Page 194 - Ad Hoc Report June 2018
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discovery seems to show that the client is clearly guilty. A panel lawyer’s story of an arson case to which he was appointed illustrates this point vividly:
From the discovery, [my client] appeared culpable. Very culpable. I instructed my investigator to interview every person named in the discovery because the police reports were sketchy. I also kept asking the prosecution for the interview of one named witness that was omit- ted from the discovery. My investigator eventually was able to contact the omitted witness. He was an uninvolved passerby who confirmed completely the defendant’s story that she was just standing there and her companion broke the window, started the fire, and then told her, “You’d better run.” The charges against her were dismissed, and she was released from jail. In the aftermath, I laid in bed staring at the ceiling, feeling I had narrowly avoided allowing a horrible injustice to occur.692
Assistance of other experts is essential in many cases. A panel attorney offered the Committee a succinct explanation for expert use:
[First, they can] assist a lawyer in understanding the facts [of a case]. Second, an expert can help determine why a defendant acted as he
or she did . . . . Third, an expert may be instrumental in providing the defense attorney information about the defendant that supports a reduction in the charges or a lesser sentence because of the history and characteristics of the defendant . . . . The bottom line is: using an investi- gator and expert more often than not makes a difference in the outcome of the case. The prosecution is more likely to negotiate a reduction in the charges or to agree to a lesser sentence or not oppose the defense request for a lesser sentence.693
Experts are especially valuable at sentencing in the wake of the Supreme Court’s decision in United States v. Booker.694 Now that the federal sentencing guide- lines are advisory and not mandatory, “psychiatric or psychological experts may be the only way to individualize the defendant, to demonstrate” that a sentence is suffi- cient but not greater than necessary, as required by 18 U.S.C. 3553(a).695
Furthermore, the “explosion in financial fraud and child pornography cases”696 has necessitated greater use of experts, including specialists in forensic computing, forensic accounting, and mental health. However, the need for experts is not limited to such cases; in securities fraud cases, experts are needed to analyze and interpret
692 ShaunMcCrea,CJAPanelAtty.,D.Or.,PublicHearing—Portland,Or.,Panel4,Writ.Test.at5–6. 693 Id.at6–7.
694 543U.S.220(2005).
695 JudgeNancyGertner(ret.),D.Mass.,PublicHearing—Philadelphia,Pa.,Panel2b,Writ.Test.,at4. 696 MichaelCaruso,FPD,S.D.Fla.,PublicHearing—Miami,Fla.,Panel1,Writ.Test.,at11.
No recommendation presented herein represents T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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