Tuesday, June 19, 2007

Presentation of Disastrous Expert Was Ineffective Assistance, 7th Circuit Holds

Defense counsel provided ineffective assistance by calling a highly counterproductive psychological expert at the penalty phase of an Indiana capital case, the Seventh Circuit has held.

The defendant molested a 10-year-old boy, killed him when he threatened to tell his parents, threw the body in the trunk of his car, drove to the countryside, and dumped the body under a bridge. His lawyers asked an expert to evaluate the defendant but to prepare no report. The expert prepared a report anyway, opining that the defendant had a history of pedophilia, possessed a firm grip on reality, lacked remorse, would likely continue to molest other children, and could commit "another violent assault on a young victim if [he] again felt it was necessary." When the lawyers asked the expert why he had disregarded their instructions, he told them: "Don't worry about it. I'm sandbagging the State.... I'm trying to make them think that I'm going to be a good witness for them, but I'm going to take -- when I take the stand, I'm going to be able to turn this all around on them."

Defense counsel also learned, at about the same time, that the expert -- Dr. Lawrence Lennon, then the director of a child and adolescent psychiatric center at an Indianapolis hospital -- believed mental illness to be a myth, and that he favored such therapeutic techniques as "putting 18-year-olds on his lap and sticking a bottle in their mouth."

Nevertheless, they served his report on the prosecution, and called him to the stand in the penalty phase of the trial. His direct testimony was devoted largely to his therapeutic philosophy and theories of child development. On eventually turning to the subject at hand, the expert did mention the defendant's childhood abuse (among other things, the defendant said he was raped by a stranger at age 10). The expert offered no meaningful assessment, however, of the defendant's mental state at the time of the murder, nor any testimony to connect it with the defendant's abuse during childhood. On cross, the expert confirmed that in his opinion, the murder was related to the defendant's desire to avoid prison. He also volunteered that the defendant had sociopathic traits, as well as expressing a belief in the defendant's future dangerousness (a subject the prosecution itself may not argue as an aggravating circumstance under Indiana law).

We come now to the "sandbagging" part, which did not come off in quite the way that the expert had portended in his earlier conversations with defense counsel. With the expert still on cross, the prosecutor asked whether the defendant had been sexually aroused by the killing -- whether, in fact, the defendant had masturbated on the victim's corpse. The expert answered that the defendant admitted doing so. The expert had never previously disclosed that fact to defense counsel.

Of the expert's other problems, of course, defense counsel had more warning. Did they simply decide to ignore the clear danger signals and hope for the best? Or is something more going on here? There is always the lurking suspicion that defense counsel might fall on their swords to support a post-conviction claim of ineffective assistance in a death penalty case. But if that happened in this case, it may not have been too long a fall.

See Stevens v. McBride, No. 05-1442 (7th Cir. Jun. 18, 2007) (Ripple, Manion, & Wood, JJ.).



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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.