Donald Mikko was hired by the Atlanta Police Department as Director of its Crime Lab. His employment contract permitted him to perform private consulting work on his own time.

A district attorney in Georgia learned that Mikko had prepared an expert report, and was planning to testify, for a criminal defendant in Florida. The district attorney, in the apparent belief that crime lab personnel should only assist the prosecution and never the defense, complained to the Atlanta police chief.

The police chief fired Mikko, who sued the police department for violating his right to free speech. His lawsuit was dismissed. Mikko’s appeal was recently decided by the Court of Appeals for the Eleventh Circuit.

Mikko’s Termination

Mikko was an expert in firearms and toolmarks. His employment contract allowed him to “perform consulting work as a private citizen so long as it did not relate to criminal prosecutions within the City of Atlanta or any investigations in which the City of Atlanta was a participant.”

After Mikko agreed to testify as a defense expert in a Florida criminal prosecution, the Florida district attorney wrote to the district attorney in Fulton County, Georgia, asking for his help to prevent Mikko from testifying. Some might question the ethics of a prosecutor who deliberately interferes with a defendant’s selection of an expert witness, but that issue was not before the court.

Mikko’s supervisor in the police department told Mikko that the Fulton County district attorney was concerned about his private consulting. During a conference call, the Chief Executive Senior Assistant District Attorney for Fulton County said she could not believe that Mikko “was going to testify for the defense” — as if science always favors the police and never an innocent defendant. She also characterized his expert report as “bad-mouthing” the Florida police, although she apparently did not challenge the accuracy of his expert opinions.

Mikko’s supervisor told him that “it did not look good” for the Atlanta Police Department to have its crime lab director testifying for the defense. That comment seems to reflect the attitude that experts employed by the government are required to give testimony that favors not just their employer, but parties who are on the “same side” as their employer. As is common when crime labs are controlled by the police, the supervisor apparently did not accept or understand the concept that experts are advocates for the truth, not for a particular side in a legal dispute.

Mikko pointed out that he was doing exactly what his contract allowed him to do. The police chief nevertheless fired him.

Mikko’s Lawsuit

Mikko sued the City of Atlanta, the district attorney, and the senior assistant district attorney, alleging that they attempted to induce him to suppress his expert report and testimony. He also alleged that his report exposed wrongdoing on the part of Florida police officers who mishandled evidence. Mikko contended that his right to free speech included the right to criticize the government and to testify as an expert.

Mikko filed his lawsuit in state court. His complaint asserted three state law claims. He also asserted a federal claim for the violation of his civil rights. The federal claim alleged that Mikko was subjected to unlawful retaliation to prevent him from testifying and to deter him and other experts from testifying in other cases, in violation of the First Amendment.

The defendants removed the case to federal court. The district court dismissed the state law claims against the individual defendants on the ground that the prosecutors Mikko sued were immune from suit under Georgia law. The court declined to hold that the prosecutors were entitled to qualified immunity on the federal claim. The prosecutors appealed that decision.

Absolute Immunity Defense

Judges have given themselves absolute immunity from suit for acts that they take in their official capacity as judges. Prosecutors often try to cloak themselves with the same immunity, but the Eleventh Circuit concluded that the prosecutors sued by Mikko were not entitled to absolute immunity.

The court ruled that prosecutors may have absolute immunity when they act as advocates in the judicial process by, for example, charging a defendant or presenting evidence in support of a conviction. In Mikko’s case, however, the Georgia prosecutors were not acting as advocates when they tried to stop Mikko from testifying because they had no official involvement in, or jurisdiction over, the Florida case in which Mikko would have testified.

Nor does absolute immunity extend to a prosecutor’s role as an employer, rather than advocate. And even if it did, the court noted, the prosecutors were not Mikko’s employer.

Qualified Immunity Defense

The court concluded, however, that the prosecutors could be legitimately concerned that if Mikko testified for defendants, he might harm his ability to testify for Georgia prosecutors by giving inconsistent testimony that criminal defense attorneys could use when cross-examining him. That conclusion is puzzling, since Mikko could give inconsistent testimony even if he only testified for prosecutors, or if he testified in civil cases. Nor did the court identify any reason to believe that an honest expert would change his opinions depending on whether the expert testifies for the prosecution or the defense.

The court also noted that the prosecutors could legitimately be concerned that Mikko might be unavailable to testify on their behalf if he is working for private clients. That concern is also puzzling, since his employment contract expressly authorized him to work for private clients. His employer presumably would not have made that agreement if it had been concerned that working for private clients would interfere with his job duties.

Whether or not the prosecutors’ concerns were legitimate, the question is whether firing Mikko in retaliation for his expert opinions violated Mikko’s right to free speech. The court of appeals did not answer that question.

Instead, the court noted that no other federal court has clearly answered that question in the context of the same or similar facts. It therefore applied the doctrine of “qualified immunity,” which shields government officials from liability for their allegedly unconstitutional acts when the constitutional violation has not been “clearly established.”

Whether experts have a constitutional right to testify against the prosecution will never be clearly established if courts continue to duck the issue, as did the Eleventh Circuit. In any event, the court ruled that the prosecutors were immune from suit and dismissed Mikko’s constitutional claim.

Sending the Wrong Message

Whether or not the court correctly granted qualified immunity to the prosecutors, its decision sends the message that expert witnesses who work for crime labs must only testify in a way that favors the police or prosecutors, and they might correctly be perceived as “tainted” if they testify truthfully for the defense. The court’s decision seems to assume that expert witnesses shape their testimony to meet the needs of the party that employs them. That’s a cynical view and an injustice to honest expert witnesses.

As ExpertPages has discussed, crime labs have been justly criticized when their employees act as advocates for the police or prosecution. An expert’s duty is to the truth, not to a particular party. Sometimes the truth benefits the prosecution. Other times it benefits the defense. The truth always benefits justice, and justice suffers when experts are discouraged from giving truthful testimony because a government employer thinks they should never help the “other side.”