CAAF grant
CAAF granted review today on this issue:
Whether the military judge abused her discretion when she denied the defense request for an expert consultant in the field of blood spatter.
United States v. Lloyd, __ M.J. __, No. 09-0755/AF (C.A.A.F. Dec. 30, 2009).
AFCCA’s unpublished decision in the case is available here. United States v. Lloyd, No. ACM 37220 (A.F. Ct. Crim. App. May 29, 2009).
The Accused gets screwed because his defense counsel lacks the expertise to clearly articulate why she needed an expert in Newtonian physics and fluid mechanics to explain “blood spatter” patterns, expertise that most DC’s don’t readily have. When the DC stated that she needed the expert to understand how blood got on the Accused’s clothing [assuming that he wasn't himself cut], that should have been enough.
DP, it’s simpler just to gaff-off (pun intended) the defense request as a fishing expedition. I was about to start a rant about experts and the disparity in resources, and where’s the training, and where’s the education, and where’s the experienced leadership helping their counsel. But, I’m wasting time. DP you are right — of course. I’m off to do something more important and have a hoppy nu year.
I’m not so sure this is the typical case: it seems counsel was at least articulate enough to convince the seemingly fair and impartial CA of the necessity of an expert consultant, albeit Dr. NR vice Mr. KI.
Might the outcome be based on the quality of her litigation of the motion?
A clue for me is this line from the court’s opinion at page 2: “In her motion, trial defense counsel opined that Dr. NR…’was not qualified’….” Shouldn’t it read more like “In her motion, Dr. NR/Mr. KI testified that….”?
Perhaps she would have prevailed if she had introduced more compelling evidence on the motion than her own opinion.
Anon 1703: I think the practical reality is that the DC convinced the CA’s SJA of the necessity of providing some form of expert assistance to the defense, and the CA accepted the SJA’s advice.
The Catch-22 is that without expert assistance on the specific subject-matter [blood-spatter] as to its forensic capabilities vis-a-vis assistance to that Accused, how could she improve the quality of her motion litigation? Now, if she didn’t have Dr. NR testify or provide an affidavit that he was not qualified as an “expert” in the area of blood spatter, hence the need for expert assistance from someone who was, then I totally agree with you. The decision isn’t really clear on that.
The other problem that this identifies, is that unlike in federal practice where you can seek expert assistance ex parte from the Judge, here there is the fine line of giving enough “evidence” to justify the request, without providing a windfall of “work product” or defense strategy to the government.
It’s also unclear if the DC had a “fall back” position, i.e., asking for a government blood spatter expert. USACIL has a couple, for example, one of whom is quite good. If the DC didn’t do that or if she wasn’t aware of that, then again, now we’re getting to what I think you’re suggesting, IAC in the context of expert assistance.
But the decision is too thin on the facts to point that finger. Perhaps Col Sullivan has some insight from his civilian capacity at Appellate Defense.
I’ve asked for government agents before in certain areas and been told that those agencies have a policy of not working for the defense, only the prosecution (in that case it was a computer expert).
Luckily, the government gave me a computer expert, and an acquittal was garnered. But do we know that USACIL even gives experts to the defense?
The government could do a couple of things. Make CID agents available as investigators for the defense. Treat it like paralegals who spend a year or two as TDS paralegals.
Make government experts more available for the defense. Make it as automatic for the defense as it is for the government. Instead we have agencies who won’t help, and CAs/SJAs who have the attitude of unless the MJ tells me I have to, then the answer is no.
Anon 2328: I agree with your approach. USACIL’s management [to include their counsel], yell and scream about “assisting” the Defense, until you point out that the prosecution-only approach could affect their accreditation as a “neutral” forensic lab.
I recently wanted one of USACIL’s latent print examiners to check on a set of prints from another case file, which CID and the prosecution opposed. The MJ ordered them to either have USACIL do it, or another comperable expert would be appointed. USACIL did it and testified for the defense quite satisfactorily.
Now, the down-side is that unlike an independent consultant, the government gets the results as well, so you have to pick your battles.
I’ve finally made it in the world, a case I was involved in has been mentioned on CAAFlog. This was the last case I prosecuted before I moved over to the good side. The MJ actually denied the motion to compel a blood spatter expert a couple of weeks before trial, and did not allow a hearing on the motion. So DC never had a chance to litigate the motion.