Zimmerman: The defense must retain its own experts

May 5, 2013

Sunday, May 5, 2013

Good morning:

Amsterdam1234 provided the inspiration for this post with this comment:

@xena

About the contents of Trayvon’s phone. I listened very carefully to what was requested by the defense, and how the state responded to the requests concerning data on Trayvon’s phone.

The state gave defense 2 reports that listed some information found on Trayvon’s phone. They also gave all the raw data they were able to retrieve, to the defense.

During the hearing West was whining about not being able to read the data without special software. That defense team is an embarrasment. It is very obvious they haven’t hired a forensic digital data expert yet, and they are hoping to find out what was on that phone through the state’s forensic analysis of the data.

Bernie said “we’ve given them the data in the format they requested it, they can hire their own expert to analyze it.

Maybe one of you legal minds can explain what is work product and what is discovery that needs to be given to the defense.

For the following reasons, I believe the defense is committing malpractice by not employing its own team of experts to review all of the raw data and bench notes generated by the State’s experts.

The defense asked the State to turn over the raw data generated by all of the State’s experts and I believe the State has complied with that request.

This was an appropriate request that I would have made.

I specialized in forensics and I was more interested in the raw data and bench notes rather than an expert’s opinion, or interpretation of the raw data, because I was used to seeing interpretations that conflicted with or were not supported by the raw data and bench notes. If the lawyer does not have the raw data and bench notes to compare to the expert’s report, the lawyer has no way of evaluating the accuracy of an expert’s conclusions.

Literally, an expert’s report is worthless without the raw data and bench notes to support it.

Since the vast majority of criminal defense lawyers do not know squat about science and forensics, they would have no idea how to interpret raw data and bench notes. Most do not even know what bench notes are.

Given the alarmingly high rate of forensic fraud in public and privately owned and operated crime labs in this country, I believe every criminal defense lawyer absolutely must have the assistance of their own experts to review all of the raw data and bench notes generated by the State’s experts. This is so important that I believe a criminal defense lawyer cannot provide effective assistance of counsel to a client unless he does so. In other words, the failure to do so would potentially constitute a Sixth Amendment violation pursuant to the test set forth in Strickland v. Washington, 466 US 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

I say, “potentially,” because counsel’s failure to secure the assistance of an expert would have to have materially affected the outcome of the trial. That is, that it is more probable than not that the jury verdict would have been different if defense counsel had retained an expert.

Murder trials differ significantly from regular criminal trials in many ways. One of the most significant differences is the prosecution’s heavy reliance on forensic evidence to prove its case. This heavy reliance means that the forensic evidence will almost always qualify as material evidence that more probably than not affects the outcome. For this reason, I believe a criminal defense lawyer commits malpractice in a murder case, if he does not retain experts to review all of the raw data and bench notes generated by the State’s experts.

That is the only way to effectively evaluate the validity of the conclusions and opinions expressed by the State’s experts. Asking them to interpret their own data is worthless because they are not going to admit that the raw data does not support their conclusions.

This is why I said the defense did the right thing by requesting the raw data.

Of course, it’s useless to them, if they do not know how to interpret it.

This is why the defense should have assembled its own team of experts last summer to review all of the raw data and bench notes generated by the State’s experts. Of course, the assistance of its own expert would ordinarily not be necessary, if the conclusions and opinions of the State’s expert are exculpatory.

However, the defense has no reason to believe that any of the State’s forensic evidence is exculpatory since Bernie de la Rionda did not advise the defense that it was. Therefore, the defense has to assume that the evidence is not exculpatory and this means that it must retain its own experts to review all of the raw data and bench notes generated by the State’s experts. Obviously, that includes the raw data retrieved from Trayvon’s phone.

For this reason, I consider West’s whiny request for assistance from the State in understanding the raw data on Trayvon’s phone to be an admission of malpractice.

Aside from ignorance, the obvious problem for the defense is lack of money. However, the defense created that problem by not setting aside sufficient funds for experts.

The solution is to admit the egregious and grossly negligent mistake and apply to the court for the relief that the defendant is entitled to pursuant to Ake v. Oklahoma, 470 US 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). However, that would require a finding that the defendant is indigent. Apparently, he has too much pride to do that and his lawyers have too much pride to admit that they screwed up.

That brings us to where we are today, a little over 30 days before a murder trial with a stubborn defendant represented by two lawyers who do not know what they are doing.

Finally, Amsterdam1234 specifically asked about discovery violations.

The State has not committed a discovery violation and the defense should STFU and get its own expert instead of whining about not being able to comprehend the raw data retrieved from Trayvon’s phone.

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