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.

20 Responses to “My heretical take on Lloyd”

  1. Anonymous says:

    Depends, isn’t the defense counsel’s dilemma that was laid out by Erdmann in Bresnahan that if the DC shows they know too much about the area then they don’t get an expert either?

    They get the blood splatter expert to explain all the ways he would help, they present a wonderfully specific and knowledgeable argument/presentation, and then are told, clearly you understand this just fine, why do you need an expert?

    Also, did they request an expert consultant or an expert witness or did they specifically request testing? That makes a difference too.

    I’d also quibble that an E-4 isn’t indigent for the purposes of hiring expert assistance in a felony trial.

  2. Anonymous says:

    I’ve actually been extremely lucky and never had an expert denied, but I don’t think that I’d be shy to tell my client they had the option to pay for an expert themselves.

  3. Dwight Sullivan says:

    Lloyd was tried in Montana. It looks like a defendant in Montana isn’t considered indigent if he or she earns more than $14,03. The base pay of the lowest paid E-4 in the military is $22,676 a year. Montana certainly isn’t going to hire an expert for a criminal defendant who earns at least $22,676, plus allowances. I’d be surprised if any state would.

  4. Dwight Sullivan says:

    Plus, if the defense can establish the necessity of a witness, the military judge can’t tell the DC that he or she can do it without help, since the DC can’t testify.

  5. Dwight Sullivan says:

    The AFCCA opinion makes clear that the defense had requested the bloodspatter expert as a consultant.

    http://afcca.law.af.mil/content/afcca_opinions/cp/lloyd-37220.u.pdf

  6. Anonymous says:

    The AFCCA opinion makes clear that the defense had requested the bloodspatter expert as a consultant.http://afcca.law.af.mil/content/afcca_opinions/cp/lloyd-37220.u.pdf

    If the expert was going to be requested as a consultant, then it again makes me think that the dilemma would have been an issue in this case. They hire the expert and give a strong, informed argument for needing an expert, and are told, you clearly understand this, why do you need an expert?

    Denied. See Bresnahan.

  7. John O'Connor says:

    My goodness, Dwight has gone rogue. Welcome aboard.

  8. jerkmanistan says:

    can’t help but think that there is a principle of gravity at play here regarding the offense charged vs the outlay of government resources.

    if someone had died I have no doubt he gets 3 votes at CAAF for the expert.

  9. Dwight Sullivan says:

    Why does the DC need an expert? To testify.

  10. JimmyMac says:

    First lesson as a TC – Never undeerestimate the wiley DC.
    First lesson as a DC – It’s pretty easy to outsmart the government because they always underestimate you….
    And I am glad to see Dwight tipped the tactical hand. More than once while serving as a wiley DC, I had my client pay for some test or expert analysis. When it came back “negative”, I went ahead and made the request for assistance knowing both the government and court deny the request. But guess what that does? Yep, tees up an appellate issue….
    Lesson Learned for TC – Don’t creat appellate issues.

  11. Anonymous says:

    MJ: Defense, any evidence?
    DC: Yes your honor, I call myself to testify.
    TC: We object, he didn’t submit a witness request.
    MJ: TC, go back to sleep. I’m not sure that’s advisable counsel for you to testify. Can you give me a proffer.
    DC: Well judge, prior to trial I asked for an expert to assist me. That was denied. You also denied my motion on that. And I do anticipate the appellate courts will say you didn’t abuse your discretion. As I understand it the reason for the denial is that I have followed the law and done the appropriate self-education. In fact I’ve done it so well that I could qualify under Military Rule of Evidence 701 and 702. So, what the NCIS agent examiner testified to is blather, drivel, and wrong. I intend testifying to the members to those facts.
    MJ: Huuuuum, let me take that under advisement.

  12. Anonymous says:

    So you think then that simply asking for the expert as a witness rather than a consultant would have changed the ruling?

    I don’t know, it’s pretty standard to ask for a consultant first. After consultation, then you know whether or not you will use him as a witness.

    We all know the reasons why. Not sure it makes since to possibly gift a negative witness to the government. I also don’t think we should require an accused to pay for an expert consultant before the defense can determine whether to ask the government to pay for the consultant as a witness.

  13. John Baker says:

    Amen brother, I join you in the Gospel of Article 46 (indeed you converted me about 18 months ago) and I teach my counsel that they have to do alot of work to take advantage of Article 46 through self education, calling other counsel, and spending time talking to experts to build a good record to get assistance. Many experts will write a letter explaining exactly what they will do and why the lawyer can’t and, if the case is worth it to them — they’ll testify telephonically at no charge to explain all this to the MJ. I also agree with you that there are cases and this seems like one, where the client should should spend some $$ for some expert consultation or to hire an investigator when the judge blows it on the consultation motion. If the consultant the client paid can give you favorable stuff, getting the MJ to later approve an expert witness is a snap.

  14. Weirick says:

    I would have been more than happy to serve as an expert for the defense.

    – Mr. Phillip Mills

  15. Anonymous says:

    It’s all about fairness. The govt gets to consult any expert they want, who then can testify for them or recommend a different expert for testifying. They just merely put the expert they want on their witness list. The accused, already outmanned and with less cash, has to lay out for the court and the govt their entire strategy wrt their proposed expert. Then, when the govt/mj denies the request, the govt is able to present a stronger case to the members, having heard where some weaknesses in their case may be. That’s military (in)justice for ya, I guess.

  16. Curious says:

    It will pain Dwight Sullivan to hear that Don Rumsfeld would lend support to the defense when Rumsfeld said “you don’t know what you don’t know.” When an opinion starts out with “The question of who stabbed the three airmen was the central issue” at the court-martial and the defense requested expert assistance that would assist in answering that question, you would expect a defense-favorable result. But I guess more disturbing is that the Court’s conclusion seems to rest on the failure of the defense to add a one-liner to the request, “The expert will be able to assist in determining whether the accused or another was the assailant.” I thought that was painfully obvious from the request though those exact words were not used. So, is the Lloyd majority instructive only on the need to articulate the obvious assistance the expert might provide even though a fair reading of the request would lead the judge to an obvious need for the expert?

  17. Dew_Process says:

    Let me toss out some more heresy, although I do agree with Mr. Baker’s analysis. Lloyd was the “victim” of an inexperienced defense counsel. First, probably most forensic experts will gladly supply a letter / Affidavit as to how specifically their expertise can assist the defense – blood spatter analysis is a combination of fluid mechanics and newtonian physics, something that most lawyers and judges know virtually nothing about. Furthermore, I must assume that the Defense did not make an alternative request for a government blood spatter expert. USACIL has a pretty good one that I’ve used to the prosecution’s consternation.

    Lastly, most military defense counsel have virtually no knowledge or experience with the law of “indigency,” which is complex [meaning, more than just your annual income], but can be often used to the client’s advantage. For example, had Lloyd’s counsel submitted an Affidavit from him saying that I’m functionally indigent, I earn X dollars per month, pay Y in child support, rent, car payments, etc., and cannot afford to retain my own expert(s) as can the government, Military Judge’s I have found, don’t like going down that road, simply because they themselves are unsure of the law.

    Lastly, there is a perverse perception among young military defense counsel that it is somehow “off limits” to discuss “money” issues with your client. If after the CA and MJ have denied your request for an expert/consultant, you don’t sit down with your client and say, “hey dude, if you didn’t stab Joe, then we REALLY need a blood spatter expert, so get with your family and friends and come up with the cash so we can retain one,” your “effectiveness” as a defense counsel is dubious.

    Pontificate as we may [one of the purposes of the CAAFlog I guess], if Lloyd didn’t stab the dude, a gross injustice was perpetrated, to the collective detriment of the military justice system.

  18. W says:

    I have heard similar before. But as a wiley TC – I’ll take your playing for appellate issues over winning at trial any day…

  19. W says:

    However, don’t misconstrue my comment. I’m also unlikely to recommend against giving you your expert iot avoid this whole thing – it’s just I don’t agree with those DC who play the long game…

  20. W says:

    Please don’t misconstrue my comment – I’m also likely to just give you your expert anyway iot avoid all this mess. I just don’t like the notion of playing the long game…