deciding ineffective assistance claim and finding that because pediatric nurse’s suspicions of abuse were based on her education, training, and experience and because the qualification of experts is a discretionary matter for the trial judge to decide, appellant did not show that an objection on that basis to the nurse’s testimony would have been sustained
How later courts described this case
- deciding ineffective assistance claim and finding that because pediatric nurse’s suspicions of abuse were based on her education, training, and experience and because the qualification of experts is a discretionary matter for the trial judge to decide, appellant did not show that an objection on that basis to the nurse’s testimony would have been sustained
- holding appellant failed to carry burden by showing objection would have been sustained
Written by the judges who cited it.
The opinion
O’CONNOR, Justice,
dissenting.
I withdraw my original dissenting opinion and issue this one in its place.
I dissent on the resolution of point of error four. I would hold the appellant, Stephen Charles Frohne, was denied reasonably effective assistance of counsel. I would reverse and remand for a new trial.
Failure to Object to Corruption of Memory
In point of error four, the appellant contends his trial counsel was ineffective for not challenging the competency of the minor, L.D., to testify. Specifically, the appellant contends L.D. was repeatedly interviewed by persons who were hostile to the appellant *580 and believed him to be guilty. The appellant contends that when a child is subjected to repeated and improper interrogation, it can result in the creation of a false memory that renders the child’s recollection incompetent. The appellant contends defense counsel should have attempted to establish L.D.’s memories were implanted and should have challenged L.D.’s competency to testify.
The majority overrules this complaint stating L.D.’s outcry statement was made before she was interviewed by the CPS’s employees, and her outcry statement was more damaging than her trial testimony. That response overlooks the fact that L.D. was repeatedly interviewed before the outcry statement by her grandmother and godmother. Both women believed the appellant was sexually abusing L.D.
The National Center for the Prosecution of Child Abuse, in cooperation with the National District Attorney’s Association and the American Prosecutor’s Research Institute, has adopted protocols to serve as standards for the proper interrogation of suspected child-abuse victims. Those interview guidelines require that an interviewer remain “open, neutral and objective.” State v. Michaels, 186 N.J. 299 , 642 A.2d 1372, 1378 (1994). Under those guidelines, an interviewer should not use leading questions, force a reluctant child to talk, speak negatively about the person accused, and should avoid multiple interviews with various interviewers. Id. 1
In spite of these well-developed guidelines for conducting interviews of a child-victim in a sexual abuse case, the appellant’s lawyer did not make any of the appropriate objections or develop the record to show that L.D.’s memory might have been corrupted by the influence of repeated interviews with persons who were hostile to the appellant.
If a competent lawyer had represented the appellant, he or she would have challenged the testimony of L.D. on the ground that L.D.’s memory had been corrupted by interviews conducted by persons who were hostile to the appellant and who showed their hostility to L.D. There is no sound trial strategy that can explain why trial counsel did not attempt to show the repeated interviews improperly influenced the memory of L.D., making her incompetent to testify.
I would hold the failure of trial counsel to pursue the line of inquiry suggested by reading the Michaels case resulted in ineffective assistance of counsel.
Failure to Object to Inadmissible Expert Testimony
As part of point of error four, the appellant asserts his trial counsel was ineffective because he did not object to expert testimony from Emily Ginsberg and Mertelle Norton. Ginsberg, a clinical social worker, and Norton, L.D.’s grandmother and a nurse, testified the symptoms displayed by L.D. were common to children who had experienced sexual abuse. Based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), the appellant contends his defense counsel should have challenged the scientific basis of this testimony. The appellant contends neither witnesses’ testimony rises to the level of admissible expert testimony under Tex. R.Crim.Evid. 702. I agree.
The appellant argues Ginsberg’s subjective belief does not qualify as “scientific, technical or other specialized knowledge that will assist the trier of fact.” The appellant objects that Ginsberg testified to the following matters without objection from his lawyer:
* That L.D. had lived in a situation of incest for a long period of time;
* That L.D. had attempted to hurt herself, which was common of incest victims;
*581 * That it was common for incest victims to recant soon after disclosure;
*That L.D. was a “sexual partner” with her step-father and replaced her mother;
* That L.D. exhibited symptoms commonly seen in incest victims; and
* That L.D.’s “resignation” was common in children who have been sexually abused for a long time.
The appellant objects that Norton testified to the following matters without objection from his lawyer:
* That she suspected L.D. had been abused by her “behavior patterns,” which included gradual withdrawal, lack of eye contact, and low self-esteem.
The testimony of Ginsberg and Norton was their subjective interpretation of symptoms. Their testimony did not rise to the level of expert testimony admissible under Tex. R.Crim.Evid. 702. The Texas Rules of Criminal Evidence are based on the Federal Rules of Evidence. In June 1993, before this case was tried, the United States Supreme Court changed the standard for the admissibility of expert testimony under the Federal Rules in Daubert . The Court said:
[T]he word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.”
509 U.S. at 590 , 113 S.Ct. at 2795 (citation omitted).
The appellant contends the opinion testimony in this case was inadmissible under Daubert because it was subjective rather than factually based. Specifically, the appellant contends the only facts Ginsberg elicited to support her opinion can also be present in children who are not sexually abused, i.e., a resigned and withdrawn attitude, attempts at self-mutilation, and recanting a story. 2
The majority responds to this argument by stating the well-known standard of review— it is within the trial court’s discretion whether to allow a witness to testify as an expert. The majority notes the Court of Criminal Appeals moved in the same direction of interpreting Tex.R.Crim.Evid. 702 as the United States Supreme Court has interpreted Fed. R.Evid. 702 in Daubert. See Jordan v. State, 928 S.W.2d 550, 553-55 (Tex.Crim.App.1996); Kelly v. State, 824 S.W.2d 568, 571-73 (Tex. Crim.App.1992).
In Jordan and Kelly , the Court of Criminal Appeals addressed the admissibility of scientific evidence. Jordan, at 572-574; Kelly, 824 S.W.2d at 571-73 . The majority holds Ginsberg’s testimony in this case was not based on a novel scientific test or theory, but was based on Ginsberg’s consultations with L.D. and her 20 years of experience in working with sexually abused children. That misses the point. Even though she had years of experience, her experience is merely anecdotal, and is not supported with any scientific indicia of reliability. The “expert” testimony offered by Ginsberg and Norton would not survive a challenge made by a lawyer familiar with Daubert . Unfortunately for the appellant, his lawyer was not familiar with Daubert .
The majority admits that, based on Cohn v. State, 849 S.W.2d 817, 818-19 (Tex.Crim. App.1993), Ginsberg’s testimony was objectionable when it suggested evidence of anxiety behavior is sufficient to indicate sexual abuse. The majority states that the same testimony could have been admitted to show the behavior was consistent with sexual abuse. I disagree. Under Daubert , I do not think the testimony would have been admissible even to show the evidence was consistent with sexual abuse. If the appellant’s attorney had objected and the court had excluded the testimony of Ginsberg and Norton regarding the connection between L.D.’s symptoms and sexual abuse, it would have *582 reduced the chances of the appellant’s conviction.
I believe the appellant has shown a reasonable probability the outcome of the trial would have been different had counsel objected.
. In a civil case involving recovered memory of sexual abuse, the Supreme Court said:
Memory is a multifarious, complex, usually reconstructive process. It does not retrieve information the way a video recorder or computer does. Everything sensed is not stored; recall of picture-perfect images is not automatic. A variety of social, psychological, and developmental factors commonly cause distortions at each stage of the process.... The real possibility of such distortions cannot be overlooked or minimized in determining what relation recalled memories bear to what really happened.
S.V. v. R.V., 39 Tex.Sup.Ct.J. 386, 398-99 (March 14, 1996).
. In S.V. v. R.V., the Supreme Court was presented with a case involving symptoms some experts said showed evidence of sexual abuse but which could also be evidence of other problems. In that case, the Court said it would not lower the bar of limitations based on a swearing match between experts over opinions. 39 Tex.Sup.Ct J. at 397. If such expert testimony does not meet a minimal level to even support a civil suit, it should not contribute to a defendant’s conviction.