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Copyright 2016 Carolina Academic Press, LLC. All rights reserved.CASES & PROBLEMS IN CRIMINAL PROCEDURE:THE COURTROOM2015 SUPPLEMENTMyron MoskovitzProfessor of Law EmeritusGolden Gate University

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.LexisNexis Law School PublishingAdvisory BoardPaul CaronProfessor of LawPepperdine University School of LawBridgette CarrClinical Professor of LawUniversity of Michigan Law SchoolSteven I. FriedlandProfessor of Law and Senior ScholarElon University School of LawCarole GoldbergJonathan D. Varat Distinguished Professor of LawUCLA School of LawOliver GoodenoughProfessor of LawVermont Law SchoolJohn SpranklingDistinguished Professor of LawMcGeorge School of Lawii

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.This publication is designed to provide accurate and authoritative information in regard to thesubject matter covered. It is sold with the understanding that the publisher is not engaged inrendering legal, accounting, or other professional services. If legal advice or other expert assistanceis required, the services of a competent professional should be sought.LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc.,used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.Copyright 2015 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All RightsReserved.No copyright is claimed in the text of statutes, regulations, and excerpts from court opinions quotedwithin this work. Permission to copy material exceeding fair use, 17 U.S.C. § 107, may be licensedfor a fee of 25 per page per copy from the Copyright Clearance Center, 222 Rosewood Drive,Danvers, Mass. 01923, telephone (978) 750-8400.NOTE TO USERSTo ensure that you are using the latest materials available in this area, please be sureto periodically check the LexisNexis Law School website for downloadable updatesand supplements at Offices121 Chanlon Road, New Providence, NJ 07974201 Mission St., San Francisco, CA 94105-1831 (415) 908-3200www.lexisnexis.comiii(Pub. 43)

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.Table of ContentsCHAPTER 14: THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL .21

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.CHAPTER 14: THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSELHINTON v. ALABAMAU.S. Supreme Court, 2014134 S.Ct. 1081PER CURIAM.In Strickland v. Washington, 466 U.S. 668 (1984), we held that a criminal defendant'sSixth Amendment right to counsel is violated if his trial attorney's performance falls below anobjective standard of reasonableness and if there is a reasonable probability that the result of thetrial would have been different absent the deficient act or omission. Anthony Ray Hinton, aninmate on Alabama's death row, asks us to decide whether the Alabama courts correctly appliedStrickland to his case. We conclude that they did not and hold that Hinton's trial attorneyrendered constitutionally deficient performance. We vacate the lower court's judgment andremand the case for reconsideration of whether the attorney's deficient performance wasprejudicial.IAIn February 1985, a restaurant manager in Birmingham was shot to death in the course ofan after-hours robbery of his restaurant. A second manager was murdered during a very similarrobbery of another restaurant in July. Then, later in July, a restaurant manager namedSmotherman survived another similar robbery-shooting. During each crime, the robber fired two.38 caliber bullets; all six bullets were recovered by police investigators. Smotherman describedhis assailant to the police, and when the police showed him a photographic array, he picked outHinton's picture.The police arrested Hinton and recovered from his house a .38 caliber revolver belongingto his mother, who shared the house with him. After analyzing the six bullets fired during thethree crimes and test-firing the revolver, examiners at the State's Department of ForensicSciences concluded that the six bullets had all been fired from the same gun: the revolver foundat Hinton's house. Hinton was charged with two counts of capital murder for the killings duringthe first two robberies. He was not charged in connection with the third robbery (that is, theSmotherman robbery).At trial, the State's strategy was to link Hinton to the Smotherman robbery througheyewitness testimony and forensic evidence about the bullets fired at Smotherman and then topersuade the jury that, in light of the similarity of the three crimes and forensic analysis of thebullets and the Hinton revolver, Hinton must also have committed the two murders. Smothermanidentified Hinton as the man who robbed his restaurant and tried to kill him, and two otherwitnesses provided testimony that tended to link Hinton to the Smotherman robbery. Hintonmaintained that he was innocent and that Smotherman had misidentified him. In support of that2

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.defense, Hinton presented witnesses who testified in support of his alibi that he was at work at awarehouse at the time of the Smotherman robbery.The six bullets and the revolver were the only physical evidence. Besides those items, thepolice found no evidence at the crime scenes that could be used to identify the perpetrator (suchas fingerprints) and no incriminating evidence at Hinton's home or in his car. The State's caseturned on whether its expert witnesses could convince the jury that the six recovered bullets hadindeed been fired from the Hinton revolver. According to the Alabama Supreme Court, “the onlyevidence linking Hinton to the two murders were forensic comparisons of the bullets recoveredfrom those crime scenes to the Hinton revolver.”The category of forensic evidence at issue in this case is “firearms and toolmark”evidence. Toolmark examiners attempt to determine whether a bullet recovered from a crimescene was fired from a particular gun by comparing microscopic markings (toolmarks) on therecovered bullet to the markings on a bullet known to have been fired from that gun. The theoryis that minor differences even between guns of the same model will leave discernible traces onbullets that are unique enough for an examiner to conclude that the recovered bullet was or wasnot fired from a given weapon. See generally National Research Council, Strengthening ForensicScience in the United States: A Path Forward 150–155 (2009).Recognizing that Hinton's defense called for an effective rebuttal of the State's expertwitnesses, Hinton's attorney filed a motion for funding to hire an expert witness of his own. Inresponse, the trial judge granted 1,000 with this statement:I don't know as to what my limitations are as for how much I can grant, but I cangrant up to 500.00 in each case [that is, for each of the two murder charges, which weretried together] as far as I know right now and I'm granting up to 500.00 in each of thesetwo cases for this. So if you need additional experts I would go ahead and file on aseparate form and I'll have to see if I can grant additional experts, but I am granting up to 500.00, which is the statutory maximum as far as I know on this and if it's necessary thatwe go beyond that then I may check to see if we can, but this one's granted.Hinton's attorney did not take the judge up on his invitation to file a request for morefunding.In fact, 500 per case ( 1,000 total) was not the statutory maximum at the time ofHinton's trial. An earlier version of the statute had limited state reimbursement of expenses toone half of the 1,000 statutory cap on attorney's fees, which explains why the judge believedthat Hinton was entitled to up to 500 for each of the two murder charges. But the relevantstatute had been amended to provide: “Counsel shall also be entitled to be reimbursed for anyexpenses reasonably incurred in such defense to be approved in advance by the trial court."Ala.Code § 15–12–21(d) That amendment went into effect on June 13, 1984, which was over ayear before Hinton was arrested, so Hinton's trial attorney could have corrected the trial judge'smistaken belief that a 1,000 limit applied and accepted his invitation to file a motion foradditional funds.3

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.The attorney failed to do so because he was himself unaware that Alabama law no longerimposed a specific limit and instead allowed reimbursement for “any expenses reasonablyincurred.” At an evidentiary hearing held on Hinton's postconviction petition, the followingconversation occurred between a state attorney and Hinton's trial attorney:“Q. You did an awful lot of work to try and find what you believed to be a qualifiedexpert in this case, didn't you?“A. Yes, sir, I did.“Q. Would you characterize it that you did everything that you knew to do?“A. Yes, sir, I think so.“Q. And this case, did it come down to an unwillingness of experts to work for the pricethat you were able to pay?“A. Yes, sir, I think it did.“Q. So your failure to get an expert that you would have been let's say a hundred percentsatisfied with was not a failure on your part to go out and do some act, it was a failure ofthe court to approve what you believed would have been sufficient funds?“A. Well, putting it a little differently, yes, sir, it was a failure—it was my failure, myinability under the statute to obtain any more funding for the purpose of hiring qualifiedexperts.”Operating under the mistaken belief that he could pay no more than 1,000, Hinton'sattorney went looking for an expert witness. According to his postconviction testimony, he madean extensive search for a well-regarded expert, but found only one person who was willing totake the case for the pay he could offer: Andrew Payne. Hinton's attorney “testified that Paynedid not have the expertise he thought he needed and that he did not consider Payne's testimony tobe effective.” As he told the trial judge during a pretrial hearing:I made an effort to get somebody that I thought would be useable. And I'll have totell you what I did [about] Payne. I called a couple of other lawyers in town . to ask ifthey knew of anybody. One of them knew him; one of them knew him. The reason Ididn't contact him was because he wasn't recommended by the lawyer. So now I'm stuckthat he's the only guy I could possibly produce.At trial, Payne testified that the toolmarks in the barrel of the Hinton revolver had beencorroded away so that it would be impossible to say with certainty whether a particular bullet hadbeen fired from that gun. He also testified that the bullets from the three crime scenes did notmatch one another. The State's two experts, by contrast, maintained that all six bullets had indeedbeen fired from the Hinton revolver.On cross-examination, the prosecutor badly discredited Payne. Payne admitted that he'dtestified as an expert on firearms and toolmark identification just twice in the preceding eightyears and that one of the two cases involved a shotgun rather than a handgun. Payne alsoconceded that he had had difficulty operating the microscope at the state forensic laboratory andhad asked for help from one of the state experts. The prosecutor ended the cross-examinationwith this colloquy:4

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.“Q. Mr. Payne, do you have some problem with your vision?“A. Why, yes.“Q. How many eyes do you have?“A. One.”The prosecutor's closing argument highlighted the fact that Payne's expertise was inmilitary ordnance, not firearms and toolmark identification, and that Payne had graduated in1933 (more than half a century before the trial) with a degree in civil engineering, whereas theState's experts had years of training and experience in the field of firearms and toolmarkexamination. The prosecutor said:I ask you to reject Payne's testimony and you have that option because you are thejudges of the facts and whose testimony, Mr. Yates' or Mr. Payne's, you will givecredence to, and I submit to you that as between these two men there is no match betweenthem. There is no comparison. One man just doesn't have it and the other does it day inand day out, month in and month out, year in and year out, and is recognized across thestate as an expert.The jury convicted Hinton and recommended by a 10–to–2 vote that he be sentenced todeath. The trial judge accepted that recommendation and imposed a death sentence.BIn his state postconviction petition, Hinton contended that his trial attorney was“ineffective to not seek additional funds when it became obvious that the individual willing toexamine the evidence in the case for the 1,000 allotted by the court was incompetent andunqualified. Indeed, this failure to seek additional, sufficient funds is rendered all the moreinexplicable by the trial court's express invitation to counsel to seek more funds if such fundswere necessary.”To show that he had been prejudiced by Payne's ineffective testimony, Hinton producedthree new experts on toolmark evidence. One of the three, a forensic consultant named JohnDillon, had worked on toolmark identification at the Federal Bureau of Investigation's forensicslaboratory and, from 1988 until he retired in 1994, had served as chief of the firearms andtoolmark unit at the FBI's headquarters. The other two postconviction experts had worked formany years as firearms and toolmark examiners at the Dallas County Crime Laboratory and hadeach testified as toolmark experts in several hundred cases.All three experts examined the physical evidence and testified that they could notconclude that any of the six bullets had been fired from the Hinton revolver. The State did notsubmit rebuttal evidence during the postconviction hearing, and one of Hinton's experts testifiedthat, pursuant to the ethics code of his trade organization, the Association of Firearm and ToolMark Examiners, he had asked the State's expert, Yates, to show him how he had determined thatthe recovered bullets had been fired from the Hinton revolver. Yates refused to cooperate.C5

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.The circuit court denied Hinton's postconviction petition on the ground that Hinton hadnot been prejudiced by Payne's allegedly poor performance because Payne's testimony did notdepart from what Hinton's postconviction experts had said: The bullets could not be affirmativelymatched either to one another or to the Hinton revolver.The Alabama Court of Criminal Appeals affirmed by a 3–to–2 vote. The court agreedwith the circuit court that Hinton had not been prejudiced because Payne's testimony, if believedby the jury, strongly supported the inference that Hinton was innocent. Then–Judge Cobb (wholater became chief justice of the Alabama Supreme Court) dissented. In her view, Hinton'sattorney had been ineffective in failing to seek additional funds to hire a better expert and Hintonhad been prejudiced by that failure, meaning that he was entitled to a new trial. Then–JudgeShaw (who is now a justice of the Alabama Supreme Court) also dissented. He would haveremanded the case to the circuit court to make a finding as to whether or not Payne was qualifiedto act as an expert on toolmark evidence. He stated that “it goes without saying that, withknowledge that sufficient funds were available to have a qualified firearms and toolmarks expert,no reasonable criminal defense lawyer would seek out and hire an unqualified firearms witness.”The Supreme Court of Alabama reversed and remanded. After quoting at length fromJudge Shaw's dissent, the Court stated, “We agree with Judge Shaw that ‘the dispositive issue iswhether Payne was a qualified firearms and toolmarks expert’ and that in denying Hinton'spostconviction petition the trial court did not directly rule on ‘the issue whether Payne wasqualified to be testifying in the first place.’ The Supreme Court was thus focused on Payne's ownqualifications, rather than on whether a better expert — one who could have been hired had theattorney learned that there was no funding cap and requested additional funds — would havemade a more compelling case for Hinton.On remand, the circuit court held that Payne was indeed qualified to testify as a firearmsand toolmark expert witness under the Alabama evidentiary standard in place at the time of thetrial, which required only that Payne have had “knowledge of firearms and toolmarksexamination beyond that of an average layperson.” The appellate court affirmed the circuitcourt's ruling that Payne was qualified under the applicable standard. The Alabama SupremeCourt denied review by a 4–to–3 vote, with two justices recused. Hinton then filed this petitionfor a writ of certiorari.IIThis case calls for a straightforward application of our ineffective-assistance-of-counselprecedents, beginning with Strickland. Strickland recognized that the Sixth Amendment'sguarantee that “in all criminal prosecutions, the accused shall enjoy the right . to have theAssistance of Counsel for his defence” entails that defendants are entitled to be represented by anattorney who meets at least a minimal standard of competence. Under Strickland, we firstdetermine whether counsel's representation ‘fell below an objective standard of reasonableness.’Then we ask whether ‘there is a reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different.6

Copyright 2016 Carolina Academic Press, LLC. All rights reserved.AThe first prong — constitutional deficiency — is necessarily linked to the practice andexpectations of the legal community: The proper measure of attorney performance remainssimply reasonableness under prevailing professional norms. In any case presenting anineffectiveness claim, the performance inquiry must be whether counsel's assistance wasreasonable considering all the circumstances. Under that standard, it was unreasonable forHinton's lawyer to fail to seek additional funds to hire an expert where that failure was based noton any strategic choice but on a mistaken belief that available funding was capped at 1,000.Criminal cases will arise where the only reasonable and available defense strategyrequires consultation with experts or introduction of expert evidence. This was such a case. AsHinton's trial attorney recognized, the core of the prosecution's case was the state experts'conclusion that the six bullets had been fired from the Hinton revolver, and effectively rebuttingthat case required a competent expert on the defense side. Hinton's attorney also recognized thatPayne was not a good expert, at least with respect to toolmark evidence. Nonetheless, he felt hewas “stuck” with Payne because he could not find a better expert willing to work for 1,000 andhe believed that he was unable to obtain more than 1,000 to cover expert fees.As discussed above, that belief was wrong: Alabama law in effect beginning more than ayear before Hinton was arrested provided for state reimbursement of “any expenses reasonablyincurred in such defense to be approved in advance by the trial court.” Ala.Code § 15–12–21(d).And the trial judge expressly invited Hinton's attorney to file a request for further funds if he feltthat more funding was necessary. Yet the attorney did not seek further funding.The trial attorney's failure to request additional funding in order to replace an expert heknew to be inadequate because he mistakenly believed that he had received all he could getunder Alabama law constituted deficient performance. Under Strickland, “strategic choices madeafter thorough investigation of law and facts relevant to plausible options are virtuallyunchallengeable; and strategic choices made after less than complete investigation are reasonableprecisely to

In fact, 500 per case ( 1,000 total) was not the statutory maximum at the time of Hinton's trial. An earlier version of the statute had limited state reimbursement of expenses to one half of the 1,000 statutory cap on attorney's fees, which explains why the judge believed that Hinton was entitled to up to 500 for each of the two murder charges.

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