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Can I get a [expert] witness?

There are two basic approaches to writing an appellate brief.  One is to winnow down the issues to those you believe have some reasonable chance of success.  The other is throw every possible allegation in there, hoping that one will stick.  I've always been an advocate of the first approach, and I've gotten feedback from appellate law clerks and even judges that the second approach is frowned upon.  But several lawyers have been quite successful doing it, and there's no empirical evidence I know of to support either method.

One of the problems with the second approach is that it makes my job harder, because the resulting opinions are usually much longer, as evidenced by the 8th District's decision a couple weeks back in State v. Bolton, which addressed XIV -- whoops, fourteen -- assignments of error and clocked in at a healthy 43 pages.  But it also sometimes results in a legitimate issue getting buried, and that's what might have happened in Bolton.

Bolton was convicted of rape, kidnapping, and gross sexual imposition for an incident that happened in 2003 when, four years later, the DNA database turned up a match with the semen found in the victim.  That provides the basis for the very first assignment of error, which focuses on how Bolton's DNA was collected.  That happened when Bolton was incarcerated for unrelated charges; RC 2901.07 required DNA testing of anyone convicted of a felony offense or certain misdemeanors. 

There are some interesting 4th Amendment issues here.  Five years ago, I wrote about a decision by a US District judge upholding the objection of a man convicted of social security fraud to being compelled to give a DNA sample for storage in the database.  The Ohio statute's been since amended to allow collecting a sample from anyone arrested for a felony, and there's a case pending before the Ohio Supreme Court on whether the state can retain the sample if the defendant is subsequently acquitted.  But while the issues are interesting, they're not unresolved; the Massachusetts case was reversed, and virtually every court which has considered the issue has upheld DNA collection, holding that an arrested person has no more basis to object to that than he does to having his fingerprints taken.  So Assignment I goes down the tubes.

Assignment II quickly follows it.  Bolton argues that the court should've dismissed the case for undue delay in prosecuting it.  This isn't a speedy trial argument -- the right to speedy trial doesn't click in until you've actually been charged with a crime -- but the Supreme Court has held that an undue delay in bringing an indictment can be a due process violation.  The test for that is both simple and daunting:  the defendant has to first prove actual prejudice resulting from the delay, at which point it becomes the state's burden to justify the delay.  But the first step is extremely difficult, because it requires actual, not speculative, prejudice:  claiming that it's harder to find helpful defense witnesses now than it would've been back then doesn't make the cut.  Neither does Bolton's argument, which was that "he could have already served a substantial portion of his sentence had he been indicted and convicted earlier."

The "throw the mud against the wall and see what sticks" approach is evident in several other assignments, such as the claim that the trial court erred in failing to instruct the jury to make a determination whether the victim was left in a safe place unharmed, which would've reduced the kidnapping count to a 2nd degree felony.  The court spends a largely unnecessary two pages discussing the law on this before correctly concluding, "it is difficult indeed to imagine that one may engage in sexual activity with another against their will and still argue that such a person is left ‘unharmed.’”  Another assignment relating to jury instructions, that the trial court should have charged on the lesser offenses of sexual battery and abduction, have more meat on it but was rejected as well:  the difference between rape and sexual battery is that the former requires proof of force while the latter requires only proof of coercion.  While that might seem to be hair-splitting, here Bolton committed the crime at gunpoint, and that's about as clear evidence of force as you're likely to get.  Abduction is a bit of a closer call, but that one goes against Bolton, too.

As does just about everything else.  The claim that the prosecutor's statement in closing that "DNA evidence has exonerated people" was unfair goes nowhere:  it was prompted by the defense lawyer's attack on the DNA evidence and his contention in closing that there was only a 60% probability that Bolton had committed the crime, when the testimony of the State's expert was that the odds of someone else being the perpetrator was 1 in 1.481 trillion.  The fact that Bolton was acquitted of the firearm specifications but convicted of weapons disability doesn't create an inconsistency in the verdicts; in fact, the court acknowledges that the law permits such a conviction to be upheld "irrespective of its rational incompatibility with the acquittal."  Bolton claims that the sole evidence linking him to the crime, the DNA comparison, is insufficient, but the panel concludes that 1 in 1.481 trillion sounds pretty sufficient to them.

Bolton doesn't get shut out:  the court agrees that the kidnapping and gross sexual imposition charges should have merged, that he should've been classified as a Megan's Law offender rather than an Adam Walsh offender, and that the case has to be sent back for proper imposition of court costs, because the judge imposed costs in the entry but didn't say anything at the time of sentencing.

But let's go back to that sufficiency argument.  Basically, the court held that nothing more than a DNA test that shows a high probability that the defendant was the perpetrator -- 1.481 trillion is over 200 times the world's population -- is sufficient proof of guilt.  DNA wasn't merely critical to the case; it was dispositive.  And that's what the third assignment of error focused on:  the trial court denied the defense's motion for funds for an expert witness on DNA.

The key case on this is Ake v. Oklahoma, a 1985 decision holding that due process may require the provision of expert assistance to an indigent defendant.  But there's a big catch that's developed in the case law:  the defendant has the burden of "establishing the reasonableness of the request," which means that a defendant "at a minimum, must present the trial court with sufficient facts upon which the court can base a decision."  Here, Bolton made only the assertion that an independent review and intepretation of the DNA results "may be useful in his defense," and that "undeveloped assertion" didn't make the grade.

"Reasonableness of the request" is one of those "eye of the beholder" things, and given that the standard for appellate review here is abuse of discretion, it's not surprising to find very few cases reversing a trial judge for not granting funds for experts.  One of the few is State v. Bradley (discussed here), where the 8th reversed a trial judge for his refusal to allocate funds for an expert on eyewitness identification.  Bradley relied heavily on a 1st District decision to the same effect, State v. SargentBut other than those two, the landscape's pretty barren.

Could Bolton's trial lawyer have been more definitive in his request?  Possibly; rather than simply saying that an expert "may be useful," maybe something along the lines of, "Hey, the State's entire case is DNA evidence, and it's only fair I get an independent DNA test to contest that."  That gets you an expert, too, somebody you can talk to about any possible lines of attack on the State's case.

Would that have worked here?  That's second-guessing, and it may be a hard sell in light of the case law.  But if you've got a case where you need to make that argument, you're better off if you build a strong record of it in the lower court.  And when it gets up on appeal, you might want the appellate panel to get to that argument somewhere before page 19.


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