Mimesis Law
25 April 2019

Expert Witnesses, Knives, and Gunfights

Feb. 25, 2016 (Mimesis Law) — The Michigan Court of Appeals recently reversed the conviction of Thomas Agar for possession of child pornography. The case turned on the testimony of an expert witness, Detective Eric Stevens, who testified about the software he had used to identify the defendant’s IP address and the images on his computer. His defense attorney requested $1500 to hire an expert to independently evaluate the computer evidence, and was denied. The Court of Appeals held:

The trial court’s denial of defendant’s motion for funds to retain an expert was based on its finding that transferring information from one hard drive to another in the process of repairing a computer was a “fairly simple concept.” At the least, this was an oversimplification of the real issues in this case.

The prosecution’s presentation of an experienced expert witness who tends to inculpate defendant does not demonstrate, by itself, defendant’s guilt.

So everything worked out. The trial court made a mistake, but the appeals court corrected it, and Agar gets a new trial. The system worked, right?

Wrong.

To begin with, the decision is “unpublished,” meaning it has no precedential value. The next Agar who finds himself in this position can’t rely on this case to make the trial court cough up the money for an expert. More than that, take these other excerpts from the opinion:

The prosecution’s position was that defendant had not shown a sufficient “nexus between the facts of the case and the need for an expert” as required by People v Jacobsen. Further, the prosecution argued that defendant only wanted an expert because the prosecution had one and to grant defendant’s request would make all indigent requests for public funds for an expert automatically approved.

The prosecution also opposed the motion on the basis that defendant did not offer any evidence that the expert would yield any different results than its expert, Detective Stevens, and that the mere possibility that the expert may be of assistance to defendant was not enough to warrant appointment of an expert at public expense.

See the problem yet? Let’s consider a similar situation in a different context

Congress denied funding for the Air Force to purchase a new fighter jet, having been convinced by Russian General Interest Conflictov, who argued that the Air Force had not shown a nexus between new fighter jets and protecting NATO airspace. Conflictov further stated that the Air Force only wanted new jets because the Russian Air Force was getting them, and that if the Air Force got new planes than the Navy would want new ships and the Army would want new tanks. Gen. Conflictov also said that there wasn’t any evidence that the U.S. military could defeat the Red Army no matter how well armed. “Vhy bother?” said the general. “Mother Russia alvays vins anyvays!”

The problem is not the lack of money, per se. The problem is that the prosecutor and the judge have an effective veto over the defendant’s ability to, you know, defend himself.

This isn’t a case where a court-appointed attorney sleepwalked through a trial. The defense attorney admitted up front that he had done his best to educate himself, but he was not familiar with computer forensics. He needed someone to explain it to him, and possibly to the jury; someone who was not being paid to convict bad guys.

This is the second best reason for a public defender system (meaning, a mirror image of the prosecutor’s office with its own lawyers, staff and budget) as opposed to a court-appointed attorney system. The best one is the ability to train new attorneys and pass on institutional knowledge.

There are problems with this approach, since a public defender office can be starved of funds just as easily, and end up in a situation like the one in New Orleans. But even New Orleans illustrates the point. In a court-appointed system, what are the odds that individual attorneys could have come together and make a precipitous decision in order to force a change? And if individual attorneys go it alone, what are the odds that they’ll keep getting appointments from judges more interested in moving their docket than in justice?

Is there any other competitive arena where this sort of thing would be acceptable? Does Hillary get to argue Bernie’s campaign schedule at the Federal Election Commission? Does Jim Harbaugh get to dispute Urban Meyer’s playbook at the Big Ten? The battle between the prosecution and the defense is supposed to be fair fight. Without a truly independent defense, financial and otherwise, it just isn’t possible.

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