Amicus Curiae Brief — Barnabei v. Virginia

QTON FILED No. 96-1378 iY)

APR | IN THE .

Supreme Court ot the Gnited States

OCTOBER TERM, 1996

DEREK ROCCO BARNABEI,

Petitioner,

i

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Virginia

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF OF THE NATIONAL LEGAL AID

AND DEFENDER ASSOCIATION AND

THE NEW YORK STATE ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

HENRY SCOTT WALLACE ScoTT L. NELSON

NATIONAL LEGAL AID & (Counsel of Record)

DEFENDER ASSOCIATION PAUL F. ENZINNA

1625 K Street, N.W. MATHEW S. NOSANCHUK

Eighth Floor MILLER, CASSIDY,

Washington, D.C. 20006 LARROCA & LEWIN, L.L.P.

(202) 452-0620 2555 M Street, N.W.

Washington, D.C. 20037

RUSSELL NEUFELD (202) 293-6400

NEW YORK STATE

ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

475 Park Avenue South

Suite 3300

New York, NY 10016

(718) 243-6473 Attorneys for Amici Curiae

ee ee ee 5 \2

PRESS OF BYRON S. ADAMS @ WASHINGTON, D.C. + 1-800-347-8208 " \ \ \

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE

The National Legal Aid and Defender Association,

and the New York State Association of Criminal Defense

Lawyers, pursuant to Rule 37.2 of the Rules of this Court,

hereby move for leave to file this amici curiae brief in

support of Petitioner, Derek Rocco Barnabei. Barnabei, has

indicated his consent to the filing of this Brief. °

Respondent has withheld its consent in accordance with what

its counsel states is its "usual practice" of not consenting to

the filing of amicus curiae briefs that oppose the

Commonwealth’s position.

Both amici are organizations of criminal defense

lawyers who routinely represent indigent defendants in

criminal cases, including capital cases. Thus the members

have first-hand experience with the inconsistent and widely

divergent criteria courts have established to determine when

an indigent defendant may obtain a non-psychiatric expert at

State expense.

The National Legal Aid and Defender Association

(NLADA), in existence since 1911, is a private non-profit

membership organization located in Washington, D.C. Its

purpose is to promote the availability of quality legal

services in civil and criminal cases to all persons who are

unable to afford to retain private counsel. Its membership

includes hundreds of public defender and assigned counsel

offices providing legal services to poor people accused of

criminal offenses, as well as many assigned counsel and

other private practitioners. The NLADA is committed to

protecting the fundamental rights of poor persons accused of

crimes, particularly the rights to the effective assistance of

: Correspondence reflecting the consent of this party has been filed with

the Clerk of the Court.

counsel and a fair trialh The NLADA has published

Standards for Defender Services (NLADA 1976) and

Performance Guidelines for Criminal Defense Representation

(NLADA 1995). Both require the availability and

appropriate use of defense experts for the provision of

effective, quality representation. Standards for Defender

Services Standard IV, §§ (2)(d), (3) (NLADA 1976);

Performance Guidelines for Criminal Defense

Representation, Guideline 7.5 (NLADA 1995). The rights

to the effective assistance of counsel and a fair trial are in

jeopardy when, as here, criminal defendants are denied the

aid of a defense expert on an issue critical to the state’s

proof of its case.

The New York State Association of Criminal Defense

Lawyers (NYSACDL) is the largest criminal bar

organization in New York. The Association is dedicated to

advancing fairness and justice in criminal trials. While it

frequently files amicus curiae briefs in support of important

issues in federal and state courts, NYSACDL rarely files

such briefs before review is granted. However, New York

courts are regularly confronted with applications for defense

experts, and NYSACDL members have thus acquired both

significant expertise and interest in this area of law. In

addition, the recent advent of the death penalty in New York

has created a tremendous need for clarity on the nght of

capital defendants to expert assistance.

Amici have prepared the following brief to call to this.

Court’s attention the inherent flaws in the stringent standard

articulated by the Virginia Supreme Court — as well as other

state courts — for appointment of a state-funded expert to

assist an indigent defendant. In the experience of amici, this

standard is neither workable nor appropriate.

Courts applying such standards erroneously view

forensic testimony of the type presented by the state at

Barnabei’s trial as somehow “objective” and “neutral.” In

fact, as the multiple scientific studies cited by amici

persuasively demonstrate, the forensic medical testimony

provided in Barnabei’s case was highly subjective and

misleading, 11 addition to being presented by a witness

inherently allied with the state. Without an expert of his

own to testify at trial or to assist in the preparation of cross-

examination or trial strategy, Barnabei — like many ther

indigent defendants — was placed at a palpable disadvantage,

in violation of his constitutional rights to a fair trial and

equal protection. Such a violation is inimical to amici’s

support of the right to present a defense and the integrity of

the adversarial system.

For the foregoing reasons, the motion by amici for

leave to file a brief amici curiae should be granted.

Respectfully submitted,

HENRY SCOTT WALLACE SCOTT ee NELSON

NATIONAL LEGAL AID & (Counsel of Recora,

DEFENDER ASSOCIATION PAUL F. ENZINNA

1625 K Street, N.W. MATHEW S. NOSANCHUK

Eighth Floor MILLER, CASSIDY, LARROCA

Washington, D.C. 20006 & LEWIN, L.L.P.

(202) 452-0620 2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

RUSSELL NEUFELD

NEW YORK STATE ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

475 Park Avenue South

Suite 3300

New York, NY 10016

(718) 243-6474

April 1997 Attorneys for Amici Curiae

(i)

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE..........-- ]

OT LU 8 RR awe 8 We ee l

REASONS FOR GRANTING THE WRIT ........- 2

I. EXPERT MEDICAL TESTIMONY

REQUIRES ADVERSARY

THLE Fi a Rh Oe MRK A eo ees 2

A. Expert Medical Testimony Is

Often Inherently Subjective ........ 2

B. When Presented By A Medical

Examiner Or Other State Forensic

Expert, Expert Testimony Is

Essentially Being Presented

By A Member Of The Prosecution

ci ee oer eee a ee ee ee 6

348 Unrebutted Medical Testimony

Presented By The State Has A

Powerful Effect On the Jury ........ 10

II. COURTS WIDELY MISPERCEIVE

THE NATURE OF FORENSIC

TES LIMEGNE 5s hE RA ee ee 0 12

CCE es Sie eo Oy CHAE RS 5 8 ee ee 18

(ii)

TABLE OF AUTHORITIES

Page(s)

CASES:

Ake v. Oklahoma, 470 U.S. 68 (1985) .... 3, 6, 15, 17

Bostic v. State, 173 Ga. App. 494,

326 S.E.2d 849 (Ga. App. 1985) ......... 14

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ...... 9

Eddings v. Oklahoma, 455 U.S. 104 (1982) ....... 10

Gideon v. Wainwright, 372 U.S. 335 (1963) ...... 2-3

Hicks v. State, 256 Ga. 715, 352 S.E.2d 762

Cie, TR aks ew OES CA ao ES § 13

Husske v. Commonwealth, Pet. App. 21a,

476 3.8.20 Fa0 CVE TI ie Pe ei wn 3

Johnson v. Mississippi, 476 So.2d 1195

CR, Sas ea 4 Da ee we ee eee 14

Johnson v. State, 731 P.2d 993 (Okla. Ct.

Crim. ASG. TFGT EV ROI io is Sas 14

Moore v. Zant, 722 F.2d 640 (lith Cir. 1 ... 13, 14, 15

Schultz v. State, 497 N.E.2d 531

Ge, Ieee 6 ea ke Se ak eens 12, 13

Yohey v. Collins, 985 F.2d 222

GOR CH, SHRP ee oe ee kee wees 4

(iii)

MISCELLANEOUS AUTHORITIES:

Alleged Rape: An Invitational Symposium,

12 J. Reprod. Med. 133 (1974) .........., 5

American College of Legal Medicine,

Legal Medicine 576 (3d ed. | TRESS eae 4

S.B. Bright, Counsel for the Poor: The Death

Sentence Not for the Worst Crime but

for the Worst Lawyer, 103 Yale L.J.

Se A SPAS NES i np plgin s . 7

B. Cutler et al., Expert Testimony and Jury

Decision Making: Empirical Analysis,

7 Behav. Sci. & L. 215 (1989) ........ 11-12

W.G. Eckert et al., The Pathology and

Medicolegal Aspects of Sexual Activity,

12 Am. J. Forensic Med. Pathology 3

SEMPER AIEEE Cokie ei rk is. 3

W.F. Enos & J.C. Beyer, Management of

the Rape Victim, 18 Annals of Fam.

Peat CAS hice Wi ere ee 7

M.W. Goodwyn, Psychiatrist is Ending his Career

as a ‘Gypsy’; He’s Spent 27 Years in

Forensic Unit, Richmond Times Dispatch,

SCN UR: 2 we 5 bein oda SS a Sole b 8

(iv)

I. Gordon et al.. Forensic Medicine,

A Guide To Principles 360 (3d ed. 1988 ..... 5

M. Hansen, Body of Evidence: When Coroners and

Medical Examiners Fail to Distinguish

Accidents from Murders from Suicides,

a Botched Autopsy can be the Death

of a Fair Trial, an Insurance Settlement

or a Civil Suit, 81-JUN A.B.A. J. 60

(EROS E ie eh ei AS sie ew 8

A.A. Lauber & M.L. Souma, Use of Toluidine

Blue for Documentation of Traumatic

Intercourse, 60 Obstetrics and Gynecology

G6 LING es oe ie eh 5

M.K. Norvell et al., Investigation of

Microtrauma After Sexual Intercourse,

29 J. Reprod. Med. 269 (1984) .......... 5

P. Rosenthal, Nature of Jury Response to the

Expert Witness, 28 J. Forensic Sci. 528

15) FE arr ne ar ay oP Ayah air ee aaa 11

F.T. Schornhorst, Don’t Be Cowed By Scientific

Evidence: A Pretrial Primer for Prosecutors

and Defense Attorneys, 3-SPG Crim. Just.

RAPE aS ee ee ke aw Oe ss 8

W. Schwarzer, Ethics and the Expert Witness,

2 Shepard’s Expert and Scientific

VIER Dat CA ic bce Kae we ee 15

(v)

R. Serrano, FBI Issued Flawed Bombing Analysis,

U.S. Probe Finds; Law Enforcement: Lab’s

‘Unsound’ Conclusions Favor Prosecutors in

Oklahoma City Trial, Draft Report States.

Case Isn’t Expected to be Compromised,

Agency Chief Says, L.A. Times, March 22,

SOE de MG ORT pw Be

29 Wright & Gold, Federal Practice and

PRRONe BVI | 66.5656 ek EK CMS

i

INTEREST OF THE AMICI CURIAE

The interests of the amici curiae are detailed in the

accompanying Motion. Briefly, both amici are organizations

of criminal defense lawyers who routinely represent indigent

defendants in criminal cases, including capital cases. Avnici

have a direct and substantial interest in ensuring that the

rights to effective assistance of counsel and a fair trial are

upheld. These rights are imperiled under the stringent

standard imposed by the Virginia courts and other courts for

the appointment of a defense expert at state expense, where

an expert can assist the defense on an issue critical to the

state’s proof of its case.

INTRODUCTION

In a capital case, a criminal defendant’s access to the

assistance of an expert may be fundamental to fashioning and

presenting a defense. When the defendant cannot afford an

expert, the unrebutted testimony of a state expert may

determine the outcome of the trial. In Derek Barnabei’s

case, the state’s expert provided testimony at trial that made

the difference between a long prison sentence and a death

sentence. Barnabei was convicted of murder with the

aggravating offense of rape. The defendant had had

consensual sexual intercourse — including anal intercourse

— with the murder victim in the weeks before she died. The :

only evidence of nonconsensual intercourse to support the

rape conviction — and Barnabei’s eligibility for the death

penalty — was the medical examiner’s testimony that the

victim’s bruises and an anal tear evidenced force.

Although Barnabei’s counsel had the opportunity to

cross-examine the medical examiner, he did not benefit from

the aid of an expert to prepare that cross-examination, nor

did he have the chance to present expert testimony to rebut

2

the medical examiner. Under the Virginia Supreme Court’s

standard, Barnabei, in order to receive expert assistance,

would have had to make a "particularized showing” that an

appointed expert would reach a conclusion that was

beneficial to him. This threshold -- especially in the case of

an indigent criminal defendant facing the death penalty — is

too high and, in the vast majority of cases, insurmountable.

As the Petition for Certiorari makes clear, the state and

federal courts have developed divergent standards for

determining a defendant’s entitlement to expert assistance.

The amici submit this Brief not to repeat the Petitioner’s

analysis of the conflicting caselaw, but to amplify the

reasons why the standard selected by the Virginia courts, and

other courts that have erected similar barriers to the

appointment of experts, ignores the nature and effects of

state-sponsored expert testimony, and deprives the defendant

of a fair opportunity to counter the state’s expert. A writ of

certiorari is needed to clarify standards with due recognition

for the realities of expert testimony in criminal prosecutions.

REASONS FOR GRANTING THE WRIT

I.

EXPERT MEDICAL TESTIMONY

REQUIRES ADVERSARY TESTING

A. Expert Medical Testimony Is Often Inherently

Subjective

The adversary system lies at the very heart of the just

administration of the criminal laws. While there is no

disputing that an indigent person charged with a crime is

constitutionally entitled to oppose the state’s lawyers with a

lawyer of his own, Gideon v. Wainwright, 372 U.S. 335

3

(1963), that same accused’s constitutional right to oppose the

State’s non-psychiatric expert with an expert of his own

needs to be elucidated by this Court. As explained in the

Petition for Certiorari, federal and state courts have

considered the appointment of defense experts to rebut the

state’s experts under a babel of standards. Many of these

are far more restrictive than the standard adopted by this

Court for a psychiatric expert in Ake v. Oklahoma, 470 U.S.

68 (1985). In a case in which the forensic testimony

presented by the expert was as subjective and indeterminate

as the psychiatric testimony in Ake, the Virginia Supreme

Court adopted one of the most onerous standards —

requiring a2 defendant to make a "“particularized showing"

that he would actually benefit from “favorable testimony"

should an expert be appointed. That court’s application of

the standard in this case — as well as in the companion case

of Husske v. Commonwealth, Pet. App. 21a, 476 S.E.2d 920

(Va. 1996), confirms that virtually no matter what showing

Barnabei’s defense counsel made (short of demonstrating

what testimony an appointed expert would give), the

appointment of an expert would have been refused.

Whatever rule this Court may adopt, Virginia’s excessive

and unworkable standard deprived Barnabei of a fair trial.

It is akin to saying that an indigent criminal defendant gets

a lawyer if he can make a particularized showing to the court

that he is innocent.

In the trial court, Barnabei sought the assistance of a

forensic expert to rebut the testimony of the

Commonwealth’s medical examiner, whose testimony

provided the sole evidence to support Barnabei’s rape

conviction, and, ultimately, his eligibility for a death

sentence. Despite Barnabei’s request for an independent

forensic pathology expert "to analyze the autopsy

photographs and the medical examiner’s report, evaluate the

examiner’s testimony at trial, and, if appropriate, offer

4

contrary testimony,” the trial judge found no need to appoint

an expert for the defendant, because he saw no basis for

challenging the word of “the man who performed the

autopsy." Pet. 4. The Virginia Supreme Court agreed,

finding that Barnabei failed to make a particularized showing

that he would adduce “favorable testimony" from his expert.

Pet. App. 10a.

Both decisions rest on a flawed understanding of the

role of forensic experts at criminal trials. The presumption

of objectivity and accuracy that the courts below afforded the

medical examiner’s testimony was unfounded in the context

of the testimony he provided regarding the alleged rape.

According to the state’s own evidence, Barnabei had

consensual intercourse with the victim in the weeks before

she was murdered. The evidence supporting the rape

conviction consisted exclusively of the medical examiner’s

testimony — based on photographs he took at the autopsy —

that he observed evidence of vaginal bruising and an anal

tear. The medical expert offered the opinion that these

injuries indicated there was “violent penetration" and that it

was "inconsistent with normal consensual intercourse." Pet.

App. 8a. This testimony was the only evidence presented by

the state to support the jury’s ultimate conclusion that

Barnabei had raped the victim before murdering her.

Far from being “objective” or "scientific" fact, the |

medical examiner’s testimony at trial was inherently

subjective and rested on highly debatable inferences. The

overwhelming and longstanding consensus of medical experts

is that forensic testimony regarding the physical trauma

resulting from an act of intercourse does not establish that

the intercourse was non-consensual. £.g., American

College of Legal Medicine, Legal Medicine 576-77 (3d ed.

1995) ("[T]he presence of wounds does not necessarily mean

a a i i he en

5

that valid consent to coitus was not given. [Various

activities] produce minor injuries and may produce severe

injuries, even though valid consent to sexual intercourse has

been given."); I. Gordon et al., Forensic Medicine, A Guide

To Principles 360 (3d ed. 1988) (“It should be recognized

that the presence of injuries is not necessarily indicative of

rape. . . . Injuries may also be inflicted during intercourse

which has taken place with the consent of the female.");

M.K. Norvell et al., Investigation of Microtrauma After

Sexual Intercourse, 29 J. Reprod. Med. 269, 270 (1984)

(finding that when a magnification technique was used to

detect the presence of genital trauma, there was evidence of

"microtrauma” in 61.1% of women who engaged in

consensual intercourse). ' Specific types of consensual

sc“ual activity, including anal intercourse, are also more

likely to result in severe injury. W.G. Eckert et al., The

Pathology and Medicolegal Aspects of Sexual Activity, 12

Am. J. Forensic Med. Pathology 3, 14 (1991).

Other experts have rejected altogether the notion that

a medical expert is even capable of rendering a medical

opinion as to whether rape has occurred based on an

examination of a victim’s physical injuries. Alleged Rape:

An Invitational Symposium, 12 J. Reprod. Med. 133, 134

(1974) ("There is no way to tell by a medical examination

whether rape has occurred. . . . Determining whether actual,

forcible rape took place is a legal question — not a medical

one.").

; One study of physical trauma occurring during intercourse found that

“unequivocal lacerations” appeared in a patient after consensual intercourse.

A.A. Lauber & M.L. Souma, Use of Toluidine Blue for Documentation of

Traumatic Intercourse, 60 Obstetrics and Gynecology 644, 647 (1982).

Thus, “consent for coitus does not preclude trauma, just as absence of

trauma does not provide proof of consent." Jd.

6

The Virginia courts in this case erred when they

simply assumed there would be no basis on which to

challenge the medical examiner’s testimony. The literature

demonstrates that the medical examiner’s conclusion that the

physical evidence indicated that the intercourse was non-

consensual was not an objective medical opinion based upon

his expertise as a pathologist. Rather, it was a highly

debatable interpretation of the physical condition of the

victim’s body, and one that another expert would be very

likely to challenge.

In Ake v. Oklahoma, 470 U.S. 68 (1985), the Court

wrote that because "[p]sychiatry is not . . . an exact science

. . . juries remain the primary factfinders on this issue.”

470 U.S. at 81. The Ake Court went on to hold that, by

presenting information regarding the defendant’s mental

condition in a meaningful form, "the psychiatrists for each

party enable the jury to make its most accurate determination

of the truth on the issue before them.” /d. (emphasis added).

Neither is forensic analysis an “exact science," and by

refusing to appoint a defense expert, the trial court in this

case precluded the jury from making “its most accurate

determination" as to whether or not a rape occurred.

B. When Presented By A Medical Examiner Or

Other State Forensic Expert, Expert Testimony Is

Essentially Being Presented By A Member Of The

Prosecution Team

Both the trial court and the Virginia Supreme Court

viewed the testimony of the state medical examiner as

entitled to a presumption of neutrality, placing the burden on

the Petitioner to offer a particularized showing that his

proposed expert would present favorable testimony

conflicting with the examiner. Not only does such a

4

requirement undermine the presumption of innocence, it also

ignores the close collaboration that occurs between the

prosecution and the state medical examiner. In fact, the

state medical examiner is properly viewed as an arm of the

state. Indeed, Virginia state medical examiners typically

work hand in hand with the police from the outset of an

investigation of an alleged rape and forward all evidence to

the district crime laboratory, where it is readily available to

the prosecution. W.F. Enos & J.C. Beyer, Management of

the Rape Victim, 18 Annals of Fam. Prac. 97, 102 (1978).

When state medical examiners testify at trial

regarding their physical examination of the victim, they

drape the mantle of science over the state’s case. As one

commentator points out (emphasis added):

The specialists in the offices of both the

district attorneys and the attorneys general

have . . . a group of full-time experts at the

crime laboratory and in the medical

examiner’s offices to respond to crime scenes

and provide expert testimony when needed.

If mental health issues are raised, the

prosecution has a group of mental health

professionals at the state mental facilities. No

one seriously contends that these professional

witnesses are objective. They routinely testify

for the prosecution as part of their work, and

prosecutors enjoy longstanding relationships

with them.

S.B. Bright, Counsel for the Poor: The Death Sentence Not

for the Worst Crime but for the Worst Lawyer, 103 Yale L.J.

1835, 1845 (1994). A Virginia forensic psychiatrist,

summing up a lengthy career assisting the prosecution,

candidly described the relationship between prosecutors and

8

state forensic experts when he told a reporter that he "credits

the forensic unit’s psychological and clinical staffs with a

stellar record of credibility in aiding prosecutions." M.W.

Goodwyn, Psychiatrist is Ending his Career as a ‘Gypsy’;

He’s Spent 27 Years in Forensic Unit, Richmond Times

Dispatch, Dec. 30, 1995, at B-1.

Not only are medical examiners closely allied with

prosecutors in their respective jurisdictions, their fallibility

has been widely acknowledged. A survey of the work of

coroners, medical examiners and forensic pathologists

recognized the many mistakes that have been made in

forensic examinations, "paint[ing] a disturbing picture of a

process that is, at best, woefully inadequate and, at worst,

often inept." M. Hansen, Body of Evidence: When

Coroners and Medical Examiners Fail to Distinguish

Accidents from Murders from Suicides, a Botched Autopsy

can be the Death of a Fair Trial, an Insurance Settlement or

a Civil Suit, 81-JUN A.B.A. J. 60, 62 (1995).

More generally, a systematic effort to scrutinize the

proficiency of government crime labs yielded "dismal

results." F.T. Schornhorst, Don’t Be Cowed By Scientific

Evidence: A Pretrial Primer for Prosecutors and Defense

Attorneys, 3-SPG Crim. Just. 18, 46 (1988). Even the most

vaunted crime lab in the country — the crime lab of the

Federal Bureau of Investigation — has been subject to

scrutiny and harsh criticism for its work in some of the most

important investigations in the nation. A Justice Department

report prepared in draft form by the agency’s Inspector

General found that the crime lab made "scientifically

unsound" conclusions in the Oklahoma City bombing case.

R. Serrano, FBI Issued Flawed Bombing Analysis, U.S.

Probe Finds; Law Enforcement: Lab’s ‘Unsound’

Conclusions Favor Prosecutors in Oklahoma City Trial,

Draft Report States. Case Isn’t Expected to be

9

Compromised, Agency Chief Says, L.A. Times, March 22,

1997, part A, at 1 . In particular, a supervisory agent came

in for the harshest criticism from the Inspector General, who

found his analyses to be "scientifically unsound . . . and. .

biased in favor of the prosecution." Jd.

This Court is no stranger to the results to which the

prosecution’s preferential access to forensic experts can lead.

For example, Buckley v. Fitzsimmons, 509 U.S. 259 (1993),

where the Court held that county prosecutors in Illinois

should not receive absolute immunity for fabricating false

evidence, was a murder case in which the prosecutors had

sought to match boots supplied by the defendant with a

bootprint on the door of the victim’s home. After studies

conducted by forensic experts in Illinois and Kansas failed to

produce a reliable connection between the boot and the

footprint, the prosecutors turned to a North Carolina

anthropologist who was "well known for her willingness to

fabricate unreliable expert testimony." Not surprisingly, she

was able to make a "positive identification" that the bootprint

matched the defendant’s boot. Jd. at 262.

Taken together, the confederation of government

forensic experts, police and prosecutors, and the fallibility of

the forensic testimony that results, negate the easy

assumption that a defendant will generally derive no real

benefit from countering the state’s expert. Requiring the

defendant to make a "particularized showing” that he will be

able to provide favorable testimony of his own in rebuttal to

the state’s expert ignores the reality that such testimony is

often biased and unreliable. We do not mean to suggest that

state forensic testimony is never provided in subjective good

faith, but rather that the institutional realities of the close

affiliation between state experts and law enforcement prevent

such experts from offering neutral or objective testimony.

10

Sie Unrebutted Medical Testimony Presented By The

State Has A Powerful Effect On The Jury

The dangers of one-sided expert testimony in a

criminal case — especially a capital case — are further

demonstrated by the effect this lopsided testimony can have

on the jury.” In this case, for example, without the

opportunity to rebut the testimony of the state’s expert by

presenting independent expert testimony, all the jury heard

at trial regarding the use of force during intercourse was the

testimony of the state medical examiner, diminished only —

if at all — by the defense lawyer’s cross-examination.

In Barnabei’s case, cross-examination was an

extremely poor substitute for a defense expert, because of

the extent to which the expert couched his interpretations and

inferences in the language of science. In addition to hearing

a detailed description of the victim’s wounds, the jury heard

the medical examiner say that "“[a] violent penetration" of

that area had occurred, and that it was "[vJery unlikely” the

bruise occurred during "normal" consensual intercourse.

Trial Testimony of Dr. F. Presswalla at 673. Thus, the

expert provided not only the “pure science” within his

medical expertise, but also what was in essence a legal

conclusion as to the cause of the wounds. Because the

expert presented himself as an individual with special

qualifications, his testimony was “surrounded by an ‘aura of

? Although an indigent criminal defendant’s right to the assistance of an

expert has been framed under the rubric of due process and equal protection

as opposed to his eighth amendment right to be free from “cruel and unusual

punishment,” U.S. Const. Amend. 8, this is a capital case. When the state

imposes the death penalty, there is a heightened need for reliability in the

evidence leading to the imposition of capital punishment. See Eddings v.

Oklahoma, 455 U.S. 104, 110 (1982). This is all the more reason why the

presentation of forensic medical testimony in a capital case must be

subjected to adversarial testing.

ee ee a ee Se ee ee

11

infallibility’" that made it very difficult for the jury to

distinguish those opinions that fell within his expertise from

those that did not. 29 Wright & Gold, Federal Practice and

Procedure; Evidence § 6262, at 182-83 & n.19.

Jurors are particularly susceptible to being swayed by

such testimony, regardless of its technical inerit, because of

the credibility and authority they attach to the expert witness

himself. Rather than critically assessing the substance of an

expert’s testimony, jurors often focus on details peripheral

to the subject of the testimony, such as whether the expert

comes across as impressive, articulate and appealing. One

Study interviewed jurors after a trial involving extensive

expert testimony regarding “voiceprinting." P. Rosenthal,

Nature of Jury Response to the Expert Witness, 28 J.

Forensic Sci. 528 (1983). Confronted with complex or

confusing testimony that they did not understand, the jurors

shifted their attention to observable characteristics of the

expert, or to other ancillary elements of the situation, and

were guided in their response by their perception of how the

expert came across. In the study, the jurors were most

impressed with one witness who was extremely articulate and

presentable. The jury’s reaction to him — based not on

what he said but how he said it and what he was wearing —

was that he was a “real scientist." Jd. at 529-30. Given

such juror responses, there is an obvious danger that where

only one side has a "real scientist," it will receive an unfair

and potentially decisive advantage.

When a defendant has an expert of his own, it makes

a difference. One study showed that jurors are far more

sensitized to and skeptical toward the prosecution’s expert

testimony when the defense presents an expert who can

expose the problems and unreliability inherent in such

testimony. The defense expert thus provides a “useful

safeguard against false convictions." B. Cutler et al., Expert

12

Testimony and Jury Decision Making: Empirical Analysis,

7 Behav. Sci. & L. 215, 223 (1989). In this case, for

Barnabei to participate on a remotely even footing with the

state, he would have had to put forward expert testimony of

his own.

iI.

COURTS WIDELY MISPERCEIVE THE NATURE

OF FORENSIC TESTIMONY

The misperceptions as to the nature of forensic

testimony offered by prosecution experts upon which the

Virginia courts based their decision in this case are

widespread. For example, in Schultz v. State, 497 N.E.2d

531, 532 (Ind. 1986), the defendant was convicted of murder

on the strength, inter alia, of testimony by forensic experts

for the prosecution regarding footprints found at the crime

scene and the analysis of blood on a towel found at the

defendant’s residence. The Supreme Court of Indiana upheld

the trial court’s denial of the defendant’s motion for

appointment of experts, holding that:

The testimony of [the state’s] experts involved

precise, physical measurements and chemical

testing, and there is no showing that these

experts were less than precise or able in their

testing and observations.

Id. at 534. For the reasors discussed above, however, this

model of forensic analysis as akin to mathematical

calculation is erroneous. For example, in the context of a

rape charge, the fact that trauma can and does routinely

occur during consensual intercourse means that a forensic

expert opining, on the basis of such trauma, that intercourse

ER aL OM LOR cre Ne eT |

13

was non-consensua: is necessarily offering not a "precise,

physical measurement," but a judgment based on speculation.

Nevertheless, other courts have also adopted the

mosiel of the state forensic expert as a mere reporter of

objective scientific fact. In Hicks v. State, 256 Ga. 715,

717, 352 S.E.2d 762, 769 (Ga.), cert. denied, 482 U.S. 931

(1987), another murder prosecution, the defendant sought

appointment of an expert to analyze blood samples found in

his car and on his clothes, in order to counter testimony by

State experts that the samples were "consistent" with the

victim’s blood. Apparently sharing the Schultz court’s view

that forensic analysis is merely an exercise in “precise,

physical measurements and chemical testing," the Supreme

Court of Georgia approved the trial court’s refusal to appoint

such an expert because, in part, the trial court offered the

defendant an opportunity to have the state crime lab perform

“any desired additional tests." Jd. Again, the court’s

analysis ignored the defendant’s need for the opportunity to

invoke the judgment and analysis of an independent expert,

and forced him to rely solely on members of the prosecution

team.

The Schultz court went on to suggest that the

defendant might have qualified for the appointment of an

expert if he had shown “that the truth or accuracy of [the

state’s experts’] testimony is questionable." 497 N.E.2d at

534. Other courts, again apparently viewing forensic

analysis as a matter of precise measurement, rather than

judgment, have followed a similar course, denying the

appointment of an expert where the defendant fails to show

the state’s experts to be "incompetent." In Moore v. Zant,

722 F.2d 640 (11th Cir. 1983), a defendant convicted of

murder sought habeas relief. "Much of the evidence"

against him at trial consisted of testimony by state experts

regarding their analysis of physical evidence. Jd. at 648.

14

The court found no error in the trial court’s refusal to

appoint a defense expert, because the defendant did not show

that those witnesses were incompetent. Jd. at 649; see also

Johnson v. State, 731 P.2d 993, 1007 (Okla. Ct. Crim.

App.), cert. denied, 484 U.S. 878 (1987); Bostic v. State,

173 Ga. App. 494, 496, 326 S.E.2d 849, 851 (Ga. App.

1985). In Yohey v. Collins, 985 F.2d 222, 227 (Sth Cir.

1993), the Fifth Circuit demanded, as a prerequisite to

appointment of a defense expert, that the defendant show that

a State expert’s findings are “inaccurate or . . . subject to

disagreement between experts." Of course, to the extent

judgment enters into forensic analysis, opinions will always

be subject to disagreement.

Some of these same decisions premise the

appointment of a defense expert upon some affirmative

showing of “bias” on the part of a state expert. Moore, 722

F.2d at 649; Bostic, 173 Ga. App. at 496, 326 S.E.2d at

851. These decisions ignore the close collaboration between

prosecutors and state forensic experts, as well as the fact that

such experts often view their role as “aiding” prosecutors.

Finally, courts have also looked to defendants’

opportunity to cross-examine prosecution experts in denying

the appointment of a defense expert. E.g., Bostic, supra;

Johnson, supra; Johnson v. Mississippi, 476 So.2d 1195,

1203 (Miss. 1985). In Moore, supra, the court held that

defense experts were unnecessary where prosecution experts

were, On cross-examination, “forthright in admitting the

limitations of their opinions." 722 F.2d at 649. For

example, the Moore court relied on the state’s expert in hair

analysis admission that it “is impossible to determine in

forensic science" whether two hair samples come from the

same person. /d.

15

However, a defense expert clearly could have offered

more than testimony to this effect. Although the

prosecution’s expert in Moore admitted that it is impossible

to determine with certainty whether two hair samples

perceived to be “microscopically identical" in fact came from

the same individual, he testified that "I’m right every time"

about whether two samples are in fact "microscopically

identical." A defense expert could have offered testimony

regarding the extent to which the question of microscopic

identity is one of judgment, as well as his own judgment as

to the “identity” of the samples at issue in Moore. Such an

expert would also have provided crucial assistance to defense

counsel in preparing the cross-examination of the state’s

expert. See Ake v. Oklahoma, 470 U.S. 68, 80 (1985)

(noting that defense psychiatrist is necessary because, in

part, "[t]hey know the probative questions to ask of the

opposing party’s psychiatrists and how to interpret their

answers").

Moreover, cross-examination and the presentation of

expert testimony by the defense are not interchangeable

arrows in the defense lawyer’s quiver. This is due not only

to the impact an expert can have on the jury, as described

above, but also to the difficulties inherent in cross-examining

an expert. Recognizing that “the testimony of expert

witnesses is pivotal — it decides the case," Judge Schwarzer

has succinctly identified the limitations of cross-examination. —

W. Schwarzer, Ethics and the Expert Witness, 2 Shepard’s

Expert and Scientific Evidence 587, 588 (1995). He

explains (id. at 591):

First, expert cross-examination is probably

the most difficult task a lawyer faces, and few

are able to do it well;

16

Second, lawyers will not always have the

information necessary to cross-examine

effectively. This is particularly true in

criminal cases where the defendant may not

have the resources to prepare thoroughly and

also where science is involved;

** * *

Finally, there is the adrenaline factor... .

[U]nder the assault of the cross-examiner, the

adrenaline tends to flow and it is natural for

the expert to want to defend what she has said

and done, even if it may lead to

overstatement.

Ultimately, the unwillingness of many courts to

afford indigent defendants an opportunity to counter forensic

expert testimony offered by the state springs from a

fundamentally erroneous conception of the nature of such

testimony. The notion that a defendant may only be

permitted to match the government’s access to expert

assistance when he can demonstrate that the government’s

experts are "incompetent" or have made an identifiable

“error,” or that an expert retained on his behalf would

provide specific favorable testimony, rests on a presumption

that, absent such proof by the defendant, the government’s

experts will simply be providing objectively verifiable and

scientifically sound facts, the precise bounds of which can be

adequately tested simply through cross-examination.

The problem, however, is not necessarily that the

government’s experts are incompetent or “wrong” about

specific factual matters — it is that they are the government’s

experts, and that their partisan role inevitably colors the

inherently subjective and debatable inferences to which they

17

testify. Thus, imposing on a defendant the impossible

burden of demonstrating in advance specific deficiencies in

the government’s expert proof — without the expert

assistance that would allow him te do so in the first place —

is particularly unwarranted. The result of such a

requirement is that, without the ability to respond in kind,

the defendant is unable either to explain to the jury the

limitations of the government’s expert proof or to present to

the jury the alternative interpretations of the evidence that a

defense expert could provide. The standard applied by the

Virginia courts in this case and by other courts that have

erected similar barriers to the appointment of defense experts

thus frustrates the promise of equal justice held out by this

Court’s decision in Ake.

18

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

HENRY SCOTT WALLACE ScoTT L. NELSON

NATIONAL LEGAL AID & (Counsel of Record)

DEFENDER ASSOCIATION PAUL F. ENZINNA

1625 K Street, N.W. MATHEW S. NOSANCHUK

Eighth Floor MILLER, CASSIDY, LARROCA

Washington, D.C. 20006 & LEWIN, L.L.P.

(202) 452-0620 2555 M Street, N.W.

Washington, D.C. 20037

(202) 293-6400

RUSSELL NEUFELD

NEW YORK STATE ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

475 Park Avenue South

Suite 3300

New York, NY 10016

(718) 243-6474

April 1997 Attorneys for Amici Curiae