Lawyer erred by not calling psychologist, Missouri appellate court holds

from Forensic Psychologist Blog

180-year sentence overturned over lack of mental health testimony

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.

ABA Resolution regarding expert testimony

Urges Judges’ Consideration Presenting Expert Testimony to Jurors

RESOLVED, That the American Bar Association urges judges and lawyers to consider the following factors in determining the manner in which expert testimony should be presented to a jury and in  instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings:

1.      Whether experts can identify and explain the theoretical and factual basis for any opinion given in their testimony and the reasoning upon which the opinion is based.

2.      Whether experts use clear and consistent terminology in presenting their opinions.

3.      Whether experts present their testimony in a manner that accurately and fairly conveys the significance of their conclusions, including any relevant limitations of the methodology used.

4.      Whether experts explain the reliability of evidence and fairly address problems with evidence including relevant evidence of laboratory error, contamination, or sample mishandling.

5.      Whether expert testimony of individuality or uniqueness is based on valid scientific research.

6.      Whether the court should prohibit the parties from tendering witnesses as experts and should refrain from declaring witnesses to be experts in the presence of the jury.

7.      Whether to include in jury instructions additional specific factors that might be especially important to a jury’s ability to fairly assess the reliability of and weight to be given expert testimony on particular issues in the case.

Proposed Resolution and Report

Resolution

Featured Case - Lukjan

Court of Appeals, 2010-CA-001509-MR

Susan Lukjan v. Commonwealth

Audra J. Eckerle, Judge, Jefferson County

To be Published Opinion, Reversing and Remanding

** ** ** ** **

Before: Taylor, Chief Judge; Acree and Vanmeter, Judges.

Opinion by Judge Acree

Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300, and sentenced to twelve years.  The COA reversed the conviction, and remanded for a new trial. Lukjan was denied a defense when the circuit court refused to allow the defense arson expert to testify on the ground that he wasn’t a licensed investigator as required by KRS 329A.015 and KRS 329A.010 (prohibiting an individual from holding himself out to the public as a private investigator).  On remand, the circuit court must judge Lukjan’s proffered experts based on KRE 702 and caselaw. Under those standards, licensure is not necessary to qualify as an expert, though it may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.

 The COA also reversed the circuit court’s decision to admit the prosecution’s arson opinion evidence without either an adequate Daubert hearing, specifically without examining “the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence.”

Practice note:    Consider carefully what is contained in the “certified business record” you are trying to get admitted.  The COA held that a lightning strike report wasn’t admissible as a business record under KRE 902(11), because the certification said the data was “detected and recorded by National Lightning Detection Network Sensors, and processed by “[h]ighly refined algorithms[.]”  The COA held the proffered report appeared to be scientific evidence whose admissibility is governed by KRE 702 and not a business record “as contemplated by KRE 803(6) and KRE 902(11).”  If the record you are trying to get admitted was not made by a human being, you may need to subpoena the custodian. 

Contributed by Susan Balliet