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Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Expert – Non-Pursuit of NGI Defense After Rejection by Expert Who Misunderstood Correct Test

State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was now different.

Holding: “Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.” ¶77, quoting People v. Williams, 751 P.2d 395, 437 (1988).

Keep in mind the caution of Rogers v. Israel, 746 F.2d 1288 (7th Cir. 1984) that counsel has a duty to seek an opinion from a qualified expert; whether Oswald’s result would have been the same had only the second expert been consulted is doubtful, though not explicitly addressed by the court. That aside, the court’s dismissal of the claim is a bit too glib, or, rather, should not be accepted a some broad principle that merely retaining the expert is enough — on this point, see Richey v. Mitchell, 6th Cir No. 01-3477, 1/25/05:

At the outset, the State, and the dissent to this opinion, argue that Richey has no constitutional right to the “effective assistance of an expert.” The district court also noted that it was not unreasonable for trial counsel to “decline [to conduct] further expert-shopping once that expert rendered his opinion.” … But Richey argues, and the record reflects, that the failures of Richey’s expert were largely caused by the failures of Richey’s counsel. See Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997) (“[C]ounsel’s failure to adequately prepare his expert and then present him as a trial witness [amounts to] constitutionally deficient performance.”). As Richey’s counsel observes, “[i]ncompetence cannot excuse incompetence.”… [T]he deficiencies of an expert can be imputed to counsel when counsel has failed to adequately research and screen an expert witness. See Glenn v. Tate, 71 F.3d 1204, 1210 n.5 (6th Cir. 1995) (finding deficient performance because “we are not prepared to assume that Drs. Ramani and Siddal would have been the experts retained by the defense . . . if counsel had done their homework”). Thus, counsel owes more to his client than a passive duty to watch for red flags of incompetence.

Trial counsel’s failure to screen, supervise, or engage DuBois left Richey with little more than “a warm body with a prefix attached to his name,” Skaggs, 235 F.3d at 273 n.3 ….

See also, Jacobs v. Horn, 3rd Cir No 01-9000, 1/20/05 (deficient performance where counsel sought opinion from expert in support of mental capacity defense, and stopped investigating the defense further upon the expert’s unfavorable opinion, but the expert was not adequately apprised of relevant background, and the expert’s evaluaiton therefore was not “sufficiently extensive”).


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