Judge Posner on the Static 99

In sentencing proceedings, experts often rely on an instrument known as the "Static 99" to estimate the risks of recidivism for sex offenders. Although Rule 702 does not apply at the sentencing phase in federal cases, the sentencing guidelines do call for information considered at sentencing to meet a standard of "probable accuracy."* In a Seventh Circuit opinion issued yesterday, Judge Posner devotes substantial discussion to the Static 99, its uses, and its limitations. See United States v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (Posner, Wood, & Williams, JJ.).
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* See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a fact important to a sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

7th Circuit Upholds Experts' Estimates of Drywall Workers' Rates, Productivity

In a suit involving pension benefits, a Seventh Circuit panel has upheld the experience-based testimony of experts who estimated the rates and productivity of drywall workers. See Trs. of the Chicago Painters & Decorators Pension v. Royal Int'l Drywall & Decorating, Inc., No. 06-2367 (7th Cir. July 3, 2007) (Bauer, Manion, & Rovner, JJ.).

Presentation of Disastrous Expert Was Ineffective Assistance, 7th Circuit Holds

Defense counsel provided ineffective assistance by calling a highly counterproductive psychological expert at the penalty phase of an Indiana capital case, the Seventh Circuit has held.

The defendant molested a 10-year-old boy, killed him when he threatened to tell his parents, threw the body in the trunk of his car, drove to the countryside, and dumped the body under a bridge. His lawyers asked an expert to evaluate the defendant but to prepare no report. The expert prepared a report anyway, opining that the defendant had a history of pedophilia, possessed a firm grip on reality, lacked remorse, would likely continue to molest other children, and could commit "another violent assault on a young victim if [he] again felt it was necessary." When the lawyers asked the expert why he had disregarded their instructions, he told them: "Don't worry about it. I'm sandbagging the State.... I'm trying to make them think that I'm going to be a good witness for them, but I'm going to take -- when I take the stand, I'm going to be able to turn this all around on them."

Defense counsel also learned, at about the same time, that the expert -- Dr. Lawrence Lennon, then the director of a child and adolescent psychiatric center at an Indianapolis hospital -- believed mental illness to be a myth, and that he favored such therapeutic techniques as "putting 18-year-olds on his lap and sticking a bottle in their mouth."

Nevertheless, they served his report on the prosecution, and called him to the stand in the penalty phase of the trial. His direct testimony was devoted largely to his therapeutic philosophy and theories of child development. On eventually turning to the subject at hand, the expert did mention the defendant's childhood abuse (among other things, the defendant said he was raped by a stranger at age 10). The expert offered no meaningful assessment, however, of the defendant's mental state at the time of the murder, nor any testimony to connect it with the defendant's abuse during childhood. On cross, the expert confirmed that in his opinion, the murder was related to the defendant's desire to avoid prison. He also volunteered that the defendant had sociopathic traits, as well as expressing a belief in the defendant's future dangerousness (a subject the prosecution itself may not argue as an aggravating circumstance under Indiana law).

We come now to the "sandbagging" part, which did not come off in quite the way that the expert had portended in his earlier conversations with defense counsel. With the expert still on cross, the prosecutor asked whether the defendant had been sexually aroused by the killing -- whether, in fact, the defendant had masturbated on the victim's corpse. The expert answered that the defendant admitted doing so. The expert had never previously disclosed that fact to defense counsel.

Of the expert's other problems, of course, defense counsel had more warning. Did they simply decide to ignore the clear danger signals and hope for the best? Or is something more going on here? There is always the lurking suspicion that defense counsel might fall on their swords to support a post-conviction claim of ineffective assistance in a death penalty case. But if that happened in this case, it may not have been too long a fall.

See Stevens v. McBride, No. 05-1442 (7th Cir. Jun. 18, 2007) (Ripple, Manion, & Wood, JJ.).

Expert's Failure to Sign Report Held Harmless

A district court may permissibly conclude that an expert's failure to sign his report is harmless, and that preclusive sanctions under Fed. R. Civ. P. 37(c)(1) are therefore unwarranted, where the expert later manifests adoption of the report in an affidavit, the Seventh Circuit has held. Also, an expert reconstruction of a shooting was not inadmissibly unreliable merely because it included no "dimensionality analysis." See Jenkins v. Bartlett, No. 06-2495 (7th Cir. Apr. 23, 2007) (Easterbrook, Posner, & Ripple, JJ.).

Daisy Mae Meets Daubert

The Seventh Circuit has issued a decision discussing the qualifications and reliability of a bloodhound named Daisy Mae. From the opinion:

[The appellant] points out that Daisy Mae had only been used for two investigations prior to November of 2002, and that, although [Daisy Mae's handler] testified that the dog had successfully completed an intermediate-level test provided by the training program (which involved tracking a 30-to-60-minute-old trail over a half-mile distance), Daisy Mae had never received a certificate authenticating her efforts. [The appellant] also invokes [the handler's] own trial testimony that a young search dog must be worked regularly and notes that Daisy Mae missed a week or more of training time at several points during the year prior to the bank robbery....

The government contends that Daisy Mae and [her handler] had more than enough experience and success to demonstrate their reliability. They argue that [the handler] developed substantial knowledge of search dog training and methodology when he devoted 163 hours to Daisy Mae's training, and they note that in her two prior investigations Daisy Mae's findings were corroborated by other facts or tracking dogs.

The upshot? Any error in admitting Daisy Mae's findings was harmless. See United States v. Renkin, No. 05-2838 (7th Cir. Jan. 31, 2007) (Posner, Evans, & Sykes, JJ.).