To: Forensic Echo, Volume 3(5), April, 1999 Pp. 5-6

From: Stephen Golding, Ph.D.

Re: Commentary on In re Gay 968 P. 2d 476 [Sup. Ct. CA 1998]

In re Gay, on its surface, is a straightforward example of egregiously unethical conduct by defense counsel and his chosen "forensic expert" psychologist and psychiatrist. There are practically no ethical codes nor guidelines that they did not violate: fraud, kickbacks, misrepresentation of qualifications, professional incompetence, negligent diagnosis, dual-role relationships, and so forth ad nauseum. Under the surface, however, are some disturbing themes and implications, especially for forensic practice in a death penalty context.

First, what responsibilities do courts, attorneys and professional organizations have in regulating expertise in a death penalty-Ake context? While jurisdictions commonly require attorneys to be "death penalty qualified," few courts and jurisdictions have been willing to scrutinize the qualifications and expertise of forensic practitioners appointed or retained under Ake's "meaningful access to justice" standard. Thus, the prevailing view is that a defendant cannot claim "ineffective assistance of counsel" based upon counsel's expert's limited qualifications, or arguably negligent forensic evaluation. Intensifying the problem, neither of the APAs nor their constituent groups, have published any meaningful professional practice standards or guidelines for death penalty evaluations in contrast to statements dealing with child custody or child sexual abuse contexts. Finally, when Congress adopted new rules with respect to habeas corpus in death penalty cases, it placed an additional responsibility on experts. Part of the Antiterrorism and Effective Death Penalty Act makes "due diligence" assumptions about the defense counsel's (and her witnesses') preparation for trial (28 U.S.C. §2244(b)(2)(B)(i)). Failure to obtain mental health records and information, that could have been obtained but for the lack of "due diligence," is not a basis for appeal. Thus, in In re Magwood (113 F. 3d 1544 (11^th Cir. 1997)) neither defense counsel nor experts discovered a set of prison, parole and Veterans Administration records that various state officials had considered Magwood insane prior to his committing a homicide for which he was sentenced to death. Arguably, if a defense counsel relies upon an expert and that expert fails to properly investigate a client's mental health history, there is a strong potential for "violation of constitutional and civil rights," not to mention foreclosure of possible appeals due to the expert's negligence and unethical lack of proper methodology. What obligations, given these factors, do judges have to ensure that the experts they qualify are in fact qualified? What about the obligations of the defense and prosecution attorneys and the relevant professional organizations?

A second theme has to do with the influence of expert's attitudes and personal moral beliefs on their expertise. Our adversarial system creates strong self-selective pressures such that attorneys and experts who represent death penalty defendants, or who prosecute them, tend to have 'hard line' anti- or pro-death penalty attitudes and moral conviction. In my opinion, such a non-neutral stance by experts often places defendants at more risk in the penalty phase. Much has been written about the ethical and professional practice problems associated with experts who are pro-prosecution, but little attention has been paid to the opposite side of this issue. If defendants have, under the Eddings [455 U.S. 104 (1982)] and Lockett [438 U.S. 586 (1978)] precedents, a right to have all mitigating factors presented to the jury in order to ensure that their judgment represents a "reasoned moral response," then one needs to question whether or not such mitigating evidence can be effectively presented to the juror by an expert who holds strong anti-death penalty beliefs and convictions. While empirical data are lacking (this would be an important issue for future research on death penalty decision making), my experience (and that of several colleagues) has been that the data and opinions of such experts on mitigating factors are often either dismissed or cause reactance or unintended consequences in juror decision making schemes. When an expert clearly has a bias, easily demonstrable during cross-examination when it is made clear that she has never testified for the prosecution in a death penalty case or would never do so, the value of her evidence is diminished or negated.