In his closing argument last week in the murder trial of pop music legend Phil Spector, prosecutor Alan Jackson encouraged jurors to ignore the experts who testified for the defense because, he said, "if you hire enough lawyers who hire enough experts who are paid enough money, you can get them to say anything." He went on to inform the jury that "Phil Spector thinks if he throws enough money at a problem, he can solve the problem."
It was a highly unprofessional argument that encouraged jurors to dismiss the opinions of any experts who appear on behalf of wealthy defendants as, in effect, purchased testimony. Yet the fact is that such witnesses are not only available to the rich; even a public defender is allowed to call such witnesses, at public expense, who would probably have made the same arguments.
There is no question that there are some experts in both civil and criminal trials whose opinions invariably follow the direction of their clients. Moreover, it was fair game for the Spector prosecutors to challenge the objectivity of forensic pathologist Michael Baden, who just happens to be married to Spector's trial counsel, Linda Kenney Baden. It was breathtakingly bad judgment to call a relative to the stand as an expert, and the prosecution scored points on the issue, particularly after Michael Baden said he could not define a "conflict of interest" and prosecutors asked if he would end up "sleeping on the couch" if his testimony did not favor Spector's case.
Still, Jackson's effort to persuade the jury to disregard the defense experts as presumptively tainted was deeply inappropriate and should have resulted in a judicial rebuke in open court.
What is particularly galling about this line of argument is that it should come from a prosecutor after a litany of scandals over the years involving discredited government experts. It is prosecutors who often hire experts to testify that any babbling or barking defendant is demonstrably sane, and experts who will claim to find a virtual portrait of a defendant in blood spatters. These "hired guns" make small fortunes working for the government.
They are so predictable that they are given such nicknames as "Dr. Death" -- the nom de guerre of James Grigson, a psychiatrist who helped prosecutors secure 115 death sentences in 124 capital cases.
Or Fred Zain, one of the most prolific government experts. The former chief of the West Virginia crime lab and the San Antonio medical examiner's office, Zain testified in countless trials and always seemed to find incriminating forensic evidence. Zain was undone by an investigation into the case of Glen Woodall, who was sentenced to two life terms plus 300 years for two rapes. He was tied to the rapes by Zain's analysis of blood and hair samples. Years later, it was shown that Woodall was innocent, and an investigation into Zain's testimony found a long history of false conclusions and deceitful practices. In 1992, a court concluded that he may have fabricated and misrepresented evidence in almost 150 cases of conviction.
Then there is Johnny St. Valentine Brown Jr., who was credited with testifying in roughly 4,000 trials in 14 states despite the fact that prosecutors never checked into his background to see that he had lied about his credentials.
A special prosecutor investigated leading prosecution expert Ralph Erdmann, who was found to have falsely testified in a number of Texas death penalty cases.
The investigation concluded that "if the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported."
In the case of Louise Robbins, a North Carolina anthropologist turned prosecution witness, prosecutors found an "expert" willing to match boot prints to individuals with virtual certainty. Despite the lack of scientific basis for her claims, Robbins made a lucrative career as a prosecution witness.
John Sam, a detective in the infamous case of Rolando Cruz (who was wrongly convicted of murder and sentenced to death), explained how prosecutors would shop for experts:
"The first lab guy says, 'It's not the boot.' We don't like that answer, so there's no paper. We go to a second guy who used to do our lab. He says yes. So we write the report on Mr. Yes. Then Louise Robbins arrives. This is the boot, she says. That'll be $10,000. So now we have evidence."
The list of debunked and discredited prosecution witnesses stretches across the country. Indeed, in a study of 200 exoneration cases involving DNA (including death row cases), more than 25% involved flawed forensic testimony from prosecution witnesses.
Obviously, criminal defendants also have retained unscrupulous experts -- and when it happens, these experts should be attacked based on their backgrounds and on their opinions. What lawyers should not do is what Jackson did -- encourage jurors to dismiss any defense experts at all as sold-out stooges. It is the weight of the evidence, not the wealth of the defendant, that should be the sole consideration of a jury.
The great irony is that Jackson and his colleagues had little need to engage in cheap tactics. The case against Spector is overwhelming, and even though he hasn't testified, he has supplied the jury with one of the most creepy appearances and lifestyles in recent memory.
Yet this was not enough for the prosecutors, who sought to prove the guilt of the defendant by pandering to the prejudices of the jury against wealthy defendants.
Jonathan Turley is a law professor at George Washington University and a practicing criminal defense attorney who has also served as a legal expert on malpractice issues.Copyright © 2014, The Baltimore Sun