when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, [at which point] the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.<\/p>\n
Id.<\/em>, at 83.\u00a0 This grew, in part, from \u201cthe extraordinarily enhanced role of psychiatry in criminal law today\u2026\u201d\u00a0 Id.<\/em>, at 85\u00a0 It also was the natural outgrowth of the right to counsel and the general guarantee of Due Process.\u00a0 And substitute the word \u201cforensics\u201d for \u201cpsychiatry\u201d and you have criminal trials today, with the \u201cextraordinarily enhanced role of [forensics<\/em>] in criminal law today\u2026\u201d<\/p>\n Indeed, it is likely that forensic discipline testimony is much more prevalent in criminal investigations and trials than mental health testimony.\u00a0 The 2009 STRENGTHENING FORENSIC SCIENCE: A PATH FORWARD<\/em> report noted that<\/p>\n [f]or decades, the forensic science disciplines have produced valuable evidence that has contributed to the successful prosecution and conviction of criminals as well as to the exoneration of innocent people. Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great additional potential to help law enforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping to identify the perpetrators.<\/p>\n STRENGTHENING FORENSIC SCIENCE, <\/em>4.\u00a0 A 2013 study of more than 4,000 cases from several jurisdictions found that forensic evidence was collected in 47% of cases and concluded that \u201cforensic evidence played a consistent and robust role in case-processing decisions across the jurisdictions included in the study.\u201d\u00a0 Peterson et al.<\/em>, Effect of Forensic Evidence on Criminal Justice Case Processing,\u00a0 Journal of Forensic Sciences, Vol. 58, pp. S78\u2013S90 at S89 (2013).\u00a0 There is no reason to think this prevalence has diminished.<\/p>\n So where did the Sixth Circuit find uncertainty (which some other courts have also found), and what does that mean for fundamental rights in criminal trials?<\/p>\n Lisa Bergman was the driver in an horrific accident, one that took two young men\u2019s lives.\u00a0 Testing revealed alcohol and prescription drugs in her blood.\u00a0 Experts testified to the various drugs; and one opined that \u201cBergman could not operate a motor vehicle properly when taking the drugs.\u201d\u00a0 Bergman v. Howard, 2022 U.S. App. LEXIS 34075, *4-5 (6th<\/sup> Cir. 2022).\u00a0 The expert also relied on Bergman\u2019s history of reckless driving while under the influence.\u00a0 Id.<\/em><\/p>\n Bergman\u2019s lawyer did what should be done \u2013 they requested an expert to \u201cexplain in plain English whether problems existed with the state’s testing and whether the drugs found in Bergman’s system would have impaired her driving [and\/or] to confirm the state’s test results by retesting the preserved blood samples from Bergman’s driving incidents.\u201d\u00a0 Id.<\/em>, at 8.\u00a0 The latter request was denied; the former was left open subject to counsel providing a clearer explanation of what was needed.\u00a0 None was offered, and the case went to trial.\u00a0 Bergman was convicted and sentenced to 25 to 50 years imprisonment.<\/p>\n After the Michigan courts denied relief, Bergman sought relief on habeas \u2013 and this is where the Sixth Circuit weighed in.\u00a0 In a nutshell, the court\u2019s view was that Ake<\/em> itself guaranteed only psychiatric expert assistance and that subsequent U.S. Supreme Court cases altered the Due Process test that Ake<\/em> was premised upon, leaving open the question of how it should be applied to other categories of experts, a question the Supreme Court itself acknowledged remained unresolved just shortly after Ake<\/em> was decided.\u00a0 S<\/em>ee <\/em>Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).<\/p>\n Why was that uncertainty important?\u00a0 In the context of habeas litigation, federal courts may not overturn a state court decision unless, first, there was a clearly established legal principle settled by the United States Supreme Court.\u00a0 To the Circuit, the settled principle was the right to funding for a mental health expert<\/em>, not the right to expert assistance.\u00a0 That ended the inquiry and Bergman\u2019s challenge.<\/p>\n There were problems in how the case was litigated.\u00a0 Trial counsel did not articulate clearly what an expert could do; and Bergman on habeas did not have a report from a new toxicologist to show what proof might have been available.\u00a0 So much of the pleading was generic, limited by what was pled below and federal restrictions on adducing new evidence at the habeas level.<\/p>\n But what was present was the clear lack of scientific knowledge on the part of counsel.\u00a0 As the Federal District Court OPINION noted, trial counsel was frank in acknowledging their limitations:<\/p>\n Bergman’s trial counsel persuasively explained to the trial court that he needed assistance from an expert so he could understand what the prosecution’s toxicology reports meant and so he could properly prepare for a cross-examination of the prosecution’s several experts:<\/p>\n I’m not a toxicologist, I don’t know chemistry [….] So I need to talk to a professional who can advise me as to what the results mean and how it impacts my client’s defense [….] I can’t interpret them.<\/p>\n [….]<\/p>\n [I need someone to] go over the police report, the lab results, and be able to speak to me about what these things mean in terms of the Defense.<\/p>\n [….]<\/p>\n I am not competent as a chemist or toxicologist to know what do these numbers mean. They may not mean anything. Or maybe they mean that this person is highly impaired by these things because she’s got such and such milligrams of this and this. I don’t know […]<\/p>\n My motion is I need someone who can first of all, look at the numbers in the, in the context of the police report in terms of their description of the events and tell me do these – what do these numbers mean. Does this indicate a toxic level for someone or is this something that does not affect driving.<\/p>\n Bergman v. Brewer, 542 F. Supp. 3d 649, 662 (E.D. Mich. 2021).\u00a0 These admissions of scientific ignorance are telling \u2013 they reflect the limited training\/capacity of too many lawyers, the lack of readily available resources, a tolerance of \u2018anything goes\u2019 as far as counsel\u2019s skill set.\u00a0 They were not raised as an independent claim of ineffective counsel, which would require proof of what consulting with an expert could have meant to this trial.<\/p>\n Bergman lost their case because of the demands of habeas law and perhaps due to a lousy record, one that permitted the Circuit to credit a state court determination that Bergman failed to make an adequate showing to obtain a toxicologist .\u00a0 But there are likely many Bergmans (and Bergmans\u2019 lawyers) out there; and if the Sixth Circuit is correct a state court may deny funds for an expert no matter how little the lawyer knows and possibly no matter how critical the expert testimony is to the case.<\/p>\n That reasoning is a far cry from the hallmark principle of ensuring defendants a fair opportunity to present their defense. It shifts the burden to the defense community to self-educate and to develop and distribute materials about forensic disciplines so that lawyers functioning without an expert\u2019s guidance.\u00a0 Perhaps it also means that state\/police forensic labs need to take the role of \u2018science protector\u2019 if they don\u2019t already do so and ensure access for defense counsel who have questions and need educating.\u00a0 Until Ake<\/em> is clarified to mean all<\/em> experts and states then diligently ensure access, we diminish the rights of Due Process, meaningful confrontation of adverse proof and witnesses, and indeed the guarantee of effective counsel.<\/p>\n Thanks to Marissa Bluestine, Assistant Director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, for assistance and insights.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Many may believe (depending on the jurisdiction or the judge) it to be fundamental \u2013 indigent defendants are entitled not only to free counsel but to the essential services needed to investigate and present a defense: funds for an investigator to track down witnesses, funds for a psychiatrist or psychologist for a mental health defense,<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,6,7,11],"tags":[],"coauthors":[330],"class_list":["post-3643","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n![\"\"](\"https:\/\/law.temple.edu\/aer\/wp-content\/uploads\/sites\/5\/2023\/02\/ake-300x169.jpeg\")
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