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Are defendants entitled to state-paid partisan experts?

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You know it will be a bad day when you are arguing for the defendant in the Supreme Court and the Chief Justice quotes Professor Wayne LaFave on point against your argument.  LaFave is the author of three leading treatises on criminal law and is consistently pro-defendant on virtually all debatable questions.  So when the CJ cited him in the argument in McWilliams v. Dunn this morning, advocate Stephen Bright could do little more than stammer out a response of the "even Homer nods" variety.  See p. 13.

The underlying question is whether a defendant with a mental claim is entitled to an appointed, state-paid expert who is a partisan member of the defense team or whether a court's appointment of a neutral expert to examine the defendant and report to both sides meets the requirement of the high court's 1985 precedent in Ake v. Oklahoma.* 

Further, because this case was decided on the merits by the state courts and is now on federal habeas corpus review, the threshold question is whether the answer to the above question was "clearly established" in the defendant's favor back when the Oklahoma court decided it.  That is an easier question.  No.
We like to think of experts as objective scientists, reporting neutrally on matters where truth is discoverable through the scientific method.  With psychology, particularly, that vision is often far from correct.  An expert who is a member of one team may advise the lawyer in ways that are much more advocacy than science.  If he testifies, he may shade his opinion to favor one side within the bounds in which experts may differ, and in "soft" sciences such as psychology those bounds may be as wide as the Grand Canyon.  In the argument, experts of this type were called "partisan experts."  Trial lawyers often use a different word for them, one that normally refers to an older and less reputable profession.  (That's the other side's experts, of course.  Not ours.)

Bright himself said during the argument today regarding mental health experts in particular, "experts vary widely with regard to, first of all, whether there is a mental illness. Second, what it is, what the effects of it are on behavior, and how it plays into the legal ...."  At that point he was cut off.

If expert opinion varies that much, why allow it to be presented to the jury at all?  Post-trial interviews, I'm told, reveal that in battle-of-experts cases the jury frequently regards the experts as canceling each other out, and then they decide the case the same as they would have if no expert testimony had been presented at all.  So why not just exclude them on both sides and save the money?

Bright claims during the argument that the state can hire all the experts it wants.  Really?  District attorneys' offices have unlimited budgets?  I'm sure that will be news to DAs all around the country.

How about this rule:  If the DA hires a partisan expert, the indigent defendant gets one also.  If a neutral expert is appointed by the court and reports to both parties and the prosecution does not hire its own, that is sufficient.

In this case, the Supreme Court may well decide that the Ake precedent is ambiguous, the Oklahoma court's decision is not an unreasonable application of it, and that is all that Congress has authorized a federal habeas corpus court to decide.  The underlying question may wait another day.

Amy Howe at SCOTUSblog thinks Justice Kennedy was persuaded by the defense side and would be the fifth vote for reversal.  Maybe, maybe not.  Justice Kennedy is the most difficult to "read" from oral argument of all the justices.  I was encouraged by page 42 of the transcript, where the Alabama Solicitor General notes that the court has previously held that extension of a previously recognized right can't be done in a case governed by ยง 2254(d)(1).

JUSTICE KENNEDY: What was the case where we said that? I think you're right.

It was White v. Woodall, answered the SG.  One of my favorites.


* My Oklahoma contacts, BTW, tell me that's pronounced like "ache."  Nope, no name jokes.

1 Comment

Most experts I know who practice ethically prefer neutral, court appointed work. It's not always available, however.

Part of the issue is that many of the tests psychologists use presume genuine effort from test takers. Obviously, in litigation, that is often not the case.

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