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SCOTUS: Trial lawyer’s failure to seek funds to hire better expert, based on mistaken belief about funding cap, amounts to deficient performance

Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).

Docket here.

Trial lawyers, listen up.  Check your expert witness funding cap before settling for an “expert” you know is sub par.

In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets.  The first two managers died.  The third survived and identified Hinton as his assailant.  At trial, the State sought to prove that Hinton not only shot the third manager, he also murdered the other two.  The only physical evidence linking the three crimes was: (a) the .38 caliber revolver, which belonged to Hinton’s mom and was found at his house, and (b) the 6 bullets.  The State put on toolmark experts who testified that all 6 bullets were fired from Hinton’s gun.  The defense put on an elderly, on-eyed, civil engineer, who had almost no experience with firearms and toolmark identification, who had trouble operating the microscope at state forensic lab, and who testified that it would be impossible to say with certainty whether a particular bullet had been fired from Hinton’s gun.

Defense counsel thought the statutory maximum amount he could pay for an expert was $500 per murder case (1,000 total).  For that price, the one-eyed civil engineer was the only expert willing to take the case.  In fact, the statute had been amended a year earlier and allowed counsel to be reimbursed for “any expenses reasonably incurred in such defense to be approved in advance by the trial court.”  The attorney’s ignorance of what the law allowed met the “deficient performance” prong of a claim for ineffective assistance of counsel.

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 the 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 counsel counsel to employ an expert that he himself deemed inadequate. (Emphasis in original).

The court remanded the case for a determination of whether counsel’s “deficient performance” was prejudicial to Hinton under Strickland.

Here in Wisconsin, § 977.05(4r)(a) says that the SPD may not provide reimbursement for investigative or expert services unless the appointed attorney “has received authorization from the state public defender to retain an investigator or expert.”  Per § 977.05(4r)(b), that authorization shall state the maximum amount that may be reimbursed and the SPD can’t pay more unless allowed by rules promulgated under  §977.03(2).

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