Blueford v. Arkansas

Tuesday, May 29th, 2012

Last week the U.S. Supreme Court found another exception to the Constitution’s prohibition on double jeopardy. In a 6-3 ruling (PDF), the Court found that when a jury is given a range of mutually exclusive charges to chose from, the fact that the first jury voted to acquit on the most serious charges doesn’t prevent the state from trying the suspect on those charges again.

In this case, the jury could have chosen to convict on a range of charges from capital murder to manslaughter. They voted unanimously to acquit on the more serious charges, but hung on manslaughter, with a majority voting to convict. The Court’s ruling means Blueford can again be charged and tried for capital murder and first-degree murder.

I don’t agree with the Court’s decision, but that’s not really even the most objectionable part of this case.

From Blueford’s cert petition (PDF):

The state relied entirely on circumstantial medical evidence, and emphasized an autopsy report by a state medical examiner. There was no evidence of any history of abuse by Blueford.

The state’s principal witness was Dr. Adam Craig, a medical examiner at the Arkansas State Crime Lab, who conducted the autopsy and testified about its meaning. Dr. Craig testified that he is not board certified in anatomical pathology despite five attempts to pass the board exam. He concluded that the cause of death was a “closed head injury.” Dr. Craig opined that the death was a homicide based on the “severity of the injuries” and the absence of any other “reasonable explanation” in the information given to him by law enforcement. He rejected the possibility that the injury could have been caused by an accident or a fall, citing one dated medical position paper, and he admitted that he was unfamiliar with recent medical literature documenting that very possibility.

So it’s another shaken baby case. And here, the diagnosis was made by a doctor with questionable credentials.

Blueford’s defense was supported by two expert medical witnesses. The first was Dr. Robert Bux, the head medical examiner for El Paso County, Colorado. Dr. Bux is board certified in anatomical, clinical, and forensic pathology. He has worked on international matters, including service for the International War Crimes Tribunal in former Yugoslavia, and he has published in the Journal of the American Medical Association, among other publications. Dr. Bux testified that Dr. Craig’s autopsy was so poorly performed as to be useless, and suggested that, as a supervisor, he would not continue to employ an examiner who turned in an autopsy like Dr. Craig’s. He also explained that the position paper on which Dr. Craig relied had long been understood to be “inaccurate and not scientifically valid,” In light of the botched autopsy, Dr. Bux explained, either the State’s version of events or Blueford’s could be accurate, and “[t]here’s no way as a forensic pathologist I can tell you which happened.”

Dr. John Galaznik, a board-certified pediatrician with thirty years of experience at the University of Alabama, also testified on Blueford’s behalf. Like Dr. Bux, Dr. Galaznik testified that the available medical evidence was entirely consistent with Blueford’s account of the accident. He explained that the last decade of research had conclusively shown that children can suffer fatal head trauma from short falls. He also expressly rejected the state’s theory that Blueford slammed McFadden into mattresses, emphasizing that the same scenario had been examined by the biomechanical literature, which, in his view, concluded that the mattress-slamming scenario “would not cause the injuries in this case.”

The problem, as we’ve discussed here before, is that a state expert witness, no matter how unqualified, always carries an air of authority and credibility. He’s just trying to help put bad guys away. What incentive would he have to lie? Defenses witnesses, no matter how qualified (and of course, defense attorneys sometimes put hacks on the stand, too), carry the air of a hired gun. Other problems play into this, such as why Craig is doing autopsies for Arkansas in the first place—which itself may have something to do with the nationwide shortage of medical examiners.

Craig’s credibility wasn’t the issue before the Court, so it only comes up in a footnote in Justice Sotomayor’s dissent. Sotomayor also points out that Craig took only two slides of the child’s brain, where the current medical standard is to take 10-20.

The Supreme Court has issued a number of rulings about how to determine the validity of scientific evidence. But I don’t know that the Court has ever addressed how the courts should go about certifying expert witnesses who may be practicing in a credible field, but who themselves clearly aren’t credible. The Daubert test isn’t really applicable to a specific witness who is testifying in an established field. (I’m open to the possibility that I’m wrong on this—if so, please correct me in the comments.) And it seems to me that this is just as important. A persuasive fraud can make a much better impression on a jury than a qualified, credentialed professional who isn’t as skilled at testifying.

I’ve made this point with respect to Steven Hayne in Mississippi, but once you’ve shown an expert witness is willing to give testimony wholly unsupported by science, you have to go back and retry every other case in which that expert’s testimony played a significant role in a conviction. If he’s willing to say something outlandish or is proven to have lied on the witness stand in one case, there’s no reason why his expertise in less cut-and-dried cases should be trusted, even when it’s scientifically plausible.

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16 Responses to “Blueford v. Arkansas

  1. #1 |  Burgers Allday | 

    Does anyone know if it was an all white jury?

    The problem here may not have that much to do with credibility of the respective side’s medical examiners at all.

  2. #2 |  phlinn | 

    At first glance, the decision doesn’t particularly bother me. The jury didn’t finish deliberating. There is no such thing as a partial mistrial. I’d prefer it if any unanimous partial decision was binding, but it’s comprehensible to me why it wouldn’t be.

    As you noted, the actual lack of credible evidence is a much bigger issue.

  3. #3 |  cdg | 

    As problematic as the state’s use of experts was, the jury waded through the case and unanimously acquitted on the most serious counts. For the judicial system to allow those counts to be re-tried simply because the judge failed to do the paperwork correctly is beyond ridiculous. Figures that the only justice with trial judge experience wrote the dissent.

  4. #4 |  Stephen | 

    OT – did you hear about the new super potent LSD?

    http://www.rawstory.com/rs/2012/05/28/police-miami-cannibal-was-overdosing-on-new-super-potent-lsd/

    I wonder how long it will be before some body comes up with a version of H2O that has more water in it. (our water is more wet than our competitor’s water)

    I vote for PCP or bath salts as what turned the crazy guy into a zombie.

  5. #5 |  qwints | 

    For an explanation of the standards in a federal context, see the commentary on Federal Rule of Evidence 702 available at http://www.law.cornell.edu/rules/fre/rule_702. Standards differ in a state case such as this one.

  6. #6 |  ClubMedSux | 

    Radley, Daubert applies to all experts, regardless of whether their area of expertise is established or novel. In fact, an important aspect of Daubert is that it focuses on the specific methodology employed by the expert rather than focusing on the status of the expert him/herself. Under Daubert, it’s not enough to simply walk in and say, “I literally wrote the textbook on this topic and am widely recognized as the foremost expert in this field.” You have to show that the methodology you employed has been scientifically tested to be accurate. Now I haven’t read the opinion, and I don’t even know if it came from a Daubert state, but under Daubert, if the current standard is to use 10 to 20 slides, and the expert only used two slides, that would seem like a reasonable grounds for exclusion (though, at the same time, judges are more likely to allow that in and rely on cross-examination as a means to discredit the evidence–something that I think is a problem).

  7. #7 |  Irving Washington | 

    Radley, you’re correct that this isn’t a Daubert issue. It’s a pure qualification question. Unfortunately, the legal standards for qualification are low, and the de facto treatment of qualification fights in trial courts is worse. Judges simply are reluctant to declare an expert unqualified.

  8. #8 |  James J.B. | 

    Blueford –

    Well, I guess Kagan, Soto, and Ginsburg all lost the coin toss – they get to sign their names by the opinion that makes sense. Have no fear, they will trade places in a few weeks and they will be on the “winning” team!!

    Unbelieveable. Guy wins jury verdict on two charges. Yet, can be retried on all charges, b/c jury couldn’t decide on one charge. Oh well, I guess the new model will be, for the government at least, is to make crimes of varying degrees so close in elements, charge multiple offenses, and prey on jury confusion. Oh, wait…

  9. #9 |  bacchys | 

    It’s a terrible decision. The question of the ME’s qualifications and how he came to his conclusions isn’t part of it. The question before the court was basically when does an acquittal happen?

    Dismayingly unsurprisingly, the Court decided to bend over backward to let the prosecutor get another bite at the apple. Sotomayor lays it out compellingly in her dissent. The judge’s instructions and Arkansas law dictate the jury come to a unanimous decision on greater charges before considering lesser included offenses. The statements of the foreperson indicate that’s exactly what the jury was doing, and scrupulously. They were hanging on a lesser included offense of manslaughter and hadn’t given any thought to negligent homicide because they weren’t unanimous on the manslaughter charge. The judge, who apparently slept through his own instructions to the jury, complained in a sidebar about their not following his instructions and the law.

    Even so, the linchpin of Roberts’s decision is that this jury, which showed every sign of carefully following the judge’s instructions and the law, could have violated the instructions and the law and reconsidered their unanimous decision on the greater offenses.

    Unacquitted on a technicality…

  10. #10 |  NMissC (Tom Freeland) | 

    Daubert is not a rule of constitutional import– states are free to have their own standards for admission of expert testimony (many states have adopted something like Daubert and its progeny, at least in theory or where it prevents junk science in tort cases. At least in Mississippi, in criminal cases, it hasn’t gone exactly that way even though it should be theoretically the same) but it must comport with due process and the confrontation clause. Somewhere between a witch doctor and a nobel prize laureate there’s a line, which unfortunately is going to be a lot closer to the witch doctor for the current supreme court majority.

    So Arkansas is freer than it ought to be to allow this junk science at least as far as supervision by the US Supreme Court goes……

  11. #11 |  NMissC (Tom Freeland) | 

    And I do have a problem with the majority result. As the form of verdict was structured, the jury had to reach a verdict on the greater offenses to begin deliberation on the lesser ones. So, when they hung on the lesser ones, they had to have completed the greater ones and that is not a “normal” hung verdict.

  12. #12 |  James Sr. | 

    How much more is this state going to spend on a case the 3 highest woman of our country ruled he shouldn’t be tried again…

    Isn’t the the rule of thumb, mom’ knows best ?

    Looks like the men have no hearts in this case…

    One would think it would be the other way around with a 1 yr old …

  13. #13 |  william wright | 

    OT – did you hear about the new super potent LSD?

    http://www.rawstory.com/rs/2012/05/28/police-miami-cannibal-was-overdosing-on-new-super-potent-lsd/

    I wonder how long it will be before some body comes up with a version of H2O that has more water in it. (our water is more wet than our competitor’s water)

    If athletes can give 110%, surely there’s a mountain man somewhere who can gin up some 220-proof moonshine.

  14. #14 |  supercat | 

    The correctness of the Supreme Court decision would in significant measure depend in significant measure upon the exact arguments put before it. Even if a particular party should likely prevail on the basic of a certain argument, the Supreme Court should not make a decision based on that argument unless the party in question actually raises it. Without knowing exactly what arguments were raised, it’s impossible to tell whether the Supreme Court’s decision was not rendered properly according to the arguments before it.

    That having been said, I would think the Supreme Court should, in cases where justices can see that they losing side could have presented a better argument than it actually did, hold off on issuing a final decision, but instead dismiss a case without prejudice and call upon what would be the losing side to resubmit their case with the better argument (also calling upon the winning side to rebut that argument). Should the losing side decline to resubmit with the better argument, the Court should issue a decision expressly noting that it should not be construed as foreclosing the argument that was not presented to the Court.

    With regard to the present case, I would think the proper argument should not be whether the jury had made its decision “official”, but rather whether it is likely the jury would not have unanimously acquitted the defendant on any of the charges charges *had it been allowed to do so*. If the state refused to an accept an acquittal on certain charges, it should not be allowed to use such refusal as a basis for claiming the defendant was not “officially” acquitted.

  15. #15 |  Burgers Allday | 

    That having been said, I would think the Supreme Court should, in cases where justices can see that they losing side could have presented a better argument than it actually did, hold off on issuing a final decision, but instead dismiss a case without prejudice and call upon what would be the losing side to resubmit their case with the better argument (also calling upon the winning side to rebut that argument). Should the losing side decline to resubmit with the better argument, the Court should issue a decision expressly noting that it should not be construed as foreclosing the argument that was not presented to the Court.

    The problem is money.

    If you have some spare money then you get justice.

    If you have a lot of spare money (like OJ) then you might even get something better than justice.

    If you don’t have a couple extra hundreds of thousands of dollars then you will probably lose.

    That is the thing about smart people — they are really freaking expensive. In medicine even the less stellar minds command high prices. The law is much more of a free market. The smart people hold their thinking for ransom and dribble it out to those who can pay.

    One can argue whether this is good or bad.

    If it is bad (or bad in the crim law setting) then the answer is to change the way the money is allocated. Justice will follow.

    It was funny watching AJP trying to subtly suggest otherwise. At his rate? C’mon, Abe. You know what the real deal is.

  16. #16 |  Tatiana Covington | 

    And anyone still trusts any of these people? Why? Whatever for? Don’t you ever learn?

    “No faith, no belief, no loyalty, no love.”–R.L.McM.

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