Failing to call an expert witness in criminal child maltreatment cases may be ‘ineffective assistance of counsel’

By Daniel Pollack

The United States Constitutiodpollackn’s Sixth Amendment  states “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The phrase that most of us probably cite most often is the last one, “the assistance of counsel.” There are many aspects to demonstrating that an attorney has lived up to a reasonable standard of competence.  The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984), has held that the Sixth Amendment does not just guarantee a right to counsel – it guarantees a right to effective counsel. And, the Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.

For a number of different reasons, ineffective assistance of counsel can be a factor in an alleged wrongful conviction. Examples may be include an attorney’s failure to call a witness, properly investigate the facts of the case, cross-examine a witness, request DNA testing, make objections to a prosecutor’s arguments, acknowledge a conflict of interest, or present an expert witness on behalf of the defendant. This article briefly investigates the last circumstance.

In the child welfare legal arena this issue may come up in child maltreatment cases. For instance, in People of the State of Michigan v. Ackley (2015), Leo Ackley was convicted by a jury of first-degree felony murder and first-degree child abuse following the death of his live-in girlfriend’s three-year-old daughter while in his care. At his trial, the prosecution called five medical experts. They testified that the child had died as the result of a head injury that was caused intentionally. Ackley’s attorney called no experts even though court funding for expert assistance was available and a forensic pathologist might have corroborated the possibility that the girl’s injuries resulted from an accidental fall. The Michigan Supreme Court concluded that that “defense counsel’s failure to engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to consult an expert with the scientific training to support the defendant’s theory of the case, fell below an objective standard of reasonableness, and created a reasonable probability that this error affected the outcome of the defendant’s trial.”

Indeed, “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Hinton v. Alabama, 134 S.Ct. at 1088 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011)). When is an attorney’s decision not to retain an expert witness a matter of reasonable trial strategy and tactics, and when is it evidence of ineffective assistance of counsel, resulting in a substantial likelihood of a miscarriage of justice? In reviewing a claim of ineffective assistance of counsel for failure to retain an expert witness, an appellate court must evaluate and determine whether the attorney’s decision was within the range of competence demanded of attorneys in similar criminal cases. The reviewing court should avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct” (Strickland, 466 U.S. at 689-90). As the United States Supreme Court has said, sometimes “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383 (1986).

dpollackDaniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at  or at 212 960-0836.

This article, “Failing to call an expert witness in criminal child maltreatment cases may be ‘ineffective assistance of counsel’” originally appeared in Policy & Practice, June 2017, 25 & 34.

More problems with traffic stops

As we have discussed here in previous posts, the government is pretty much unlimited in its ability to circumvent the 4th Amendment during traffic stops.  No court has shown a willingness to curtail an officer’s willy-nilly decision to search a vehicle simply because he wants to.  It is just too easy nowadays.  The Second District Court of Appeals continued this trend in its decision in State v. Vineyard, 2014 Ohio 3846.

While the result in Vineyard is unsurprising, and the court accurately states the law, what is interesting about the decision is just how illogical the facts were applied to the law.

The facts:

Vineyard was dropping off his kids at a latchkey program operated by the Five Rivers Metro Parks in Dayton.  While on patrol, officer Jones noticed Vineyard stop in front of the building, drop off his children and drive away.  But for the fact that he stopped in a marked fire lane, this behavior would not ordinarily lead to a police encounter.  Because officer Jones could not tolerate this grievous activity, however, he proceeded to make a traffic stop.  There is nothing wrong with his decision to issue a ticket to Vineyard, even if most of us would be pretty upset at the lack of discretion utilized here.

Once stopped, Vineyard provided his name, identification and proof of insurance as requested.  Jones then went to his cruiser and ran his information through the LEADS system.  The little computer spat out its information on Vineyard, which showed that he had a suspended license.  Uh oh.

More importantly, though, the LEADS output showed that Vineyard had an expired carrying concealed weapon permit (CCW).  The permit had expired a few months before this incident.  The data also showed that in prior encounters with police, Vineyard had had a weapon.  While the opinion doesn’t address the issue, it is apparent that Vineyard had been in possession of the firearm during these previous encounters lawfully, otherwise the testifying officer and the court surely would have pointed out his prior convictions.  After all, until recently, Vineyard was absolutely allowed to possess a weapon in his vehicle.

Officer Jones testified that these facts made him concerned for his safety.  We must have a lot of teacups on the force. I’m not sure how a gentleman with no prior weapons convictions, an expired CCW, suspended driver’s license, dropping off his children in front of “Adventure Central,” adds up to a danger.  Alas, officer safety is paramount.

Anyway, Jones then completed the citation for driving under suspension, a first degree misdemeanor, within a 5-7 minute period.  Did Jones then arrest Vineyard for DUS?  No.  In fact, Vineyard ultimately drives away at the end of the story.  Did Jones hand Vineyard the citation and tell him of his court date?  No. There’s some searchin’ to do.

Jones waited a few more minutes after completing the citation to exit his cruiser, go back to Vineyard, instruct him to exit his car and stand on the sidewalk.  Jones asked Vineyard if he had a weapon in the car, and Vineyard responded in the affirmative. Vineyard then told Jones where the gun was located.  Right around this time the second officer arrives on the scene.  Jones then removes the firearm from Vineyard’s vehicle and places it in the trunk of his cruiser.

Jones then delivers the citation to Vineyard for DUS and allows him to drive away, even though he could have been arrested and his car towed.  The entire traffic stop took 41 minutes.  Jones testified that the typical DUS stop lasts “maybe 20 minutes at the most.”

Vineyard is later indicted for Improper Handling of a Firearm in a Motor Vehicle (Loaded/no license), a fourth-degree felony.  Vineyard moves to suppress the gun as having been obtained during an unconstitutional seizure and subsequent search of his automobile.  Vineyard argued that his traffic stop had been unreasonably extended in duration beyond the time within which was needed to complete the traffic citation.  The trial court overruled the motion and he appealed to the Second District.

The Law:

The law is fairly clear that an officer may lawfully stop an automobile when he has reasonable suspicion (or probable cause) that the driver committed a traffic violation.  That was obvious here. No problem with the stop.  However, the law is also clear that the duration of a traffic stop may not last any longer than is necessary to complete the traffic citation, here 5-7 minutes.  Otherwise, the continued detention is unlawful and any subsequent searches are a product of an illegal seizure.

If an officer wishes to continue to detain the driver beyond the time in which it takes to issue the citation, he must then be able to point to specific and articulable facts giving rise to a reasonable suspicion that crime is afoot (i.e., a “Terry Stop”).  In short, the officer must have some other, valid justification for the seizure that is independent of the traffic stop.   It is quite obvious that the stop here was extended way beyond the time it took Jones to complete the DUS ticket.  He had Vineyard exit the vehicle and asked him questions related to the gun only after he had completed writing the citation.

The trial court determined that the continued detention was lawful because (1) the LEADS report indicated his CCW was expired; (2) he had been in possession of a firearm during prior traffic stops; (3) he was being cited for an arrestable offense – DUS; (4) and Jones had a legitimate concern whether Vineyard was armed.  All of this adds up to the conclusion that the continued detention of Vineyard was reasonable.

This is nonsense and illogical.  If Jones wanted to arrest Vineyard, have the car towed and search it as part of a routine inventory process, none of this would be an issue. Finding the gun would have been inline with constitutional standards.  However, when Jones obviously decided not to place him under arrest, he had no further basis to continue the seizure in order to ask about the weapon.

The Appellate court upheld the the trial court’s ruling; after noting that the traffic stop had obviously been completed prior to any discussion about firearms, the Court stated the following:

However, a search of Vineyard’s driver’s license through LEADS revealed that Vineyard was driving under suspension, an offense for which Vineyard could be arrested, and Officer Jones testified that he had not yet decided whether to arrest Vineyard for that offense. The report further indicated that Vineyard had a gun during prior encounters with the police and that Vineyard’s CCW permit expired a few months earlier.

Officer Jones testified that an individual is required to notify the police officer at each encounter if the individual has a CCW permit and the location of the weapon. Vineyard had not informed Officer Jones that he had a CCW permit or that he had a gun in his vehicle. These facts were sufficient to create a reasonable and articulable suspicion that Vineyard might unlawfully have a firearm in his vehicle and to cause Officer Jones to be reasonably concerned for his safety. Accordingly, Officer Jones acted reasonably in requesting backup before concluding the traffic stop and in asking Vineyard about the possible presence of a gun in the vehicle prior to allowing Vineyard to drive away. Vineyard’s continued detention so that Officer Jones could confirm or dispel his concern that Vineyard might have a gun in his car without a valid CCW permit was not unlawful. And once Vineyard indicated that he had a gun in the car, Jones lawfully retrieved the gun from the vehicle.

It would have been one thing for the court to hold that because Vineyard could have been arrested, he was not unlawfully detained after the ticket was completed.  The officer could contemplate for a reasonable amount of time whether to take him into custody or not.  I could live with that limited holding.  However, it is the fact that the court uses these facts in order to get to reasonable suspicion that is the problem.  Let’s take a look at what the appellate panel felt amounted to reasonable suspicion.

(1) Vineyard had a weapon during prior encounters.

Well, okay.  He must have had it lawfully during those encounters.  That’s the point of a CCW, right? Also, it appears that these prior encounters with police were in 2008, 2010 and 2011.  The stop was in 2012. That is what we call “stale information.” Perhaps he no longer carries a gun due to the fact that his CCW expired.

Reasonable suspicion requires more than a gut sense or “inchoate hunch” that something is going on.  I have no doubt that Jones had a suspicion that Vineyard had a gun, but that is not the constitutional standard.  This innocuous fact about the CCW permit could not possibly give rise to reasonable suspicion that a gun was in the car.  If so, then all Ohioans who have allowed their CCWs to expire are now subject to these types of prolonged seizures.

(2) Vineyard had not informed the officer that he had a CCW, which he is required to do under law.  Further, Vineyard had not mentioned he was in possession of a weapon.

Whoa.   Here is where the logic train goes completely off the rails.

How in the world would Vineyard’s failure to mention an expired CCW permit, or that he had a gun, provide reasonable suspicion that a firearm was actually in the car? In order to lawfully detain the driver, Jones was required to point to specific facts that were known to him prior to his decision to continue the seizure.  Jones never knew of the gun until after he had prolonged the stop in the first place.  In Short, Vineyard’s failure to mention the gun would not have been known to Jones at the time he made the decision to seize him.  Talk about putting the cart before the horse.

Moreover, Vineyard was not required to mention anything about a CCW because …  drum roll … he didn’t have one! Remember, it had already expired.  Are we now required to mention that we used to have a CCW whenever stopped for speeding?  The statute governing CCWs doesn’t require this.

To use an absurd hypothetical as an illustration, this decision could just as easily have read something like:  prior convictions for cocaine, coupled with a failure to tell the officer you are carrying 12 kilos of cocaine (found later), amounts to reasonable suspicion that you are now in possession of cocaine.  See how that works.

It is important to remember that hindsight doesn’t satisfy the 4th Amendment.  You may only look to the facts known to the officer at the time he decides to seize or search.  This case basically allows officers to prolong traffic stops beyond the constitutional limits if a person has an expired CCW, and on some previous occasion, lawfully possessed a weapon.  Period.  Apparently, no other objective facts need be demonstrated for an officer to have reasonable suspicion that a firearm is illegally in the car.

Again, I wish the court had simply held that the officer was entitled to seize Vineyard until he decided to arrest him or not, and while seizing him for that purpose, permitted to ask him questions about a weapon.  What’s troubling is that the court believed these facts gave rise to a reasonable suspicion.  This affects all drivers going forward.

New “Expungment” Statute

While the legislature has been unable to clear out our growing prison population with recent legislation, one area of criminal law that it has been successful in overhauling is the sealing of conviction requirements. The net effect of recent revisions to the law has been to expand the group of persons eligible to have their record sealed.

As an aside, because I see this often, I would like to educate some folks about the appropriate language here: while most people refer to having their record “expunged,” that is inaccurate. The vast majority of defendants have their record “sealed.” What is the difference? When a conviction is sealed, all records related to the case are placed in a sealed envelop and stored away somewhere in the bowels of the court and treated as if they don’t exist. There is no longer an official public record of the case; it is as if the defendant was never charged, never appeared in court, never convicted and never punished. The case didn’t happen. The defendant can then lawfully and accurately say that he has never been convicted of a crime – or at least the sealed crime. There are very limited ways in which the sealed conviction can ever come to light in the future.

In contrast, when a record is actually “expunged,” the documents are destroyed – shredded, set on fire, eaten by someone, whatever. The documents literally can never be retrieved because they physically disappear from the earth forever. Very few circumstances allow a conviction to be expunged (e.g., convictions for prostitution when the defendant was a victim of human trafficking or juvenile adjudications of delinquency).

Regardless, the sealing of a conviction does the trick for most defendants when they go applying for jobs, and our policymakers have now made it even easier obtain that relief. On September 19, 2014, SB 143 will go into effect and it slightly revises R.C. 2953.31, the section that defines whom is an “eligible offender” for purposes of the sealing statute. The new definition will allow someone convicted of 2 misdemeanor offenses to have both convictions sealed, even if the convictions were for the same offense.

Under prior law, a defendant could have up to two separate misdemeanor convictions sealed as long as they were not for the same offense. In other words, if the defendant had a possession of marijuana conviction and a separate theft conviction, he was eligible to seal both cases so long as he met all the other criteria. But, if that same defendant had two separate theft convictions, he was ineligible to have them sealed. Hey, if you don’t learn your lesson after the first conviction, that’s on you, Mr. Defendant. 

As of September 19, 2014, this limitation on eligibility is eliminated.  Just something to keep in mind.

Ohio Supremes Rule on Consecutive Sentencing Mess

The Ohio Supreme Court has recently issued a decision in State v. Bonnell that answers some of the messy issues related to the reenacted consecutive sentencing statute, R.C. 2929.14(C)(4).  Spoiler alert, it isn’t good for anyone hoping there would be meaningful appellate review of felony sentencing in Ohio. The decision basically continues us down the path of almost unfettered discretion for trial courts to do whatever they want, as long the prison term fits mathematically within the eligible range.  The way appellate review of felony sentencing works now is that unless the trial court imposes 12 years for an F-5 drug possession charge, the sentence is unassailable.

It is no secret that in enacting H.B. 86 in 2011, the Ohio legislature wanted to get more people out of prison quicker.  It’s simply too expensive to house all these folks.  The U.S. prison population is the largest in the world and climbing.  One aspect of the bill to accomplish that larger goal was a limitation on a trial court’s ability to impose consecutive sentences for multiple offenses.  It’s not that consecutive sentences were done away with, but that there is a presumption that multiple sentences are to be served concurrently.  So, in Ohio, we are to start with the assumption that when a defendant is convicted of multiple felonies, the various sentences are to be served at the same time (there are exceptions to this presumption, but for the run-of-the-mill case, the presumption applies).

If, however, the trial court makes certain “findings,” outlined in R.C. 2929.14(C)(4), the presumption is thrown aside and the judge may impose consecutive sentences. What are the findings the court has to make? The applicable subsection now reads as follows:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

While these findings are mostly subjective and easy enough for a trial court to make if it wants to, the court still has to make them in order to impose consecutive sentences.   Probably unsurprisingly to those of us in the trenches, trial courts initially struggled to even bother to make the requisite findings before sending defendants to the big house for very long periods of time.  After defense appeals started to work their way through the system, and appellate courts routinely overturned the unlawful sentences, judges learned their lesson and began stating their findings at the sentencing hearing.  Is that the end of the story. Of course not.  Important questions still needed addressing.

First, does the judge have to state the findings verbatim from the statute, or may he simply say something that seems to correspond to one of the findings?  As one appellate judge asked me at an oral argument, “what happens if the judge leaves out an ‘a’ or a ‘the’ when making the finding?  Although the judge’s question to me was obviously a bit tongue in cheek, the larger point was a valid one.  How close to the statute’s wording is good enough?

Ohio’s Appellate courts were all over the map on the issue.  Some appellate courts were willing to look at the transcript of what was said by the trial judge and author an opinion along the lines of, “well, it appears the court was saying consecutive sentences are necessary to protect the public from future crime.”  Other appellate districts were requiring strict compliance: if you don’t say the magic words, the sentence is unlawful.

Second, does the judge have any obligation to state its reasons for making the findings?  If the sentencing judge claims that “consecutive sentences are not disproportionate to the seriousness of the defendant’s conduct,” how did he or she come to that conclusion? Is it enough to simply make the finding, or must a court provide supporting reasons? Normally when someone comes to a factual conclusion about something, there is a reason behind it.  Why not make them provide those reasons so that we all can see whether the sentence is simply nuts under the circumstances?

These were questions at issue in State v. Bonnell, 2014 Ohio 3177, and the Ohio Supreme Court answered in a most frustrating manner.

As to the first question, the court stated stated:

    When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing, and by doing so it affords notice to the offender and to defense counsel. See Crim.R. 32(A)(4).  And because a court speaks through its journal, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the court should also incorporate its statutory findings into the sentencing entry. However, a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld. (emphasis added).

As to the second issue, the court stated in its conclusion that:

In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings

In short, what the court held is essentially this:

1. The court must make the findings in order to impose consecutive sentences.  This was not really a surprise as that is exactly what the statute says.  The fact the court had to explicitly say so is an issue.

2. Although the court has to make the findings, as long as the appellate court can read the hearing transcript and cobble together words and phrases that kinda, sorta address the findings, that is good enough.

For instance in Bonell, the high court actually wrote that “[w]e can discern from the trial court’s statement that Bonnell had ‘shown very little respect for society and the rules of society’ that it found a need to protect the public from future crime or to punish Bonnell. We also can conclude that the court found that Bonnell’s ‘atrocious’ record related to a history of criminal conduct that demonstrated the need for consecutive sentences to protect the public from future crime.” Really? That’s what you get out of that.  I view it more as the court saying, “you are a bad person and I want you to be punished to the maximum extent I can do so.” Every appellate court is simply going to shoehorn the judge’s statements into the findings and call it a day. Cut and paste appellate review at its finest.

3. Most importantly, the court need not give any reasons or justification for how it made its findings.  You do not have to show your work, judge. If a sentencing judge proclaims it made the finding, that is that.

There is actually justification for the court reaching this conclusion. When the legislature reenacted the consecutive sentencing statute, it omitted any requirement for the court to state its reasons underlying those findings. Because a previous version of the statute included such a provision, an argument can be made that the legislature specifically and intentionally decided  to relieve courts from that obligation.

This interpretation is clearly contrary to the overall purpose behind the legislation, but there is textual support for the result reached here. My belief is that the legislature simply forgot to include the provision, or assumed judges would provide reasons. We’ll never know for sure, and this case doesn’t shed any light on the matter, as there is virtually no analysis on that point. The court essentially makes a conclusory holding that reasons need not be stated and calls it a day.

Bonnell continues with the trend of gutting any possibility of meaningful appellate review of sentences.  If a particular judge disagrees with the legislature’s intention to shorten prison terms, there isn’t anyone that can stop him.  This decision gives free-range to hang ’em judges.


Warrantless Search of Cell Phones Ruled Unconstitutional

A week or so ago I indicated the Supreme Court of the United States had heard oral argument on the issue as to whether the police may search the content of a person’s cell phone, without a warrant, when that person is arrested.  In Riley v. California, SCOUTS unanimously ruled that such a warrantless search violated the 4th Amendment.  This is the right call.  In fact, the Ohio Supreme Court had already made the same decision a few years ago.

As noted in my earlier post, the argument the state asserted was that the search is constitutional under the “search incident to arrest” exception to the warrant requirement.  That is nonsense.  That exception is aimed at two overriding policy considerations: (1) to protect officers from the use of weapons, and (2) to prevent the destruction of evidence.  Neither of those justifications are present in context of searching data on a cell phone.

Unlike searching the pockets and bags of an arrestee, a cell phone is not capable of concealing a weapon.  Also, any evidence of a crime that may be stored on a cell phone is not in danger of being destroyed once the police seize the phone and the defendant is in handcuffs.  Because neither of the justifications for the exception advanced by the government are even arguably present, the Court ruled that police must seek a warrant.  This is a win not only for privacy, but logic.