MAY IT PLEASE THE COURT, KER RIN CAMPBELL SPECIAL DEPARTMENT ATTORNEY GENERAL ON BEHALF
THE STATE. TH. KAILI MATTHEWS: KALLY MATTHEW. ANDREW R.
BURROUGHS: ANDREW BURROUGHS ON BEHALF OF RESPONDENT, BURR AN. DARCY
BABOLIS-GYSCEK: ON DARCY BABOLIS-GYSCEK. LANCE LAN LANCE KALIK RIKER DANZIG RAB RB WERE YOU
LOOKING 5 MINUTES UNDRUP THE OPENING STATEMENT MA JUST. CHIEF JUSTICE RABNER:
JUSTICE SOLOMON WILL BE PARTICIPATE, HE'LL BE WATCHING. BLEES GO AHEAD. MATH MATH POLICE
GO AHEAD. MAY IT PLEASE THE COURT THE ISSUE BEFORE THE COURT IS THIS SKRAFR NOON IS
WHETHER OR NOT TRIAL COUNSEL WAS CONSTITUTIONALLY INKEFKT TIFF TORE FAMG TO RETAIN A SECOND
FORENSIC PATHOLOGIST WHEN THE FIRST PATH KROLG THE ANSWER TO THIS QUESTION IS EMPHATIC
NO. UNDER THE STRICKLAND/FRITZ STANDARD NOR TO OBTAIN RELEASE AN POST CONVICTION MOTION
A PETITIONER MUST SHOW TWO THINGS THE KOURTS BELOW AN OBJECTIVE STANDARD OF REASONABLENESS
AND SECOND IF THERE'S A REASONABLE PROBABILITY THAT BUT FOR THESE ALLEGED ERRORS THE
RESULTS OF PROCEEDING WOULD HAVE BEEN DIFFERENT. AT PCR HEARING THE BURDEN
REMAINS WITHIN THE PETITIONER TO PROVE THIS BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE.
STRATEGIC DECISIONS MADE OFFICER AFTER THOROUGH VERSION VIRTUALLY UNA SALABLE. HERE
TRIAL COUNSEL FULFILLED THIS OBLIGATION BY FREN 6 PATHOLOGY PRIOR TO TRIAL RFT APPELLATE
DIVISION INTEFKT TIFF FINDING WAS PRM MISSED ON THE DIE THAT M NOT ULT CAN I WITH ANYONE.
AND THE FIRST EVIDENTIARY HEARING COUNSEL COULD NOT SAY WITH ANY CERTAINTY WHETHER OR NOT
HE HAD CONSULTED WITH A PATHOLOGIST. THE APPELLATE DIVISION FOUND PRONG ONE WAS MET
BECAUSE TRIAL COUNSEL "DID NOT CONSULT WITH A FORENSIC PATHOLOGIST AND TWEP 0 CONSULTED
HE ARGUABLY WOULD HAVE BEEN BETTER EQUIPPED TO CROSS-EXAMINE DR. SHAIKH.
FOLLOWING THAT OPINION IT WAS LIRNED THAT TRIAL COUNSEL WAS IN POSSESSION OF NOT ONE BUT
TWO EXPERT REPORTS THAT FAVORED THE STATE'S CASE. ONE, OF COURSE, WAS FROM THE STATE'S
MEDICAL EXAMINER DR. SHAIKH. OTHER WAS FROM A FORENSIC POJ TRAL MARCH MARK TAFF RETAINED
BY ROW MAPD THE BACK TO THE EX FOUND THE RECORD AND MAKE CERTAIN FINDINGS. WE LERPED
A LOT AT A REMAPPED HEARING. WE LEARNED THAT DR. TAFF HAD IN FACT BEEN RETAINED, THAT
HE'S BEEN A LICENSE THE FORENSIC PATHOLOGIST SINCE 1983, HE'S BEEN OPD VENDOR SINCE THE
EARLY '90S RS WE ARE NDZ, ECHOED DR. SHAIKHS FIND AND THIS REPORT WAS IN THE FILE AND
IT WAS PASSED TO TRIAL COUNSEL. WE ALSO LEARNED THAT TRIAL COUNSEL WAS AN SXEERNTSED
ATTORNEY WITH DOZENS OF TRIALS UNDER HIS BELT, MANY OF THEM HOMICIDE, THAT HE WAS HAND
SELECT BY THE DEPUTY FOR THIS CASE, AND THAT HE WAS DESCRIBED AS A ZEALOUS, AGO GLES CIVILIAN
ADVOCATE. THIS COURT THEN REMAN THE THE CASE BACK TO THE APPELLATE DIVISION
TO RECONSIDER THEIR INITIAL OPINION AND AT THAT POINT THE GOAL POSTS WERE MOVED.
THE APPELLATE DIVISION NOW SAID THAT THE SECOND FORENSIC PATHOLOGIST SHOULD HAVE BEEN
CONDUCTED AS WELL AS A NUFB ADDITIONAL EXPERTS. HERE TRIAL COUNSEL WAS OBJECTIVELY REASONABLE, HE OBTAINED A REPORT FROM AN EXPERT WHOSE QUALIFICATIONS TO THIS DAY HAVE NOT
THESE ADDITIONAL EXPERTS WOULD HAVE DEMONSTRATED ANYTHING, FOR EXAMPLE, THE APPELLATE
DIVISION POINTED OUT THAT THEATER SIDE HAD EVER CONSULT WITH A FORENSIC PSYCHOLOGIST,
AND THAT'S KIND OF THE POINT TO THIS DAY THIS DEFENDANT HAS PROVIDED NO COMPETENT, CREDIBLE
EVIDENCE THAT A FORENSIC PSYCHOLOGIST WOULD HAVE PROVIDED ANY USEFUL INFORMATION. THE
APPELLATE DIVISION'S OPINION WITH RESPECT TO THESE ADDITIONAL EXPERTS IS GROUNDED IN
SPECULATION. THE APPELLATE DIVISION HERE WENT WELL BEYOND WHAT'S REQUIRED BY OUR LAW IN
REVERSING AND REMANDING. 2 QUALIFY FORENSIC PATHOLOGISTS REACHED OPINION
FROM OCH SIT SIDE OF CASE MUCH STATD DARD THAT THEY SHOULD HAVE USED WAS OBJECT I HAVE
REASONABLENESSES NO THE WHAT A ZEALOUS AGGRESSIVE ADVOCATE BUT THE THE OBJECTIVELY REASON
AL ATTORNEY. TRIAL COUNSEL'S DECISION FO TRY TO SECURE ANOTHER EXPERT WAS AGGRESSIVE
AND SLULS WELL BEYOND WHAT A REASONABLY ATTORNEY WOULD DO, TWRIEL KOUN THAT HAD NO REASON
TO BELIEVE PRUFB THIS VEKD PATHOLOGY WOULD PRODUCE THE AMENT, DR. TAFF'S FINDINGS WERE
SIMILAR TO DR. SHAIKH WOULD GIVE TRIAL COUNSEL EVERY REASON TO BELIEVE THAT BOTH EXPERTS
WERE MAKING A CORRECT ANALYSIS OF THE EVIDENCE. COUNSEL WAS NOT REQUIRED
TO CONSULT WITH A SECOND EXPERT AND HE WASN'T REQUIRED TO SHOP AROUND UNTIL HE FOUND
SOMEONE WHO COULD PROVIDE EXCULPATORY TESTIMONY. THE APPELLATE DIVISION'S OPINION COMES
DANGEROUSLY CLOSE TO REQUIRING TRIAL COUNSEL TO EXPERT SHOP. IN ORDER TO DISCHARGE THOSE
6TH AMENDMENT DUTIES. YOUR HONOR, THE STATE WOULD ASK THIS COURTS TO FIND THAT TRIAL
COUNSEL PROVIDED ADEQUATE OBJECTIVELY REASONABLE ASSISTANCE AND DISCHANGED LIS DUTIES
UPT STRICT LAND REASON FRITZ P AND STATE WOULD ASK THE COURT TUR MER TO REAND STATE THE
DEFENDANT'S COULDN'T VIC. RAB RB I WAVENTED TO ASK YOU A FEW QUESTIONS WITH RESPECT TO
THERE SHOULD HAVE BEEN A. CHIEF JUSTICE RABNER: TO CONSULT WITH A SECOND
EXPERT, A SECOND PATHOLOGY, WE DON'T HAVE A COPY OF DR. TAFF'S REPORT ANYWHERE CORRECT.
ERIN CAMPBELL: WE DO NOT, YOUR HONOR. CHIEF JUSTICE RABNER:
IF IT HAD BEEN A THOROUGH RIGOROUS REPORT WOULD THAT HAVE PROVIDED A BASIS FOR COUNSEL
TO SEEK TO CONSULT WITH A SECOND EXPERT? ERIN CAMPBELL: WHAT DO YOU MEAN BY
A RIGOROUS REPORT? CHIEF JUSTICE RABNER: SUPPOSE TWU A TERRIFIC REPORT,
THOUGHTFUL, COMPREHENSIVE, TOUCHED ALL THE BUTTONS AND REACHED A CONCLUSION THAT WAS
CONSISTENT WITH THE STATE'S EXPERT, WOULD DEFENSE COUNSEL THEN HAVE HAD REASON TO SEEK
A SECOND EXPERT? ERIN CAMPBELL: IN THAT CASE NO, YOUR HONOR, HE HAS NO
REASON TO BELIEVE THAT AN EXPERT PROVIDED A OPINION THAT IS FOR BACK OF HAD A BETTER WORD
UNSCIENTIFIC. CHIEF JUSTICE RABNER: IF THE OPPOSITE WERE TRUE AND THE REPORT
WAS DEFICIENT AND INCOMPLETE, WOULD THAT PROVIDE A BATSZ FOR DEFENSE COUNSEL TO CONSULT
A SECOND EXPERT? ERIN CAMPBELL: IF DEFENSE COUNSEL IN REVIEWING THAT REPORT
NOTED THAT DR. TAFF HAD COME T THESE COULDN'T CLOUGSS WITHOUT HAVING REVIEWED THE SAME
EVIDENCE AS DR. SHAIKH THAT DR. TAFF'S REPORT WAS SO OFF BASE THAT IT COULDN'T EVEN AND
RECONCILED WITH DR. SHAIKHS IT WAS LIKE THEY WERE REVIEW LONG DIFFERENT CASES, I THINK
THAT IS PROBABLY THE POINT AT WHICH IT SHOULD SET OFF SOME ALARM BELLS THAT THIS ATTORNEY
MAY WANT TO LOOK FOR A SECOND EXPERT, BUT HERE WE'VE GOT TWO QUALIFIED FRN SICK PATHOLOGISTS
COMING TO THE SAME CONCLUSION. CHIEF JUSTICE RABNER: YES, THEY COME TO THE
SAME CONCLUSION, WE ARE TOLD, BUT WHAT DO WE KNOW FROM THIS RECORD ABOUT DR. TAFF'S REPORT
BEYOND THAT? ERIN CAMPBELL: YOUR HONOR, UNFORTUNATELY WE DON'T HAVE A COPY
OF THE REPORT ITSELF. I RECALL TRIAL COUNSEL TESTIFYING THAT HIS FINDINGS WERE LARGELY
IN LINE WITH DR. SHAIKH'S. CHIEF JUSTICE RABNER: SO USING YOUR WORDS,
DOES THE TESTIMONY OF MR. BAILY, TRIAL COUNSEL, AT THE PCR HEARING RING ANY BELLS? WHO
IS WHAT THE RECORD APPEARS TO REFLECT HIS VIEW OF THE REPORT THAT HE WASN'T IMPRESSED
BY IT, HE DIDN'T BELIEVE EITHER EXPERT HAD ALL THE EVIDENCE, HE DID NOT KNOW DR. TAFF
DID NOT KNOW BY THE STATE OF THE DIE SEED DEP'S MAEM HAELT AND/OR THE RELATIONSHIP BETWEEN
THE 2 PARTY, DR. TAFF REACHED COULDN'T CLUKS, BASED OLD SOLELY WAE ON POLICE REPORTS
THAT THE KOUN SL WAS UNSATISFIED WITH THE REPORT AND COUNSEL THOUGHT ANOTHER PATHOLOGIST
"PERHAPS SHOULD HAVE BEEN RETAINED. SHOULD THAT HAVE RUNG BELLS THAT CONSULTING A SECOND
EXPERT? ERIN CAMPBELL: I DON'T THINK SO, YOUR HONOR, BECAUSE WHEN BAILY,
TRIAL COUNSEL RECEIVED THAT FILE, THE EXPERT REPORT WAS IN IT AND WENT FROM DR. TAFF'S
TESTIMONY THAT WHEN HE DOES THIS, HE ISSUES A PRELIMINARY REPORT, HE SENDS IT TO THE
ATTORNEY, HE'S WILLING TO REVISE OR REVISIT HIGHWAYS FINDINGS, IF THE AND ATTORNEY
PRESENTS HIM WITH SOMETHING THAT HE HAD NOT CONSIDERED BEFORE ISSUING THAT REPORT, AND
WE KNOW FROM BAILY'S TESTIMONY THAT THE SEQUENCE OF EVENTS WAS THAT HE RECEIVED HIS FILE
WITH THE REPORT IN IT, HE ASKED THE DEPUTY FOR ANOTHER EXPERT, AND WHEN THE DEPUTY
INFORMALLY TOLD HIM NO, THEN HE WENT BACK TO DR. TAFF AND SAID, HEY, HERE SOME THINGS YOU
MISSED, FOR EXAMPLE, THE DIARY. CHIEF JUSTICE RABNER: ONE MORE QUESTION
IF I COULD, DID THESE COMMENTS, IF CREDIT, SUPPORT DIE FISHT FORM MAN'S?
ERIN CAMPBELL: I DON'T BELIEVE THEY DO, YOU WERE. DR. TAFF'S QUALIFICATIONS HAVE NEVER
BEEN PUT AT ISSUE. EXCUSE ME, ARE. JUSTICE PIERRE-LOUIS: DEFENSE COUNSEL
HIMSELF PUT AT ISSUE DR. TAFF'S REPORT, AGAIN WE DON'T HAVE A COPY OF THE ROAR BUT WE HAVE
COUNSEL HIMSELF SAYING THAT HE IDENTIFIED SOME ISSUES WITH THAT REPORT AND P WE HAVE HIM
ALSO TESTIFYING AGAIN ALL AT THE SECOND HEARING BECAUSE THE FIRST HEARING HE HAD NO
RECOLLECTION OF ANY OF THIS, AT THE SECOND HEAR, THAT HE 4 THIS INFORMAL CONVERSATION WITH
THE OFFICE OF THE PUBLIC DEFENDER ASKING FOR SECOND EXPERT BUT MADE NO FORMAL ATTEMPT
TO ACTUALLY GO THROUGH THE PROCEDURE OF GETTING THAT APPROVAL FOR A SECOND EXPERT.
SO HOW DID, YOU KNOW, I UNDERSTAND NO ONE IS QUESTIONING DR. TAFF'S QUALIFICATIONS,
BUT DEFENSE COUNSEL IS EVEN QUESTIONS DR. TAFF'S REPORT. ERIN CAMPBELL:
SO THOSE WERE THINGS TRIAL COUNSEL BELIEVED WERE ISSUES WITH THE REPORT. HE DIDN'T ATTEMPT
TO BROACH THEM WITH DR. TAFF INITIALLY, HE ATTEMPTED TO FILE FOR A SECOND EXPERT, TRIAL
COUNSEL IS A AGGRESSIVE OBLT TIFFLY REASONABLE ATTORNEY RYE VUG THIS REPORT WOULD HAVE
TO REASON TO SUS SPEKTS THAT HE WOULD NEED TO GET A SECOND EXPERT BECAUSE THOSE FINDINGS
WERE LARGELY IN LINE WITH THE STATE'S MEDICAL SCAM NEVER, A FINDING THAT WAS UPHELD BY
THE APPELLATE DIVISION UP ON DIRECT APPEAL. CHIEF JUSTICE RABNER: IF THEY'RE
BOTH DEFICIENT, HOW MUCH IS ONE TO DRAW FROM THE FACT THAT THEY HAPPEN TO ALIGN IN TERMS
OF CONCLUSION? ERIN CAMPBELL: YOUR HONOR, I DON'T KNOW THAT THE ISSUE IS
SO MUCH THAT THEY'RE BOTH DEFICIENT BUT WHETHER TRIAL COUNSEL SHOULD BE ON NOTICE THAT
THEY WERE DEFICIENT, OBJECTIVELY REASONABLE ATTORNEY REVIEWING THE REPORTS OF TWO
QUALIFIED QUALIFY FORENSIC EXPERTS THAT ALIGN SHOULDN'T HAVE THE OBLIGATION TO GO EXPERT
SHOPPING, AND I THINK THAT'S THE PROBLEM WITH THIS CASE. CHIEF JUSTICE
RABNER: IT'S NOT EXPERT SHOPPING, YOU HAIR THE COMMENTS IN THE RECORD THAT COUNSEL HIMSELF
DIDN'T FIED FLAWS IN THAT. WHY WOULDN'T THEY HAVE TRIGGERED A PROFESSIONAL RESPONSE OF
CONSULTING A SECOND EXPERT? ERIN CAMPBELL: YOUR HONOR, AGAIN WE'RE BAT
A DISADVANTAGE JUST BECAUSE WE DON'T HAVE THE REPORT TO BE ABLE TO REVIEW FOR OURSELVES
WHAT IS AND IS NOT CONTAINED IN TLN WE'RE VIEWING THIS I DISTORTED LENS OF HINDSIGHT BUT
I THINK THE POINT IS THAT TRIAL COUNSEL HAD THESE REPORTS IN HIS POSSESSION AND INSTEAD
OF BROACHING THE SUBJECT WITH THE PATHOLOGIST HIS FIRST INSTINCT WAS TO LOOK FOR SOMEONE
ELSE AND LOOK FOR SNUN WHO WOULD SUPPORT HIS POSITION HERE. P. JUDGE FISHER:
IT'S NOT HINDSIGHT, IT'S LOOKING BACK AND NOT BEING ABLE TO SEE BECAUSE THE REPORT DOESN'T
EXIST. IN THIS UNUSUAL I WOULD THINK CIRCUMSTANCE, SHOULDN'T THE ELEMENT
OF DOUBT FALL ON THE DEFENDANT'S SIDE IP INSTEAD OF THE STATE'S SIDE? WE DON'T KNOW AND
WE HAVE A LOT OF COMMENTS TO SUGGEST THERE WAS UNHAPPINESS WITH DR. TAFF'S REPORT. WOI
NOT A NEW TRIAL IN LIGHT OF ALL OF THAT? ERIN CAMPBELL: BECAUSE TRIAL COUNSEL'S
UNHAPPINESS WITH THE REPORT OF THE FORENSIC PATHOLOGIST DOESN'T NEITHER EQUATE TO
INEFFECT T TIFF ASSISTANCE HERE, HE'S ALLOWED TO BE UNHAPPY WITH IT, HE'S ALLOWED NOT TO
LIKE IT'S IN LINE WITH THE STATE'S EXPERT AND WHEN HE DID SPEAK WITH DR. TAFF HE ASKED
WHAT HE THOUGHT WERE MISSING PIECES. THE DIARY EX FOR EXAMPLE, HE ASKED IF THAT WOULD
MAKE A DIFFERENCE IN HIS ULTIMATE FINDINGS AND THE FACT THAT DR. TAFF DIDN'T ISSUE A ROW
ADVISED REPORT AND DIDN'T TESTIFY AT TRIAL, THE OPEN INFERENCE TO BE DRAWN FROM THAT IS
THAT, NO, IT DIDN'T CHANGE HIS FINDINGS. JUSTICE PIERRE-LOUIS: WAS IT REASONABLE
FOR COUNSEL NOT 0 TO HAVE MET WITH AND TALKED FRN DISCUSSED DR. SHAIKH'S REPORT WITH DR.
SHAIKH PRIOR TO TRIAL? DR. SHAIKH WAS THE STATE'S EXPERT ALSO THE MEDICAL EXAMINER THAT
CAME TO THE DETERMINE THAGS THAT THIS WAS A HOMICIDE IN THIS CASE. BUT DEFENSE COUNSEL
DID NOT CONSULT WITH HIM WHATSOEVER PRIOR TO TRIAL. ERIN CAMPBELL: I DON'T
THINK SO, YOUR HONOR. THIS A MATTER OF PRACTICE, I DON'T THINK THAT'S UNUSUAL. IF HE
HAS DR. TAFF'S REPORT THAT LARGE THE PARROT'S DR. SLAKS AND THEY COME TO THE SAME CONCLUSION.
JUSTICE PIERRE-LOUIS: SAME CONCLUSION BASED ON WHAT APPEARS TO BE
INCOMPLETE NVGS, YOU HAVE DR. SHAIKH OS EXPERT REPORT THAT CONCLUDED THAT THE DEATH WAS
INSTANT IS, AND THAT CONFLICTS WITH THE TESTIMONY OF THE OFFICERS THAT SHE WAS STILL BREATHING
AT THE TIME THEY ARRIVED AT THE HOUSE, THE MEDICAL RECORDS SHOW SHE WAS STILL AP LIVE
WHEN SHE WENT TO THE HOSPITAL. SO THERE'S, THERE ARE PORTIONS DPRCHLT SHAKE'S REPORT
THAT DON'T ENTIRELY SCARE KWI THE OTHER EVIDENCE IN THERE CASE AS WELL. SO
AGAIN SIMILAR TO THE CHIEF JUSTICE'S QUESTION IF YOU HAVE 2 REPORTS THEY MIGHT BE THE
SAME BUT BASED OCH INCOMPLETE INFORMATION, IS THAT AN IP PI TUS TO GO FORWARD AND GET
ANOTHER EXPERT J. ERIN CAMPBELL: I THINK I WAS OBJECTIVELY REASON AL FOR
TRIAL KOUN TO SPEAK TO DR. TAFF ABOUT THESE PURPORTED DOUGH FISHT SIGHS AND SEE IF OR
HOW THEY CHAFRM HIS ANALYSIS AND WHY OR WHY NOT. CHIEF JUSTICE RABNER:
CAN YOU CLARIFY SOMETHING EMPTY RECORD. THE TRIAL JUDGE ON THE MADE A NUMBER OF FINDINGS
DID THE JUMP MAKE ANY KRED ABLTD FINDINGS WITH RESPECT TO THE COMMENTS I LADY TO YOU EARL
SHTHS THE TESTIMONY OF MR. BAILY? ERIN CAMPBELL: I DON'T BELIEVE SHE DID,
YOU WERE, BUT SHE OUT OF THIS REPORT WAS XHITHSED THAT IT WAS PRODUCED AND IT WAS REVIEWED
BY TRIAL COUNSEL IN PREPARATION FOR TRIAL. RAB ROOB PLEASE GO AHEAD OF. CHIEF
JUSTICE RABNER: PLEASE GO AHEAD. ERIN CAMPBELL: I HAVE NOTHING THAT YOU
REMEMBER FER, WHEN WE ARGUE WE CONSIDER THE FOIN NALT OF THE COULDN'T VIC WITH RESPECT
TO THE JUDICIARY AND THE STATE BUT WE ALSO NEED TO CONSIDER THE EFFECTIVE FINALITY OF THE
THE VICTIMS ON THE FAMILIAR 8 AND SURVIVORS NNL CASE, ADAMS AND HER FAMILIAR MANY DESERVE
MORE. THANK YOU. CHIEF JUSTICE STUART RABNER: THANK YOU, MS. MATTHEWS.
KAILI MATTHEWS: GOOD AFTERNOON YOUR HONORS, MAY IT PLEASE THE COURT, THE ATTORNEY GENERAL'S
INTEREST IN THIS CASE IS ENSURING THAT THE WELL ESTABLISHED INEFFECTIVE ASSISTANCE OF COUNSEL
IS PROPERLY APPLIED. FIRST, AS MY COLLEAGUE POINTED OUT, DEFENDANT DID NOT MEET HIS
BURDEN OF PROOFLG BY A PREPONDERANCE OF THE EVIDENCE THAT HE SATISFIED EITHER PRONG UNDER
THE STRB LAND FRITZ TEST WHICH THIS COURT IS AWARE THAT THE COURT HIGH DEFERENCE TO THE
STRATEGIC (INAUDIBLE) BY AN OBJECTIONABLE. THAT TEST ALSO REQUIRES A SHOWING OF PREJUDICE
BEYOND THE ATTENUATED SPECULATIONS THAT DEFENDANT SETS FORTH HERE. AND THAT GOES INTO
MY SECOND POINT WHICH IS THAT THE APPELLATE DIVISION HAS SPARED THE DEFENDANT OF HIS
BURDEN AND INSTEAD REVIEWED TRIAL COUNSEL VIRTUALLY UNCHALLENGE THROUGH THE DISTORTED
LENS OF HINDSIGHT AND THUS EFFECTIVELY IGNORED THE STRONG PRESUMPTION THAT TRIAL COUNT'S
DECISION WAS REAM AND AN ART THAT MUST BE ACCORDED HIGH DEFERENCE AND FINALLY THE HAS
PROCEEDER I AM MI CATIONS BECAUSE IT REPLACE THE DUTY TO CONDUCT A REASONABLE INVESTIGATION
UNDER THE SIXTH AMENDMENT WITH A DUTY TO EXPERT SHOP AND THIS DUTY HAS BEEN EXPLICITLY
REJECTED IF OTHER JURISDICTIONS OF THE APPELLATE DIVISION IMPOSED THIS NEW DUTY EVEN THOUGH
THERE WAS NO REASON TO BELIEVE THAT A QUALIFIED EXPERT WOULD HAVE REACHED A DIFFERENT
CONCLUSION TO SUPPORT THE DEFENDANT'S CASE THEORY AND I JUST WANT TO JUMP IN BACK IT MY
FIRST POINT AND ADDRESS CHIEF JUSTICE RABNER'S POINT WHICH IS THE TESTIMONY THAT THE REPORT
MAY HAVE BEEN INCOMPLETE. WE DO HAVE THE TRIAL JUDGE FINDING. I BELIEVE IT'S ON PAGE 12
OF HER DECISION. SHE FOUND THE TESTIMONY FROM BAILEY CREDIBLE. WHEN HE TESTIFIED THAT
HE REVIEWED THE REPORT OF TAFF AND RECALLED THAT IT WAS NOT HELPFUL TO THE DEFENDANT SO
THE TRIAL COUNSEL DID IN ESSENCE FIND THAT THIS CONVERSATION WITH TAFF DID OCCUR AND THE
CREDIBLE EVIDENCE IS THAT IT WASN'T HELPFUL TO THE DEFENDANT MUCH. NOW, JUMPING
TO, AS THE CHIEF POINTED OUT THE DID HE FINISH SIS AND INCOMPLETENESS OF THE RECORD,
WE KNOW THAT BASED OFF OF BAILEY'S CREDIBLE TESTIMONY THAT HE DID CONSULT WITH TAFF ABOUT
ANY KIND OF DISCREPANCIES OR OMISSIONS HE THOUGHT EXISTED IN TAFF'S REPORT. BUT I DO JUST
WANT TO HIGHLIGHT FOR THE COURT THAT EVEN DOCTOR WHAT WHO WAS THE DEFENDANT WHO WAS THE
EXPERT THE DEFENDANT PUT ON, HE DID CONSIDER ALL THE EVIDENCE AND HE STILL CAME TO THE CHUGS
THAT IT WASN'T DEFINITIVELY SUICIDE SO WE EVEN HAVE AN EXPERT WHO DID, WE KNOW FOR A FACT
CONSIDERED ALL OF THE EVIDENCE IN RETROSPECT THROUGH THAT LENS OF HINDSIGHT AND STILL
WASN'T ABLE TO CONCLUSIVELY SAY THAT IT WAS SUICIDE. ASSOCIATE JUSTICE FABIANA
PIERRE-LOUIS: THE JURY BEING TOLD BY AN EXPERT THAT THE MANNERS OF DEATH WAS HOMICIDE
VERSUS BEING TOLD IT'S INCONCLUSIVE IS A BIG DIFFERENCE MAMG WELL, YOUR HONOR, THE TRIAL
STRATEGY THAT TRIAL COUNSEL EMPLOYS IS A STRATEGIC DECISION AND WE KNOW FROM STATE V.
ARTHUR ON A DECISION TO CALL AN EXPERT IS (INAUDIBLE) QUOTE AN ART AND WE CAN ALSO
GAUGE GUIDANCE FROM STRICKLAND HERE THAT IT'S NOT ENOUGH FOR A DEFENDANT TO SHOW THAT THE
ERRORS HAD SOME CONCEIVABLE EFFECT ON THE JURY'S DELIBERATIONS BECAUSE VIRTUALLY EVERY
ACT OR OMISSION OF COUNSEL WOULD MEET THAT TEST AND SO IT HAS TO BE MORE THAN JUST A
CONCEIVABLE EFFECT ON THE JURY. IT HAS TO ACTUALLY UNDERMINE THE RELIABILITY AND THE RESULT
OF THE PROCEEDING AND THAT COMES FROM STATE V. STRICKLAND AND HERE ALL THE EVIDENCE THAT
THE JURY WOULD HAVE HEARD FROM, FOR EXAMPLE, DOCTOR ZHONGXUE'S TESTIMONY WAS ALREADY
ELICIT THROUGH THE EXAMINATION THAT TRIAL COUNSEL CONDUCTED ON THE STATE EXAMINER DR. SHAIKH
AND THROUGH THE CROSS-EXAMINATION HE WAS ABLE TO HIGHLIGHT ALL OF THE HOLES BASED OFF
OF THAT CONSULTATION HE HAD WITH DR. TAFF WHEN HE BROUGHT THESE OMISSIONS OR DR. TAFF'S
ATTENTION AND THROUGH THAT CROSS-EXAMINATION HE WAS ABLE AGAIN TO BRENG OUT ALL OF THOSE
ISSUES AND THE VEHICLE THAT TRIAL COUNSEL USES IS A ACCORDED HIGH DEFERENCE AND SO BASED
OFF OF HIS REASONABLE INVESTIGATION THROUGH HIS CONSULTATION WZ DR. TAFF, THAT BROUGHT
OUT AGAIN, THOSE ISSUES FOR THE YOUR TO DECIDE AND ULTIMATE HI THE JURY WAS PERSUADED
BASED OFF OF THE MEDICAL EXAMINER AND ALL OF THE OTHER EVIDENCE THAT THE STATE SET FORTH
IN THIS TRIAL TO CONVICT DEFENDANT AND THAT WAS AGAIN, THE ULTIMATE OUTCOME IS, THE ULTIMATE
OUTCOME OF HOW THE STRATEGY WORKED OUT IS NOT THE BASIS FOR WHETHER OR NOT THIS COURT
DECIDES IF PCHL C RCHL IS REQUIRED. IT IS BASED OFF OF AN OBJECTIVELY REASONABLE TRIAL
COUNSEL WOULD HAVE IMPLEMENTED THOSE VEHICLES UNDER THAT, UNDER THOSE PRETENSES.
I DO WANT TO JUDGE, IF YOUR HONORS HAVE NO OTHER QUESTIONS ON THE DEFICIENCIES OF DR. TAFF,
THE ALLEGED DEFICIENCIES IN DR. TAFF'S REPORT I WANT TO JUMP TO THE BROADER IMPLY KAGS
OF EXPERT SHOPPING HERE. I'M GOING TO RELY ON MY BRIEF ON THIS POEPT BUT I DO JUST WANT
IT HIGHLIGHT THE APPELLATE DIVISION DECISION AGAIN THEY HAD THIS ORIGINAL DECISION THAT
IT WASN'T ENOUGH FOR HIM JUST TO -- IT SHOULD HAVE BEEN ENOUGH, HE SHALL HAVE CONSULTED
WITH AN EXPERT AND THEN IN THE SECOND OPINION ONCE THEY HAVE THAT CLARIFICATION THAT
HE DID ACTUALLY CONSULT WITH SOMEONE THEY MOVED THE FIRP LINE BACK AND IN MOVING THE FINISH
LINE BACK THEY ARE BASICALLY PLACING A DUTY ON TRIAL COUNSEL NOW TO EXPERT SHOP AND EXPERT
SHOPPING IN OTHER JURISDICTIONS HAS BEEN EXPLICITLY BANNED. CHIEF JUSTICE
STUART A. RABNER: I UNDERSTAND YOUR POINT ABOUT EXPERT SHOPPING INSOFAR AS IF SOMEONE
GETS A REPORT THAT IS BEYOND REPROACH, AND JUST DOESN'T REEK THE CONCLUSION AND THEN KNOCKS
ON MORE DOORS UNTIL THEY GET A CONCLUSION NAS SATISFYING TO THEM, THAT CERTAINLY IS EXPERT
SHOPPING MAPG CORRECT YOUR HONOR. CHIEF JUSTICE STUART RABNER: DOES IT APPLY
TO A SITUATION WHERE THE INITIAL REPORT RAISES A GOOD NUMBER OF QUESTIONS AND POTENTIAL
PROBLEMS MAMG WELL, YOUR HONOR, I THINK WE HAVE TO LOOK AT THE TOTALITY OF THE CIRCUMSTANCES
THAT ARE HAPPENING HERE. NOT ONLY DO WE HAVE A REPORT THAT AT ITS INITIAL EN SEPGS ACCORDING
TO A ZEALOUS AND AGGRESSIVE ADVOCATE HAD HOLES IN IT. ONCE PRNT WD THOSE HOLES, MR. BAILEY,
THE TRIAL COUNSEL WAS ABLE TO EFFECTIVELY QUESTION HIM PRESUMABLY HE WOULD HAVE ASKED
HIM IF THIS WOULD HAVE CHAFRMED HIS REPORT IN ANY WAY AND AT THAT POINT IF MR. TAFF HAD
CHANGED HIS DECISION AND SAID ACTUALLY I WOULD HAVE SAID IT WAS INPATIENT DID HE TERMTIVE
OR SUICIDE, THEN AT THAT POINT MR. BAILEY AGAIN COULD HAVE MADE THE STRATEGIC DECISION
TO CHAFRM IT BUT GOING INTO IT WHEN WE HAVE MR. BAILEY TELLING DR. TAFF THAT THESE ARE
THE HOLES, WE HAVE MR. BAILEY HIGHLIGHTING THEM ON CROSS-EXAMINATION, YOU HAVE TWO EXPERTS
COMING TO THE SAME CONCLUSION AND AT THAT POINT THE APPELLATE DIVISION HAD DECIDED THAT IS
NOT ENOUGH YOU NEED TO TAKE IT A STEP FURTHER AND THE STEP FURM THAT THEY TOOK IT TO WAS
AN EXPERT WHO ULTIMATELY STILL COULDN'T COME TO THE CONCLUSION OF SUICIDE AND THAT IT WAS
INDETERMINANT EVEN AFTER REVIEWING ALL OF OF THESE ISSUES AND DR. SHAIKH TESTIFIED ON
CROSS-EXAMINATION THAT HPT SEEN THE DIARY ENTRIES HE WOULD HAVE, HE WOULDN'T HAVE CHANGED
HIS DECISION AND I DO JUST WANT TO HIGHLIGHT FOR THIS COURT THAT IT WAS PART OF MR. BAILEY'S
STRATEGIC DECISION TO CROSS-EXAMINE AND INTRODUCE THOSE DIARY ENTRIES WHICH WERE SUCCESSFULLY
CORRESPOND BY MR. BAILEY THROUGH THE CROSS-EXAMINATION. SO ALL OF THE ISSUES THAT
HE WANTED TO HIGHLIGHT FOR THE JURY HE WAS ABLE TO DO SO THROUGH THE METHODOLOGY THAT HE
SOUGHT BASED OFF OF THE INFORMATION HE HAD BEFORE HIM INCLUDING HIS SECONDARY CONVERSATION
WITH MR. TAFF WHEN HE WAS ABLE TO EXPLAIN TO HIM ALL THE ISSUES THAT HE THOUGHT WERE PART
OF HIS REPORT WHICH APPARENTLY ACCORDING TO MR. TAFF'S TESTIMONY ISN'T UNCOMMON. THERE ARE
TIMES WHEN MR. TAFF HAS AGAIN, BEEN GIVEN SECONDARY INFORMATION THAT LATER CHANGED HIS
REPORT AND THAT'S IN TRANSCRIPT 23 FOR YOUR HONORS. BUT THE IMPLICATION, JUST
CIRCLING BACK FOR CHIEF RABNER, THE IMPLICATIONS THAT THE EXPERT SHOPPING IS SIMPLY THAT
THE APPELLATE DIVISION CONTINUES TO MOVE THE FINISH LINE BACK IN SAYING THAT OKAY, NOW
THAT YOU CONSULTED THE EXPERT AND YOU USED THAT AS A VEHICLE TO THOROUGHLY SKILLFULLY
SPEEFRPSLY QUESTION CROSS-EXAMINE THE STATE'S WITNESS, THAT IS STEL NOT ENOUGH AND SO
WE KEEP MOVING THE GOAL POST BACK. WE WILL EVENTUALLY BE IN A PREDICAMENT WHERE WE DO
HAVE TO PUT ON THAT DUTY ON TRIAL COUNSEL TO EXPERT SHOP BECAUSE IT WASN'T ENOUGH FOR
HIM TO USE MR. TAFF'S REPORT, DR. TAFF'S REPORT AND THAT CONSULTATION TO CROSS-EXAMINE.
NOW HE HAS TO PUT AN EXPERT ON, AN EXPERT WHO AT THE TIME, MR. BAILEY DIDN'T HAVE BEFORE
HIM. DIDN'T HAVE DOCTOR WHAT BEFORE HIM. THERE'S KWAKSS IN THE RECORD THAT IF HE REQUESTED
A SECOND EXPERT IT WOULDN'T HAVE BEEN PRESENTED TO HIM HE WOULDN'T HAVE GOT TN APPROVAL
FOR HIM AND IF WE CONTINUE TO MOVE THIS GOAL POST BACK WE'RE GOING TO TAKE IT OUT OF AN
OBJECTIVELY REASONABLE TRIAL COUNSEL WOULD DO AND TO WHAT A PERFECT TRIAL COUNSEL WOULD DO
IN UTOPIAN TRIAL. AND WE HAVE TO MAKE SURE THE COURT -- THE COURT HAS TO MAKE SURE IT DRAWS
A HARD LINE IN ALLOWING THE REASONABLE TRIAL COUNSEL STANDARD TO STICK WHICH IS A STANDARD
THAT HAS BEEN EXPRESSED BY BOTH THE FEDERAL AND THE STATE COURTS. IF YOUR HONORS
HAVE NO OTHER QUESTIONS, ATTORNEY GENERAL JUST ASKS THIS COURT TO REINSTATE DEFENDANT'S
CONVICTIONS AND REVERSE THE APPELLATE DIVISION'S DECISION SGLFRMS THANK YOU, MR. BURR
ROSE. ANDREW R. BURROUGHS: CHIEF JUSTICE I RESERVE FINAL ARGUMENTS AFTER MY
OPENING STATEMENT? THANK YOU. MAY IT PLEASE THE COURT, TWICE A THREE JUDGE PANEL FOUND
INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT'S ATTORNEY DID NOT UNDERTAKE A AN
ADEQUATE PRETRIAL INVESTIGATION AND FAILED TO CALL A FORENSIC PATHOLOGIST AND OTHER
RELEVANT EXPERTS. DEFENDANT'S CONVICTION TURNED ALMOST ENTIRELY UPON THE STATE'S EXPERT
THAT MEDICAL EVIDENCE PROVED THAT THE MANNER OF DEATH OF HOMICIDE RATHER THAN SUICIDE.
DEFENDANT RELIED UPON A SCIENTIFIC DEFENSE WITHOUT THE BENEFIT OF EXPERT SCIENTIFIC
WITNESS. AS COUNSEL'S DEFICIENT PERFORMANCE WAS PREJUDICIAL SHLG THE PANEL CONCLUDED THAT
THERE WAS A REASONABLE PROBABILITY THAT THE OUTCOME OF THE TRIAL BEEN DIFFERENT HAD
COUNSEL PRESENTED EXPERT REBUTTAL TESTIMONY. CONTRARY TO THE STATE'S ARGUMENT TODAY, AT
THE FIRST PCR HEARING, THE PROSECUTOR CONCEDED THAT IT WAS CERTAINLY POSSIBLE THE JURY
MIGHT HAVE REACHED A DIFFERENT RESULT HAD A DEFENSE PATHOLOGIST TESTIFIED. ALTHOUGH THE
PANEL WAS TROUBLED BY THE INCONSISTENCIES BETWEEN COUNSEL'S PCR AND REMAND TESTIMONY,
ASUING ARGUENDO THAT ALL THAT HE SAID WAS TRUE, WHAT ARE WE LEFT WITH? PRELIMINARY WORK
WAS UNDER TAN BY DOCTOR MARK TAFF SEVERAL YEARS BEFORE TRIAL AND WHEN SKIFF WAS INCOMPLETE,
COUNSEL SAID TAFF HAD NOT BEEN PROVIDED ALL RELEVANT EVIDENCE RELYING ON POLICE REPORTS
AND THAT HE MAY NOT HAVE HAD THE AUTOPSY REPORT, DECEDENT'S JOURNAL AND THE CRIME SCENE
PHOTOS. AT THIS STAGE, TAFF'S RESULT WAS A NULLITY THAT COULD NOT BE RELIED UPON. FACED
WITH INCOME MEET WORK AND GIVEN THAT COUNSEL STRATEGY WAS A SCIENTIFIC DEFENSE OPPOSING
THE STATE'S EXPERT COUNSEL HAD GOOD REASONABLE CHOICES. SEND THE MISSING EVIDENCE TO TAFF
TO OBTAIN UPDATED OPINION OR RETAIN ANOTHER PATHOLOGIST. ALTHOUGH COUNSEL ACKNOWLEDGED
HE NEEDED A FULLY INFORMED EXPERT HE DID NEITHER. COUNSEL JUSTIFIED THE FAILURE TO PROCURE
AN ADEQUATE EXPERT REPORT BY SAYING HE RELIED ON A CARVE WAL CONVERSATION WITH THE HUDSON
REGIONAL DEPUTY SHORTLY BEFORE TRIAL TO REQUEST ANOTHER PATH OS. THE DEPUTY DENIED THE
CONVERSATION EVER HAPPENED. HE EXPLAINED IT COULD NOT HAVE OCCURRED AS THIS WAS A CONFLICTED
HUDSON COUNTY CASE AND ALL REQUESTS HAD TO DO TO GO THROUGH ESSEX COUNTY AND ALL EXPERT
REQUESTS HAD TO BE MITED IN WRITING. THE REMAND COURT FOUND COUNSEL FAILED TO SUBMIT AN A
WRITTEN REQUEST EXPRESSLY REQUIRED BY O PD GUIDELINES THAT NO OTHER EXPERT WAS RETAINED
AND COUNSEL FAILED TO KEEP RECORDS INDEPENDENTLY COULD BE RATING HIS NEW VERSION OF EVENTS
OF COUNSEL'S FAILURE TO TAKE NECESSARY STEPS TO PROCURE AN ADEQUATE EXPERT REPORT WAS.
THE M E REPORT WENT UNREFUTED. A BOARD CERTIFIED FORENSIC PATHOLOGIST AND NEUROLOGIST.
AT THE REVIEWING MORE THAN 300 AUTOPSY AND CRIME SCENE PHOTOS, DOCTOR WHAT EXPLAINED IN
DETAIL HIS CONCLUSION THAT THE M E'S OPINION THAT THE MANNER OF DEATH WAS A HOMICIDE AND
DEATH WAS INSTANTANEOUS WAS WRONG AND NOT SCIENTIFICLY SUPPORTED. DOCTOR WHAT TESTIFIED
THAT NO CONFIDENT PATHOLOGIST COULD HAVE AGAIN THE SHODDY INVESTIGATION AND THE LIMITED
EVIDENCE THE M E REVIEWED AND THAT WHILE INDETERMINANT HE FOUND THAT IT WAS A STRONG
CHANCE IT WAS A SUICIDE. WHAT FOUND THE STATE'S VERSION THAT THE DEFENDANT HAD DECEDENT
IN A HEADLOCK AND SHOT HER IN THE RIGHT SIDE OF THE HEAD WAS FORENSICLY IMPOSSIBLE MUCH
THE PHYSICAL EVIDENCE SHOWED AN ABSENCE OF BLOOD SPATTER ON THE RIGHT SIDE OF THE DEFENDANT'S
CLOTHING WHICH WOULD HAVE BEEN EXPECTED HE HAD BEEN IN CLOSE APPROXIMATE IT. HAD COUNSEL,
SUCH AS DOCTOR WHAT, THE JURY WOULD HAVE KNOWN ALL THIS. AS IT STOOD, THE JURY NEVER HEARD
AN EXPERT WHO WOULDN'T HAVE PROVIDED A PROVIDED COMPELLING WILL HE BULTHS TO THE M E'S
UNSUPPORTED OPINION THAT MANNER OF DEATH WAS HOMICIDE MUCH THE JURY NEVER HAD A
PSYCHOLOGIST DECIDING TO DECIDE HER JOURNAL IN WHICH SHE STATED SHE HAD ATTEMPTED SUICIDE
SEVERAL TIMES BEFORE AND THREATENED TO SHOOT DEFENDANT AND HERSELF. THE PANEL
FOUND OF THE M E'S WAS UNINN INFORMED. COUNSEL COULD NOT HAVE CULTED AN INFORMED
PATHOLOGIST. COUNSEL SHOWED HE DID NOT UNDERSTAND THE SCIENTIFIC HOLES IN THE M E'S TESTIMONY.
DID NOT UNDERSTAND WHAT EXPERT'S WERE EVEN REQUIRED, DID NOT REALIZE THE SIGNIFICANCE OF
THE CLOEMGING EVIDENCE AND DID NOT HAVE AN ADEQUATE BASIS TO EFFECTIVELY CROSS-EXAMINE
THE M E ABOUT NUMEROUS MATERIAL DEFICIENCIES IN HIS TESTIMONY. COUNSEL'S FAILURE TO PRESENT
AN INN INFORMED EXPERT AT TRIAL WAS NOT OBJECTIVELY REASONABLE MUCH THE PANEL TWICE
CORRECTLY FOUND THAT THIS DEFICIENT PERFORMANCE WAS PREJUDICIAL BECAUSE IT WAS A REASONABLE
PROBABILITY HE WOULD NOT HAVE BEEN CONVICTED IF AN EXPERT LIKE DOCTOR WHAT HAD TESTIFIED. THANK
YOU. THAT CONCLUDES MY OPENING REMARKS AND I NOW PER PROCEED TO ARGUMENT. CHIEF
JUSTICE STUART RABNER: COUNSEL, THERE ARE TWO STRANDS IN THE APPELLATE DIVISION DECISION
MUCH ONE WITH RESPECT TO THE PATHOLOGIST AND THEN WITH REGARD TO SEVERAL OTHER EXPERTS.
ANDREW R. BURROUGHS: CORRECT. CHIEF JUSTICE STUART RABNER: ASSUME
FOR A MOMENT WE'RE GOING TO PUT THE PATHOLOGIST ISSUE TO ONE SIDE AND WHETHER OR NOT A
SECOND WAS CALLED IS OF NO MOMENT. IF THE ONLY BASIS FOR YOUR INEFFECTIVE
ASSISTANCE CLAIM WAS THE FAILURE TO CONSULT WITH A FORENSIC PSYCHOLOGIST, AND A BLOOD SPATTER
EXPERT COULD YOU PREVAIL AT THIS POINT IN TIME ON RECORD THAT EXISTS. ANDREW R.
BURROUGHS: WITHOUT THE FORENSIC PATH OLS ISSUE. THE COURT: PUT IT OFF TO ONE SIDE,
DON'T CONSIDER THAT. ANDREW R. BURROUGHS: IT WOULD BE MORE DIFFICULT.
HOWEVER, I WOULD ANSWER IT THIS WAY. THAT BECAUSE OF DOCTOR WHAT'S TESTIMONY THAT THE MEDICAL
EXAMINER'S REPORT WAS NECESSARILY INCOMPLETE WITHOUT CONSIDERATION OF EVIDENCE FROM THESE
EXPERTS, COUNSEL WOULD HAVE BEEN ON NOTICE THAT THE ENTIRE STATE'S CASE, MEDICAL CASE WAS
UNRELIABLE WITHOUT THOSE EXPERTS. THIS SHOULD HAVE ALERTED COUNSEL THEN TO HAVE CONSULTED
WITH THOSE EXPERTS. CHIEF JUSTICE STUART RABNER: YOU HAVE THE BURDEN AT THIS
MOMENT IN TIME TO DEMONSTRATE BOTH PRONG UNDER STRICKLAND, IS THIS ANYTHING IN THE RECORD
THAT TELLS US WHAT THESE THREE ADDITIONAL EXPERTS WOULD SAY. ANDREW R. BURROUGHS:
WELL, THE BLOOD SPATTER EXPERT, WHICH COULD HAVE BEEN TESTIFIED THROUGH SOMEONE LIKE DOCTOR
WHAT, A A NEUROLOGIST, THAT THE STATE'S WHOLE THEORY OF THE CASE WAS UNTENABLE, THAT IT
WAS IMPOSSIBLE FOR DEFENDANT TO HAVE LAID ON TOP OF THE VICTIM, HELD HER IN A HEADLOCK
AND SHOT HER IN THE RIGHT SIDE OF THE HEAD MUCH THE BLOOD SPATTER AND I'M TALKING TWO
DIFFERENT BLOOD SPATTERS HERE, THE BLOOD SPATTER ON THE CLOTHING, A NEUROLOGIST, A FORENSIC
PATHOLOGIST COULD TESTIFY TO THAT. THE BLOOD SPATTER ON THE WALL WAS IMPORTANT BECAUSE
THE THEORY WAS DR. TAFF THEORY AND MY THEORY IS THAT THE DECEDENT AND THE DEFENDANT WERE
STANDING AT THE TIME. A BALLISTICS EXPERT WAS NECESSARY BECAUSE THE HEIGHT DIFFERENTIAL
BETWEEN THE DECEDENT WAS FIVE FOOT THREE AND THE DEFENDANT WAS SIX FOOT. CHIEF
JUSTICE STUART RABNER: YOU HAVE TO DEMONSTRATE PREJUDICE. ANDREW R. BURROUGHS:
I WOULD. CHIEF JUSTICE STUART RABNER: IS THERE ANYTHING RIGHT NOW WITH RESPECT
TO THOSE THREE EXPERTS THAT TELLS US WHAT THEY WOULD HAVE SAID TO DEMONSTRATE PREJUDICE?
ANDREW R. BURROUGHS: WE DIDN'T PRESENT THOSE EXPERTS AT THE PCR HEARING. WE DID
NOT PRESENT THOSE TESTIMONIES. OUR POSITION WAS THE FORENSIC PATHOLOGY ISSUE WAS OVERWHELMING
IN THE CASE. CHIEF JUSTICE STUART RABNER: DOESN'T THE APPEAL IN FRONT OF US AS
A RESULT BOIL DOWN TO THAT NOW. ANDREW R. BURROUGHS: IS IT IT DOES EXCEPT
FOR THE CUMULATIVE ERROR THAT THE APPELLATE DIVISION FOUND MUCH THE APPELLATE DIVISION
FOUND THAT THE FAILURE OF TRIAL COUNSEL TO CONSULT WITH THOSE EXPERTS WHICH BY THE WAY
HE ADMITTED. CHIEF JUSTICE STUART RABNER: I DID FIND THAT AND THAT IS THE
REASON IF ARE MY QUESTIONS OF YOU RIGHT NOW OF THEY DID MAKE THAT FINDING AND THAT'S WHY
I'M ASKING YOU TO EXPLAIN TO US HOW THAT'S A BASIS FOR INEFFECTIVE ASSISTANCE IF WE DON'T
KNOW WHAT THEY WOULD SAY AND CAN'T ADDRESS PREJUDICES AS A RESULT. ANDREW R.
BURROUGHS: I THINK WHAT THE APPELLATE DIVISION WAS SAYING WAS A MERE FAILURE OF COUNSEL
TO EVEN ENGAGE AND CONSULT WITH THOSE EXPERTS WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT:^ IS THAT ENOUGH TO PROVE PREJUDICE. ANDREW R. BURROUGHS:
NOT NECESSARILY KNOW. ASSOCIATE JUSTICE JACK M. SABATINO: ISN'T BLOOD
SPATTER HIGHLY CONTROVERSIAL AND FREQUENTLY DEFENSE ATTORNEYS IN CREDIBLE CASES WHEN IT'S
OFFERED BY THE GOVERNMENT. ANDREW R. BURROUGHS: BLOOD SPATTER CAN BE
CONTROVERSIAL CERTAINLY AT DISTANCES BUT THE BLOOD SPATTER I'M REFERRING TO HERE IS CLOSE
PROXIMITY BLOOD SPATTER MEANING THAT THE NEUROLOGIST WOULD UNDERSTAND THE VOLUME OF
BLOOD WITHIN THE BRAIN, HE WOULD UNDERSTAND THE VARIOUS VEINS AND ARTERIES IN THE BRAIN.
HE WOULD KNOW HOW MUCH SUBSTANCE WOULD EXIT, THE EXTENUATION THAT WOULD OCCUR IN THE CLOSE
CONTACT WOUND AND THE BLOW BACK THAT WOULD OCCUR. DOCTOR WHAT DESCRIBED THAT IN HIS TESTIMONY
AT SOME HOENT LENGTH THAT THE BLOW BACK WOULD HAVE BEEN SUFFICIENT, HE BASICALLY WOULD HAVE
COVERED ON THE LEFT SIDE OF MILLER'S T-SHIRT YOU WOULD SEE BLOOD AND BRAIN MATTER. YOU HAVE
THE PHOTOS. THEY ARE IN THE APPENDIX, YOU DON'T SEE ANYTHING OP LEFT SIDE, NOTHING. YOU
SEE BLOOD DRIPGS ON THE RIGHT SIDE WITH HIS ARM BEING UP WITH A BULLET GOING IN THE ELBOW.
THAT'S ALL YOU SEE SO IT WOULD HAVE BEEN IMPOSSIBLE YOU SEE FOR HIM TO HAVE LANE ON
TOP OF THE DECEDENT AND FIRED THE WEAPON AT A CLOSE CONTACT WOUND MUCH THAT'S WHAT DOCTOR
WHAT IS SAYING. YOU SEE HAD TRIAL COUNSEL MERELY DONE A DECENT CONSULTATION HE WOULD HAVE
KNOWN THAT AND THE JURY WOULD HAVE KNOWN THAT OF THAT'S WHAT'S MISSING HERE. THERE'S NO
REP FEW TAGS OF THE MEDICAL EXPERT. ASSOCIATE JUSTICE JACK M. SABATINO: WELL,
IF ANOTHER EXPERT OR SEVERAL OTHER EXPERTS WERE CALLED BY THE DEFENSE, OF COURSE THERE'S
PROSPECT THAT THE PROSECUTOR WOULD IMPEACH THOSE EXPERTS WHO TESTIFIED FOR THE DEFENSE
SO CAN'T A TRIAL ATTORNEY MAKE A STRATEGIC DECISION THAT IT MIGHT BE SAEFR OR BETTER TO
CROSS-EXAMINE THE STATE'S WITNESS WHO DOES HAVE THE BURDEN OF PROOF RATHER THAN EXPOSE
A COUNTER EXPERT TO CROSS-EXAMINATION AND IMPEACHMENT. ANDREW R. BURROUGHS:
THERE MAY BE CIRCUMSTANCES WHEN IT'S NOT NECESSARY TO CALL AN EXPERT IN CERTAIN
CIRCUMSTANCES. THIS IS NOT ONE OF THEM. I MEAN, LET ME GIVE YOU ONE EXAMPLE. WHY IS THE
DEATH NOT INSTANTANEOUS? IT'S BECAUSE THE BRAIN STEM WASN'T SEVERED. COUNSEL NEVER NEW
TO QUESTION THE MEDICAL EXAMINER ABOUT THAT. THAT'S WHY DEATH WAS NOT INSTANTANEOUS.
BECAUSE THE BRAIN STEM WASN'T SEVERED AND THE NATURE OF THE WOUND, THE INVOLUNTARY
MECHANISMS AND BREATHING AND THE HEART WITH SESHG LAGS OF BLOOD CONTINUED AFTER THE WOUND
WAS INFLECTED. THAT'S A SCIENTIFIC FACT. COUNSEL DIDN'T KNOW TO ASK DR. SHAIKH THE MEDICAL
EXAMINER OF THAT KIND OF COUNSEL. THERE ARE OTHER QUESTIONS THAT WEREN'T ASKED. FOR EXAMPLE,
THERE WAS A HIS PATHOLOGIST, OR BASICALLY MY SCOPIC EXAMINATION OF THE WOUNDS ON THE NECK
WHICH PLAYED A MAJOR ROLE IN THE STATE'S CASE. DOCTOR, THE MEDICAL EXAMINER NEF UNDERTOOK
THAT TYPE OF EXAMINATION. AGAIN, HAD TRIAL COUNSEL SPOKEN TO A CONFIDENT FORENSIC
PATHOLOGIST AND I HAVE THE GREATEST RESPECT FOR DR. TAFF, HAD DR. TAFF HAD ALL THE EVIDENCE
IN FRONT OF HIM I HAVE NO DOUBT THAT DR. TAFF WOULD HAVE COME TO THE VERY SAME CONCLUSIONS
AS DOCTOR WHAT. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS: AND DEFENSE COUNSEL
HEM SELF SAID HE'S NOT A MEDICAL EXPERT. ANDREW R. BURROUGHS: MULTIPLE TIMES
HE TOLD THE JURY THAT AND HE TOLD THE. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS:
HOWEVER HIS CROSS-EXAMINATION OF DR. SHAIKH AND HIS DEFENSE THEORY ON SOME SIGNIFICANT
SCIENTIFIC EVIDENCE WITHOUT ANY SUPPORT CROSS-EXAMINE DR. SHAIKH ON THE TRO JEKT TRI
ON THE BULLET, ON THE WOUND ON THE DECEDENT'S HAND, ON OTHER PIECES OF EVIDENCE THAT HE
TRIED TO MAKE SCIENTIFIC ARGUMENTS WITHOUT ANY SCIENTIFIC SUPPORT FROM ANY EXPERT OR ANYONE
WHOSE AN EXPERT IN THE FIELD. ANDREW R. BURROUGHS: THAT'S CORRECT JUSTICE.
HE ADMITTED I'M NOT A FORENSIC PATH OLS. HE HE TOLD ON REMAND. ASSOCIATE JUSTICE
FABIANA PIERRE-LOUIS: **REPORTER'S NOTE** (INAUDIBLE). ANDREW R. BURROUGHS:
IN FACT HE TRIED TO TESTIFY DURING CLOSING REMARKS, HE UPONTIVE IF I KATE ABOUT A BULLET
WOUND ON GRAVES ON THE DECEDENT WHICH WAS MEDICALLY IMPOSSIBLE, THE GRAZING HAPPENED
THROUGH RATCHETING AND IF YOU LOOK AT THE SUMMATION OF THE PROSECUTOR SHE WELL USED
THAT AGAINST TRIAL COUNSEL TO DIMINISH HIM BEFORE THE JURY. THIS IS NOT, I WANT TO GO
BACK TO SOMETHING THAT THE ARE. ASSOCIATE JUSTICE ANNE M. PATTERSON:
COUNSEL, A LAWYER'S COMMENTS THAT ARE INARTFUL ABOUT SCIENCE IN A CLOSING ARGUMENT ISN'T
INEFFECTIVE STANCE OF COUNSEL, IS IT? IF THAT WOULD WERE SO, THERE WOULD BE A LOT OF NEW
TRIALS THAT ARE BEING GRANTED BECAUSE LAWYERS SOMETIMES GET CARRIED AWAY ON AN ISSUE AND
SPEAK IN A MANNER THAT IS NOT BACKED UP BY THE SCIENCE. ANDREW R. BURROUGHS:
THAT'S NO DOUBT TRUE, JUSTICE, BUT WHEN A LAWYER MAKES MEDICALLY UNSOUND ARGUMENTS BEFORE
THE JURY IT ONLY ELEVATES THE MEDICAL EXAMINER. ASSOCIATE JUSTICE ANNE M. PATTERSON:
HOW MANY, I'M NOT A DOCTOR, I'M NOT A THIS, IT'S SOMETHING THAT LAWYERS SAY FOR PURPOSES
OF RELATING TO JURIES AND ALSO TO MAKE CLEAR THAT IF THERE'S A MISSTATEMENT ON A TECHNICAL
TERM THEY ARE NOT STANDING BY THAT. I THINK IT'S A STRETCH TO SAY THAT THAT AMOUNTS TO
INEFFECTIVE ASSISTANCE OF COUNSEL. ANDREW R. BURROUGHS: I DIDN'T.
CHIEF JUSTICE STUART RABNER: IT'S EVEN BEEN SAID ONCE OR TWICE AT THIS PODIUM, WE WON'T.
ANDREW R. BURROUGHS: WHAT DID I. CHIEF JUSTICE STUART RABNER: NO
IT'S EVEN BEEN COMMENTED ONCE OR TWICE AT THIS PODIUM. ANDREW R. BURROUGHS:
IT'S PROBABLY EVEN SAID BY MYSELF. HAD. ASSOCIATE JUSTICE ANNE M. PATTERSON:
YOU ARE CLAIMING THE SUMMATION WAS. ANDREW R. BURROUGHS: NO I'M IN THE. I'M
NOT. WHAT I'M CLAIMING HIS SUMMATION INDICATES HE COULD HAVE NOT CONSULTED WITH A FORENSIC
PATHOLOGIST BY MAKING THIS CLAIM THAT THE BULLET WOUND WAS CAUSED BY RATCHETING THE GUN
AND NOT BY A GRAZE OF A BULLET. ASSOCIATE JUSTICE ANNE M. PATTERSON: THERE
HAVE BEEN MANY LAWYERS WHO HAVE CONSULTED WITH QUALIFIED EXPERTS ABOUT GET IT WRONG WITHOUT
THE EXPERT IN TALKING IN THEIR EAR. I MEAN TO SAY THAT THAT'S INEFFECTIVE ASSISTANCE.
ANDREW R. BURROUGHS: I WANT TO BE CLEAR. I'M SAYING IT'S EVIDENCE HE DIDN'T
CONSULT. ASSOCIATE JUSTICE ANNE M. PATTERSON: MY POINT IT DOESN'T PROVE THAT HE
DIDN'T CONSULT. SOMETIMES LAWYERS DON'T NECESSARILY WHEN THEY STAND UP, SPECIALLY ON
SUMMATION AND OPENING STATEMENT GET THE SCIENCE RIGHT, EVEN IF THEY'VE BEEN PROPERLY
INSTRUCTED BY AN EXPERT. ANDREW R. BURROUGHS: THAT'S NO DOUBT TRUE AND I WILL
DEFER TO YOUR COMMENTS ON THAT ONE. TO ME, IT INDICATES HE COULDN'T HAVE CONSULTED BECAUSE
IT'S MEDICAL HI IMPOSSIBLE WHAT HE SAID. HAD HE REALLY SPOKE TO DR. SHAIKH, HE SPOKE TO
TAFF FSHGS REALLY, HE WOULD HAVE, THEY WOULD HAVE TOLD HIM THAT THE WOUND ON THE DEED
EVENT'S HAND WAS BY A BULLET NOT BY RAJJING A GUN WHICH IS PHYSICALLY IMPOSSIBLE BY THE
WAY AND BECAUSE COUNSEL BROUGHT THAT UP DURING TRIAL, TRIED TO BRING THAT UP AT TRIAL,
THE DETECTIVE, IF YOU LOOK AT THE RECORD, LECTURED HIM THAT NO, IT COULD HAVE NOT THE
45 COLT WOULD THAT WOULD NEF CAUSE THAT COPIED OF A WOUND ON THE HAND MUCH IT'S NOT JUST
THE MEDICAL EXAMINER. IF YOU CONSULT WITH A BALLISTIC EXPERT HE WOULD HAVE KNOWN THAT.
IT'S JUST INDICATIVE DIDN'T HE CONSULT OF IT WAS HUMOROUS. KNOW BETTER. I COULD DO
CROSS-EXAMINATION. HIS FIRST PCHL CR.^ TESTIMONY THAT'S WHAT HE SAID. I DIDN'T NEED AN
EXPERT THAT'S WHAT HE IS HE SAID. CROSS-EXAMINATION WAS SUFFICIENT. THE MEDICAL
EXAMINER WAS A WEAK WITNESS. I DIDN'T NEED TO CONSULT ANYWAY. NOW I UNDERSTAND HE CHANGED
HIS TESTIMONY COME MTLY AFTER AT THE REMAND HEARING, HE GOT COMPLETELY TESTIMONY, DIGIT
STRAT JISHGS COMPLETE MRI DIFFERENT STRATEGIES WERE ADOPTED BY TRIAL COUNSEL BY ONE WITH
I WHICH ONE FITS THE FACTS OF MORE OF WHAT HAPPENED IN THIS CASE AND I EMPHASIZE THE
BULLET GRAZE WOUND HE (INAUDIBLE) WITH ANY BA TIS LIST PARTICULARS EXPERT. I
WANT TO GO BACK. ASSOCIATE JUSTICE ANNE M. PATTERSON: LET ME JUST ASK YOU
ONE MORE QUESTION. ANDREW R. BURROUGHS: PLEASE PLEASE.
ASSOCIATE JUSTICE ANNE M. PATTERSON: ONE ISSUE THAT CONCERNS ME WITH THIS CASE IS THAT
WE HAVE A LOT OF LAW ABOUT DEFERENCE TO TRIAL COUNSEL'S STRATEGIES AND LAWYERS DON'T HAVE
TO HAVE NECESSARY HI THE BEST STRATEGY OR EVEN A STRATEGY THAT ALL OF US IN RETROSPECT
WE MAY SIGH WAS THE RIGHT WUVENLT IT'S A REASONABLENESS STANDARD. ANDREW R.
BURROUGHS: IT IS. ASSOCIATE JUSTICE ANNE M. PATTERSON: WHAT IS THE PRINCIPLE,
THE DEFINING PRINCIPLE WHEN THIS COMES TO CONSULTING WITH AN EXPERT THAT YOU WOULD
ARTICULATE TO DIFFERENTIATE BETWEEN MAYBE NOT THE BEST BUT STILL REASONABLE AND SOMETHING
THAT RISES TO INEFFECTIVE STANCE OF COUNSEL. ANDREW R. BURROUGHS: I CITE TO
THIS COURT STATE V. SAVAGE, THAT'S THE 1990S CASE. THE SIMILARITIES ARE STRIKING BETWEEN
THIS CASE AND THAT CASE. THERE YOU HAD A TRIAL COUNSEL, IF YOU RECALL, SAID THAT
CROSS-EXAMINATION WAS SUFFICIENT. THE ISSUE WAS IDENTIFICATION OF BODY PARTS. HE WAS GOING
TO ARGUE THAT THE MEDICAL EXAMINER COULD NOT IDENTIFY THE BODY, THE TORSO THAT WAS FOUND,
HE NEVER CONSULTED WITH A FORENSIC PATHOLOGIST. HE NEVER MET WITH THE MEDICAL EXAMINE ARE
BY THE WAY, WHICH THIS COURT CHASTISED COUNSEL FOR AND THEN HE NEVER CONSIDERED A DIM
MIP INITIALED CAPACITY DEFENSE EVEN THOUGH IT WAS OCHS THAT HIS CLIENT WAS SUFFERING FROM
SEVERE MENTAL ILLNESS AND THE COURT SAID THAT THAT WAS UNACCEPTABLE, FIRST NOT TO HAVE
MET WITH THE MEDICAL EXAMINER COURT SAID SHALL. SECONDLY THE COURT SAID NOT TO CONSIDER
AN INDEPENDENT EXPERT WHEN YOU ARE GOING TO HAVE A SCIENTIFIC DEFENSE AND THIRD, NOT TO HAVE
CONSIDERED NEW INFORMATION. YOU CHANGE YOUR STRATEGY AS NEW INFORMATION. WHEN TRIAL
COUNSEL REALIZED THAT TAFF'S WSHG WAS DEFICIENT, AGAIN, NO CRITICISM FENCE DR. TAFF. AN
EXPERT'S OPINION IS ONLY AS FOOD AS WHAT HE HAS IN FRONT OF HIM AND THE TRIAL COUNSEL
SAID HE RELIED MOST LE ON POLICE REPORTS, IT APPEARS THAT DR. TAFF MAY NOT HAVE HAD ALMOST
ANYTHING IN FRONT OF HIM. TRIAL COUNSEL SHOVE REASSESSED HIS STRATEGY. HE HAD TWO CHOICES,
SEND ALL THE INFORMATION TO TAFF SO HE CAN DO AN UPDATE OF HIS OPINION OR GO GET A PATHOLOGIST
MUCH THE REMAND COURT MADE A VERY IMPORTANT FINING IN THIS CASE. THE REMAND COURT SAID
THAT SHE FOUND HIM CREDIBLE THAT HE MAY HAVE SPOKE TO THE HUDSON COUNTY DEPUTY BUT THE
REMAND COURT SAID THERE'S NO EVIDENCE OF DUE DILIGENCE DID HE EVER EXPLAIN TO THE HUDSON
COUNTY DEPUTY WHY HE NEEDED AN EXPERT. NOW, ON CROSS-EXAMINATION I ASKED HIM WHAFTS
REASON THAT HE ASKED FOR A SECOND PATHOLOGIST. I ASKED HIM ISN'T IT TRUE THAT YOU WANTED
A SECOND PATHOLOGIST BECAUSE YOU FOUND TAFF'S WORK WANTING AND HE SAID YES.
THERE'S ALSO SOMETHING ELSE THAT HE SAID. IN CROSS-EXAMINATION AND DIRECT, HE WAS ASKED
WHEN YOU SPOKE TO THIS -- HAD THIS CALL WITH TAFF THAT TAFF DOESN'T REMEMBER EVER OCCURRING,
WHEN YOU HAD THIS CALL WITH TAFF, DID YOU DO A DRY RUN FOR CROSS-EXAMINATION WHEN THE MEDICAL
EXAMINER. HE SAYS NO, I DID NOT DO A DRY RUN. DID YOU USE ANY OF THE INFORMATION YOU DMREEND
INTEREST TAFF TO HELP YOU WITH YOUR CROSS-EXAMINATION. HE SAID NO, I DIDN'T USE
ANYTHING THAT I SPOKE WITH TAFF IN CROSS-EXAMINING THE MEDICAL EXAMINER MUCH THAT IS NOT
AN ADEQUATE CONSULTATION OF AN EXPERT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
DOES THE PCR COURT'S FINDING THAT AN EXPERT'S TESTIMONY OR EXPERT'S REPORT, THIS IS NOT
THIS CASE, WAS DEFICIENT AND WAS SIMPLY NOT HELPFUL TO THE DEFENDANT EQUATE TO
INEFFECTIVE ASSISTANCE OF COUNSEL. ANDREW R. BURROUGHS: LET ME JUST SAY IF
A PCR COURT FINDS THAT A REPORT THAT AN ATTORNEY RELIED ON WAS DEFICIENT. ASSOCIATE
JUSTICE ANNE M. PATTERSON: RIGHT. ANDREW R. BURROUGHS: I WOULD SAY WAS IT
MANIFESTLY DEFICIENT, WAS IT OBVIOUSLY DEFICIENT. IF ETS AN ISSUE OF WEIGHING OF SCIENCE
AND A REASONABLE DEBATE I WOULDN'T SAY SO. ASSOCIATE JUSTICE ANNE M. PATTERSON:
PUT IT ANOTHER WAY. WHY DOES NOT YOUR POSITION NOT EN GENDER A RULE THAT EXPERTS HAVE TO BE
IF NOT ULTIMATELY SUCCESSFUL IN ASSISTING THE DEFENDANT TO BE ACQUITTED, AT LEAST, TO
A CERTAIN LEVEL OF PROFICIENCY OR THE LAWYER IS THEN DEFICIENT AND A NEW TRIAL IS REQUIRED.
DO YOU SEE WHAT I'M TALKING. ANDREW R. BURROUGHS: I DO. I'M IN THE GOING
THAT FAR. ASSOCIATE JUSTICE ANNE M. PATTERSON: SOMETIMES EXPERTS ARE GREAT
ON PAPER AND THEY HAVE TERRIBLE DAYS ON COURT. ANDREW R. BURROUGHS: THAT'S RIGHT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: SOMETIMES EXPERTS ARE UNEXPECT HE DOLY
GOOD. BUT BUT HERE THIS IS WHAT DIGIT OF THE HERE THE TRIAL COURT. ASSOCIATE JUSTICE
ANNE M. PATTERSON: (INAUDIBLE) I CAN THERE CAN BE MANY REASONS FOR. ANDREW R.
BURROUGHS: IF IT'S DEFICIENT FOR THAT REASON YES THERE SHOULD BE A RULE. IF TRIAL COUNSEL IS
NOTHING HAD RELYING ON AN EXPERT REPORT THAT HE KNOWS IS DEFICIENT IN INFORMATION BUT
USES IT ANYWAY, YES, THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON: BUT YOU WOULD
CABIN THIS IS WHAT IS MIFRG HERE IS THE RECORD PROVIDED THE EXPERT WAS INADEQUATE.
ANDREW R. BURROUGHS: WE CAN ONLY GO BY TRIAL KUN'S TESTIMONY ANTE SAYS HE WASN'T PROVIDED
ANYTHING. ASSOCIATE JUSTICE ANNE M. PATTERSON: IF A LAWYER HAS A PROPERLY
PREPARED EXPERT WHO DOES A REPORT THAT IS SUFFICIENT BUT DOES A LOUSY JOB TO USE A
CAULFIELD TERM IN PREPARING THAT EXPERT AND THE EXPERT BOMBS AT TROIL IS THAT INEFFECTIVE
ASSISTANCE OF COUNSEL. BUT NO I'M IN THE SURE IT WOULD BE. IN FACT, I HAVE TO TELL YOU
THAT IF HE HAD SENT ALL THE INFORMATION TO TAFF AND TAFF HAD ALL THE INFORMATION AND TAFF
CAME TO A CONCLUSION AS THE MEDICAL EXAMINER, THAT LIKELY WOULD NOT BE INEFFECTIVE
ASSISTANCE BUT THAT'S NOT WHAT WE HAVE HERE. ASSOCIATE JUSTICE ANNE M. PATTERSON:
SO THE CRUX OF YOUR CASE IS THE INADEQUATE SFI OF THE INFORMATION PROVIDED TO THE EXPERT.
ANDREW R. BURROUGHS: AND TRIAL'S STEPS. ASSOCIATE JUSTICE ANNE M.
PATTERSON: IS THAT THE LIMITING PRINCIPLE HERE? DO YOU SEE WHAT I'M GETTING AT IS TO ME
NOT EVERY LOUSY JOB DONE BY AN EXPERT IS INEFFECTIVE ASSISTANCE OF COUNSEL.
ANDREW R. BURROUGHS: THAT'S MY POSITION. NOT EVERY LOUSY JOB. ASSOCIATE JUSTICE
ANNE M. PATTERSON: THE THE CRITICAL. ANDREW R. BURROUGHS: CORRECT TO MAKE
AN INFORMED ADEQUATE REPORT THAT'S REALLY WHAT'S MISSING HERE AND THERE REALLY CAN BE
NO DOUBT ABOUT THAT. I MEAN, THE -- THIS IS ONE THICK I WOULD LIKE TO, WHICH I DID MENTION
IN MY BRIEF THE OBJECTIVE ANALYSIS HERE. THE STATE ARGUES HE HAD A CONSULTATION WITH.
I SEE THIS WORD CONSULTATION OF I WANT IT REMIND THE COURT THAT THE TRIAL COUNSEL DIDN'T
EVER REFER TO IT AS A CONSULTATION MUCH HE SAID IT WAS AN INFORMAL CONVERSATION. HOWEVER,
WE CAN MEASURE IF HE HAD ALLEGED CONVERSATION WITH TAFF WITH THE QUALITY OF HIS
CROSS-EXAMINATION AND THE APPELLATE DIVISION DID THAT. THEY LOOKED OBJECTIVELY AT THE
CROSS-EXAMINATION AND THE THINGS THAT DOCTOR WHAT HAD BROUGHT FORTH AND THE APPELLATE DIVISION
CONCLUDED THERE'S NO WAY THAT HE COULD HAVE HAD AN INFORMED DISCUSSION WITH THE PATHOLOGIST
OR ANY OTHER EXPERTS. HIS CROSS-EXAMINATION WAS SO DEFICIENT HIS CROSS-EXAMINATION I WOULD
SAY SMOOTH AND AS AN ATTORNEY WAS A GOOD CROSS-EXAMINATION AS ATTORNEYS GO BUT WHEN
YOU ARE CROSS-EXAMINING A MEDICAL EXPERT AND YOU ARE STRATEGY IS A SCIENTIFIC DEFENSE,
YOU GOT TO DO YOUR HOMEWORK, YOU GOT TO MEET WITH THE M E, YOU HAVE TO MEET WITH YOUR
OWN EXPERTS TO PREPARE YOURSELF FOR THAT TYPE OF CROSS-EXAMINATION. ASSOCIATE
JUSTICE ANNE M. PATTERSON: I RESPECTFULLY SUGGEST THAT ARGUMENT AS OPPOSED TO THE ARGUMENT
YOU RAISED PROVIDING INFORMATION. ANDREW R. BURROUGHS: WELL, I HAVE MORE
AURTS. ASSOCIATE JUSTICE ANNE M. PATTERSON: I KNOW YOU HAVE.
ANDREW R. BURROUGHS: MY BELIEF HAS MORE THAN THAT. ASSOCIATE JUSTICE ANNE M.
PATTERSON: I KNOW. I KNOW. I'M REFERRING TO TWO OF THEM AND COMPARING THEM. THAT ARGUMENT
REQUIRES SOME INFERENCES TO BE DRAWN THAT, NOT EVERY POOR CROSS-EXAMINATION THAT WE HAVE,
IN RETROSPECT DID NOT GO WELL FOR LAWYERS RESULTS FROM A LACK OF CONSULTATION.
ANDREW R. BURROUGHS: IT IS TRUE AND CROSS-EXAMINATION IS AN ART AND COUNSEL CAN
FORGET TO ASK KEY QUESTIONS. ASSOCIATE JUSTICE ANNE M. PATTERSON: ARE YOU ASKING
THIS COURT TO COME TO A FACTUAL CONCLUSION THAT THERE WAS NO CONSULTATION, MEANINGFUL
CONSULTATION WITH THE EXPERT BECAUSE AS YOU LOOK AT THE CROSS-EXAMINATION IN RETROSPECT
DO YOU THINK IT WAS A PRETTY POOR JOB. ANDREW R. BURROUGHS: I'M ASKING FOR
TWO REASONS TO FIND NO MEANINGFUL CONSULTATION. ONE BECAUSE THE THE ALLEGED CONSULTATION
WITH TAFF IS WITH AN EXPERT WHO DIDN'T HAVE ALL THE INFORMATION BEFORE HIM SO THEY COULD NOT
HAVE BEEN AN INFORMED CONSULTATION WITHOUT THE THREE HUNDRED CRIME SCENE AND AUTOPSY,
THE DECEDENT JURJS DEFENDANT'S STATEMENT WITHOUT THE AUTOPSY REPORT, WITHOUT THE REFERRED
IN FRONT OF HIM DR. TAFF COULD NOT HAVE ENGAGED IN A REASONABLY INFORMED DISCUSSION,
CONSULTATION WITH DEFENDANT. THEN I'M GOING TO ASK YOU TO ALSO SAY THEN LACK AT WHAT REALLY
HAPPENED AND WHAT WAS MISSING IN THE CROSS-EXAMINATION. IF HE REALLY HAD TALKED TO
DR. TAFF ABOUT THESE ISSUES, IT'S REASONABLE TO BELIEVE THAT DR. TAFF WOULD HAVE DISCUSSED
-- ASSOCIATE JUSTICE ANNE M. PATTERSON: ALSO REASONABLE TO BELIEVE THAT
THE LAWYERS DON'T GET THE (INAUDIBLE). ANDREW R. BURROUGHS: WELL, THIS WAS
AN HOUR LONG CONVERSATION WE HAVE. YEF NO NOTES. WE HAVE NO BILLING N TRI BUT THIS IS
TRIAL COUNSEL'S TESTIMONY THAT WE HAVE BEFORE US. LET ME JUST BEFORE I CONCLUDE,
I JUST WANT TO MAKE SURE THAT I HAVE ADDRESSED THE SEQUENCE OF EVENTS ARE A LITTLE BIT
DIFFERENT THAN WHAT WAS DESCRIBED EARLIER. IT WAS TRIAL COUNSEL, WE NEVER COULD GET HIM
TO GIVE US DATE WHEN HE ALLEGEDLY TALKED WITH TAFF BUT IT WAS IN 2013 MUCH HE DID NOT
WRITE TO HIS CLIENT THAT HE WOULD ASK FOR A FORENSIC PATHOLOGIST UNTIL DECEMBER 26, 2013.
CHIEF JUSTICE STUART RABNER: WE HAVE FINDINGS BY THE TRIAL JUDGE. ARE YOU SEEKING
TO CHAL HEFRMG THEM. ANDREW R. BURROUGHS: WELL THE TRIAL JUDGE DIDN'T MAKE
THOSE KIND OF FINDINGS MUCH ONLY MADE A FINDING THAT HE SPOKE TO TAFF AND THAT HE HAD SOME
SHE CALLED IT A, WAS IT FLEETING OR PASSING CONVERSATION WITH THE DEPUTY. THAT'S THE
FINDING THAT WE MET. THE COURT THE REMAND FOUND THAT IT WAS A MEANINGFUL CONVERSATION.
REMAND COURT HAS NEVER FOUND THAT HIS INTERPLAY WITH TAFF WAS CREDIBLE. SHE ONLY SAID
THAT HE HAD A CONSULTATION WITH TAFF AND THAT HE HAD SOME PASSING MOMENT WITH THE DEPUTY
SOMETIME MAYBE IN JANUARY OF 2014, A FEW WEEKS BEFORE TRIAL. I MEAN THE FINDINGS ARE VERY
LIMITED BY THE REMAND COURT. THEY ARE NOT BROAD. IN FACT THE REMAND COURT MADE NO FINDINGS
UNDER ASTERISK HAND AT ALL, THEY ARE JUST FACTUAL FINDINGS, VERY SPECIFIC BUT THE REMAND
COURT ALSO FOUND HE DIDN'T FOLLOW ANY O PCHL D GUIDELINES AND WOULD LIKE THE COURT TO
ADDRESS THAT ISSUE IF IT CAN. SHOULD WE EXPECT ATTORNEYS TO FOLLOW PROCEED DOURS THAT ARE
THERE TO PROTECT THE DEFENDANT'S DUE PROCESS RIGHTS? WHY DOES THE PUBLIC DEFENDER HAVE
A DPIEL BEFORE THE ATTORNEYS IN THE FIRST PLACE? THEY REQUIRE, ONE OF THE JUSTICES ASKED
THE ASSISTANT PROSECUTOR HERE WELL, SHOULD HE HAVE MET WITH THE M E AND THE PROSECUTOR
RESPONDED WELL KNOTS HA WHAT HE THOUGHT WAS NECESSARY. ACTUAL HI IT IS NECESSARY. IT IS
REQUIRED. THE O PD REQUIRES ALL POOL ATTORNEYS TO HAVE IT MEET WITH THE M E IN ANY HOMICIDE
CASE H IT'S REQUIRED AND JOE RUSSO, I'M SORRY, THE DEPUTY, SHOULDN'T USE NAMES, THE DEPUTY
WENT AT GREAT LENGTH IN HIS TESTIMONY OF WHY THE O PD REQUIRES, THE THINGS YOU CAN LEARN FROM
THE M E. HAD HE MET WITH THE M E BY THE WAY, A YEAR BEFORE TRIAL, HE WOULD HAVE KNOWN
THAT THE M E HADN'T THE DECEDENT'S JOURNAL, HADN'T SEEN IT YET. HE WITH WOULD HAVE KNOWN
THAT THE M E DIDN'T HAVE ANY OF THE CRIME SCENE PHOTOS. HE DIDN'T HAVE THE T-SHIRT IN
FRONT OF HIM MUCH HE WOULD HAVE LEARNED THAT THE M E HAD NO SUPPORT FOR INSTANTANEOUS
DEATH, THAT THE BRAIN STEM HAD NOT BEEN SEVERAL. THERE HAD BEEN MANY ISSUES. FRANKLY I
WONDER IF TRIAL COUNSEL HAD BOUGHT A REPORT BY DR. TAFF BEFORE DR. SHAIKH, WHO KNOWS WHO
WOULD HAVE CHANGED HIS OPINION. MAYBE DR. SHAIKH WOULD HAVE REVISED HIS OPINION ONCE HE
KNEW WHAT WAS MISSING. THERE WERE SO MANY ISSUES HERE FOR TRIAL COUNSEL TO. ANY
QUESTIONS. CHIEF JUSTICE STUART RABNER: THANK YOU DARCY
BABOLIS-GYSCEK: MAY IT PLEASE THE COURT. THE THE AMERICAN CIVIL LIBERTIES UNION OF NEW
JERSEY IS GENERALLY CONCERNED THAT AN INNOCENT YOUNG MAN HAS BEEN SENTENCED TO SPEND HIS
ENTIRE LIFE IF NOT THE REST OF HIS LIFE, IN PRISON BECAUSE OF MISTAKES MADE BY HIS TRIAL
ATTORNEY. MR. MILLER WAS A YOUTHFUL DEFENDANT AT AGE 19 FAFLG LIFE IN PRISON FOR PURPOSEFUL
MURDER, NOTWITHSTANDING THAT HE HAD CALLED FOR HELP WHEN HIS FRIEND SHOT HERSELF. HE
WILL BE ALMOST 770 WHEN HE IS 1ST HE WILL 11 ANL FOR PAROLE. THAT CONTEXT IS SIGNIFICANT
BECAUSE THE DEMONSTRATES THIS DHAS WHICH BASIC YET CRITICAL FACTS IN A HEM SIDE PROSECUTION,
THE MAERP AND TIME OF DEATH OF THE VICTIM, WERE THE FOCAL POINT HAS BEEN A CASE OF HIGH
ATTENTION RS OF HIGH PRIORITY AND CERTAINLY WOULDN'T HAVE BEEN AN UNUSUAL INSTANCE IN
WHICH THE PUBLIC DEFENDER WOULD ALLOCATE ADDITIONAL RESOURCES TOWARDS AN EBBS SPERT OR
A SECOND EXPERT. SO GEVEN AGAINST IN BACK DROPPED I'D LOIK TO MAKE I HAD
3 BUT I THINK TWO POINTS FRP THE FIRST WOULD BE TO HIGHLIGHT ONE CASE IN OUR BRIEFING,
SHOWERS VS. BEARD 20113RD CIRCUITS WITHIN ITS INJURES DIKD AND IN SO MANY WAYS TIS COULD
YOU SAY IS ON POINT OR AT LEAST VERY ANALOGOUS. THE COURT AFFIRMED THE GRANT OF RELEASE
TO RIEFSHED INEFFECTIVE ASSISTANCE OF COUNSEL IN A CASE IN WHICH THE KEY QUESTION WAS
TRIAL COUNSEL'S FAILURE TO NOT ONLY CONSULT BUT TO CALL A REBUTTAL EXPERT LIKE THE FORENSIC
PATHOLOGIST THAT HAD TESTIFIED AT THE DEFENDANT'S PCR HEARING TO OPINE ON THE MAERP OF
DEATH WHICH WAS THE QUESTION OF HOMICIDE VERTD SUICIDE. THE TESTIMONY WOULD HAVE UNDERMINED
THE STATE ES THEORY AND ITS EX, AS YOU REMEMBER TISHT THAT CAUSED HER HUSBAND'S DEATH
REASON SUPPORTED THE DEFENSE THAT ARE THE VICTIM, FRN SICK PATHOLOGIST WOULD HAVE EX EXPLAINED
THE SCIENTIFIC PROPERTIES OF THE DRUG AT ISSUE IN THAT CASE WERE NOT CAPE AFBL BEING A
MAFD OR ARE SUSH TISSUESLY. THIS IS IMPORTANT PART THE COURT NECESSITY OF EBBS SPERT
TESTIMONY OVER DEFENSE COUNSEL'S DECISION TO ROW LIE ON CROSS TLTS STATE'S EXPERT BECAUSE
THE REMAINING EVIDENCE IN THE CASE LOIK HERE WAS QUOTE CHOELLY CIRCUMSTANTIAL MAKING
SCIENTIFIC EVIDENCE ALL THE MORE IMPORTANT. THE TESTIMONY LISTED ON CROSS WAS NOT MEERL
STRONG AS PROVIDE BY AN EXPERT SUCH AS A FORENSIC PATH THOLGSZ. HERE TOO TESTIMONY OFFERED
BY DR. HUA AT PCR HEARING WOULD HAVE BEEN CONVINCES TO A JURY WHETHER THE VICTIM WAS
KILLED OR COMMITTED SUICIDE SO WERE HIEL R SPER SAY HIF AUTHORITITH THE OIM THE OTHER POINT
I WOULD SAY NOT TO GET TOOT REPETITIVE, YOU KNOW THE ATTORNEY GENERAL I THINK IS IN THE
SOME OF THE REMARK BS I HEARD WAS EQUATING THAT WHICH WAS ELICITED ON KRAUGS WITH EXPERT
TESTIMONY. ARE WHILE IT MAY BE A REASONABLE STRATEGY TO RELY ON CROSS-EXAMINATION IN
SOME CASES, IN THIS CASE, CROSS-EXAMINATION CAN NOBTS EQUATED WITH PROVIDING THE JURY WITH
AFFIRMATIVE TESTIMONY FROM DEFENDANT'S EXPERT FROM THE WITNESS BOX. OF COURSE TRIAL
COUNSEL DID TROY TO CAST OUT ON WHAT THE EX SPRT WAS TESTIFYING TO, YOU KNOW, HE POINTER
OUTER THE DR. SHAIKH HAD ONLY READ THE DIARY JUST BEFORE WALKING INTO COURT AND OF CERTAIN
VAGUE FLES IN HIS DESCRIPTION AS TO WHAT LED HIM TO CERTIFY THIS WAS A HOMICIDE.
JUSTICE PATTERSON: WHAT'S THE RULE YOU WOULD WONT THIS COURT TO ADOPT TO DIFFERENTIATE
BETWEEN CASES WHICH RELY ON CROSS IS A REASONABLE SUBSTITUTE FOR CALLING AN EX SPET WHEN
IT'S NOT. DARCY BABOLIS-GYSCEK: I DON'T THINK THE COURT NEEDS TO YEFL WITH
THITS QUESTION, YOCHLT I THINK YOU CAN LIMIT THIS CASE TO ITS FACTS BECAUSE THE FACTS
HERE ARE EXCEPTIONAL AND THEY'RE UNUSUAL. JUSTICE PATTERSON: WHAT MAKES
THEM EXCEPTIONAL. DARCY BABOLIS-GYSCEK: THASHGS SEPGS NULL IN THAT
UFR NUMBER ONE, AN ATTORNEY WHO IS SAYING OR I GUESS I SHOULD SAY EVIDENCE IN A FACTUAL
FINDING DEMONSTRATING THAT THE TRIAL COUNSEL KNEW SECOND EX #13ER9 WOULD HAVE BEEN HELPFUL
TO DEFENSE AND HE KNEW THAT AT THE TIME. THIS ISN'T HINDSIGHT, HE KNEW ET AT THE TIME,
THAT'S IN THE REMAND COURT'S DECISION, AND THE RECORD SHOW IT WASN'T JUST A PASSING
CONSIDERATION BY TRIAL COUNSEL, HE TOLD HIS CLIENT HE WAS LOOKING INTO GETTING A SECOND
EXPERT. EVIDENTLY BECAUSE HE. JUSTICE PATTERSON: HE TESTIFIED HE WAS
DEFINITIVELY NEW, THAT A SECOND EXPERT WOULD HAVE BEEN HELPFUL, VS. I'M LOOKING AT THE
POSSIBILITY. DARCY BABOLIS-GYSCEK: HE SAID AND I'LL QUOTE I'M LOOK AT THE
REMAND FOR HIS FINDING AND THIS ON PAGE 8,ASSOCIATION LET ME JUST GET THERE. HE
STATED IN HIS OPINION ANOTHER P FORENSIC PATHOLOGIST SHOULD HAVE BEEN YOU'VE IN THE
DEFENDANT'S CASE, PROVIDE THE THE ADDITIONAL POJ THOLGS WOULD HAVE HAD ALL THE FACTS HE
OR SHE NEEDED. BAILY SAID THAT, TRIAL COUNSEL SAID THAT. SO P IN THIS CASE,
ON THIS FACTS THE COURT WOULD NOT BE BRABING NEW GROUND BY RULING COUNSEL WAS DEFICIENT
AND SERPLY, YOU KNOW, THE 3RD SER SKIT CASE I CITED DEMONSTRATES THIS NOT A NEW RULE,
NISZ NOT A NEW CONCEPT R SO I DON'T THINK TO ANSWER YOUR QUESTION JUSTICE PATTERSON, THAT
THE COURT NEEDS TO GO THAT FAR. JUSTICE PATTERSON: YOU SAID DWAU EXCEPTIONAL
IN THAT REGARD AND WHAT'S THE SECOND ASPECT. DARCY BABOLIS-GYSCEK: EXCEPTION
AND UNUSUAL. MAT PAT YOU SAID THERE WERE TWO REASONS AND WHAT WAS THE SECOND ONE.
DARCY BABOLIS-GYSCEK: I SAID THE FACTS OF CASE ARE EXCEPTIONAL AND UNUSUAL AND THAT'S
BECAUSE THERE WAS EVIDENCE IN A FACTUAL FINDING DEMONSTRATING THAT TRIAL COUNSEL KNEW
A SECOND EXPERT WOULD HAVE BEEN HELPFUL TO THE DWEPS AND HE KNEW THE AT THE TIME, AND
HE KNEW IT SO MUCH THAT THERE WASN'T A PASSING CONSIDERATION, HE TOLD HS CLIENT HE WAS
GOING TO DO HE SO. SO THAT'S WHERE I THINK WE CAN AVOID DRAWING A BRIGHT LINE RULE OR
HAVING TO DRAW LINES IN THE SAND. I THINK IT'S THE COURT DOESN'T NEED TO WRESTLE WITHS THAT
QUESTION BECAUSE THE FACTS HERE ARE SO EGREGIOUS. AND AS I SAID, I DON'T THINK
THIS IS A CASE THAT WHICH THE COURT NEEDS TO MUPD MORNING QUARTER BARK THAT'S NOT WHAT
WE'RE ASKING THE COURT TO DO, IT'S TO DEFINE WHAT TRIAL COUNSEL DID, KNOWING WHAT KNEW
AT THE TIME FELL BELOW A REASONABLENESS INSISTENCE AGAIN A 19-YEAR OLD DEFENDANT
CHAMPED WITH PURPOSEFUL MURDER FACING LIFE IMPRISONMENT WAS ENTITLE NOD WAY THAT WAS
LIKELY TO AFFECT THE OUTCOME. AND IT CAN'T JUST BE THAT THE MERE KT A OF A CONSULTATION
AND A FORM OF AN INFORMAL DISCUSSION WITH A POTENTIAL EXPERT HOOF TRIAL COUNSEL KNEW AT
THE TIME LACKED ALL THE FACTS P IN HIS ASSESSMENT PERFORMED AN INCOMPLOET ANALYSIS, AND
K NUMBER 2, KNOWING AT THE TIME CONSULTING A SECOND, CONSULTING AND CALLING A SECOND
EXPERT WOULD HAVE HELPED HIS CLIENT'S CASE AND BECAUSE OF PROMISING A MONTH BEFORE TRIAL
YOU'RE GOER TO LOOK INTO THAT, BUFRT THEN NOT FOLLOWING THROUGH ON THE NECESSARY DUE
DILIGENCE BECAUSE SOMEONE WHO ULTIMATELY WOULD NOT HAVE THE OUGHT ARE THE TO MAKE A DECISION
TOLD YOU THEY THOUGHT IT MOIB A WASTE OF RESOURCES, TRIAL COUNSEL THEN HAD AN
OBLIGATION TO ADVOCATE WHY HE COULDN'T THING, WHY HE DIDN'T THING, IT WAS A WASTE OF RESORTS
AS WAS APPARENT FROM HIS TESTIMONY AT THE REMAND HEARING. IF THIS COURT WERE TO HOLD
THAT WERE NUF, IT WOULD HAVE SEFRMGLY BE ELEVATING FOR THAT, THE AFFECT HAVING A
CONSULTATION, THE FACT THAT IT HAPPENED CHECKING THE BOX, OR THE SUBSTANCE OF IT. SO.
JUSTICE PATTERSON: DOES THE PCR COURT HAVE TO MAKE A DETERMINATION AS TO THE
INNER WORKINGS OF THE OPD AS TO WHETHER OR NOT IT WAS A REASONABLE DECISION IF THEY DID IN FACT DISCOURAGE SOMEBODY FROM PURSUING ANOTHER EXPERT? DARCY BABOLIS-GYSCEK:
MR. BOROUGH'S XHEPTS ON THAT. MAT PAT WHAT PROTOCOL. DARCY BABOLIS-GYSCEK:
O P DR. PROTOCOL IN FOLLOWING THE PREER FOR DOING SO, I DON'T THINK THE COURT NEEDS TO
LOOK DEEP INTO WHAT HAPPENED. JUSTICE PATTERSON: WOULDN'T THE COURT HAVE
TO MAKE A ERM DID NATION UNDER THE 2ND PRONG OF STRICT LAP THTD OPD WOULD HAVE STRICT
LAND THAT THE OPD WOULD HAVE AUTHORIZED ANOTHER EXPERT? DARCY BABOLIS-GYSCEK:
I THINK IT'S CLEAR THAT AT A MINIMUM IF HE CONSULTED THE EKTS SPERT VEN I DON'T THINK,
I THINK THIS GOES BACK TO. JUSTICE PATTERSON: MY REASON FOR SAYING IT.
DARCY BABOLIS-GYSCEK: I UNDERSTAND. JUSTICE PATTERSON: PRONG
2 REQUIRES THERE BE A SHOWING IT WOULD HAVE MADE, THAT PREJUDICE AND IF THE OPD WOULD HAVE,
LIMENTDED RESOURCES AS IN ALL GOVERNMENT HAS LIMITED RESOURCES, MIGHT HAVE SAID UNKNOWN
PAW IT WAS NEVER ASKED FOR, MIGHT HAVE SAID UPG WHAT, REALLY, YOU SPENT THIS AMOUNT ON
THIS EXPERT, WE'RE NOT GOING TO AUTHORIZE ANOTHER EXPENDITURE OF THAT KIND, THAT'S THE
END OF THE ISSUE. VEN WHATEVER THE LAWYER DID IT WOULD NOT HAVE MADE A DIFFERENCE.
DARCY BABOLIS-GYSCEK: I THINK IT GOES BACK TO AGAIN WHAT I WAS SAYING ABOUT
THE ADVOCACY PORTION OF THIS. TRIAL COUNSEL, IT WAS ALMOST AS IF THERE WAS SOME LEVEL
OF, YOU KNOW, COVERING YOUR EYES, PUTTING YOUR HANDS IN YOUR EARS AND SAYING WELL, THEY
TOLD ME ET WOULD BE A WASTE OF RESOURCES AND THERE WAS NO TESTIMONY FWR BAILY SAYING BUT
I REALLY THOUGHT IT WAS, LIKE I TRYING TO ARGUE WITH THE DEPUTY VEN EXPLAIN TO HIM WHY
I THOUGHT IT WAS. I DON'T THINK THAT WE CAN PUT IS THIS WAY RGS I THINK THAT EVERY ATTORNEY
IN THIS ROOM NEEDS TO BE HELD TO A HIGHER STANDARD THAN THAT THAN TO JUST SIMPLY ASK
THE QUESTION AND THE FIRST RESPONSE YOU GET EVEN THOUGH IT'S CONTRARY TO THE PROTOCOL,
CONTRARY TO WHAT THE OPD TELLS THEIR POOL ATTORNEYS TO DO OR THEIR STAFF ATTORNEYS, I
DON'T THINK YOU CAN JUST ASK THE QUESTION AND NOT HAVE ANY PART OF ADD ROW KAS SEE ON
YOUR PART WHEN YOU THINGTH IT'S IMPORTANT TO HAVE A SECOND EXPERT WHICH I THINK IS CLEAR.
I THINK THAT'S CLEAR IN THE REMAP REMAND DECISION. SO AS I SAID I THINK EVERY
ATTORNEY NEEDS TO BE HELD TO A HIGHER STANDARD THAT THAN THAT. THAT'S THE RESPONSIBILITY
WE EACH SIGN UP FOR WHEN WE JOIN THIS PROFESSION IS THAT WE'RE GOING TO ADVOCATE NOT OPENLY,
YOU KNOW, IN COURT BUT ADVOCATE AMONG, YOU KNOW, OUR COLLEAGUES AND SUPERIORS. SO YOUR HONOR
WE SUBMIT THERE'S NO QUESTION THAT WHAT TRIAL COUNSEL DID WAS WRONG BUT BY ANY STAND
DASHED INCLUDING ONE THAT PROVIDES HIM WITH THE BENEFIT OF ALL INFERENCES. HAD TRIAL COUNSEL
TAKEN REASONABLE STEPS TO MEANING FULLY CONSULT OON EXPERT AND REBUT THE SCIENTIFIC CASE
THAT THE STATE PUT ON, MR. MILLER WOULD HAVE BEEN ACQUITTED IN A CRIME HE DID NOT XHICHT
THE APPELLATE DIVISION GOT IT RIGHT IN REMAINEDING SO THAT MR. MILLION HER HAS THE
OPPORTUNITY FR A FAIR TRIAL WITH A COMPLETE DWEVENS AND WE'D ASK THE COURT TO AFFIRM.
CHIEF JUSTICE RABNER: MR. KALIK. LANCE J. KALIK: . Z GOOD
AFTERFLOON, MAY IT PLEASE THE COURT. S NBS PROCHTS WORK TOGS DEPARTMENT IF I AN EFT 58
CASES OF WRONG FULL CONVICTION. SEEKS TO OBTAIN THE RELEASE OF THOSE WHO HAD BEEN WRONGLY
CONVICTED. I WERE WILL NOT REPEAT THE ARGUMENTS OF COUNSEL OTHER THAN TO SAY THAT THE
INNOCENCE PROJECT FULLY SUPPORTS THE ARGUMENTS BY MR. MILLER IN SUPPORTING A MEECH CHEE,
MEEK KEY THAT MR. MILLER DID NOT RECEIVE MINIMUM NULLY COMPETENT COUNSEL IN THIS CASE
AND DEPRIVED HIS 6TH AMENDMENT RIGHTS, INNOCENCE PROJECT FULLY ENDORSES THE APPELLATE
DIVISIONS DECISION TO GRNT A NEW TRIAL, UNDER THE EXIST STRICT LAND STANDARD. WE
WRITE SEPARATELY TO SUGGEST THAT THE COURT SHOULD SUBTLY CHANGE THE STRICKLAND/FRITZ IN
TWO RESPECTS. THE CHAFRMS ARE NEEDED AND THEY WOULD BE OF GREAT VALUE TO THE BEFRMG AND
THE BAR. UNDERSTANDING THE LEGITIMATE CONCERNS OF FINALITY THAT ARE OF CONCERN WHEN E
VALUATING POST-CONVICTION RELIEF PETITIONS. FIRST THE INNOCENCE PROJECT PROPOSES THAT
THE COURT IN EFFECT CODIFY WHAT IT ORDER DOES RS IN EVALUATING PRONG 1. WITH RESPECT
TO CLAIMS FZ INEFFECTIVE ASSISTANCE OF COUNSEL AS IT IS PERTAINS TO THE USE OF EXPERTS.
NOW, WHY DO WE ASK FOR THIS SUBTLE CHAFRMG IN THE PRONG 1 TEST? THERE'S GOOD REASONS.
BASED ON THE INNOCENCE PROJECT'S RESEARCH MORE THAN. JUSTICE
PATTERSON: WHAT IS THE CHAFRMG, YOU SAID THE CODIFY IT TO CONFORM WITH WHAT WE'RE DOING.
LANCE J. KALIK: THE COURT HAS DONE IN FTS JURISPRUDENCE. FWHUB 1, HAS
COUNSEL PERFORMED A MEANINGFUL AND THOROUGH INVESTIGATION TO FIND A QUALIFIED TESTIFYING
EXPERT. THE COURT ALREADY EMPLOYEES THAT STANDARD IN EVALUATING THESE CASES. IF
COUNSEL DECIDES NOT TO USE A TESTIFYING EXPERT, HAS COUNSEL ARTICULATED SOUND REASONS,
NOT FANTASTIC REASONS, MINIMALLY SOUND COMPETENT REASONS FOR CHOOSING NOT TO PUT AENGS
SPERT ON THE STAN. THIS AN ANALYSIS THAT EVERY LAWYER HAS TO DO IN EVERY CASE.
THE THIRD, IF IT WAS APPROPRIATE, NOT TO CALL A QUALIFYING EXPERT BECAUSE OF SOME STRATEGIC
REASON, THAT'S FINE. THE HAS KOUN IS HE MADE APPROPRIATE USE OF HAD A CONSULTING EXPERT
IN FASHIONING HIS CROSS-EXAMINATION OR HER CROSS-EXAMINATION. SO THAT'S A 3 PART TEST,
WE THINK THE COURT ALREADY DOES THIS IN EFFECT. BUT WE THINK IT WOULD LEP
HELP TO HAVE THESE HE IS EX MRI KATED AS PART OF THE STAND DAR #6D WHY IS IT NEEDED, BASED
ON THE INNOCENCE PROJECT'S RESEARCH, MORE THAN 50 PERCENT OF WRONG FULL CONVICTIONS STEM
AT LEAST IN PART FROM FAULTY FORENSIC EVIDENCE. AND THE CITES ARE IN OUR BRIEF.
RESEFRP ALSO SHOWS THAT JURIES TEND TO PLACE HEAVY RELIANCE ON WEIGHT ON EXPERTS AND ACCORD
THEM OUTSIDE IMPORTANCE WHEN DELIBERATING. SO IT'S REALLY IMPORTANT IN ORDER TO PROEF
VOID THE MINIMUM AMOUNT OF REPRESENTATION NECESSARY TO ABIDE BY THE 6TH AMENDMENT TO
MAKE SURE THAT YOU'RE GETTING ADEQUATE EKTS SPERT ASSISTANCE. AND FINALLY
RESEARCH SHOWS THAT THE INTRO DUKDZ OF EXPERT EVIDENCE AT TRIAL IS NOT ALWAYS BUT IT
IS OFTEN THE MOST EFFECTIVE MEANS FOR COUNTERACTING THE STATE EKS SPERT PROOFS,
MORE SO THAN CROSS AND JURY INSTRUCTIONS. NOW IT'S NOT ALWAYS THE CASE VEN THIS RESEARCH
IS SUBJECT TO DEBATE, BUT THE RESEFRP IS THERE, NONETHELESS. SO THERE'S
GOOD REASONS FOR HAVING A MORE FULL SUM FACTOR BASE TEST TO EVALUATE COUNSEL'S PERFORMANCE
IN CONNECTION WITH RETAINING CONSULTING WITH EXPERTS. WHAT ARE THE BENEFITS?
THE BENEFITS, AT LEAST FOUR THAT WE CAN SEE: ONE IT PROVIDES GUIDANCE TO
COUNSEL AND LITIGANTS ON THE MINIMUM EXPECTATIONS PRIERD TO MEET THE AT ANY TIME'S EXPERT
PROOFS AND P SHOULD IMPROVE THEIR REPRESENTATION OF THE DEFENDANTS. THE
THREE PART TEST WILL ALSO AID TRIAL COURTS ON THE STEPS NEITHERED TO EVALUATE CLAIMS FOR
INEFFECTIVE ASSISTANCE OF COUNSEL. THEY WILL ACTUAL BE ABLE TO GO TLOU A 3 PART TEST
AND I SUBMIT HAD THIS TEST BEEN IN EFFECT FOR THIS CASE, IT PROBABLY WOULD HAVE RENDERED
UNNECESSARY THE WHOEL ROW MANNED PROCESS IN THIS CASE BECAUSE THE TRIAL COURT WOULD HAVE
HAD THESE THREE FACTORS TO BEGIN WITH AND THE LITIGANTS WOULD HAVE BEEN PREPARED TO PRESENT
THEIR CASE ALONG WITH THESE THREE FACTORS. THIRD, IT WILL AFFORD A MORE FULL SOM
RECORDS FOR COURT TO REVOW ON APPEAL AND FIECHLLY MOST IMPORTANTLY, HAVING A MORE FULL SOM
3 PART TEST, REDUCE WRONG FULL CONVICTIONS BASED ON FAULTY FORENSIC EVIDENCE.
AGAIN, WE ARE NOT CHART AGO NEW PATH BUT SIMPLY ARTICULATING THE STEPS THE TRIAL COURT
SHOULD FOLLOW WHEN AM LIEFRG COUNSEL'S USE OF EXPERTS. THE SECOND SUBTLE
CHAFRMG THAT CHAFRMG WE WOULD SKUGS SSUGGEST IS IN THE SECOND PRONG, PREJUDICE PRONG.
CHIEF JUSTICE RABNER: MAP I ASK YOU A QUESTION, INCLUDING BY THE TIEMENT
WE GET TO THE PCR PROCEEDING THERE'S A FAILURE OF RECOLLECTION ON THE PART OF THE PARTIES
AND HERE COUNSEL SAID I DON'T OWN RECALL WHETHER I CONSULTED WITH SOMEONE. HOW
WOULD THESE FIND GDZ WOULD THIS TESTIMONY BE PRESENTED TO ENSURE THAT THE EVIDENCE IS
AVAILABLE? IF THE COURT WERE TO SET THIS OUT AS A STANDARD? LANCE LICENSE I SUPPOSE
THE ESSENCE OF AN. LANCE J. KALIK: IS ALWAYS LOOKING BACKWARD. SO OTHER THAN
DEFENSE COUNSEL SORT OF KNOWING WHAT THEIR OBLIGATIONS ARE UP FRONT AND PERHAPS PREEF
SERVING THE REPORT, MAYBING SURE IF THEY'RE GOING TO GET A SECOND REPORT THAT IT ACTUALLY
BE EITHER MEMORIALIZED IN SOME FASHION, SO THEY'LL BE AWARE OF THE STANDARD, SO I THINK
ON THE FRONT END IT WOULD IMPROVE THE RECORD THAT COURTS CAN REVIEW. BUT REALLY WHAT
WE'RE LOOKING AT IS IT WILL IMPROVE THE PROCESS FOR EVALUATING INEFFECTIVE ASSISTANCE
CLAIMS. CHIEF JUSTICE RABNER: FAIR POINT BUT IF THE EVIDENCE IS NOT AVAILABLE,
IF WE GET TO THE PCR PROCEEDING AND THERE'S A FAILURE TO RECOLLECT LIS HEFL OF DETAIL,
WHAT THEN? LANCE J. KALIK: I THINK THE COURT HAS TO EVALUATE WAS THERE
A MEANINGFUL AND THOROUGH CONSULTATION WITH A TESTIFYING EXPERT. JUSTICE
PATTERSON: AND IF THERE ISN'T PROOF BECAUSE TIME HAS PASSED AND NOBODY WAS WRITING MEMOS
TO FILE, NEW TRIAL? LANCE J. KALIK: I THINK IF IT IS ON A MATERIAL ISSUE
THAT IS THAT, THERE IS DEBATE FROM A NEW EXPERT AS IN THIS CASE THAT WAS SUPPLIED DURING
THE PCR HAESHING, HEARING. JUSTICE PATTERSON: THAT UT P THE BURDEN ON THE
STATE ON STRICT LAND PRONG, TOO. LANCE LAN THE BURDEN IS ON THE DEFENDANT THAT IT'S MORE
PROBABLE THAN NOT OR A SUBSTANTIAL PROBABILITY I THINK, AND THIS IS THE SUBTLE SHIFT THAT
WE WOULD HAVE, NOT THAT THE OUTCOME HAS BEEN DIFFERENT BUT THAT THERE'S BEEN AN IMPACT
WOULD HAVE BEEN AN IMPACT ON THAT JURY'S DELIBERATION FROM THIS NEW EVIDENCE.
JUSTICE PATTERSON: IF THASHS A FAILURE OF PROOF BECAUSE AND WE SEE OFTEN IN THESE
CASES, THE PEOPLE DON'T RECALL A CASE 7 YEARS AGO, THEY DON'T REMEMBER WHAT THEY WERE
THINKING, AND THEY MAY NOT HAVE HAD THE TIME GIVEN THE CASE LOAD TO BE WRITING A LOT OF
MEMORIAL EMPLOYEES ABOUT TODAY I MADE THE FOLLOWING DECISION AND PUT THAT IN THEIR
FILE, THAT ESSENTIALLY SAYS, IF THE LAWYER HAS FAILED TO DOCUMENT ALL OF THOSE THINGS,
THE STATE HAS NO WAY OF CREATING THAT INFORMATION AND THE STATE LOSES. IT'S VERY SIGNIFICANT
CHAFRMG TO HOW STRICT LAND IS. LANCE J. KALIK: I WANT TO BE CLEERTS' NOT
THE LACK OF DOCUMENTATION THAT RENDERS THE. JUSTICE PATTERSON: I THINK WHAT
YOU'RE SAYING IS THAT IF THOESHGS IF THERE IS NOT PROOF THAT OF THE LAWYER DID THAT MEANINGFUL
CONSULTATION HOR SOUND REASONS FOR NOT CALLING THE EXPERT OR, HE SPOKE WITH ARMCHAIR EXPERT,
THEN THAT IS P INEFFECTIVE ASSISTANCE OF COUNSEL. A NEW TRIAL. LANCE J. KALIK:
I WOULD THINK THAT AN OBJECTIVE ATTORNEY ON AN ISSUE THAT IS MATERIAL AND DISPUTED AND
WHEN THE STATE IS RELYING ON SCIENTIFIC FORENSIC EVIDENCE, IF THE COUNSEL CANNOT PRODUCE
SOME EVIDENCE, WET IT'S TRUE TESTIMONY OR WRITTEN DOCUMENTATION, THAT THAT ATTORNEY ENGAGE
IN A MEANINGFUL AND THOROUGH EVALUATION WITH AN EXPERT, THEN I THINK THAT IS DEFICIENT
REPRESENTATION. JUDGE SABATINO: MR. KALIK YOUR PREDECESSOR SAID ELOQUENTLY
A FEW TIECHING EVERY ATTORNEY, EVERY ATTORNEY SHOULD BE HELD TO THIS KIND OF STANDARD
IN TERMS OF INTERACTING WITH EXPERT. IF WE ADOPTED THAT DECLARATION AND THE STAVEND DARD
YOU SUGGESTED, WOULD IT BE KWILLY APPLICABLE TO CIVIL TOERPS MAKING DECISIONS EVERY DAY
WET THEY'RE GOING TO ROW TAKEN AN EXPERT AND SECOND EXPERT AND WE SID IN OUR OPINION THIS
ONLY FOR CRIMINAL WOULD IT STILL BE THE POSSIBILITY THAT IN CIVIL MALPRACTICE
LITIGATION AND SO ON THAT THAT WOULD STILL BE POINTED TO AS AN INDICATION THAT WE THINK
AND DEED EVERY ATTORNEY SHOULD ACT THIS WAY IN DEALING WITH EXPERT FORENSIC EXPERT
TESTIMONY? OF. LANCE J. KALIK: IT'S A GOOD QUESTION AND I THINK THE ANSWER
IS ATTORNEYS ARE HELD TO THAT STANDARD ON THE CIVIL SIDE. I THINK TO FULL TILL YOUR
OBJECTIVE OBLIGATIONS TO YOUR CLIENT, IF YOUR ADVERSARY IS RELYING ON AN EXPERT, YOU HAVE
AN OBLIGATION TO P MEANING FULLY CONSULT WITH AN EXPERT TO TO DETERMINE WET THERE WAS
AN AIN WHICH CHOUN TER ACTS YOUR. JUSTICE PATTERSON: THERE'S PLENTY OF ROOM
IN CIVIL REASON ANL NEGS STANDARD FOLLOWING UP ON JUDGE SABATINO'S, PLENTY OF ROOM TO
SAY YOU KNOW WHAT I'M BETTER OFF NOT CALLING MY DAMAGE TS EX SUMMER AS A DEFENDANT, NOT
CALLING THAT EXPERT, NOT CALLING THAT EXPERT AND PERHAPS NOT EVEN SPENDING THE MONEY DOUGH
PENDING ON THE BUDGET FOR THE CASE IN DEBT GETTING AN EXPERT IN CERTAIN AREAS AND I
DON'T THINK YOU, ESPECIALLY WITH YOUR KNOWLEDGE OF MALPRACTICE ISSUES, WOULD SAY THAT THAT
IS OBLT TIFFLY DEFICIENT FOR A CIVIL LAWYER. LANCE J. KALIK: IF THE CIVIL
LAWYER HAS A RATIONALE FOR NOT CALLING THE EXPERT, THAT'S NOT MALPRACTICE. SIMILARLY,
IF THE CRIMINAL LAWYER HAS HAD A SOUND RATIONALE FOR NOT PUTTING THE EXPERT ON THE STAND
AND THERE'S LOTS OF RATIONALES FOR WHY THAT MAY NOT HAPPEN, THEN THAT DOESN'T FALL BELOW
THE 6TH AMENDMENT RIERLT IERMENT. IT'S IN MY VIEW VERY SIMILAR, I THINK SOME OF THE
REASONS WHY THE COURT, YOU KNOW, PRINCIPLES OF FINALITY WHERE IT MIGHT BE A LITTLE BIT
MORE LIEN YEPT ON ATTORNEYS QUITE FRANKLY IN THE CRIMINAL SIDE, THERE MIGHT BE REASONS
FOR THAT, BUT OTHERWISE I THINK IT'S VERY SIMILAR. BUT YOU HAVE TO GET
THE, YOU HAVE TO HAVE THE LAWYER ARTICULATE WHY HE'S NOT PUTTING THE EXPERT ON THE TANNED
ON THE STAN AND I DON'T THINK THE EVIDENCE IS HERE TO SUPPORT THAT. ON THE
PREJUDICE PRONG, JUST VERY BRIEFLY, THIS COURT IN MARSHAL THE DETERMINED THAT THE FOCUS,
AND THIS WAS THE PENALTY PHASE OF CAPITAL CASES, DETERMINED THAT THE FOCUS SHOULD NOT
BE ON DECIDING PT WHETHER THE OUTCOME WOULD HAVE BEEN DIFFERENT WITH THE MISSING EVIDENCE
OR THE DEFECTIVE REPRESENTATION. AND WHAT THE COURT SAID IS THAT, LOOK, YOU SHOULDN'T
LOOK AT THE OUTCOME. WHAT YOU SHOULD LOOK AT IS THE MISSING EVIDENCE OR THE DEFICIENT
REPRESENTATION IMPACTING THE JURY'S DELIBERATIONS. MAT PAT CORRECT ME IF I'M
WRONG BECAUSE I WAS NOT ON THE COURT WHEN THE DEATH PENALTY CASES WERE GOING ON BUT ISN'T
THERE A HEIGHTENED STANDARD IN THERE DEATH PENALTY OCCASION THAT YOU'RE TALKING ABOUT?
LANCE J. KALIK: R IT'S NOT. JUSTICE PATTERSON: IT'S NOT THE
STANDARD STRICT LAND STANDARD. LANCE J. KALIK: FOR INEFFECT T TIFF MY
UNDERSTANDING IS THE PREJUDICE PRONG WAS CHAFRMED TO FOCUS OVEN DELIBERATIONS INSTEAD OF
THE OUTCOME. AND IN FACT JUSTICE LONG -- JUSTICE PATTERSON: INS PEVEN NUT
PHASE. DOES THAT HAVE ANYTHING TO DO WITH WHAT WE'RE DOCK HERE? LANCE J.
KALIK: THE ARGUMENT IS THAT THERE'S NO LEGITIMATE RATIONALE WHY A COURT WHEN REVIEWING
THE THE IMPACT OF INEFFECTIVE ASSISTANCE OF COUNSEL SHOULD P LOOK, LOOK AT THE OUTCOME
INSTEAD OF THE PROCESS WHICH BY THE WAY IS MORE FAITHFUL WITH THE GOAL OF THE 6 NL OOMD;
RIGHT. JUSTICE PATTERSON: YOU'RE SORT OF A GLOBAL CHAFRM TO STRICT LAND
PRONG 2. LANCE J. KALIK: STRICT LAND PRONG TWOSHGS PTS EE A SUBTLE CHANGE
BECAUSE IT'S MANY OF THE SIEM ANALYSES, BUT INSTEAD OF OFFERING THE SUBJECTIVE THOUGHTS
OF THE BENCH ABOUT, BOY, WOULD THIS NEW EVIDENCE HAVE CHANGED THE JURY'S OUTCOME, IT'S
REALLY PUTTING THE COURT IN THE PLACE OF A SUPER JUROR AND THAT'S WHAT MARSHAL TALKS ABOUT,
THAT'S NOT AN APPROPRIATE EVALUATION FOR A COURT TO MAKE. COURTS ARE USED TO MAKING E
VALUATIONS ON THE IMPACT TO THE PROCESS. AND SO WE DON'T SEE ANY LEGITIMATE DIFFERENCE
IN EVALUATING THE IMPACT OF DEFICIENT COUNSEL ON A CAPITAL PENALTY PHASE PROCEEDING VS.
THE IMPACT OF DEFICIENT COUNSEL ON A GUILTY VERDICT AND VERY SERIOUS CRIMES. AND WE
THINK THAT THE TEST SHOULD BE, SHOULD BE MASSAGED TO MORE MROEP YITLY ROW FLEKT WHAT THE
6TH AMENDMENT IS TRYING TO REFLECT WHICH IS THE PROPER FUPGS OF THE ADVERSARIAL PROCESS
TO ENSURE THAT THE TRIAL PRODUCED A FAIR AND JUST RESULT. LOOKING AT THE JURY'S DELIBERATIONS
IS WHAT WILL DO THAT. IN CLOSING, THE INNOCENCE PROJECT FIRMLY BELIEVE THESE
NEW STAND DAR ARE KIT APARTMENT WITH RT COURT PRIOR CASE LAW AND WOULD BRETT PRO HE CAN'T
THE EFFECTIVE ASSISTANCE OF COUNSEL BOTH UNDER EXISTS AND THE INNOCENCE PROJECT PROPOSED
STANDARDS, MR. MILLER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, IS ENTITLED TO A
NEW TRIAL. WHAT ABOUT. CHIEF JUSTICE RABNER: VERY FINE, VERY HELPFUL, MS.
CALM YOU'RE RISING OFFER SOME REBUTTAL. YOU DIDN'T ASK BUT YOU ALSO DIDN'T USE ALL YOUR
TIME SO COME TO THE CENTER. ERIN CAMPBELL: RESPECTFULLY, YOUR HONORS, THE
COURT CAN ASSESS PREJUDICE FROM THE OTHER EXPERT HERE BECAUSE TEARS NOTHING HERE BUT
SPECULATION, THESE EXPERTS ARE NONESHS CYST TAPS OF THE THAT ARE REPORTS AND AFRSD ARE
NON, SIFRT TAN AND WE DPET HESITATE VS. COMINGS. MY ADVERSARY CITED TO THE TRIAL PREP
THAT WAS TESTIFIED TO BY TRIAL COUNSEL. AT THE HEARING REMAPPED HEARING, THE REMAPPED
COURT FOUND THE KRETD ABL THAT MR. BAILY CONSULT LTD WITH DR. TAFF AND SHE SAID THAT
THERE WAS CLEARLY SENSE OF TRIAL PREPARATION DONE HERE, TRIAL TESTIFY HE REVIEWED THE REPORT,
CALLED DR. HALF TAFF TO DOES HOW I ARRIVE AT THE COULDN'T CLOUGS AND HE ASKED WHAT PART OF
EVIDENCE HE DID OR DID NOT, THAT'S 23121125 TO 21, 113 BETWEEN TO 24, 114, 7 TO 13.
THE ACLU CITED TO SHOWERS V BEARD, THERE'S THE PCR EXPERT AVENUE FIFRM TESTIMONY
SAID IT WAS SUICIDE AND THE ATTORNEY THERE ACTUALLY USED A LAY WITNESS AT TRIAL TO
TESTIFY ABOUT WHETHER THE THE CASE WAS LIQUID MORPHINE COULD EVEN AND MAFSHGED AND IF I
RECALL CORRECT MANY THE LAY WITNESS DID THEIR OWN EXPERIMENTS ON MAFSHGING THE TASTE OF
A DROP OF LIQUID MORPHINE. JUDGE SAAB STEIN NO, SIR, YOU WERE, SPOKE ABOUT
BLOOD SPATTER EVIDENCE, IT'S BEEN CRITICIZED HEAVILY BY THE NATIONAL ACADEMY OF SIGH YENS
IN 2019. WITH RESPECT TO A POTENTIAL BLOOD-SPATTER EXPERT, WE DON'T KNOW WHAT
SHIRT THIS DFT WAS WEARING WHEN HE SHOT THE VICTIM BECAUSE THE SECOND BLOODY SHIRT WAS
RECOVERED FL A LAUNDRY BAG AT THE CRIME SCENE AND THAT'S IN THE TRANSCRIPT OF TRIAL, 12
T 1 SITUATION 5612 TO 24. WITHOUT KNOWING THE BLOOD SPATTER ON THE SHIRT DEFLT HAPPEN
TO BE WEARING WHEN HE FIEM GOT AR ROUP TO EP OG THE DOOR IS QUITE FRANKLY IRRELEVANT HERE.
OF THE INNOCENCE PROJECT SPOKE BRIEFLY ABOUT MOD FOIING THE STRICT LAND
STAND DORD AND I WOULD LOIK TO BOW BACK TO WHAT JUSTICE PAT SOFRN WAS SAYING, IF WE CODIFY
THIS SET FORNL BY THE INNOCENCE PROJECT WE'LL BE ELIMINATING THE PROCESS SEFRMGLY, THAT
TRIAL COUNSEL WAS EFFECTIVE BY IMPOSING ALL THESE ADDITIONAL REQUIREMENTS. WITH RESPECT
TO THE MODIFICATION SUGGESTED TO THE PREJUDICE PRONG, THE JOUMENT COME OF THE TRIAL IS
PROKS SO FOR WHAT IS HAPPENING INSIDE THE JUFR ROOM. IF THE OUTCOME AT THE END IS THE
SAME, WAF DOES IT MATTER WHAT HAPPENS WITH THE JURY'S DELIBERATIONS THERE'S NO PREJUDICE
TO THE DPEFT THEY ARRIVE AT THE SAME RESULT. AND WITH RESPECT TO THE ARMGS
ABOUT OPD'S INTERNAL GUIDELINES, THE MEEJING OF THE 6TH PT AMENTD MENT ISN'T BOUND BY
THEM. I WOULD ALSO ASK THIS COURT TO REVIEW THE CORROBORATIVE EVIDENCE IN THIS CASE,
THE FACT THAT IT COCK TOOK THIS DEFENDANT 5 MINUTES TO OPEN THE DOOR FOR 1ST RESPONDERS
BUT IT SHOWED ME EMOTION THAT HE WAS ACTIVELY CLEANING THE CRIME SCENE AND DESTROYING
THE FRON SICK EVIDENCE THAT MANY OF THESE FLUSHING THE SHELL CASESINGS, WIPING THE
BLOOD SPATTER ON THE WALLS, REMOVING THE BEDDING THAT HAD THES BRAIN MATTER ON IT. YUS
TIS FAB LIEU YOU ASKED FO INDER. GIVEN THE CORROBORATIVE EVIDENCE IN THIS CASE, INDE
TER NAPT DOESN'T GET US TO A NOT GUILTY. UNLESS THERE ARE ANY OTHER QUESTIONS FROM THE
KORTS I WILL SUBMIT AND I THINK I THANK THE COURT FOR ALLOWING ME TO HAVE REBUTTAL.
CHIEF JUSTICE RABNER: THANK YOU AGAIN