United States Supreme Court Building

Failure to Request Funding for Expert Violates a Defendant’s Rights

Written on Monday, March 29th, 2021 by T.C. Kelly
Filed under: Business Development for Experts, ExpertWitness, Working with Experts

The importance of retaining expert witnesses in criminal cases was underscored by a recent decision of the Michigan Supreme Court. The court concluded that defense counsel was ineffective for failing to seek funding for an expert and that the failure was prejudicial to the defense.

Hinton v. Alabama

The U.S. Supreme Court has made clear that criminal defense attorneys must retain a qualified expert witness to counter prosecution experts when a defense expert’s testimony could create a reasonable doubt as to the defendant’s guilt. In 2014, the Supreme Court decided that Anthony Hinton’s lawyer failed to provide Hinton with the effective assistance of counsel that the Constitution requires. The lawyer asked for funding to hire a ballistics expert. The judge authorized $1,000 but invited the lawyer to request more if he needed it.

Hinton’s lawyer mistakenly believed that $1,000 was the statutory maximum and did not request additional funding. He could not find a qualified expert who would work for $1,000, so Hinton called an expert who had no significant training or experience in ballistics to counter the testimony provided by the prosecution experts.

After Hinton was sentenced to death, his new lawyers produced three highly qualified expert witnesses who testified that the bullets recovered from the murder victim could not be matched to Hinton’s gun. Alabama argued that the lawyer was not ineffective because he found an expert to testify. In the state’s view, all experts have equal value.

The Supreme Court disagreed. The Court held that a reasonably capable lawyer would have understood that additional funding was available. The lawyer knew his expert wasn’t qualified but failed to seek funding for an expert who was qualified. Recognizing that “incompetent or fraudulent prosecution forensics experts” pose a “threat to fair criminal trials,” the Court held that defense attorneys have a duty to retain “a competent expert to counter the testimony of the prosecution’s expert witnesses.” Since Hinton’s lawyer did not do so, his performance was deficient.

 People v. Ceasor

The importance of the Hinton decision is illustrated by the prosecution of Terry Lee Ceasor in Michigan. Ceasor was convicted of first-degree child abuse. The prosecution’s expert, Dr. Holly Gilmer-Hill, gave familiar testimony that the child’s injuries could only have been caused by violent shaking. Her testimony attempted to impeach Ceasor’s explanation that the child accidentally fell from a couch. In fact, her “shaken baby” theory has been repeatedly discredited by advances in medical knowledge.

Ceasor appealed his conviction. His appellate lawyer argued that his trial lawyer was ineffective because he did not hire an expert to refute Dr. Gilmer-Hill’s testimony and did not request public funding to cover the cost of the expert’s testimony. The Michigan Court of Appeals held that Ceasor could not demonstrate that trial counsel’s failure was prejudicial because his appellate counsel did not ask for an evidentiary hearing. Without calling an expert witness at a hearing, Ceasor was unable to prove that an expert would have challenged Dr. Gilmer-Hill’s opinion. Nor was Ceasor able to prove that trial counsel’s failure to call an expert witness was not dictated by his trial strategy.

Ceasor later made a post-conviction motion that challenged the effectiveness of his appellate attorney. Ceasor supported the motion with affidavits from pathologists, a neurosurgeon, and a biomedical engineer. The expert witnesses opined that Dr. Gilmer-Hill’s opinion was based on discredited science. In Ceasor’s view, an effective appellate advocate would have requested a hearing and presented the expert evidence that his post-conviction lawyer was offering.

Apparently misunderstanding the nature of Ceasor’s post-conviction motion, the trial judge concluded that Ceasor was reframing issues that had already been decided. The Michigan Court of Appeals declined to hear an appeal from that decision.

Failure to Request Public Funding

Ceasor then raised the ineffectiveness of both his trial and appellate counsel in a federal habeas corpus proceeding. The district court held Ceasor to an impossible standard of proof by ruling that he needed to establish that a request for an evidentiary hearing would have been granted if he had requested one. Parties can only prove how a judge should rule, not how a judge would rule.

On appeal, the Court of Appeals for the Sixth Circuit concluded that Ceasor would have been entitled to a hearing if his appellate attorney had requested one and if he had presented the same evidence his post-conviction counsel mustered. The Sixth Circuit noted that Michigan law allows a court to “provide public funds for indigent defendants to retain expert witnesses.” Although it is not required to do so “on demand,” trial counsel neglected to ask for funding. He therefore deprived Ceasor of the opportunity to call an expert witness to challenge the prosecution expert’s testimony.

The Sixth Circuit concluded that trial counsel did not make a strategic decision not to call an expert, but simply didn’t realize that he could apply for public funding of expert testimony. Applying Hinton, the Sixth Circuit held that trial counsel’s performance was deficient because lawyers are expected to know the law. Counsel was unfamiliar with the Michigan statute that authorized public funding and with the Hinton decision.

Since the prosecution based its case almost entirely on Dr. Gilmer-Hill’s testimony, a reasonable attorney would have known that her testimony required a response. When “the expert is the case,” refuting expert testimony with other expert testimony is essential whenever the prosecution expert’s opinions can be challenged.

Concluding that it is “objectively unreasonable to fail to take steps to retain an expert” when one is necessary, the court held that habeas relief was warranted. It remanded the case to the district court so that the court could decide whether the testimony of Ceasor’s experts might have raised a reasonable doubt.

In the district court, the parties stipulated that Ceasor was prejudiced because his appellate lawyer’s failure to request an evidentiary hearing deprived Ceasor of the opportunity to litigate “a claim of ineffective assistance of counsel that was reasonably likely to succeed.” The district court granted Ceasor a new state court appeal.

Michigan Proceedings

Ceasor pursued his appeal. The trial judge stubbornly decided that defense counsel was not ineffective, an issue that was already resolved to the contrary in federal court. Defense counsel attempted to shift blame to Ceasor, who (according to counsel) had led him to believe that his mother would pay for an expert. Counsel claimed he only learned two weeks before trial that Ceasor would not be able to fund an expert. Counsel also testified that he never heard of a case in which a court agreed to fund an expert when the defendant had retained counsel privately. The court of appeals affirmed the judge’s finding that, given those facts, counsel was not ineffective in failing to seek public funding for an expert witness.

The Michigan Supreme Court made short work of the appellate court’s analysis. It was undisputed that Michigan law allows public funding of experts. Ceasor’s lawyer had arranged for an expert to testify. He had time to apply for public funding of that testimony prior to trial and chose not to make that application. Counsel’s belief that a court would not fund an expert when counsel is retained privately was belied by the plain language of a statute that authorizes courts to do so. Failing to make the request was therefore objectively unreasonable. The court granted Ceasor the fair trial that he deserves.

Lessons Learned

Ceasor has traveled a long road in his pursuit of a fair trial. Assuming the district judge credits his expert witnesses — and there is no reason the judge shouldn’t — Ceasor will likely be granted a new state appeal, which may lead to additional appeals, which should ultimately lead to a new trial.

Had Ceasor’s lawyer recognized that Michigan law allows the funding of expert witnesses, and had he retained experts to challenge Dr. Gilmer-Hill’s discredited “shaken baby” testimony, Ceasor’s years of incarceration might have been avoided. His case is a reminder to all defense attorneys that they should always recognize the need to hire defense experts when the prosecution rests on expert testimony that can reasonably be challenged.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.