United States v. Lloyd involved a dispute over whether the military judge should have ordered the government to provide the defense with a blood spatter expert. Lloyd and a friend of his got in a bar fight with three other guys. The three other guys were knifed in the fight. You know that Far Side cartoon with the bear in the cross-hairs pointing at the bear next to him? That was Lloyd’s friend. There was considerable evidence that pointed to Lloyd’s friend as the stabber, but he told the police that Lloyd had confessed to him that “I stabbed those guys.” The defense sought a blood spatter expert to assist the defense in understanding how some of the victims’ blood stains had gotten on Lloyd’s shirt. The military judge denied the request.
According to the majority, the defense didn’t make a sufficient case at trial to require the production of the expert. According to the dissent, which repeatedly cited Article 46, the defense did.
I’m an evangalist for the Gospel of Article 46, so my take on Lloyd may seem heretical. But here goes.
I found myself nodding along with Chief Judge Effron’s dissent, which made an extremely strong case for why expert assistance was necessary in this case. But here’s my heretical thought: why didn’t the defense counsel have Lloyd hire a blood spatter expert? For the very reasons that Chief Judge Effron articulated, it seemed to be really important to the defense’s case to have a blood spatter expert opine whether the physical evidence was more consistent with Lloyd having been the stabber or Lloyd’s friend having wielded the knife. Had this been a trial in civilian court, Lloyd wouldn’t have had an Ake v. Oklahoma right to a government-funded blood spatter expert, since he’s an E-4 and therefore isn’t indigent. Had Lloyd hired a blood spatter expert for an initial consultation and found that the expert’s analysis would be helpful, the defense counsel could have then made a compelling case for the expert (or an adequate substitute with the same opinion) to be hired at government expense as an expert witness for the defense.
Of course, it’s possible that the defense counsel in this case did have Lloyd retain a private blood spatter expert whose analysis wasn’t helpful to the defense. If so, we’ll never know that. But I do wonder whether military defense counsel are sometimes too shy about asking their clients to pay for expert assistance. Paying a blood spatter expert for a consultation in this case would have been far less costly than being convicted, locked up for a year, and then booted out of the Air Force with a BCD — especially if it was the grinning bear next to Lloyd who actually knifed the three guys in the bar.