Garbage In, Garbage Out: Revising Strickland as Applied to Forensic Science Evidence

• Jurisdiction: United States,Federal
• Publication year: 2018
• Citation: Vol. 34 No. 4

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence

Mark Loudon-Brown
Southern Center for Human Rights, mloudonbrown@schr.org

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GARBAGE IN, GARBAGE OUT: REVISING STRICKLAND AS APPLIED TO FORENSIC SCIENCE EVIDENCE

Mark Loudon-Brown^*

Introduction

As a public defender some years ago, I tried a case in which the prosecution sought to admit the results produced by a software program called the Forensic Statistical Tool, or "FST."¹ At the time, FST had recently been developed and put into use by the office of the Chief Medical Examiner (OCME) of New York City to analyze mixtures of DNA recovered from potentially incriminating evidence.² It was a new program, novel by my estimation, so I filed a motion requesting a Frye³ hearing to challenge the admissibility of the incriminating results produced by the software. The motion spanned some thirty pages, complete with exhibits that included various laboratory reports and articles regarding the OCME's proffered validation studies. I handed a courtesy copy of the relatively bulky motion to the judge one morning at the beginning of court. He denied the request without so much as turning the first page.

Unfortunately, this type of judicial reaction to an admissibility challenge is not uncommon. Judges routinely overrule admissibility challenges, as if to say, "once admissible, always admissible." As one practitioner has observed, "Even when the most vulnerable forensic sciences—hair microscopy, bite marks, and handwriting—are attacked, the courts routinely affirm admissibility citing earlier

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decisions rather than facts established at a hearing."⁴ A prominent federal judge and law school dean concurred in a piece that they coauthored:

[J]udges frequently rely on the experience of a forensic practitioner, and the long-standing use of a given technique, rather than focusing on the technique's scientific validity. . . . Therefore, even as many judges have come to recognize the weak scientific underpinnings of some methods, they continue to allow such testimony primarily because nearly all other judges have done so before.⁵

If sophisticated-sounding scientific evidence is an undesirable subject matter for a judge to tackle anew, it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when the lawyer reasonably believes that the evidence will be admitted regardless.⁶ Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds of other clients to assist, why invest the time and resources needed to comprehend a new scientific technique sufficiently to cross-examine an expert who has dedicated his or her career to learning the field?⁷ It is an

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intimidating endeavor. Defense challenges to forensic evidence, therefore, are often inconsequential at best or incompetent at worst.⁸

The appellate courts have not rectified this situation or the incentives it engenders. Admissibility decisions are reviewed for abuse of discretion.⁹ Claims of ineffective assistance of counsel (IAC) succeed only upon satisfaction of the highly deferential two-pronged standard announced in Strickland v. Washington.¹⁰ As one solution, I propose that when it comes to the admission of forensic science evidence against a criminal defendant at trial, the Strickland standard should be altered.

Once a reviewing court finds that an attorney performed deficiently in combating incriminating forensic science evidence, Strickland prejudice should be presumed. In other words, if a reviewing court has determined that trial counsel was deficient in his or her adversarial testing of incriminating forensic evidence, that court must reverse the conviction and order a new trial, lest defendants be deprived of their Sixth Amendment right to effective assistance of counsel and the integrity of convictions founded on forensic evidence be left in doubt. It should not matter whether, in the opinion of a court reading a cold record that was deficiently developed as far as the forensic science is concerned, the defendant was prejudiced by the deficiency.

A few benefits would flow from this revision. First, rather than allowing courts to bypass the deficiency prong in favor of finding no prejudice, the revision would require courts to address the deficiency question when incriminating forensic science evidence is at issue—if the court finds defense counsel's assistance sufficient, the inquiry

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ends; if not, the court, in reversing, thereby reiterates citable standards for defense counsel going forward. This, in turn, would act as an enforcement mechanism to ensure that the criminal defense bar performs consistently with what is constitutionally required of it in the future.

Second, presuming prejudice in the forensic science IAC context will more properly police trial courts that are inclined to treat challenges to forensic evidence hastily and help ensure the integrity of convictions based on forensic science. Rather than asking courts to undertake the nigh impossible task of deciphering how an effective challenge to sophisticated scientific evidence could hypothetically have altered the outcome of a case, the law would ensure that the science is effectively challenged in the first place.

I. The Foundation to Alter Strickland

In 1984, the United States Supreme Court, in Strickland v. Washington, held that to succeed on a claim of ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the deficiency prejudiced the defense.¹¹ The defendant must demonstrate both prongs; so, reviewing courts are permitted to skip right to the prejudice prong and find against a defendant on prejudice grounds, even if defense counsel was deficient.¹² In fact, the Strickland Court actually encouraged reviewing courts to bypass the deficiency prong if the prejudice prong is dispositive:

[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

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prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.¹³

By only engaging in a prejudice analysis and bypassing the deficiency question, as courts are wont to do under Strickland,¹⁴ reviewing courts neglect their duty to ensure the integrity of convictions based on forensic science evidence and to ensure the constitutional guarantee of effective assistance of counsel in such cases.

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Today, almost thirty-four years later, the Strickland standard still governs. Yet the Strickland Court articulated the standard before the advent of forensic DNA testing, before the emergence of electronically stored information as evidence in a criminal case, and years before disciplines long believed reliable—such as fingerprint, hair, toolmark, bitemark, and fire analysis, and even Shaken Baby Syndrome—were exposed as fraught with error.¹⁵ In a groundbreaking report issued in 2009, the National Research Council of the National Academies found that "no forensic method other than nuclear DNA analysis has been rigorously shown to have the capacity to consistently and with a high degree of certainty support conclusions about 'individualization' (more commonly known as 'matching' of an unknown item of evidence to a specific known source)."¹⁶ Since Strickland, the law governing the admissibility of forensic evidence has evolved,¹⁷ but Strickland has not.

In other contexts, however, the IAC inquiry operates differently. The Supreme Court has recognized that prejudice should be presumed,¹⁸ or the prejudice standard lowered,¹⁹ when addressing certain types of ineffectiveness claims. In Powell v. Alabama, the Court found that the defendant was denied effective assistance of counsel after his counsel was rushed to trial without time to prepare a defense in a publicized case, which deprived the defendant of "the right of counsel in any substantial sense."²⁰ Under those circumstances, "[n]either [counsel] nor the court could say what a prompt and thorough-going investigation might disclose as to the

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facts."²¹ Accordingly, prejudice was presumed, and the conviction was reversed.²²

Later, in Cuyler v. Sullivan, the Supreme Court held that to establish a Sixth Amendment violation based on the claim that the defendant's attorney was laboring under an actual conflict of interest, the defendant must show that the lawyer's performance was adversely affected.²³ "Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief."²⁴ In so holding, the Cuyler Court referred to Glasser v. United States,²⁵ where the Supreme Court observed that, "[t]o determine the precise degree of prejudice sustained . . . is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial."²⁶

Then, in United States v. Cronic,²⁷ decided the same day as Strickland, the Supreme Court reiterated that meaningful adversarial testing is an integral part of the constitutional right to effective assistance of counsel:

The right to the effective assistance of counsel is thus the

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