It usually comes as a surprise to non-lawyers how little information one can obtain about a witness for the other side. While some states allow depositions, and most states require disclosure to the adverse party, it doesn’t happen, and no one cares. Yes, the statute says you’re entitled to it. The other side says, “meh.” The judge says, “meh.” And that’s that.
How is this possible, you ask? Welcome to the law, kidz. For criminal defense lawyers, it means going to trial pretty much blind as to what the witnesses for the prosecution will say. So how do we prepare? On the fly, as best we can, because there is no alternative. You can cry about it, wring your hands, scream “unfair” all you want. Nobody gives a damn. Not the prosecution. Not the judge. Not the appellate court. Shrugs all around.
All of which makes what’s happening in Albuquerque both infuriating and, well, happy.
Prosecutors trying two former Albuquerque police officers for murder recently were granted access to numerous records from a controversial witness with a long history of testifying on behalf of police officers who shot people in the line of duty.
District Judge Alisa Hadfield last week granted a motion ordering William Lewinski, a psychology professor and the director of the Force Science Institute, to provide within 30 days his financial records for himself and his company and other records.
Calling him a “psychology professor and the director of the Force Science Institute” certainly makes him sound very official, very credible. It’s much better than calling him a killer cop’s best friend, which would be demeaning and entirely inappropriate in legal proceedings. But does he deserve such an august characterization?
That includes a list of all cases he has testified in, emails between Lewinski and defense attorneys, Lewinski’s research and other records he reviewed before making an opinion on the case against former officer Dominique Perez and retired detective Keith Sandy.
Don’t be fooled by the fact that the order involves defense attorneys, who are otherwise the good guys in the system, providing effective representation to the two former cops who will be tried for the murder of James Boyd (yes, I know the video of Boyd’s execution in the post is now gone; welcome to the joys of internet stability).
The weird flip of relative responsibility here comes from the fact that Lewinski is a cop force apologist, and in this instance, the cops are on trial for Boyd’s killing. It’s not that Lewinski is only an expert witness for the prosecution or the government, but that he’s the go-to witness for cops, no matter what table they sit at in the courtroom.
Once a witness is allowed to testify as an expert, it gives rise to a presumption that he is. One judge allows it, and it then becomes part of the litany that establishes his bona fides to be an expert witness thereafter. But because of the lack of disclosure, the challenge to a witness’ “expertise” is limited to what the witness has to say about himself.
When the witness can claim credibility like “psychology professor and the director of the Force Science Institute,” few judges will rule that he lacks the qualifications to testify. If anything, the judge will respond to opposition, “so, question him on cross if you think he’s not sufficiently expert.” Except there is a gaping hole of evidence with which to impeach him. Except that hole may be filled this time.
Randi McGinn, the special prosecutor in the case, said the requested documents may provide new details on the inner workings of Lewinski’s business. McGinn said Lewinski trains police departments on use of force, testifies on officers’ behalf at trial and before secret grand juries while citing studies that some professionals have publicly questioned. The institute also writes a newsletter that has provided officers advice after they have shot people or been sued.
“We’re trying to expose all that – that’s the idea,” McGinn said. “If (defense attorneys) are going to use him, we want the jury to know what his biases are.”
But does this breach a wall that shouldn’t be breached, no matter how bad Lewinski may be? After all, the order requires disclosure of emails between a lawyer and witness, right? Well, there is a difference when it’s an expert witness rather than a fact witness. Much as it would be a disaster if the prosecution could obtain lawyer work product, inside info on evidence, information, tactics, from the defense when it came to facts and law, the use of an outside expert implicates a very different consideration.
There is no entitlement to pay for an expert to mouth the words that help. They are entitled to reach whatever expert opinion they are inclined to reach, but because that’s what they, using their expertise, believe. The lawyers can’t put the words in the expert’s mouth or tell the expert what his opinion should be.
Still, there may well be discussion of strategy, within the confines of a legitimate expert opinion, contained in emails between the defense and Lewinski that should be vetted by an independent third party before disclosed to the prosecution. Painful as it to say, every defendant, including the ones who executed James Boyd, is entitled to their right to effective assistance of counsel (not to mention the rest of the rights afforded by the Constitution), and that includes maintaining privilege and confidentiality.
Yet, there is one last quirk to this disturbing yet pleasing scenario. The order granting disclosure of Lewinski’s dirty laundry comes at the motion of the prosecution. Had the situation been shifted, such that the motion was made by a criminal defense lawyer when Lewinski was the government’s expert, would the motion be granted? Would a judge order such disclosure to the defense when it wasn’t a cop in the hot seat? If only.
But damn, it would be great to see the inside of the Lewinski apology machine.