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Ineffective Assistance and Experts

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The US Supreme Court today sent a capital case back to the Alabama courts to reevaluate the petitioner's ineffective assistance claim.  The case is Hinton v. Alabama, No. 13-6440.

This case is highly unusual for a capital case in that the disputed question actually involves who committed the crime.  The trial lawyer hired a forensic expert he knew was unqualified because he mistakenly believed that state law capped the fee he could offer.  In fact, the statute had been amended to give more leeway.  The prosecutor sliced and diced the unqualified expert.  The state courts failed to correctly apply the "prejudice" prong of Strickland v. Washington, holding that there was no prejudice because the experts in the postconviction proceeding testified the same as the trial expert.  That's not the point.  A qualified expert would not have been so easily attacked by the prosecutor, and there is a reasonable probability the jury would have believed him.

The high court took this case on direct review of the state courts, rather than letting it go to federal habeas first, probably to avoid the complications of the AEDPA deference standard.

So is it open season for federal courts to second-guess the qualifications of experts in the guise of ineffective assistance claims?  No, the Court makes clear:
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of "strategic choic[e]" that, when made "after thorough investigation of [the] law and facts," is "virtually unchallengeable." Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law--the unreasonable failure to understand the resources that state law made available to him--that caused counsel to employ an expert that he himself deemed inadequate.

No new cases were taken up for full briefing and argument.  No action on the much-relisted Ryan v. Hurles.  The "is poker gambling?" case, DiCristina v. United States, No. 13-564, was denied.

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While I defer to your considerable expertise in federal habeas matters, what is to stop trial counsel from claiming that the only qualified expert is the one who costs $50,000 and can only get to the case in 14 months. In some death penalty and LWOP cases defense are spending far more than that on mental health experts.

My point is sometimes the Supreme Court thinks it is not opening the floodgates when what it really does is increase the burden on the trial courts to hear the claims, not that they will be successful. Padilla being the most recent offender. These frequently meritless claims in the trial court distract us from properly handling the case we have in front of us, including making sure we have the right guy.

I feel that we are increasingly moving towards paralysis by (due) process.

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