Tuesday, January 27, 2009

Sandbagged murder defendant gets a new trial because of bogus expert witness

The Court of Appeals has granted a new trial to a man convicted of a 1981 murder after finding that the prosecutor in state court knowingly elicited false and misleading testimony from a bogus expert witness about the defendant's alleged sexual motive for fatally shooting two teenagers at a lover's lane.

The case is Drake v. Portuondo, decided on January 23. After Drake was arrested for shooting two teenage lovers, the prosecution wanted a motive to ensure his guilt at trial. There was some evidence of sexual trauma to the female victim, to the prosecutor, Broderick, contacted a guy who claimed to be an expert on a form of sexual dysfunction called picquerism which, according to the Court of Appeals, "is a purported syndrome or criminal profile in which the perpetrator realizes sexual satisfaction from penetrating a victim by sniper activity or by stab or bite wounds." The expert testified at trial that the killings were consistent with picquerism, and Drake was convicted of two counts of intentional murder.

Now Drake gets a new trial. The Court of Appeals describes the picquerism theory as "nonsense" and it has grave doubts whether picquerism qualifies a serious diagnosis, as it appears nowhere in the Diagnostic and Statistical Manual of Mental Disorders and usually only turns up in fiction. So, you may ask, couldn't Drake's defense lawyer cross examine the hell out of the "expert" on this and win the case by showing that the prosecution was overreaching? The answer is no, and that is why Drake gets a new trial.

Drake was sandbagged. His lawyer was led to believe that the prosecutor got in touch with the "expert" at the last minute and the expert testified that the case was so easy that he only had to familiarize himself with the file on the morning of trial. When defendant's lawyer wanted a continuance to find a contrary expert, the prosecutor objected, and the court denied that motion. At trial, the expert used fancy medical terms and testified that the defendant must have intended to gratify himself sexually in killing the victims. The jury bought the argument.

What Drake's lawyer did not know was that the prosecutor and expert had been communicating for a few weeks and that the expert had lied about his qualifications and greatly exaggerated his experience working in the Lost Angeles Medical Examiner's Office. The expert was a fraud, and the prosecutor knew it, the Second Circuit finds. (The prosecutor today is a criminal court judge in Niagara County, by the way).

This shocking series of events was not enough to convince a state appeals court to vacate the conviction, but hey, that's what habeas corpus petitions are for. The Second Circuit finds that the conviction was obtained through false evidence and that the prosecutor was in on the plot. In the rush to gain a conviction, the prosecutor put a total fraud on the stand to articulate a highly questionable theory of sexual deviancy as the motive for these killings. Making matters worse, the prosecutor objected when defense counsel needed more time to investigate this theory of intent and to find his own expert. While there was some evidence that Drake may have intended to kill the victims anyway, there was also evidence that it was all an accident and that he shot his gun at what he thought was a vacant car at night. The picquerism theory propounded by the false expert may have tipped the scales against Drake at trial because it supported the prosecutor's theory that Drake intended to kill the victims and was therefore guilty of murder.

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