __F. 3d__;Wallace v. Stewart (9th Cir. 1999)__F.3d__, 1999 WL 511348);Caro v. Calderon (9th Cir. 1998) 159 F.3d 1185, 1188;Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073; In re Kenneth Gay (1998) 19 Cal. 4th 771. These cases make it clear that simply retaining and presenting experts is not sufficient to constitute adequate assistance of counsel regarding forensic experts. (See, e.g., Smith v. Stewart (8/31/99) __F. 3d__,[ AThe limited time Dr.Hoogerbeets and Dr. Goldberg spent with Smith and the narrow focus of their evaluation leads to the conclusion that they did little to aid Smith's fight for life, and any reasonably competent counsel at his resentencing would have at least recalled them or bolstered their testimony.@]; Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 [counsel ineffective in failing to provide social history materials to trial experts and failing to properly prepare them];In re Kenneth Gay, supra, [counsel ineffective in failing to hire appropriate expert and provide relevant documentation];). Worse still, prosecutors are becoming more aggressive at objecting to our penalty phase forensic evidence and in some cases they are succeeding at keeping relevant information from the fact finder. See eg, Jackson v. Calderon (9th Cir. 2000) 211 f. 3d 1148, 1165 (AThe positron emission tomography (PET scan) evidence also provides little support for Jackson's claim. The State's expert testified at the hearing that the use of PET scans to diagnose chronic PCP abuse is not generally accepted by the scientific community, and this testimony was not refuted. The district court was accordingly entitled to disregard the evidence.@) Is there more we could be doing to effectively utilize an ever expanding array of forensic tools? As suggested below, the answer is clearly yes. By exploring these issues, I hope to stimulate some creative thought about the role of forensic evidence in capital cases and the crucial function defense counsel plays in this important aspect of defense capital case preparation.
II. CREATING REASONABLE OR LINGERING DOUBT: ATTACKING THE PROSECUTION=S FORENSIC EVIDENCE
A. Introduction
Everyone is familiar with the concept of lingering doubt as a mitigating factor. But how this factor is typically handled in badly tried capital cases is either to ignore lingering doubt completely, i.e., Athe roll-over approach@ in which the prosecution=s case is never subjected to adversary testing in either phase of the case, or to give lingering doubt too much weight, i.e., the Aall the eggs in one basket approach@ in which the defense lawyer ignores other important mitigating evidence and concentrates all of his or her energies on the one issue of creating reasonable or lingering doubt. The second approach is unfortunately too often combined with a less than stellar attack on the prosecution=s forensic evidence.
In truth, both approaches are a mistake. The first key to successfully using forensics as mitigation is to realize that no matter how good we are at cross examining the prosecution=s forensic experts or putting on forensic experts of our own, the forensic evidence in the case is only one piece of a rather large puzzle that must be put together for a death qualified jury in order for that jury to return a verdict of life. If you have any doubt about this point, take the time to read Scott Sunby=s article, The Jury As Critic:An Empirical Look At How Capital Juries Perceive Expert and Lay Testimony (1997) 83 Va. L. Rev. 1109 and see what California capital jurors really think about the forensic experts we are putting on in these cases. Still, expert testimony, and cross examination of prosecution experts, has an important role to play in creating lingering doubt, and creating such doubt is certainly an important factor in any capital case. A recent case from the Eleventh Circuit, Tarver v. Hooper (11th Cir. 1999) 169 F. 3d. 710,716, only slightly exaggerates the matter when it states:
The record shows that Tarver's lawyer tried to create sufficient residual doubt about Tarver's guilt during trial and sentencing to add, in reality, another mitigating factor to the jury's sentencing deliberations. That the creation of lingering doubt was part of the strategy of Tarver's lawyer is evidenced by the polygraph examiner's testimony at sentencing and Tarver's lawyer's closing sentencing argument. The polygraph examiner testified that Tarver did not lie when asked, in different ways, if he killed Hugh Kite. During Tarver's lawyer's closing argument at the sentencing hearing he said repeatedly that he did not want to "challenge the verdict." But he--without drawing objection--added: I would hope that the evidence presented both in the case-in-chief last week and anything that you have heard today might be sufficient to raise in your mind at least a shadow of a doubt about the defendant's guilt, and if that doubt exists in your mind, I would pray that you would resolve it in favor of the defendant. A lawyer's time and effort in preparing to defend his client in the guilt phase of a capital case continues to count at the sentencing phase. Creating lingering doubt has been recognized as an effective strategy for avoiding the death penalty. We have written about it. See, e.g., Stewart v. Dugger, 877 F.2d 851, 855-56 (11th Cir.1989). In addition, a comprehensive study on the opinions of jurors in capital cases concluded: "Residual doubt" over the defendant's guilt is the most powerful "mitigating" fact.--[The study] suggests that the best thing a capital defendant can do to improve his chances of receiving a life sentence has nothing to do with mitigating evidence strictly speaking. The best thing he can do, all else being equal, is to raise doubt about his guilt. Stephen P. Harvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Calum. L. Rev. 1538, 1563 (1998) (footnotes omitted); see William S. Geiger & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J.Crim. L. 1, 28 (1988) ("[t]he existence of some degree of doubt about the guilt of the accused was the most often recurring explanatory factor in the life recommendation cases studied."); see also Jennifer Treadway, Note, "Residual Doubt" in Capital Sentencing: No Doubt it is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215 (1992). Furthermore, the American Law Institute, in a proposed model penal code, similarly recognized the importance of residual doubt in sentencing by including residual doubt as a mitigating circumstance. So, the efforts of Tarter's lawyer, during trial and sentencing, to create doubt about Tarter's guilt may not only have represented an adequate performance, but evidenced the most effective performance in defense to the death penalty.
How successful have we been in the endeavor to create lingering doubt? Paradoxically, at the same time that new advances in forensic science are being loudly trumpeted by prosecutors and crime labs, major abuses in the use of scientific evidence have surfaced, including perjury by expert witnesses, faked laboratory reports, and testimony based on unproven techniques. Tragically, these abuses are often times not discovered until well after trial and even well after the applicable statute of limitations on habeas petitions. Too many experts in the criminal justice system manifest a police-prosecution bias, and a willingness to shade or distort opinions to support the state's case. Similarly, too many prosecutors seek out such experts. Several recent cases illustrate these abuses and the need for greater defense vigilance. Some of these cases, no doubt the tip of the iceberg, are helpfully cataloged in the excellent recent book by John Kelly and Phillip Wearne, Tainting Evidence: Inside the Scandals at the F.B.I. Crime Lab ( Free Press 1998), and in Paul C. Giannelli=s article, The Abuse Of Scientific Evidence In Criminal Cases: The Need For Independent Crime Laboratories, (1997) 4 Va. J. SocPol'y&L.439).See also, LABSCAM,http://pdxnorml.org/pdxnorml/LABSCAM.html (ALABSCAM is a collection of items concerning the falsification of evidence in police laboratories.@). I review some of these cases in detail because I think they illustrate the failings of the criminal justice system, including the failings of defense counsel, and they hold important lessons for how to uncover shoddy prosecution forensic evidence before it is to late to do anything about it.
B. The Serologist
In West Virginia, the former head serologist of the State Police crime laboratory, Trooper Fred Zain, falsified test results in as many as 134 cases from 1979 to 1989. See, In the Matter of an Investigation of the W. Va. State Police Crime Lab., Serology Div., 438 S.E.2d 501, 510-11 (W. Va. 1993) Defendants, now exonerated, were sentenced to long prison terms based upon his testimony. A judicial inquiry concluded that "as a matter of law, any testimonial or documentary evidence offered by Zain at any time in any criminal prosecution should be deemed invalid, unreliable, and inadmissible." The West Virginia Supreme Court opinion adopting this report speaks of "shocking and . . . egregious violations," "corruption of our legal system," and "mocking] the ideal of justice under law."
I. State v. Woodall
Significantly, Trooper Zain's story began to unfold only in the aftermath of the prosecution of Glen Dale Woodall, who had been sentenced in 1987 to two life terms without parole and 203 to 335 years for double rape. Zain had testified that the assailant's and Woodall=s blood types were identical and would occur statistically in only six out of 10,000 males in West Virginia. Woodall, who had always asserted his innocence, sought a DNA test both before and after trial. Unfortunately, an insufficient amount of DNA was available for Restriction Fragment Length Polymorphism testing (RFLP), the principal type of DNA testing done at that time. Woodall's fortune changed, however, with the advent of Polymerase Chain Reaction (PCR). The PCR test exculpated Woodall, and his conviction was overturned in 1992. 438 S.E.2d at 503 ("DNA testing conclusively established his innocence.")
At this point Zain's testimony had not been impeached because the serological tests that he had used were not as discriminating as the newly developed DNA tests. Nevertheless, Woodall sued the State for false imprisonment. When the State's insurer, after investigating Zain's work, settled for $1 million, reporters jumped on the story--resulting in an internal audit, a grand jury investigation, and a legislative commission probe. 438 S.E.2d at 509. Responding to a petition for extraordinary relief filed by a county prosecutor, the West Virginia Supreme Court appointed a judge to investigate. The judge in turn requested assistance from the American Society of Crime Laboratory Directors (ASCLD), which sent a team to review Zain's work. ASCLD's scathing report was followed by depositions of Zain's former subordinates and superiors. The judge found misconduct on a massive scale--perjury, phony scientific reports, and alteration of laboratory records. The report states:
The acts of misconduct on the part of Zain included (1) overstating the strength of results; (2) overstating the frequency of genetic matches on individual pieces of evidence; (3) misreporting the frequency of genetic matches on multiple pieces of evidence; (4) reporting that multiple items of evidence had been tested, when only a single item had been tested; (5) reporting inconclusive results as conclusive; (6) repeatedly altering laboratory records; (7) grouping results to create the erroneous impression that genetic markers had been obtained from all samples tested; (8) failing to report conflicting results; (9) failing to conduct or to report conducting additional testing to resolve conflicting results; (10) implying a match with a suspect when testing supported only a match with the victim; and (11) reporting scientifically impossible or improbable results. Id. at 516. 1. Systemic Problems
The ASCLD report noted systemic deficiencies in the operating procedures of the serology division during Zain's tenure, "which undoubtedly contributed to an environment within which Zain's misconduct escaped detection." Id. at 503, 517 (The "ASCLD team concluded that these irregularities were 'the result of systematic practice rather than an occasional inadvertent error."'). Such basic requirements as written protocols of testing procedures, documentation of test methodology, quality assurance programs, and routine proficiency testing were nonexistent. The ASCLD report noted the following deficiencies:
(1) no written documentation of testing methodology; (2) no written quality assurance program; (3) no written internal or external auditing procedures; (4) no routine proficiency testing of laboratory technicians; (5) no technical review of work product; (6) no written documentation of instrument maintenance and calibration; (7) no written testing procedures manual; (8) failure to follow generally-accepted scientific testing standards with respect to certain tests; (9) inadequate record-keeping; and (10) failure to conduct collateral testing. Id. at 517
Even the hiring of someone like Zain, who had such an undistinguished academic record, was troublesome. In college, Zain received an "F"--and later a "D"--in Organic Chemistry, a "D" in Organic Chemistry Lab, a "C" in General Chemistry, an "F" in Zoology, a "D" in Botany, a "D" in College Algebra, and a "D" in Genetics. Id. at 515 n.27.
2. The Whitewash Perhaps as troubling as Zain's conduct was the inaction of the forensic scientists, prosecutors, and defense attorneys who had worked closely with him for over a decade. With respect to defense attorneys, the West Virginia Supreme specifically commented on "the absence of comprehensive internal operating procedures in the serology division, a condition apparently inadequately explored by defense counsel in prosecutions in which serological evidence was a factor"). Id. At 519 n. 34. The judicial report notes that "there was evidence that Trooper Zain's supervisors may have ignored or concealed complaints of his misconduct." Two subordinates testified that they had written a letter to Main's superiors outlining his misconduct. The letter was never found. One lab employee estimated that she had observed "at least 100 instances" of Zain recording positive results from blank enzyme test plates, and stated that "such occurrences became routine over the years and were known in the other divisions of the State Police crime lab."
A 1985 investigation of the serology department raises further questions. The FBI responded to the investigatory inquiry about Zain's performance by noting "that Zain 'apparently doesn't like to do things by the book."' A crime laboratory director "recalled being told by [an] FBI instructor that Zain 'did well below the class average."'
After the $1 million insurance settlement in 1993, an internal audit was conducted by two laboratory officers. Although they identified "certain improprieties" with Zain's work, no "material" errors were discovered. Based on this review, the Superintendent of the Division of Public Safety concluded that "there [was] no need to take any further action." Later events, of course, established widespread abuse, and the report, at best, can be described as a whitewash.
3. Prosecution Bias
Zain's results almost always favored the prosecution. His replacement as Director of Serology described Zain as "very pro-prosecution," a comment reflecting the oft-times unhealthy relationship between forensic scientists and the prosecution. Apparently, no prosecutor ever questioned Zain's methods or results during his "long history of falsifying evidence in criminal prosecutions." Indeed, even after Zain left to accept a position in a San Antonio crime laboratory, West Virginia prosecutors had evidence sent to him for retesting because the West Virginia serologists apparently could not reach the "right" results.
II. San Antonio
Incredibly, "(i)n 1989, Zain took his 'pro-prosecution' reputation and a letter of recommendation from the governor and headed to Texas." Laura Frank & John Hanchette, Convicted on False Evidence?: False Science Often Sways Juries, Judges, USA Today, July 19, 1994, at 1A. Zain accepted a serologist position with the County Medical Examiner's laboratory in San Antonio, where he also performed DNA profiling and testified in at least one death penalty case. A[I]n 1991, on the murder prosecution of Jesus Flores for the murder of Donna Mae Inlow, Zain's DNA report matching the accused's blood to that of semen on the victim was contradicted by a report from Brian Wraxall submitted to the District Attorney of Brownwood, Texas that PCR testing had excluded Flores as the donor of the semen. James E. Starrs, The Seamy Side of Forensic Science: The Mephitic Stain of Fred Salem Zain, 17 Sci. Sleuthing Rev., Winter 1993, at 1, 7. In another case, Zain testified that the defendant's DNA profile matched the DNA found on a rape victim's clothing, stating that it "could only have originated from him." Subsequent DNA tests excluded the defendant.
An independent investigator concluded that Zain's work in Texas demonstrated inadequate documentation "[in every case." In addition, Zain reached conclusions without specifying the tests performed, used deficient controls, and did not relate test results to the evidence examined. Once again, the laboratory was slow to react. Zain was fired in 1993, but three months later he was reportedly testifying as a ballistics expert in Hawaii.
On July 22, 1994, Zain was indicted on three counts of perjury in West Virginia but only after a special prosecutor had been appointed. On July 26, 1994, Zain was indicted in Texas for perjury, record tampering, and fabricating evidence, including the falsifying of DNA test results in a rape case. He has yet to be convicted of any offense, although on November 5, 1999, the Supreme Court of Appeals of West Virginia reinstated charges against him for obtaining money by false pretenses. See, West Virginia Crime Lab Serologist to Stand Trial for Alleged Misconduct, 1 Crim. J. Wkly 657 (11/30/99).
Lastly, and most recently, in Texas, the abuses of Zain have been shown to extend beyond Zain himself and to be a problem with the forensic science lab of which he was a part. A recent motion for discovery filed in the capital habeas corpus case of Miguel Martinez v. Johnson (S.D. Texas 1999), states:
EVIDENCE OF LAB WIDE PROBLEM Additionally, counsel borrowed evidence obtained in civil discovery during a separate civil rights case with which they were involved; Davis v. Main, Cause No. SA-94-CA-0094, United States District Court for the Western District of Texas, San Antonio Division. Mr. Davis obtained $600,000.00 in settlement of this lawsuit based upon Fred Zain=s perjured testimony in his capital murder trial. The discovery was represented to be the entire files of Fred Zain=s work in serology from 1989 until the day he was terminated from the Bear County Forensic Science Center. Counsel in this case has obtained a review of that material by Janine Arvizu, an independent forensic scientist, with Consolidated Technical Services, Inc. Ms. Arvizu is a Senior Technical Consultant with solid professional experience performing audits of professional laboratories. See Resume of Janine Arvizu attached as Exhibit 11. Ms. Arvizu reviewed the files produced in Davis v. Main, Cause No. SA-94-CA-0094, which have been in the custody of Kurt Sauer, Esq. She found the following: $ Practices for evidence management were incomplete, inconsistent, and ineffective; $ it is not possible to determine whether an item of evidence was appropriately packaged, received, identified, and controlled in a manner that would maintain sample quality and integrity; $ the laboratory reported results for samples when there is no record that the items were ever received as evidence; $ these problems represent the failure of a testing laboratory=s most basic responsibility: sample management; $ the laboratory=s report narrative were found to be incomplete, misleading, or factually inaccurate; and $ the actual report narratives provided imprecise information that could have been subject to misinterpretation. See May 26, 1999 Report attached as Exhibit 12. More significantly, evidence demonstrates that additional discovery is necessary to fully expose the commonly known routine falsification of forensic test results by Fred Zain. Petitioner=s original writ at Exhibit 3 contains the report of Dr. I.C. Stone. Dr. Stone was asked to prepare an exam of Fred Zain=s work at the Bexar County Forensic Science Center. He reviewed randomly selected files and concluded that in every case he examined Awithout exception, there is inadequate notation on worksheets to support conclusions reached for findings reported@. AWithout such documentation, it is suspect whether the work was performed, much less performed in an acceptable scientific manner.@ See Exhibit 3 to Petitioner=s original writ. Ms. Arvizu=s review, addressed to Stanley Schneider, was more extensive than Dr. Stone=s and implicates the full lab. Therefore, a full audit of the Bexar County lab is necessary in order to reveal whether testing was even performed and in order to flush out whether the reports issuing from the lab were deliberately falsified with complicity of state actors in Miguel Martinez=s case. In a report which aired on April 20, 1999 on NBC Dateline, it featured the examination of Mr. Zain=s testimony and other Bexar County Forensic Science Center work in Texas. The conclusion reached by the journalists was that Bexar County Lab work could not be trusted. See videotape of report attached as Exhibit A. The head of the lab at the time of Zain=s employment, Dr. DiMaio, has stated that he conducted a background investigation into Zain=s employment with the West Virginia lab when he hired him. Such a background check would reveal Fred Zain=s misconduct at the West Virginia lab. Access to Mr. Zain=s personnel files at the lab and at the County Auditor=s offices should reveal Bexar County=s knowledge of Fred Zain=s pattern and practices when it hired him After Fred Zain came to the Bexar County Forensic Science Center to work, law enforcement from West Virginia would occasionally seek Fred Zain out to perform testing and provide expert witness testimony when it=s lab could not come up with results the prosecution or the police theory of the case required. Thus, officials in West Virginia demonstrated the common knowledge that Fred Zain would falsify and fabricate evidence to support the prosecution theory of a case. In fact, the Bexar County lab solicited business from other counties. In a letter to the Members of the Commissioner=s Court from Vincent DiMaio, dated October 10, 1989, he states that the DNA Laboratory has begun its operation and Awill begin to solicit cases from other counties and the private sector.@ See letter attached as Exhibit 17. Fred Zain=s misconduct was not that of a lone rogue and Fred Zain=s colleagues also followed his example by falsely testifying concerning nonexistent serology test results. Report-Recommendation, p. 6, attached as Exhibit 15 at page 6. (In this case, DNA evidence proved Petitioner was innocent.) Similarly, an independent examination of files from the Bezar County Lab, indicates Fred Zain=s misconduct may not be unique.
I discuss the lessons of the Zain affair below, but I pause here to ask how Zain got by for all those years in all those cases without his practices being exposed by defense counsel ? Apparently, no one thought to check into his credentials or to subject his methods to rigorous cross examination or the scrutiny of an independent expert. Now that lawyers are finally on to him they are discovering through discovery motions and independent expert analysis that his improper practices are part of a larger problem.
C. The Pathologist
In Texas, pathologist Ralph Erdmann was convicted of faking autopsies. See, Roberto Sure, Ripples of a Pathologist's Misconduct in Graves and Courts of West Texas, N.Y. Times, Nov. 22, 1992, at 22 (stating that "[circuit-riding pathologist ... left a trail of faked autopsies, botched blood samples and missing organs from the Panhandle to the Rio Grande."). For a decade, he worked as a contract medical examiner in more than forty rural Texas counties. He performed hundreds of autopsies a year, and at least twenty death penalty convictions were obtained with the aid of his testimony. Suspicion arose when Dr. Erdmann listed in an autopsy report the weight of a decedent's spleen, a surprising development for the relatives who knew that the spleen had been removed years earlier. An initial investigation turned up 100 fake autopsies. In one case, Erdmann ruled that a sixteen-month old child died from a blow to the stomach, a finding that led to the murder indictment of the child's father. A second autopsy, conducted by different pathologists, cited drowning as the cause of death, a conclusion consistent with the father's version of an accidental death.
The defense was not the only side hurt by Erdmann's misconduct. He also declared that murder victims had died due to natural causes. For example, after failing to conduct an autopsy in another case, Erdmann declared that a man found in a dumpster had died of pneumonia and hypothermia. Two weeks later, when the police stopped a person driving the victim's car, the driver blurted, "Look man, I took his car, but I didn't shoot him in the head." The district attorney later remarked, "In law enforcement, we call that a clue." See, Geoffrey A. Campbell, Erdmann Faces New Legal Woes, A.B.A. J., Nov. 1995, at 32.
I. Prosecution Bias
For more than a decade, Erdmann worked closely with prosecutors and police, "shad[ing] things to follow along with the police theory of a case." As the special prosecutor remarked, "[i]f the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported." After Erdmann, who consistently testified that he performed over 400 autopsies a year, was exposed, one prosecutor remarked: "[C] all him 'McErdmann,' . . . He's like McDonald's--billions served." "Cynical" law enforcement officers referred to his practice as "drive-by autopsy." Some of his testimony was simply astounding. For example, in one case he pinpointed the time of death to within a half-hour, which fit quite nicely with the prosecution's theory of the case. It is difficult to believe that an experienced prosecutor would have offered such flawed testimony or that a competent defense counsel could not have exposed the error.
II. State v. Palmer
Even after the scandal erupted, the "truth" was not a welcomed commodity. Dr. Erdmann had performed the autopsy in State v. Palmer, a capital murder case in which an elderly man died during a botched burglary. See, Farmer v. Sherrod, 1993 U.S. Dist. LEXIS 5526 (N.D. Tex. Mar. 3, 1993). The defense claimed that there had been no intent to kill and that the victim had died of a heart attack. When defense attorney Millard Farmer filed motions claiming that prosecutors were involved in a cover-up of Erdmann's misdeeds, he, along with two police officers who testified in support of the defense's position, were indicted. The defense attorney subsequently obtained a federal court order barring his prosecution. 1993 U.S. Dist. LEXIS 5526 at *32 (issuing preliminary injunction to cease prosecution) Evidence adduced at the federal hearing showed that one D.A. had been informed by his investigator that Erdmann had changed the numbers on slides to correspond to those in the Palmer case. This information was not revealed to the court or the defense until much later. Further, a replacement pathologist resigned after a conversation with another D.A. because she feared indictment. The defense attorney eventually obtained a $300,000 settlement. If you think these things only happen in Texas, you are wrong. Recently, a Palo Alto man who was cleared last year of murder charges in his wife's 1995 death filed a $10 million lawsuit against Santa Clara County and the county's former chief medical examiner for conducting a fraudulent autopsy. The fraud was uncovered not by the attorney in the murder case, but by the civil attorney who took the ensuing lawsuit. The attorney commissioned a second autopsy which disclosed that the county coroner performed an incompetent autopsy that didn't meet the minimal standards necessary to determine cause of death. The coroner failed to preserve evidence and perform a neck dissection, and made other mistakes.See, Palo Alto Man Sues Former County Coroner / Botched Autopsy of Wife Led to His Arrest, Suit Says, San Francisco Chronicle, September 3, 1999.
D. The Forensic Dentist
In Mississippi, a "forensic dentist," who has testified in numerous capital cases, has come under media scrutiny. Dr. Michael West, a dentist by profession, was not content to restrict his testimony to bite mark identifications. Instead, he has testified about tool marks, shoeprints, fingernail comparisons, knife-wound comparisons, and other issues seemingly beyond his expertise. See, Marcia Coyle, "Expert" Science Under Fire in Capital Cases, Nat'l L.J., July 11, 1994, at A23.
I. State v. Maxwell
In State v. Maxwell, a capital murder case, West testified that a butcher knife blade "indeed and without doubt" caused skin wounds on two victims and a slash mark on a door. Moreover, the broken handle of the knife "indeed and without doubt" caused bruises on the accused's hand. This testimony was virtually the only evidence connecting Maxwell to the murders. West used alternate light imaging (which he somewhat immodestly dubbed the "West Phenomenon") to detect and analyze the wounds. He testified that this phenomenon, which he was unable to photograph, was a generally accepted scientific technique. Nevertheless, the three experts, who West claimed used his procedure, later testified that this was not so.
Maxwell's attorney, John Holdridge of the Mississippi and Louisiana Capital Trial Assistance Project, filed complaints about West with professional organizations. An ethics committee of the American Academy of Forensic Sciences [AAFS] concluded that West had "misrepresented data in order to support his testimony" and that the term "indeed and without doubt" was unwarranted. Similarly, an ethics committee of the American Board of Forensic Odontologists [ABFO] concluded that West had "materially misrepresented the evidence and data." It also concluded that the "West Phenomenon" was not "founded on scientific principles" and that West had presented testimony "outside the field of forensic odontology." Finally, the Crime Scene Certification Board of the International Association of Identification [IAI] concluded (but only by a majority) that there was a basis for the complaint and provided West with an opportunity to relinquish his "Senior Crime Scene Analyst" certification.
II. State v. Oppie
In another capital case, State v. Oppie, Dr. West conducted a fingernail/scratch-mark comparison, reporting that "indeed and without doubt" the scratches on the accused were made by the victim's fingernails. He acknowledged, however, that he had failed to make test marks with the fingernail, to evaluate the scratch's class and individual characteristics, and to establish the reproducibility of such marks.
III. State v. Keko
In still another capital murder case, Dr. West made a bite-mark identification, after exhuming a corpse fourteen months after death. Once again, he used his blue light ("West Phenomenon") technique to visualize the wound, which he then matched to the defendant's teeth. The skin tissue surrounding the mark was removed and placed in a preservative. Two weeks later, however, the preservative had erased the mark. The defendant is serving a life term.
IV. Other Cases West estimates that he has testified about fifty-five times over the past decade. A third to one half of these cases were capital prosecutions, and he has only "lost" one case. In 1992, West matched a bite mark found on a rape victim with the teeth of Jenny Bourn, a positive identification, but DNA analysis of skin taken from fingernail scrapings of the victim conclusively excluded Bourn. In other cases, West identified a footprint on a murdered girl's face, matched a bruise on a murder victim's stomach with a hiking boot belonging to the victim's mother, and testified as a burn pattern specialist. Thus, "West's proclaimed expertise is not limited to bite marks. In fact, he has created a comfy niche, mostly as a prosecution expert, matching not only bite marks with teeth, but also wounds with weapons, shoes with footprints and fingernails with scratches, even spills with stains." Mark Hansen, Out of the Blue, A.B.A. J., February 1996, at 50, 51
V. Prosecution Bias
Despite the controversy surrounding West, prosecutors continue to use him. "[Some prosecutors are too willing to turn to somebody like West when they lack the evidence they believe they need to tie a suspect to a crime." Id at 51 Indeed, one prosecutor believes that West is merely ahead of his time: "I'm quite confident in the guy. . . . I have a lot of faith in him. And I think he makes one heck of a witness." Id at 52. The obvious question in all of this is where was trial counsel when West was expanding his areas of expertise beyond all reason.
E. The "Cinderella" Expert The United States Supreme Court's latest prosecutorial immunity case, Buckley v. Fitzsimmons, (1993) 509 U.S. 259, 262 offers another illustration of the misuse of scientific evidence. In 1983, Buckley was indicted for a highly-publicized Illinois murder. The critical evidence was a bootprint left by the killer on the door of the eleven-year-old victim's home when he kicked it in. Experts from the county and state crime labs, as well as from the Kansas Bureau of Identification, were unable to identify Buckley's boot as the source of the print. Ignoring these government experts, prosecutors obtained, or shopped for, a "positive identification" from Dr. Louise Robbins.
I. The Expert
Robbins, an anthropology professor, had developed her own method of foot comparisons, including insole comparisons ("Cinderella Evidence"). Her method differed from traditional shoeprint or footprint comparisons. No one else could do what she claimed to be able to do. Indeed, William Bodziak, the FBI's top shoeprint expert, testified against her in several trials. In one capital murder case, State v. Johnston1986 WL 8799 at *9 (Ohio App. Aug. 6, 1986) (comparison of plaster cast and accused's boot), modified in part, rev'd in part, 529 N.E.2d 898 (Ohio 1988), reh'g denied, 534 N.E.2d 850 (Ohio 1988), later proceeding, 580 N.E.2d 1162 (Ohio App. 1990), Bodziak compared a plaster cast of a purported footprint found in a muddy riverbank with three boots seized from the defendant. He was unable to determine whether the print was made by a boot or a bare foot. In contrast, Robbins testified not only that it was a bootprint, but also that it matched one of the defendant's boots in several important details. Later, Bodziak commented: "There was no evidence whatsoever of any recognizable portion of a boot. It literally looked like they had poured plaster over a bunch of rocks." Mark Hansen, Believe It or Not, A.B.A. J., June 1993, at 64, 65 Johnston was sentenced to death.
In People v. Palate (Ct. App. 1981) 174 Cal. Rpt. 59, a murder case, Robbins testified about "Cinderella Analysis"--matching the insoles of shoes found at a crime scene with the insoles of the accused's shoes. She testified that it was "highly improbable" that anyone other than Palate could have worn the gravest shoes; the probability of another person with the same foot features being at that location at that time would be "astronomical." Testifying for the defense, a podiatrist stated that the defendant's feet patterns were "unique to about 60 percent of the population" and that the wear patterns on the gravest shoes "were 'completely different' from [the] defendant's shoes." Even though Robbins had never before qualified as an expert on "Cinderella" analysis, nor published any works on the subject, her testimony was admitted and the defendant was convicted.
In State v. Maccia (N.C. 1984) 316 S.E.2d 241 Robbins matched tennis shoes found at a crime scene with the defendant's footprint exemplars, even though the crime scene shoes were a size nine and the defendant wore a ten-and-a-half or eleven.
Other experts have argued that Robbins' method lacked a scientific foundation. Her unsupported claims that her technique was more accurate than fingerprints, her lack of empirical testing, and her failure to publish her findings did not prevent her from testifying in numerous trials, including several capital cases. See e.g., People v. Knights 212 Cal. Rpt. 307, 312 (Cal. App. 1985) (matching defendant's footprint exemplar with photographs of bloody sockprints); People v. Barker (1981) 170 Cal. Rpt. 69 (matching defendant's shoes with plaster casts and photographs of shoeprints found at scene) In only one case, People v. Ferguson(Ill. App. 1988) 526 N.E.2d 525, appeal denied, 530 N.E.2d 254 (Ill. 1988) was her testimony rejected, because there was no evidence that "any one other than Robbins employed the theory used to make the identification in this case." At the retrial, the trial court entered a directed verdict of acquittal. In 1987, a panel of anthropologists and lawyers rejected her method as unreliable.
II. Bad Science
Robbins' testimony, in itself, raises serious questions. Nevertheless, she easily met the qualification standards for an expert witness: university appointment, doctorate in anthropology, and board certification in forensic anthropology by the American Board of Forensic Anthropology. In addition, none of her critics challenged her sincerity, although several reports mention exorbitant fees, such as nearly $9,000 in one case. Nevertheless, such testimony should never be admitted in a capital case.
III. Prosecution Bias
In order to rely on Robbins' testimony, the prosecutors in Buckley ignored other experts. One detective, who resigned because he believed the wrong people had been charged, explained: The first lab guy says it's not the boot. . . . We don't like that answer, so there's no paper [report]. We go to a second guy who used to do our lab. He says yes. So we write a report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have evidence See Barry Siegel, Presumed Guilty: An Illinois Murder Case Became a Test of Conscience Inside the System, L.A. Times, Nov. 1, 1992 (Magazine), at 18, 20.
Buckley's trial ended in a hung jury, and he is presently suing the prosecutors, police, and Robbins' estate, arguing that they fabricated the evidence against him. His codefendants, however, were convicted. Although a convicted child-slayer, whose DNA matched that of the assailant, confessed to the crime several years ago, the codefendants have only recently been freed--again due to DNA tests--after spending a decade in prison. Moreover, a grand jury has indicted three prosecutors and four deputies for conspiracy and obstruction of justice in this case. See, Don Terry, Ex-Prosecutors and Deputies in Death Row Case Are Charged with Framing Defendant, N.Y. Times, Dec. 13, 1996, at A14.
F. Other Examples
Unfortunately, too many other comparable episodes are readily available.
I. False Fingerprints
New York police officers have fabricated fingerprint evidence in numerous cases. See Mark Hansen, Trooper's Wrongdoing Taints Cases, A.B.A. J., Mar. 1994, at 22; Ronald Sullivan, Trooper's 2d Tampering Charge, N.Y. Times, Jan. 6, 1994, at B9 This fiasco came to light when a New York State policeman bragged in a CIA interview about his fabrication skills. In January 1991, the CIA passed the information on to the FBI. It took over a year, however, for an investigation to be commenced. The special prosecutor found that up to forty cases may have been tainted, and he "wonder[ed] why more prosecutors in the region didn't grow suspicious about the sudden avalanche of good fingerprint evidence." Gary Taylor, Fake Evidence Becomes Real Problem, Nat'l L.J., Oct. 9, 1995, at A1, A28.
II. Gary Dotson Prosecution
Main is not the only serologist who has engaged in questionable conduct. In 1979, Gary Dotson was convicted of the rape of Cathleen Webb. Six years later, Webb recanted, stating that she had fabricated the rape charge. Subsequent DNA tests excluded Dotson as the source of the crime-scene semen. At Dotson's 1979 trial, Timothy Dixon testified that seminal material found in Webb's panties matched Dotson's blood type. He failed to disclose, however, that Webb's own vaginal discharges, not necessarily semen, could have caused the stains. Years later, when a Washington Post reporter asked Dixon why he had not spoken up, he replied, "I guess I wasn't asked." Blake Fleetwood, From the People Who Brought You the Twinkie Defense; The Rise of the Expert Witness Industry, Wash. Monthly, June 1987, at 33. Dr. Ed Blake, a DNA scientist who is used frequently by prosecutor=s in California, later remarked that "Dixon's trial testimony was 'exceedingly misleading and, in my judgment, dishonest."'
III. Miscellaneous Misconduct
There are other illustrations. The Justice Department=s 1996 DNA study, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, found that eight of twenty eight rape and rape-and-murder cases in which juries had convicted innocent men involved allegations of perjured trial testimony, fabricated lab evidence or expert testimony, or the withholding of exculpatory evidence by the police or prosecution. The Justice Department study found that a major cause of wrongful convictions was incompetent attorneys who neglected to examine the prosecution=s forensic evidence or failed to have it tested. As pointed out recently in Alan Berlow=s article, The Wrong Man, The Atlantic Monthly, November 1999, p. 66, A(t)he steady accumulation of wrongful convictions and death sentences in the United States constitutes a prima facie case that we are dealing with widespread, systemic flaws in the administration of justice.@ Other examples abound. In Jones v. City of Chicago (7th Cir. 1988) 856 F.2d 985, 991-93 a Chicago crime laboratory technician, after talking to detectives, intentionally deleted an exculpatory conclusion from her report in a murder case. In Hilliard v. Williams(6th Cir. 1975) 516 F.2d 1344, 1349 a Tennessee prosecutor deliberately suppressed an exculpatory FBI forensic report, which concluded that the "devastating" blood stains in a murder case were not actually blood stains. Moreover, instances of experts falsifying laboratory reports and lying about their credentials are well-documented. See, e.g., Doepel v. United States, 434 A.2d 449, 460 (D.C. App. 1981) ("Inquiry disclosed that in certain reports of blood analyses no laboratory tests were made. In some other cases, his worksheets either ignored or distorted the test results. Curran resigned from the [FBI] under fire when these deceptive practices came to light."), cert. denied, 454 U.S. 1037 (1981); State v. Ruybal, 408 A.2d 1284, 1285 (Me. 1979) (FBI analyst "reported results of lab tests that he did not in fact conduct");State v. DeFronzo, 394 N.E.2d 1027, 1031 (Ohio C.P. 1978) (Expert represented that certain laboratory tests were performed, when "no such tests were ever conducted."). See also, See, also, Maddox v. Lord,(2d Cir. 1987) 818 F.2d 1058, 1062 (serologist testified falsely about his academic credentials); Dapple v. United States,(D.C. App. 1981) 434 A.2d 449, 460 (FBI serologist testified that he had a master's degree in science, "whereas in fact he never attained a graduate degree."), cert. denied, 454 U.S. 1037 (1981); Kline v. State,(Fla. Ct. App. 1984) 444 So.2d 1102 (psychologist convicted of perjury for claiming he had a doctorate during the Ted Bundy trial); People v. Alfaro,(Ill. App. 1983) 420 N.E.2d 1114, 1116 (arson expert testified falsely about his academic credentials); State v. Elder,(An. 1967) 433 P.2d 462 (lab technician convicted of perjury for misrepresenting his educational background); Commonwealth v. Mount,(Pa. 1969) 257 A.2d 578, 579 (death penalty vacated because prosecution expert, who "had testified in many cases," had lied about her professional qualifications: "she had never fulfilled the educational requirements for a laboratory technician."); B. Miller, Accused Of Perjury, Police Expert Resigns, Wash. Post, July 23, 1999, B, p. 1 (drug expert who had testified in thousands of cases resigned amid allegations that he has lied under oath about having a doctorate in pharmacology from Howard University. A And no one apparently questioned his educational background...until lawyers in a pending civil suit decided to verify whether he had a doctoral degree.@)
G. Negligent Forensic Practices
Keep in mind that the above survey of cases all deal with fraudulent forensic scientists. It is undoubtedly true that a far more common occurrence is unintentional but nonetheless erroneous forensic science practiced by negligent or overworked crime lab technicians who lack the training, resources, and motivation to do competent forensic work. How prevalent is negligent forensic science? Nobody really knows, but if recent reports coming out of the medical community are any indication, the outlook is not good. See e.g., Medical Errors Called Major Killer In U.S., San Francisco Chronicle, Nov. 30, 1999, p. 1 ( AAs many as 98,000 Americans die unnecessarily every year from medical mishaps made by physicians, pharmacists and other health cre professionals, according to an independent report released yesterday that calls for a major overall of how the nation addresses medical errors.@); VA Medical Mistakes: 700 Dead In 2 years,San Francisco Chronicle, Dec. 19, 1999, p. 1(AFederal investigators have documented almost 3,000 medical mistakes and mishaps in less than two years in veteran=s hospitals around the country, and more than 700 patients have died in those cases, the Department of Veterans Affairs says in a new report.@) If things are this bad in the highly regulated medical technicians who profession, then one can only imagine the error rate in the relatively unregulated forensic crime labs around the country.
One thing we know for sure. California is often tauted as the gold standard when it comes to funding in the criminal justice system. But state and local crime labs in California are in an abysmal state due to financial shortages, lack of qualified personnel, and a variety of other reasons that are explored in two recent statewide audit reports, the California Department of Justice Needs Assessment Report (1998), and the California State Auditor, Bureau of State Auditor=s Forensic Laboratories: Many Face Challenges Beyond Accreditation To Assume the Highest Quality Services (1998). Both reports are available online at Kim Kruglick=s excellent forensic website at http://www.kruglaw.com/forensic.htm. Such audit reports are a gold mine for cross examination material and you would be surprised at how much other audit material exists as to your local lab. In a recent successful challenge to the San Francisco Crime Lab=s DNA Unit, we turned up through discovery motions, freedom of information act requests, and internet searches a 1995 ASCLAD/LAB audit report, a 1996 civil grand jury investigative report, a 1998 city budget audit, and a 1999 DNA Consortium audit, as well as the Crime Lab=s quality assurance and quality control manuals, and their proficiency test results. Each one of these sources contained invaluable information. It is there for the asking.
H. The Lessons To Be Learned
What lessons can be learned from all of these cases of forensic fraud and negligence? George Castelle, a public defender who has coordinated the West Virginia habeas cases involving Fred Zain has written in his article, Lab Fraud: Lessons Learned from the Fred Zain Affair'', The Champion, May 1999 at 12, of ten basic lessons all criminal defense lawyers should learn from the Zain affair: 1. Fraudulent forensic science is endemic. 2. Inadvertent error, sloppiness, exaggeration, and biased forensic science are equally pervasive. 3. Untrustworthy forensic science contaminates the seemingly independent non-scientific evidence (e.g., eyewitnesses being persuaded to be more positive because of Ainfallible@ forensic evidence). 4. Untrustworthy forensic science can be caught and corrected: 10 steps to identifying and addressing untrustworthy forensic science: Step 1: Obtain the underlying raw data Step 2: Obtain the written correspondence and notes of telephone communications between the investigating officers and the lab Step 3: Submit the underlying data for review by an independent expert Step 4: Obtain independent retesting of any questionable results Step 5: Consult relevant forensic science literature and manuals Step 6: Subject absolute statements to particular scrutiny Step 7: Subject enhanced trial testimony to particular scrutiny Step 8: Be suspicious of crime evidence that was Aoverlooked@ the first time, that appears in unexpected locations, or that is found in amounts Ajust large enough to be tested@ Step 9: Develop a professional relationship with the reputable forensic scientists in the field Step 10: File a pretrial motion to challenge the admissibility of questionable prosecution science, based on Frye or Daubert.
A number of points must be made about this proposed protocol .Note first that steps three and four (retaining an independent expert for review and retesting) do not absolve counsel from performing the other steps in the protocol. In my own practice, I have learned that all of the recommended steps must be followed in order to effectively challenge the prosecution=s forensic evidence. For instance, I recently tried a homicide case in which the county crime lab=s ballistics expert issued a report stating that my client=s gun had fired the fatal shot. I obtained the expert=s notes and other raw data and had a competent defense expert independently examine the raw data, my client=s gun, and the questioned bullet. The defense expert reported back to me confidentially that he agreed with the prosecution=s expert and that he saw no effective way to challenge the testimony on cross examination. However, my own independent literature research disclosed a recent report by the National Institute of Justice entitled, Forensic Sciences: Review of Status and Needs (Feb. 1999), http://www.ncjrs.org/txtfiles1/173412.txt, which contained the rather startling statement that A Courts routinely accept identifications of firearms, tools, and other implements through the comparison of microscopic impressions on questioned and authenticated specimens. However, recent developments suggest the need for additional studies to enhance understanding of the scientific basis of such identifications.@ The report goes on to discuss the current needs in this area of forensic science:
Needs Validation of the basis for impression evidence identifications. An excellent review of the "state-of-the-science" of firearm and toolmark identification criteria was recently published [see R.G. Nichols, Journal of Forensic Sciences, 42(3) (1997): pp. 466-474]. This review details the fact that significant research exists that empirically supports the unique identification of firearms and tools based on the alignment of microscopic striae from a questioned mark with those made during test firing or marking with suspect weapons and tools, respectively. However, examiners do not routinely reference the available literature when testifying to these identifications, and there are some "gaps" in the knowledge set with respect to the relative frequency of--and therefore importance to be assigned to--particular types of microscopic features from various tools and weapons. Extension of the available knowledge is necessary to provide more formal support for these identifications... Incorporation of a "z-dimension" imaging component into pattern-recognition systems. Current algorithms for characterizing microscopic striae principally map the image in two dimensions (x- and y-). While these algorithms may provide adequate information for some applications, improvements are still needed. This is especially the case for impressions made on nonplanar surfaces (such as bullets). The depth of the striation provides an additional dimension that is currently ignored in the image-capture systems, primarily because the imaging equipment is not designed for such determinations. Incorporation of this third dimension for characterizing striae would provide much greater discriminating power to the algorithm.
To my optimistic mind , this passage suggested the need to litigate a Frye challenge to the admissibility of firearms identification evidence. The judge allowed such a hearing and the prosecution=s ballistics expert was not familiar with the literature, and could not explain the basis of his opinion, what gaps in information the NIJ was referring to, or why his lab examined the questioned bullet in two dimensions rather than three. Both he and the prosecutor were also reluctant to comply with my discovery request for the expert=s proficiency test results. In any event, prior to the judge ruling on the challenge, the prosecutor announced he was having the ballistics evidence re-examined by the State Department of Justice. Several days later, I was provided with a DOJ lab report which stated that the questioned bullet was too damaged to render a reliable opinion as to the identity of the alleged murder weapon. The DOJ expert so testified at trial, with the result being that the prosecution=s Ainfallible@ forensic evidence was substantially undercut. The point here is not to tell a war story, but to illustrate that prosecution forensic evidence cannot be successfully attacked by simply handing the whole issue over to a defense expert. It is counsel, not the expert, who must cross examine the state=s experts, and it is therefore counsel who has the obligation to familiarize himself or herself with scientific literature that even counsel=s own expert may be unaware of or not be in agreement with.
A second point about the protocol is that step one, Aobtain the underlying raw data@, is actually more complicated than it sounds because the term A raw data@ must be viewed expansively in order for the protocol to work. For example, in a recent DNA admissibility hearing we subpoenaed the raw data underlying the published validation studies cited by the prosecution. Perkin Elmer, the manufacturer of the DNA kits, balked at the subpoena, claiming a trade secrets privilege. In response, the judge ruled that the prosecution could not rely on Perkin Elmer=s in-house validation studies. The California Department of Justice responded to the subpoena with a declaration claiming that their in-house validation work was incomplete and not meant to be a validation study at all. When the judge ordered that the data be turned over anyway, several deficiencies completely undermined the prosecution=s reliance on DOJ=s published studies. We also subpoenaed the underlying raw data for the California State Auditor, Bureau of State Auditor=s report Forensic Laboratories: Many Face Challenges Beyond Accreditation To Assume the Highest Quality Services (1998). We did this because the report itself is too general to be of any use in attacking individual crime labs. The subpoena was uncontested, with the result that the State Auditor=s entire Working Papers were turned over. Once again, this information proved invaluable in demonstrating that the local lab was woefully deficient in several areas. Other examples of Araw data@ that must be obtained are included in a discoverable material checklist in Kim Kruglich=s essential article , A Beginner=s Primer On the Investigation of Forensic Evidence, which is available online at http://www.scientific.org/tutorials/articles/kruglick/kruglick.html. The result of the DNA litigation was the opinion in People v. Jack Bokin, which was the first case in the United States to exclude on Frye grounds a PCR-based DNA STR testing kit result. Two other challenges patterned on the same type of aggressive discovery litigation have recently been successful, one in Colorado, People v Schreck, and one in Vermont, People v. Pfenning. Read all three cases at Professor William Thompson=s excellent site, Scientific Testimony: An Online Journal, at http://www.scientific.org/news‑notes/news.html . An updated version of the Bokin pleadings are included on disc. A final point relates to step 10 and our underutilization of Frye hearings. A major theme running through the cases described above concerns the competence of expert testimony in criminal prosecutions, and specifically, the startling lack of scientific support for many of the techniques used. The United States Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S.. 579 and Kumho Tire Co. V. Carmichael (1999) __U.S.__, 119 S.Ct. 1167,and our own Supreme Court=s decision in People v. Venegas (1998) 18 Cal. 4th 47 demand that scientific evidence be based on generally accepted "scientific" principles and methods, and that only correct scientific procedures be used in each case. Citing Daubert or Kumho Tire, several recent cases have held that some traditional techniques, such as handwriting comparison (United States v. Hines (D. Mass. 1999) __F.Supp.__, 1999WL 412847; United States v. Starzecpyzel (S.D.N.Y. 1995) 880 F. Supp. 1027, 1038 and hair comparison (See Williamson v. Reynolds (E.D. Okla. 1995) 904 F. Supp. 1529, 1558, rev=d on other grounds (10th Cir. 1997) 110 F. 3d 1523), are not supported by scientific research.
Along the same lines, a creative Federal Public Defender in Philadelphia, Robert Epstein, recently mounted a vigorous attack on the Ascience@ of fingerprint identification in a bank robbery case. The basic issue is whether there is any scientific validity to declaring with absolute certainty that a partial latent print, sometimes containing as few as six or seven subjectively determined A points of comparison@ came from the defendant to the exclusion of all other people in the world. The F.B.I. was apparently so worried about this challenge that they brought in experts from around the world to defeat it. They even designed an elaborate empirical experiment to demonstrate the objectivity of the science, but in the end the experiment back fired and only demonstrated the subjectively of the science. to On September 13, 1999, the United States District Court for the Eastern District of Pennsylvania, upheld the admissibility of fingerprint evidence and rejected a Daubert challenge in United States v. Byron C. Mitchell, Criminal No. 96-00407. The same challenge was also rejected in the Federal District court of Miami. However, following these cases the National Institute of Justice issued a report entitled Solicitation: Forensic Friction Ridge (Fingerprint Examination Validation Studies (March 2000) which documented that a group of practicing latent print examiners, researchers, and senior administrators from Federal, State, and private forensic science laboratories had reached a consensus that the field needs A(1) Basic research to determine the scientific validity in friction ridge examination based on measurement of features, quantification, and statistical analysis, and (2) procedures for comparing friction ridge impressions that are standardized and validated.@ The report bluntly and unequivocally concludes: A This has not been done.@ Based on this and other developments, I recently brought an updated version of the Mitchell challenge in San Francisco. The challenge is still pending , but it is noteworthy that the local press picked up the story and ran an article on May 28, 2000 under the headline AFact Is, Science Has Never Put Its Finger On Prints@, San Francisco Chronicle, which suggested that the Department of Justice, through the NIJ, was admitting to the scientific invalidity of fingerprint identification. Running true to form, the July 2000 edition of the F.B.I.=s forensic trade journal, Forensic Science Communications, http://www.fbi.gov/programs/lab/fsc/current/nijlettr.htm contains a June 20, 2000 retraction letter from the Acting Director of NIJ (not signed by the original group of fingerprint scientists who had reached a consensus in the solicitation report). The letter states in part: A what underlies this solicitation is a desire for more research to further confirm the already existing basis that permits fingerprints to be used as a means to individualize. NIJ wishes to note that it is accepted that fingerprints are unique to the individual. NIJ has no basis to believe that this is not the case.@ Is this science or is it the long arm of the FBI reaching out to suppress debate on an important scientific issue? If challenging the forensic community=s premiere example of infallible science can produce this level of double talk, then think what can be accomplished with some of the more vulnerable forensic Asciences@, such as hair and fiber comparisons and the prediction of future dangerousness. See Flores v. Johnson(5th Cir. 2000) 210 F. 3d 456 (Garza, concurring)(attack on future dangerousness testimony). The pleadings in the San Francisco fingerprint case, People v. Nawi, are provided on disc. For more general information in the fingerprint area, including the Mitchell pleadings and several recent examples of erroneous 16 point fingerprint matches, visit http://onin.com/fp/ . See also, Starrs, Judicial Control Over Scientific Supermen: Fingerprint Experts, (May 1999) 35 Crim. L. Bull. In sum, given the abuses of forensic science that have occurred in the past, coupled with our increased ability by way of the Internet and other means to learn and share information about shoddy prosecution forensic science practices, there is no longer any excuse for not subjected the prosecution=s case to the full adversary testing to which it deserves.
II. CREATING LINGERING DOUBT: USING FORENSICS AFFIRMATIVELY IN THE PENALTY PHASE
A. Introduction The jury was not called into the courtroom sua sponte to be exposed to information regarding the client's life. They are there because a murder has occurred and the defendant has been found culpable for a first degree murder and at least one special circumstance. The legal process as it relates to guilt and innocence is fairly obvious to the jury. Mitigation, however, is a confusing concept and many jurors have difficulty understanding what childhood illnesses have to do with a murder committed as an adult. For this reason, if counsel can somehow mitigate the offense, something the jury fully understands, they may be more likely to opt for a sentence of life over death.
As indicated above, the key in developing offense factors that rise to the level of mitigation is educating the jury that the standard of doubt is different between the guilt/innocence and sentencing phase of a capital trial. They no longer have to rise to a level of "reasonable doubt": they are about to apply an irrevocable sanction and any doubt regarding identity or any element of the offense can rise to the level of a mitigating circumstance.
The educational process can begin with jury selection, continue with forensic evidence from qualified defense experts, and hopefully culminate with favorable jury instructions. Obviously, however, counsel must first realistically evaluate whether the case truly involves lingering doubt, and, if so, on what issues. Nothing is more counter-productive than building your whole penalty phase strategy around lingering doubt when in fact none exists. For example, cases involving clients with prior murder convictions or with long histories of violent conduct are usually poor vehicles for arguing lingering doubt on issues of identity. Counsel must carefully assess whether the jury will have any lingering doubt after hearing the guilt phase and the evidence in aggravation. Like any powerful form of mitigation, lingering doubt is a double-edged sword: discerning which way it will cut is critical. If counsel does not mount a vigorous defense in the guilt phase and all but concedes guilt, the jury may be given its greatest reason to impose death (i.e. there is no doubt about guilt). On the other hand, raising lingering doubts about identity or issues of mental state may provide the jury the greatest reason to impose life. Though it removes any possibility of a Anot guilty@ verdict in the guilt phase of the trial, shooting for a finding of diminished responsibility may be less risky than going for lingering doubt on questions of identity. Questions of intent are subjective enough that there is always room to argue some lingering doubt. Also, diminished responsibility can tie in with co-defendant liability and perhaps move the jury to a sentence of life. Forensics will play a key role in establishing diminishing responsibility.
B. Investigating and Developing Penalty Phase Forensic Evidence Though the case can be made that there is little difference between investigating the offense for guilt/innocence and investigating for mitigation, there are subtleties that counsel must recognize. Using forensics in the penalty phase may include:
1. The Defendant What in the client's genetic, neurological, and psychological make-up made him or her particularly susceptible to commit this crime and assists in assessing the client's actual role in the offense? a. Genetics We tend to think of genetics as something that is used against our client, e.g., DNA forensic identity analysis. But scientific developments are converging that may foster the affirmative use of genetic information in capital trials. Scientific research is actively pursing the biological underpinnings of animal and human behavior. There is strong evidence that genes play a role in many types of criminal behavior. The emerging use and potential misuse of genetics as evidence in mitigation is explored at length in Jefferey R. Botkin, et. al., Genetics and Criminality: The Potential Misuse Of Scientific Information In Court (APA Press 1999). This book is essential reading for counsel trying to understand the emerging research on the genetic underpinnings for schizophrenia, mood disorders, antisocial personality disorder, and adult criminality. As just one example of the helpful information in this book, in an article entitled New Techniques in the Genetic Analysis of Complex Illness, Hilary Coon discusses new biologic tests that are correlated with mental illness. For example, smooth pursuit eye movement (SPEM) stands out as one of the most promising of the potential biological traits (endophenotypes) for schizophrenia. The P50-evoked auditory response also shows promise as a neurophysiological endophenotype for schizophrenia. These and other developments may hold the answer to the often difficult questions raised by relying solely on diagnosis as the major tool of presenting psychiatric evidence.
b. Neuropsychological Impairment
Understanding neurological impairment is an increasingly important aspect of capital defense. In recent years, rapid advances in neuropsychiatry, neuropsychology and the neural sciences have significantly advanced the understanding of brain function and its relationship to mental disorders and criminal behavior. With this greater understanding of how the brain works comes a greater responsibility on the lawyer to explore all aspects of brain dysfunction and all possible resulting effects on the client=s life.
More and more the differentiation between brain damage, meaning actual structural damage, and brain impairment, implying that the brain structure may or may not be intact, but the brain doesn=t function properly, is being identified. Recognizing that distinction allows the defense attorney to more adequately develop an approach to finding neurological issues.
Finding brain impairment is a necessary, but not a sufficient condition for presenting a neurological defense. No longer is it enough to simply say that the client has brain damage, therefore he is not competent, not guilty or not worthy of a death sentence. Counsel must explain how and why the impairment renders the client incompetent, excuses the criminal behavior or mitigates the penalty. And this explanation must be persuasive in the context of increasingly aggressive prosecutorial attacks on mental health claims in general and neurological impairment claims in particular.
Evidence of neurological impairment presented properly and in combination with other mitigation themes can be powerful mitigation and may actually save the client=s life. Used improperly, it can be devastatingly damaging to the case for life. In presenting such evidence to a jury, counsel must be careful to avoid creating the impression that the defendant is Adamaged goods@ and beyond repair. This may leave the death qualified jury with little choice but to eliminate this person who they feel is defective and dangerous. One important goal of competent neuropsychological testimony should be an outlining of how this person=s handicapping condition can be controlled or minimized in prison. The structured environment of the penitentiary may provide the brain-damaged person with the boundaries and structure required by their handicap. Certain psychotropic drug therapies may effectively eliminate the symptoms of the disorder and allow the client to function normally. Don=t let the handicap which has already destroyed the client=s life become an issue of fear or diminished sympathy that puts the client in the death chamber.
It has been suggested by one neuropsychologist that A[o]nly if the defense can prove the defendant=s volition was impaired by a cause not his fault (e.g., organic impairment)... will authoritarian, rule-bound (death qualified) juries have a rule to follow and thus return LWOP.@ ("Neuropsychological Assessment in Capital Cases," R.K. McKinzey, CACJ Forum, 1995 Vol. 22, No.4, p. 53 (hereafter McKinzey). While this position is no doubt exaggerated, there is no denying the fact that in general, a death qualified jury will be much less suspicious of organic impairment claims than of those mental health claims based on the nonorganic, or Afunctional@ psychiatric disorders.
For the sake of tradition and convenience, there is a practice of separating functional psychiatric disorders from the Aorganic@ disorders discussed in this section. But it is important for counsel to realize that the functional/organic distinction is artificial and has in fact been abandoned in the Diagnostic and Statistical Manual of Mental Disorders, IV. As there explained, Athe term >organic mental disorder= is no longer used in the DSM-IV because it incorrectly implies that the other mental disorders do not have a biological basis.@ For example, early conceptualizations of Schizophrenia considered it to be functional. In contrast, current research supports strong biochemical, cognitive, and structural correlates in a substantial proportion of schizophrenics. (The Handbook of Psychological Assessment: A Manual for Mental Health Practice, Gary Groth-Marnat, John Wiley & Sons, Third. Ed. (1997), p. 539 (hereafter Groth-Marnat). Other examples of psychiatric disorders with neurological implications include mood disorders and alcoholism. Counsel must be alert to this current research in order to effectively expand the concept of organicity to include the client=s particular disability.
Another important general point for counsel to keep in mind is that traditionally diagnostic decisions as to organic impairment depended on a single criterion-- either the detection of a structural lesion, or, less often, the diagnosis of a known disease process. ASuch an approach is no longer satisfactory... The advent of new technologies has undermined the pseudocertainty of earlier years. Many patients with functional syndromes are found to have CNS (central nervous system) abnormalities when studied with magnetic resonance imaging (MRI), positron emission tomography (PET), or single photon emission computed tomography (SPECT).@ (The Comprehensive Textbook of Psychiatry, Harold I. Kaplan and Benjamin J. Sadock (Eds.) Williams & Wilkins (1995), p. 705 (hereafter Kaplan & Sadock).
These high-tech forms of testing provide a dramatic Apicture@ of the tested brain and thus can persuasively demonstrate various types of neurological impairment. Given the resources, counsel may be tempted to simply run the client through a battery of these tests in an effort to conclusively prove, or disprove, the existence of neurological damage.
The problem with-- and beauty of-- this battery of tests is that they are not foolproof. Experts agree that any one of these tests may consistently miss severe neurological damage. If a neurological defense is proffered using seemingly less sophisticated forms of testing, but the expert has to admit under cross-examination that the scans were conducted and produced no evidence of a neurological disorder, the import of this defense might be lost on an already skeptical jury. Counsels options are: (1) not to have the tests conducted unless there is an assurance of positive results; (2) have the tests conducted in such a way as to insulate the testifying expert from negative results; or (3) be prepared to explain to the jury the significance of negative results.
Of equal concern is the unproven consistent utility of neuroimaging in determining psychiatric disorders. Many findings, like the issue of increased ventricular volume in Schizophrenia, or hyper metabolism (increased utilization of blood glucose) with Bipolar Disorder in PET scans remain to be accepted unequivocally by the medical community.
Neither positive nor negative neuroimaging results relieve counsel of the obligation to pursue the more traditional way of proving neurological impairment by putting into the hands of an experienced neuropsychologist or other qualified expert a comprehensive social history that accurately charts the client=s genetic history, intellectual functioning, incidents of head injury, medical history, drugs ingested, seizure disorders, behavioral aberrations, the events leading up to the instant offense, and anything else that indicates the client=s brain is a malfunctioning piece of machinery. Armed with this information, the experienced neuropsychologist, neuropsychiatrist, or neurologist can then conduct a series of tests and physical examinations in which they can establish the specific nature of the client=s handicap. There are several advantages to this stepwise approach. First, the attorney is able to maintain control of the information, studying it and, with the aid of your expert, determining both the next medical and legal step. Second, this control allows you to develop the medical material that you need with the leas number of negative determinations, like negative CT. or PET scans. Third, this methodology allows the expert to demonstrate to the jury the complete range of events and circumstances beyond the client=s control that resulted in the brain dysfunction.
The first step in implementing this methodology is uncovering the existence and assessing the cause and extent of neurological impairment by carefully observing the client=s behavior over time, by constructing a detailed social and neuropsychological history, and by retaining and effectively utilizing a well qualified expert who will conduct appropriate neurological and neuropsychological tests after discussing the pros and cons of such testing with counsel.
Given the high incidence of neurological impairment among capital defendants, it is best to begin with the assumption that there is definitely neurological impairment-- it is just up to you to discover it. AThe literature is clear that such dysfunction very likely will be found, as the incidence of neuropsychological impairments, particularly frontal lobe dysfunctions, rises with the level of violence... Given a defendant with a violent past, positive neuropsychological tests are likely enough that the referral [to an expert] is easily justified early in the case, even without a currently known history of trauma or easily observable symptoms.@ (McKinzey, p. 51.)
The second step in presenting a persuasive neurological defense is establishing the impact of the neurological impairment on the client=s functioning in everyday life. AThus it is no longer sufficient merely to state that a client is experiencing cognitive deficits in certain areas. Instead, answers to more functionally relevant questions are being required...@ (Groth-Marnat, p. 539.) This point can be clarified by considering the difference between Aimpairment@ and Adisability.@ AImpairment typically reflects normative comparisons and test data. In contrast, the functionally relevant term >disability= more closely takes into account the context of the client including his or her circumstances, environment and interests.@ (Id., p. 540.) There are increasing expectations on experts to work with both the test data and the specifics of the client to translate the impact of any test-related impairment on the level to which the individual might be disabled. This requires the expert to use methods of analysis other than neuropsychological tests such as proving disability through school records, employers, family members, etc. This relationship is not adversarial, and the social history, medical records, school records, etc., allow the defense to surround the medical magic with a ring of everyday stories that illustrate the limitations outlined by the neuropsychological and neurospsychiatric data.
Finally, and most importantly, counsel must establish some causal link between brain impairment and the client=s criminal behavior, including the capital crime, and successfully refute the prosecution=s response to the neuropsychological evidence. AAs the records are assembled, the sometimes multiple etiologies (often head blows from abusive parents) of the damage can be elucidated and the effects seen throughout the defendant=s life. Crimes committed after the damage was suffered will be impulsive, blundering and sometimes laughable attempts to imitate a fully functioning, cortically healthy person. The defense team seeks to counter the prosecution=s presentation of the defendant as a ruthless, cold-hearted killer with one depicting him as a bumbling, inept, foolish, brain-damaged, volitionally-impaired person we can pity.@ (McKinzey, p. 53-54.)
c. Psychological Impairment
As we were recently reminded, mental illness is pervasive in our society, particularly among the population of criminal offenders. See, Grim View Of Mental Disorders In Study: Surgeon General Finds Them Prevalent, Widely Untreated, San Francisco Chronicle, Dec. 13, 1999, p. 1 (AOne in every five Americans experiences a mental disorder in any given year, and half of all Americans have such disorders at some time in their lives, but most of them never seek treatment, the surgeon general of the United States says in a comprehensive new report.@).
Lawyers involved at the capital level undoubtedly have some experience with mentally ill clients and may even be conversant in the language of the DSM. While the lawyer might be familiar with mental health issues and convinced that the mental illness contributed to the capital crime, presenting a mental state defense is still a challenging and risky prospect.
The first hurdle for the defense lawyer is to recognize the depth and breadth of mental illness today. Many of the stereotypes that we have of mental illness, even those of us with some contact and intellectual interest in the subject, remain entrenched in a dated understanding. Without an up-to-date understanding of mental illness, and a willingness to rethink our own belief system, linking the mental illness to the history of violence and to the capital crime may be impossible. One factor that hinders progress in understanding issues of linkage is that there are few clinical studies connecting psychiatric disorders and violence. According to the Comprehensive Textbook of Psychiatry, VI, Harold Kaplan and Benjamin Sadock (Eds.), Williams & Wilkins, (1995), the clinical study of the relationship between mental illness and aggression has been largely overlooked by the clinicians of the psychiatric profession, and left instead to the forensic or purely scientific realms. "One reason for the reluctance of the psychiatric profession to involve itself in the problem of aggression is that violent behavior has always been viewed as a manifestation of badness and criminality. In contrast, psychosis or depression are clearly perceived as madness and as genuine illnesses worthy of recognition and research." (Id., p. 310.)
While clinical studies are limited, one thing is clear-- the relationship between mental illness and violence is very complex. There is not one identifiable Acause@ of violence and few capital clients, if any, are a neat package of easily identifiable symptoms that provide a concise diagnosis. More often than not, the capital client has lived a life rife with substance abuse, family dysfunction, a history of psychological and neurological disorders, and cultural and social handicaps that muddy any clear diagnosis and complicate the lawyer=s task of connecting the mental disorder and the crime. As one expert stated: A[v]iolent behavior results from a complex interaction among a variety of social, clinical, personality, and environmental factors whose relative importance varies across situations and time. The complexity of this interaction raises the issue of the extent to which one should conceive of violent behavior as resulting from a [mental] disorder rather than a situational, environmental or other factor.@ (Personality Disorders and Violence, Thomas Widiger and Timothy Trull, p. 217., in J. Monahan & H. Steadman, Violence and Mental Disorder :Developments in Risk Assessment (1994).
What causes criminal behavior? As pointed out in Michael Perlin, A>Big Ideas, Images And Distorted Facts=: The Insanity Defense, Genetics, and the >Political World=@ in Jefferey R. Botkin, et. al., Genetics and Criminality: The Potential Misuse Of Scientific Information In Court (APA Press 1999):
Scientists and researchers have spent much of the twentieth century trying to answer this question. And the answers, of course, are Alots of things@ and Ait depends@. Studies tell us variously that there is a significant relationship between testosterone levels and adult criminal behavior, that individuals with ANegative Emotionality@( the tendency to experience aversive affective states) are more likely to commit antisocial acts, that alcohol consumption is positively related to propensity to violence, that a constellation of social factors centering on the Amacho personality@ type correlates with violence, that the prevelance of EEG abnormalities appears to be highest among the more violent habitual offenders, that Attention Deficit Disorder and Minimal Brain Dysfunction are significantly correlated to juvenile delinquency, and that head injury, physical growth and development, and a history of child abuse and neglect are all significantly linked to crime. In short, both biological and envirornmental factors predict crime and violence. Id. at 49
In light of these complexities, the best approach for presenting mental health or other penalty phase forensic evidence may be the Arisk factor@ approach advocated by Craig Haney. See, C. Haney, The Social Context Of Capital Murder: Social Histories And The Logic Of Mitigation (1995) 35 Santa Clara L. Rev. 547. As Dr. Haney explains, this model provides a more valid and meaningful way of conceptualizing the complex interplay of social history and adult behavior. It allows us to analyze the negative background experiences so commonplace in the lives of capital defendants as "risk factors" and the immediate situational pressures under which they act as "stressors." "Risk factors" are defined as those events whose presence in one's background indicates "a higher probability for the development of a disorder; as such, these factors are statistically associated with higher incidence rates." Id. at n.120
This way of conceptualizing of social histories allows juries to understand and appreciate the role that one or (typically) many of these risk factors ‑‑ extreme poverty or exposure to serious physical and emotional child abuse, or the presence of any one of the other significant background factors that distinguishes a capital defendant's life history from others ‑‑ play in accounting for his presence in the courtroom. Along with the numerous stressors that typically are present as precipitating factors, these forces constitute the psychological context of capital crime. The model also helps to account for individual variations in responding to the same or similar risk factors and stressors by acknowledging, on the one hand, the presence or absence of "protective factors" (like warn and supportive family milieus, or the presence of an extended support system) that can buffer children from otherwise damaging elements in their environment.
A second dilemma for the defense lawyer is deciding whether or not to use mental disturbance evidence at all. Presenting evidence of mental illness is very risky. Even if counsel has a solid mental state defense, and can show the connection between the disorder and the capital crime, there is a very real possibility that a jury won't be swayed. The evidence can, and does, turn against the lawyer in the courtroom. By labeling the client "crazy," the lawyer risks giving the jury one more reason to convict and execute this person they view as unpredictable and dangerous. Empirical evidence shows that a defendant's "unsuccessful attempt to raise an insanity defense positively correlates with a death penalty verdict." In addition, some experts have speculated that putting on an inept mental defense presentation may be a less effective strategy in the penalty phase than raising no defense at all. See, Michael Perlin, A 'The Executioner's Face is Always Well Hidden': The Role of Counsel and the Courts in DeterminingWho Dies,", 41 New York Law Review 201, 217.
This particular ethical question becomes even more relevant with the increasing numbers of clearly mentally ill persons that we see involved in the criminal justice system on all levels. It is becoming increasingly difficult to strategically ignore a mental health defense when the quality of your client's mental disorder is so severe, yet subtle, it cannot be ignored and directly interferes with the attorney's ability to develop the case, apart from issues of incompetency.
To summarize, not only do lawyers have to show the connection between the mental illness and the crime, they have to present a complete mental health defense that will reassure a jury that the client is not a future danger. The overall forensic strategy must recognize that no single test or procedure is adequate to assess neuropsychological impairment, psychological illness, or future dangerousness. No one professional discipline can answer all the biological, neurological, and social-historical questions that bear on mental capacity. The evaluation will necessarily be multidiciplinary and include information from all relevant disciplines.
2. Interpersonal Dynamics Between Victim and Defendant What was the relationship between the client and the victim? Was the defendant in any way threatened by the victim or had the victim inflicted any damage upon the client? Did they have a healthy relationship or was it dysfunctional or perverse? These are obviously questions that can be answered by forensic experts, especially those versed in the various psychological syndromes. On another level, according to author Harold V. Hall, a set of forensic questions can be designed to link mental disorders to relevant criminal behavior. (Disorders of Executive Functions: Civil and Criminal Law Applications, H.V. Hall and R.J. Sbordone, St. Lucie Press (1997). In analyzing violence-related responses, Hall suggests that the evaluator must consider the degree to which the defendant attended to the victim and contextual stimuli. According to Hall, counsel should look for confusion: did the accused miss important details such as whether or not the victim had a weapon? Was the Awrong victim@ chosen because of the defendant=s distractibility and difficulty in focusing on the intended victim? The evaluator should also look for verbal interaction between victim and perpetrator. In almost all cases physical aggression is preceded by some verbal interaction. Is the perpetrator speechless, akinetically mute or is there normal quantitative output and articulation? Does the victim have to repeat questions? If so, the perpetrator may not be attending properly to verbal stimuli. Counsel should also look for dissociation between the perpetrator=s words and actions. Does the perpetrator express a willingness to discuss a problem with the victim while at the same time preparing to attack the victim? Sensory-perceptual problems such as difficulty detecting fast-moving objects may create a tendency for the victim to perceive the perpetrator as Aweird@ or intoxicated, and consequently to react defensively to the perpetrator. For example the perpetrator may focus on one physical spot (such as the victim=s eyes, television set) even after that stimulus has been removed (victim=s head moved, TV turned off). If two objects are presented such as the victim=s upright arms to indicate surrender, the perpetrator may perceive only one of the objects, in this case one raised arm, and interpret the action as possible aggression. The actions might also predispose the victim to believe that the perpetrator is paranoid or is magnifying the events out of proportion. These misperceptions on the part of the defendant can lead to maladaptive interactions between the victim and the perpetrator. 3. The Co-Defendant Issues regarding the co-defendant break down into several categories:
a. Co-Defendant and Defendant Relationship What was the relationship between these people? Did one dominate the other or unduly influence the actions of the other? Psychological testimony may provide the answer to these questions through the use of diagnosis such as dependent personality disorder.
b. Co-Defendant Actions What role did the co-defendant play in the offense? Was he or she the more culpable of the involved parties? Here may be the opportunity to turn the forensic tables on the prosecution and make use of antisocial personality disorder and the Hare Psychopath Checklist against the co-defendant.
c. Co-Defendant Sentence Did the co-defendant make a sweetheart deal even though she or he was equally culpable? An attorney expert, maybe even an ex-DA may be of some help here.
4. Specifics of the Offense Just exactly how did the crime occur? What was the state of mind and the behavior of the client before, after and during the offense? What aspects of the crime are inconsistent with the client's physical, mental or psychological ability to plan and execute the offense? What evidence is inconsistent with the state's theory but supports the client's story? Again, the Hall article, supra suggests several areas of inquiry for the forensic expert exploring issues of lingering doubt. The following parameters are suggested: coherence and other characteristics of speech suggesting intact verbal expression; intensity and appropriateness of affect; the focus of the crime ranging from nebulous to markedly specific; substance intoxication; current long range mental conditions such as retardation or focal brain damage; behaviors requiring immediate, short term, and historical memory skills of discrete sensory modalities; gross-motor, fine-motor, perceptual-motor and motor-sequencing skills; level of substance intoxication; presence of bizarre behavior; level of anxiety; presence of delusions/hallucinations; presence of depressed or expansive mood; planning and preparation; awareness of criminality; level of activity and self-reported control. Unfortunately, it is usually the prosecutor who is able to use these factors and present them through an impressively credentialed mental health expert who often uses the techniques of crime scene profiling. But there is no reason why defense counsel cannot use the same concepts affirmatively. For instance, in the first Menendez trial, the F.B.I.s concept of an organized and an unorganized crime scene was used to the defendant=s advantage by a defense expert who helped develop the concept. See, J. Douglas, Ann Burgess, et. Al., Crime Classification Manual (1992); R. Ressler, Ann Burgess, J. Douglas, Sexual Homicide: Patterns and Motives (1988). A more recent example is provided in State v. Spann (2000) 334 S. C. 618, 513 S.E. 98 where criminal profilers were used in a post conviction case to point the finger away from the defendant..
III. CONCLUSION
The use of forensics as mitigation is a complex subject with many different facets touching on both the guilt and penalty phases of a capital case. In general, the overall goal is to create reasonable doubt in the guilt phase and lingering doubt in the penalty phase. This can only be done by aggressive advocacy which both attacks the prosecution=s forensic evidence and uses forensic evidence affirmatively to make the case for innocence or for life. Hopefully, as we enter a new age of information sharing and scientific development, creative defense use of forensic evidence will provide victory for our clients and an end to the death penalty.
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