The recent intoxication manslaughter trial in Houston of District Court Judge Pat Shelton's daughter highlighted the myth of equal justice for all. Defendants who can afford to hire excellent attorneys can also afford to hire the best expert witnesses that money can buy. Unfortunately though, most defendants cannot afford a good attorney or an expert witness.
The indigent are provided either with a court appointed attorney or with a public defender, depending on which system a jurisdiction employs. Some court appointed attorneys are so inept that, were it not for such appointments, they would not be able to earn a living as lawyers. Except in capital cases, the chances of a poor defendant getting a court appointed attorney who is really competent are slim. And the poor have almost no chance of obtaining expert witness testimony in their behalf.
A public defender's office, which is funded and staffed the same as a district attorney's office, usually provides the indigent with a much better defense than that provided by court appointed attorneys. The public defender's office will have investigators on its staff and will have funds for hiring expert witnesses to rebut the testimony of experts hired by the prosecution.
Expert witnesses have been called "hired guns" because their expertise is for sale. In preparation for both criminal and civil trials, attorneys can obtain published lists of expert witnesses who will testify favorably for one side or the other. Some of these mercenaries will testify for either side, depending on which side offers them the most money.
The published lists include experts in structural engineering, chemistry, physics, income loss, long-term care costs, accident reconstruction, forensic science and for every medical specialty. These experts can command more than $400 per hour for time spent on case preparation and on the witness stand, plus expenses for travel, lodging and meals. Those expenses can add up because these mercenaries will not be staying at Motel 6 or eating at Burger King.
Mental health experts are the showpieces of a corrupt mercenary expert witness system. When Sirhan Sirhan was tried for the assassination of Robert F. Kennedy, several psychiatrists and psychologists testified for each side. The prosecution's experts claimed the defendant was sane, while the defense's experts testified that he was not sane. Due to the conflicting testimony, the jurors took the unprecedented step of insisting that the trial record reflected their disgust with the psychiatric testimony which they considered to be absolutely worthless.
The Andrea Yates and Deanna Laney cases are excellent examples of psychiatric shenanigans. Yates drowned her five children in a bathtub in their Houston home. Laney bludgeoned her children with a stone, killing two sons and critically injuring a third in their New Chapel Hill home near Tyler, Texas. Both mothers had a long history of psychotic episodes prior to the murders, and both reported the killings by calling 911.
In the Yates case, the prosecution used the testimony of Park Dietz, a California psychiatrist who had not practiced psychiatry for 25 years and who earned his living entirely by testfying as an expert for the state. Dr. Dietz testified that Yates was sane because she knew the differnce between right and wrong. In the Laney case, he testified that the defendant was "crazy" because she could not tell the difference between right and wrong.
Yates claimed that the Devil told her to kill the children. Laney claimed that God had told her to do it. Apparently, Dr. Dietz believes you are sane if the Devil tells you to kill your children, but you are crazy if God tells you to kill them. Dietz was paid a total of $142,000 for his work in the two Yates trials.
In the second Yates trial, the prosecution also relied on Michael Weiner, a New York psychiatrist. Allegedly, Dr. Weiner first approached the defense and offered to testify that Yates was not sane. When the defense did not meet his price, he turned to the prosecution which, unaware of his overtures to the defense, accepted his offer to testify that Yates knew the drownings were wrong and that she was motivated to kill her children for selfish needs. Weiner's consulting group was paid $243,000.
Psycho babblers aside, Judge Shelton's daughter Elizabeth was accused of killing the passenger in her Lexus SUV by crashing into the back of a truck while driving on a freeway with a blood alcohol level more than three times the legal limit. During her trial, an accident reconstruction expert hired by the defense testified that intoxication played no part in the crash because the truck driver caused the collision by drifting over into Shelton's lane. The accident reconstruciton expert hired by the prosecution testified that the truck driver had not moved into her lane.
Is there a way that we can level the playing field between wealthy and poor defendants in the criminal justice system? For the poor, court appointed attorneys would have to be replaced with an adequately funded public defender's office. And then, a radical change would have to be made in the way expert witnesses are selected.
A novel approach would require legislation to establish a state pool of recognized experts who are willing to serve if called upon to testify in a criminal trial. Those experts could come from anywhere in the United States and Canada. They would be chosen by a state commission headed by the Attorney General. The other commissioners could be selected by a committee of the State Bar to include a retired felony trial judge, a District Attorney, and a Public Defender or prominent defense attorney.
The experts in the pool would be paid a generous annual retainer by the state. Their travel, lodging and meal expenses would be paid for by the court in which they testified. They would receive no additional compensation for their work. While neither the prosecustion nor the defense would be permitted to employ their own expert witnesses, they would have the right to cross-examine any court appointed experts.
A selection from the pool will be made during a pre-trial hearing if the trial judge determines that an outside expert is needed to clarify questionable evidential issues, laboratory analyses, or the mental state of the defendant. He would select the appropriate expert or experts, subject to the approval of both the prosecution and the defense. If the judge makes no such determination, either side could request the appointment of an expert witness from the state pool. The trial would not start until the expert was ready to testify as to the issue in question.
The court's selection of a neutral expert from the state pool would free a jury from having to decide which conflicting expert testimony to believe. A jury should not be placed in the position of having to decide the sanity of a defendant based on the contadictory testimony of psychiatrists or psychologists. Nor should a jury of lay persons be subjected to conflicting scientific or technical testimony from experts paid by one side or the other.
There can be no equal justice for all when the poor are deprived of competent cousel and while the availability of expert witnesses remains beyond their reach. To achieve the goal of equal justice, we must start by running the "hired guns" out of the the criminal justice system and by ensuring that each defendant will obtain the services of a good attorney.
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