Hinton v. Alabama

Cite as: 571 U. S. ____ (2014) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

ANTHONY RAY HINTON v. ALABAMA

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF ALABAMA

No. 13–6440 Decided February 24, 2014

PER CURIAM.

In Strickland v. Washington, 466 U. S. 668 (1984), we

held that a criminal defendant’s Sixth Amendment right

to counsel is violated if his trial attorney’s performance

falls below an objective standard of reasonableness and if

there is a reasonable probability that the result of the trial

would have been different absent the deficient act or

omission. Id., at 687–688, 694. Anthony Ray Hinton, an

inmate on Alabama’s death row, asks us to decide whether

the Alabama courts correctly applied Strickland to his

case. We conclude that they did not and hold that Hin-

ton’s trial attorney rendered constitutionally deficient

performance. We vacate the lower court’s judgment and

remand the case for reconsideration of whether the attor-

ney’s deficient performance was prejudicial.

I

A

In February 1985, a restaurant manager in Birming-

ham was shot to death in the course of an after-hours rob-

bery of his restaurant. A second manager was murdered

during a very similar robbery of another restaurant in

July. Then, later in July, a restaurant manager named

Smotherman survived another similar robbery-shooting.

During each crime, the robber fired two .38 caliber bullets;

all six bullets were recovered by police investigators.

Smotherman described his assailant to the police, and

when the police showed him a photographic array, he

picked out Hinton’s picture.

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Per Curiam

The police arrested Hinton and recovered from his house

a .38 caliber revolver belonging to his mother, who shared

the house with him. After analyzing the six bullets fired

during the three crimes and test-firing the revolver, exam-

iners at the State’s Department of Forensic Sciences

concluded that the six bullets had all been fired from

the same gun: the revolver found at Hinton’s house. Hin-

ton was charged with two counts of capital murder for

the killings during the first two robberies. He was not

charged in connection with the third robbery (that is, the

Smotherman robbery).

At trial, the State’s strategy was to link Hinton to the

Smotherman robbery through eyewitness testimony and

forensic evidence about the bullets fired at Smotherman

and then to persuade the jury that, in light of the similar-

ity of the three crimes and forensic analysis of the bullets

and the Hinton revolver, Hinton must also have commit-

ted the two murders. Smotherman identified Hinton as

the man who robbed his restaurant and tried to kill him,

and two other witnesses provided testimony that tended to

link Hinton to the Smotherman robbery. Hinton main-

tained that he was innocent and that Smotherman had

misidentified him. In support of that defense, Hinton

presented witnesses who testified in support of his alibi

that he was at work at a warehouse at the time of the

Smotherman robbery. See 548 So. 2d 562, 568–569 (Ala.

1989) (summarizing the evidence on each side of the case).

The six bullets and the revolver were the only physical

evidence. Besides those items, the police found no evi-

dence at the crime scenes that could be used to identify

the perpetrator (such as fingerprints) and no incriminat-

ing evidence at Hinton’s home or in his car. The State’s

case turned on whether its expert witnesses could con-

vince the jury that the six recovered bullets had indeed

been fired from the Hinton revolver. According to the

Alabama Supreme Court, “the only evidence linking Hin-

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Per Curiam

ton to the two murders were forensic comparisons of the

bullets recovered from those crime scenes to the Hinton

revolver.” 2008 WL 4603723, *2 (Oct. 17, 2008).

The category of forensic evidence at issue in this case is

“firearms and toolmark” evidence. Toolmark examiners

attempt to determine whether a bullet recovered from a

crime scene was fired from a particular gun by comparing

microscopic markings (toolmarks) on the recovered bullet

to the markings on a bullet known to have been fired from

that gun. The theory is that minor differences even be-

tween guns of the same model will leave discernible traces

on bullets that are unique enough for an examiner to

conclude that the recovered bullet was or was not fired

from a given weapon. See generally National Research

Council, Strengthening Forensic Science in the United

States: A Path Forward 150–155 (2009).

Recognizing that Hinton’s defense called for an effective

rebuttal of the State’s expert witnesses, Hinton’s attorney

filed a motion for funding to hire an expert witness of his

own. In response, the trial judge granted $1,000 with this

statement:

“ ‘I don’t know as to what my limitations are as for

how much I can grant, but I can grant up to $500.00

in each case [that is, for each of the two murder

charges, which were tried together] as far as I know

right now and I’m granting up to $500.00 in each of

these two cases for this. So if you need additional ex-

perts I would go ahead and file on a separate form and

I’ll have to see if I can grant additional experts, but I

am granting up to $500.00, which is the statutory

maximum as far as I know on this and if it’s necessary

that we go beyond that then I may check to see if we

can, but this one’s granted.’ ” 2006 WL 1125605, *59

(Ala. Crim. App., Apr. 28, 2006) (Cobb, J., dissenting)

(quoting Tr. 10).

4 HINTON v. ALABAMA

Per Curiam

Hinton’s attorney did not take the judge up on his invita-

tion to file a request for more funding.

In fact, $500 per case ($1,000 total) was not the statu-

tory maximum at the time of Hinton’s trial. An earlier

version of the statute had limited state reimbursement of

expenses to one half of the $1,000 statutory cap on attor-

ney’s fees, which explains why the judge believed that

Hinton was entitled to up to $500 for each of the two

murder charges. See Smelley v. State, 564 So. 2d 74, 88

(Ala. Crim. App. 1990). But the relevant statute had been

amended to provide: “ ‘Counsel shall also be entitled to be

reimbursed for any expenses reasonably incurred in such

defense to be approved in advance by the trial court.’ ” See

Dubose v. State, 662 So. 2d 1156, 1177, n. 5 (Ala. Crim.

App. 1993) (quoting Ala. Code §15–12–21(d) (1984)), aff ’d

662 So. 2d 1189 (Ala. 1995). That amendment went into

effect on June 13, 1984, Dubose, supra, at 1177, n. 5,

which was over a year before Hinton was arrested, so

Hinton’s trial attorney could have corrected the trial

judge’s mistaken belief that a $1,000 limit applied and

accepted his invitation to file a motion for additional

funds.

The attorney failed to do so because he was himself

unaware that Alabama law no longer imposed a specific

limit and instead allowed reimbursement for “any expenses

reasonably incurred.” At an evidentiary hearing held on

Hinton’s postconviction petition, the following conversa-

tion occurred between a state attorney and Hinton’s trial

attorney:

“Q. You did an awful lot of work to try and find what

you believed to be a qualified expert in this case,

didn’t you?

“A. Yes, sir, I did.

“Q. Would you characterize it that you did everything

that you knew to do?

Cite as: 571 U. S. ____ (2014) 5

Per Curiam

“A. Yes, sir, I think so.

“Q. And this case, did it come down to an unwilling-

ness of experts to work for the price that you were

able to pay?

“A. Yes, sir, I think it did.

“Q. So your failure to get an expert that you would

have been let’s say a hundred percent satisfied with

was not a failure on your part to go out and do some

act, it was a failure of the court to approve what you

believed would have been sufficient funds?

“A. Well, putting it a little differently, yes, sir, it was

a failure—it was my failure, my inability under the

statute to obtain any more funding for the purpose of

hiring qualified experts.” Reporter’s Official Tr. 206–

207 (emphasis added).

Operating under the mistaken belief that he could pay

no more than $1,000, Hinton’s attorney went looking for

an expert witness. According to his postconviction testi-

mony, he made an extensive search for a well-regarded

expert, but found only one person who was willing to take

the case for the pay he could offer: Andrew Payne. Hin-

ton’s attorney “testified that Payne did not have the exper-

tise he thought he needed and that he did not consider

Payne’s testimony to be effective.” 2006 WL 1125605, *27.

As he told the trial judge during a pretrial hearing:

“I made an effort to get somebody that I thought

would be useable. And I’ll have to tell you what I did

[about] Payne. I called a couple of other lawyers in

town . . . to ask if they knew of anybody. One of them

knew him; one of them knew him. The reason I didn’t

contact him was because he wasn’t recommended by

the lawyer. So now I’m stuck that he’s the only guy I

could possibly produce.” Id., at *30 (internal quota-

tion marks omitted).

At trial, Payne testified that the toolmarks in the barrel

6 HINTON v. ALABAMA

Per Curiam

of the Hinton revolver had been corroded away so that it

would be impossible to say with certainty whether a par-

ticular bullet had been fired from that gun. He also testi-

fied that the bullets from the three crime scenes did not

match one another. The State’s two experts, by contrast,

maintained that all six bullets had indeed been fired from

the Hinton revolver.

On cross-examination, the prosecutor badly discredited

Payne. Payne admitted that he’d testified as an expert on

firearms and toolmark identification just twice in the

preceding eight years and that one of the two cases in-

volved a shotgun rather than a handgun. Payne also

conceded that he had had difficulty operating the micro-

scope at the state forensic laboratory and had asked for

help from one of the state experts. The prosecutor ended

the cross-examination with this colloquy:

“Q. Mr. Payne, do you have some problem with your

vision?

“A. Why, yes.

“Q. How many eyes do you have?

“A. One.” Tr. 1667.

The prosecutor’s closing argument highlighted the fact

that Payne’s expertise was in military ordnance, not fire-

arms and toolmark identification, and that Payne had

graduated in 1933 (more than half a century before the

trial) with a degree in civil engineering, whereas the

State’s experts had years of training and experience in the

field of firearms and toolmark examination. The prosecu-

tor said:

“ ‘I ask you to reject [Payne’s] testimony and you have

that option because you are the judges of the facts and

whose testimony, Mr. Yates’ or Mr. Payne’s, you will

give credence to, and I submit to you that as between

these two men there is no match between them.

There is no comparison. One man just doesn’t have it

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Per Curiam

and the other does it day in and day out, month in and

month out, year in and year out, and is recognized

across the state as an expert.’ ” 2006 WL 1125605,

*64 (Cobb, J., dissenting) (quoting Tr. 1733–1734).

The jury convicted Hinton and recommended by a 10-

to-2 vote that he be sentenced to death. The trial

judge accepted that recommendation and imposed a death

sentence.

B

In his state postconviction petition, Hinton contended

that his trial attorney was “ ‘ineffective to not seek addi-

tional funds when it became obvious that the individual

willing to examine the evidence in the case for the $1,000

allotted by the court was incompetent and unqualified.

Indeed, this failure to seek additional, sufficient funds is

rendered all the more inexplicable by the trial court’s

express invitation to counsel to seek more funds if such

funds were necessary.’ ” 2006 WL 1125605, *28.

To show that he had been prejudiced by Payne’s ineffec-

tive testimony, Hinton produced three new experts on

toolmark evidence. One of the three, a forensic consultant

named John Dillon, had worked on toolmark identification

at the Federal Bureau of Investigation’s forensics labora-

tory and, from 1988 until he retired in 1994, had served as

chief of the firearms and toolmark unit at the FBI’s head-

quarters. The other two postconviction experts had

worked for many years as firearms and toolmark examin-

ers at the Dallas County Crime Laboratory and had each

testified as toolmark experts in several hundred cases.

All three experts examined the physical evidence and

testified that they could not conclude that any of the six

bullets had been fired from the Hinton revolver. The State

did not submit rebuttal evidence during the postconviction

hearing, and one of Hinton’s experts testified that, pursu-

ant to the ethics code of his trade organization, the Associ-

8 HINTON v. ALABAMA

Per Curiam

ation of Firearm and Tool Mark Examiners, he had asked

the State’s expert, Yates, to show him how he had deter-

mined that the recovered bullets had been fired from the

Hinton revolver. Yates refused to cooperate.

C

The circuit court denied Hinton’s postconviction petition

on the ground that Hinton had not been prejudiced by

Payne’s allegedly poor performance because Payne’s tes-

timony did not depart from what Hinton’s postconviction

experts had said: The bullets could not be affirmatively

matched either to one another or to the Hinton revolver.

The Alabama Court of Criminal Appeals affirmed by a

3-to-2 vote. 2006 WL 1125605. The court agreed with the

circuit court that Hinton had not been prejudiced because

Payne’s testimony, if believed by the jury, strongly sup-

ported the inference that Hinton was innocent. Id., at *31.

Then-Judge Cobb (who later became chief justice of the

Alabama Supreme Court) dissented. In her view, Hinton’s

attorney had been ineffective in failing to seek additional

funds to hire a better expert and Hinton had been preju-

diced by that failure, meaning that he was entitled to a

new trial. Then-Judge Shaw (who is now a justice of the

Alabama Supreme Court) also dissented. He would have

remanded the case to the circuit court to make a finding as

to whether or not Payne was qualified to act as an expert

on toolmark evidence. He stated that “[i]t goes without

saying that, with knowledge that sufficient funds were

available to have a qualified firearms and toolmarks ex-

pert, no reasonable criminal defense lawyer would seek

out and hire an unqualified firearms witness.” Id., at *73.

The Supreme Court of Alabama reversed and remanded.

2008 WL 4603723. After quoting at length from Judge

Shaw’s dissent, the Court stated, “We agree with Judge

Shaw that ‘the dispositive issue is whether Payne was a

qualified firearms and toolmarks expert’ and that in deny-

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Per Curiam

ing Hinton’s [postconviction] petition the trial court did

not directly rule on ‘the issue whether Payne was qualified

to be testifying in the first place.’ ” Id., at *4 (quoting

2006 WL 1125605, *70, *72 (Shaw, J., dissenting)). The

Supreme Court was thus focused on Payne’s own qualifi-

cations, rather than on whether a better expert—one who

could have been hired had the attorney learned that there

was no funding cap and requested additional funds—

would have made a more compelling case for Hinton.

On remand, the circuit court held that Payne was in-

deed qualified to testify as a firearms and toolmark expert

witness under the Alabama evidentiary standard in place

at the time of the trial, which required only that Payne

have had “knowledge of firearms and toolmarks exam-

ination beyond that of an average layperson.” 2008 WL

5517591, *5 (Ala. Crim. App., Dec. 19, 2008); see also

Charles v. State, 350 So. 2d 730, 733 (Ala. Crim. App.

1977) (“An ‘expert witness’ is one who can enlighten a jury

more than the average man in the street. . . . An expert

witness, by definition, is any person whose opportunity or

means of knowledge in a specialized art or science is to

some degree better than that found in the average juror or

witness”). The appellate court affirmed the circuit court’s

ruling that Payne was qualified under the applicable

standard. 2013 WL 598122 (Ala. Crim. App., Feb. 15,

2013). The Alabama Supreme Court denied review by a 4-

to-3 vote, with two justices recused. Hinton then filed this

petition for a writ of certiorari.

II

This case calls for a straightforward application of our

ineffective-assistance-of-counsel precedents, beginning with

Strickland v. Washington, 466 U. S. 668. Strickland

recognized that the Sixth Amendment’s guarantee that

“[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence”

10 HINTON v. ALABAMA

Per Curiam

entails that defendants are entitled to be represented by

an attorney who meets at least a minimal standard of

competence. Id., at 685–687. “Under Strickland, we first

determine whether counsel’s representation ‘fell below an

objective standard of reasonableness.’ Then we ask

whether ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceed-

ing would have been different.’ ” Padilla v. Kentucky, 559

U. S. 356, 366 (2010) (quoting Strickland, supra, at 688,

694).

A

“The first prong—constitutional deficiency—is neces-

sarily linked to the practice and expectations of the legal

community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing profes-

sional norms.’ ” Padilla, supra, at 366 (quoting Strickland,

supra, at 688). “In any case presenting an ineffectiveness

claim, the performance inquiry must be whether counsel’s

assistance was reasonable considering all the circum-

stances.” Strickland, supra, at 688. Under that standard,

it was unreasonable for Hinton’s lawyer to fail to seek

additional funds to hire an expert where that failure was

based not on any strategic choice but on a mistaken belief

that available funding was capped at $1,000.

“Criminal cases will arise where the only reasonable

and available defense strategy requires consultation with

experts or introduction of expert evidence.” Harrington v.

Richter, 562 U. S. ___, ___ (2011) (slip op., at 16). This

was such a case. As Hinton’s trial attorney recognized,

the core of the prosecution’s case was the state experts’

conclusion that the six bullets had been fired from the

Hinton revolver, and effectively rebutting that case re-

quired a competent expert on the defense side. Hinton’s

attorney also recognized that Payne was not a good expert,

at least with respect to toolmark evidence. Nonetheless,

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Per Curiam

he felt he was “stuck” with Payne because he could not

find a better expert willing to work for $1,000 and he

believed that he was unable to obtain more than $1,000 to

cover expert fees.

As discussed above, that belief was wrong: Alabama law

in effect beginning more than a year before Hinton was

arrested provided for state reimbursement of “any expenses

reasonably incurred in such defense to be approved in

advance by the trial court.” Ala. Code §15–12–21(d). And

the trial judge expressly invited Hinton’s attorney to file a

request for further funds if he felt that more funding was

necessary. Yet the attorney did not seek further funding.

The trial attorney’s failure to request additional funding

in order to replace an expert he knew to be inadequate

because he mistakenly believed that he had received all he

could get under Alabama law constituted deficient perfor-

mance. Under Strickland, “strategic choices made after

thorough investigation of law and facts relevant to plausi-

ble options are virtually unchallengeable; and strategic

choices made after less than complete investigation are

reasonable precisely to the extent that reasonable profes-

sional judgments support the limitations on investigation.

In other words, counsel has a duty to make reasonable

investigations or to make a reasonable decision that

makes particular investigations unnecessary.” 466 U. S.,

at 690–691. Hinton’s attorney knew that he needed more

funding to present an effective defense, yet he failed to

make even the cursory investigation of the state statute

providing for defense funding for indigent defendants that

would have revealed to him that he could receive reim-

bursement not just for $1,000 but for “any expenses rea-

sonably incurred.” An attorney’s ignorance of a point of

law that is fundamental to his case combined with his

failure to perform basic research on that point is a quin-

tessential example of unreasonable performance under

Strickland. See, e.g., Williams v. Taylor, 529 U. S. 362,

12 HINTON v. ALABAMA

Per Curiam

395 (2000) (finding deficient performance where counsel

“failed to conduct an investigation that would have uncov-

ered extensive records [that could be used for death penalty

mitigation purposes], not because of any strategic calcu-

lation but because they incorrectly thought that state law

barred access to such records”); Kimmelman v. Morrison,

477 U. S. 365, 385 (1986) (finding deficient performance

where counsel failed to conduct pretrial discovery and that

failure “was not based on ‘strategy,’ but on counsel’s mis-

taken belie[f ] that the State was obliged to take the initia-

tive and turn over all of its inculpatory evidence to the

defense”).

We wish to be clear that the inadequate assistance of

counsel we find in this case does not consist of the hiring

of an expert who, though qualified, was not qualified

enough. The selection of an expert witness is a paradig-

matic example of the type of “strategic choic[e]” that, when

made “after thorough investigation of [the] law and facts,”

is “virtually unchallengeable.” Strickland, 466 U. S., at

690. We do not today launch federal courts into examina-

tion of the relative qualifications of experts hired and

experts that might have been hired. The only inadequate

assistance of counsel here was the inexcusable mistake of

law—the unreasonable failure to understand the resources

that state law made available to him—that caused counsel

to employ an expert that he himself deemed inadequate.

B

Having established deficient performance, Hinton must

also “show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the pro-

ceeding would have been different. A reasonable probabil-

ity is a probability sufficient to undermine confidence in

the outcome.” Id., at 694. “When a defendant challenges a

conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would

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have had a reasonable doubt respecting guilt.” Id., at 695.

The Court of Criminal Appeals held, and the State

contends in its brief in opposition to certiorari, that Hinton

could not have been prejudiced by his attorney’s use of

Payne rather than a more qualified expert because Payne

said all that Hinton could have hoped for from a toolmark

expert: that the bullets used in the crimes could not

have been fired from the Hinton revolver. See 2006 WL

1125605, *31 (“[E]ven assuming that counsel’s apparent

ignorance that the cap on expert expenses had been lifted

constituted deficient performance . . . , the appellant has

not shown that he was prejudiced by that deficient per-

formance”). It is true that Payne’s testimony would have

done Hinton a lot of good if the jury had believed it. But

the jury did not believe Payne. And if there is a reasona-

ble probability that Hinton’s attorney would have hired an

expert who would have instilled in the jury a reasonable

doubt as to Hinton’s guilt had the attorney known that the

statutory funding limit had been lifted, then Hinton was

prejudiced by his lawyer’s deficient performance and is

entitled to a new trial.

That the State presented testimony from two experi-

enced expert witnesses that tended to inculpate Hinton

does not, taken alone, demonstrate that Hinton is guilty.

Prosecution experts, of course, can sometimes make mis-

takes. Indeed, we have recognized the threat to fair crim-

inal trials posed by the potential for incompetent or fraud-

ulent prosecution forensics experts, noting that “[s]erious

deficiencies have been found in the forensic evidence used

in criminal trials. . . . One study of cases in which exon-

erating evidence resulted in the overturning of criminal

convictions concluded that invalid forensic testimony

contributed to the convictions in 60% of the cases.”

Melendez-Diaz v. Massachusetts, 557 U. S. 305, 319 (2009)

(citing Garrett & Neufeld, Invalid Forensic Science Testi-

mony and Wrongful Convictions, 95 Va. L. Rev. 1, 14

14 HINTON v. ALABAMA

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(2009)). This threat is minimized when the defense re-

tains a competent expert to counter the testimony of the

prosecution’s expert witnesses; it is maximized when the

defense instead fails to understand the resources available

to it by law.

Because no court has yet evaluated the prejudice ques-

tion by applying the proper inquiry to the facts of this

case, we remand the case for reconsideration of whether

Hinton’s attorney’s deficient performance was prejudicial

under Strickland.

* * *

The petition for certiorari and Hinton’s motion for leave

to proceed in forma pauperis are granted, the judgment of

the Court of Criminal Appeals of Alabama is vacated, and

the case is remanded for further proceedings not incon-

sistent with this opinion.

It is so ordered.