Monday, August 11, 2008

Another Failure of American Justice

by Adam Liptak
The New York Times
August 11, 2008

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

The European judge who visits the United States experiences “something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,” John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.

Partisan experts do appear in court in other common-law nations, including Canada, Singapore and New Zealand. But the United States amplifies their power by using juries in civil cases, a practice most of the common-law world has rejected.

Juries often find it hard to evaluate expert testimony on complex scientific matters, many lawyers say, and they tend to make decisions based on the expert’s demeanor, credentials and ability to present difficult information without condescension. An appealingly folksy expert, lawyers say, can have an outsized impact in a jury trial.

Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony.

Both sides in Mr. Wilkins’s case said the American approach to expert testimony was problematic.

“One’s biased for the defense,” said Rockne O. Cole, Mr. Wilkins’s lawyer. “The other’s biased for the state. I think it’s who’s signing their paycheck.”

Anne M. Lahey, an assistant prosecutor in Johnson County in Iowa, largely agreed. “They’re usually offsetting as far as their opinions are concerned,” she said of expert testimony.

Judge Dillard ruled that Mr. Wilkins was not competent to stand trial, a decision an appeals court reversed last year, though it accepted the judge’s conclusion that the experts had canceled each other out. Since it is the defense’s burden to prove incompetence, the appeals court said, the tie went to the state. The case against Mr. Wilkins was dismissed in October for reasons unrelated to his competency, said Janet M. Lyness, the prosecutor in Johnson County. A confidential informant crucial to the case against Mr. Wilkins could not be found, she said.

Dr. Frank Gersh, the defense expert in the case, did not respond to a request for comment. But Dr. Leonard Welsh, the psychologist who testified for the state, said he sometimes found his work compromising.

“After you come out of court,” Dr. Welsh said, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”

He might have preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing.

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. In the Wilkins case, by contrast, the two experts “did not exchange information,” the Court of Appeals for Iowa noted in its decision last year.

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

American Exception: Articles in this series examine commonplace aspects of the American justice system that are virtually unique in the world.

Copyright 2008 The New York Times Company

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