I’ve long joked that my favorite pickup line is “I’m a lawyer, but you can call me Doctor” and I’ve semi-seriously tried to get people to call me Dr. Trumpet for years now. My graduate degree, after all, is the Juris Doctor1. While I may play one on Friday nights, I’d sooner seek the services of one than play a doctor in court, during a trial.
Criminal cases surprisingly involve a variety of medical issues: from gunshot wounds to broken noses to neuroscience to sexually transmitted diseases. While it helps to have a more than basic understanding of how many liters of blood the are in the human body or what posterior and anterior lateral thingy muscle mean, no criminal defense lawyer should purport to try a case with material medical evidence without consulting someone who has actual training in the medicinal arts.
Take trichomonas, for example. How many here know what that is? And if you’re told that the complainant in a sex assault case contracted trichomonas, allegedly from your client, wouldn’t it behoove you contact a medical profession to ask just how likely that is?
No need, really, according to the Connecticut Supreme Court, because that would be providing “perfect representation” to your client, which is not constitutionally required. In State v. Michael T. [PDF], the court reversed a habeas grant, holding that the trial attorney was not ineffective and that the failure to call an independent medical expert did not prejudice the defendant in any way.
Trichomonas is an anaerobic, flagellated protozoan, a form of microorganism, which lives inside the human urinogenital tract. As such, it is widely classified as a sexually transmitted infection, albeit the most easily curable one. If all you’re relying on for information about trichomonas is Google, like I just did, then you’ll come away with the undeniable conclusion that the only form of transmission is penile-vaginal intercourse. The CDC page explicitly calls it an STD. But you, industrious criminal defense lawyer, wouldn’t stop there, would you? You’d search for “trichomonas transmission” perhaps and you’d see this study of trichomonas among women who claimed to have not had sex.
And then you’d think to yourself, hmm, maybe I should investigate this further. So you search for “trichomonas non-sexual transmission” and you start noticing little hits: that it’s possible, but not very likely, or that it hasn’t been studied enough to be conclusive or that it is possible.
Armed with this clear rebuttal, you head to trial where you come up against this:
‘‘[The Petitioner’s Trial Counsel]: There are nonsexual ways that a female can get trichomonas?
‘‘[State's Expert Docctor Rao]: I can’t say that.
‘‘[The Petitioner’s Trial Counsel]: All right. It can come from a toilet seat, perhaps?
‘‘[Rao]: It is—
‘‘[The Petitioner’s Trial Counsel]: I know it—
‘‘[Rao]:—in the literature but, again, just because you see it in print, it doesn’t mean that it can happen. . . .
‘‘[The Petitioner’s Trial Counsel]: It’s been found hours later in urine that’s been exposed; is that correct?
‘‘[Rao]: Urine and semen, yes.
‘‘[The Petitioner’s Trial Counsel]: And the way it could be transferred, for instance, by toilet seat, if urine was on it, that urine was infected, and a female sitting on the toilet seat could get it; is that correct, within a short time, within a few hours?
‘‘[The Petitioner’s Trial Counsel]: How . . . does that effect—does the protozoa move? Locomotes?
‘‘[Rao]: They have flagella which helps them move.
‘‘[The Petitioner’s Trial Counsel]: It would find its way into the vagina in that situation?
‘‘[Rao]: It could.
‘‘[The Petitioner’s Trial Counsel]: And also says that this protozoa can’t live long in a dry environment, so presumably [in] urine or certain waters it can live a lot longer, is that correct?
‘‘[The Petitioner’s Trial Counsel]: And [in] wet towels, it could live a lot longer?
‘‘[Rao]: It hasn’t been documented, [in] wet towels. It’s seen in semen, it’s seen in urine, but it’s never been documented in wet towels as a mode of transmission.’’
How many would be confident that they’d successfully argued that the complainant’s diagnosis of trichomonas was caused by something other than sexual contact with the defendant? Would you, as trial counsel, be satisfied with this? Should you? Or would you rather have this in your defense case:
Beginning in 1974 and 1975, I was one of the very few people in the professional community who was saying we should look for the possibility of sexual abuse in [children with gonorrhea]. I was seeing children with trichomonas during the same period. I did not have the same impression about children with trichomonas infections. Why? Because very often, there were what I considered to be plausible reasons for the child to have the infection. The child was living in the same home with somebody who had the infection, who wasn’t all that careful about hygiene, perhaps because of not being careful about laundering towels or having community towels in the bathroom, perhaps because of washing the child in bath water already used by adults and the like. I accept that it’s within the realm of possibility that some of those ten to twelve children females that I treated might have been sexually abused and we simply missed it. That is, of course, a possibility. I don’t believe for a minute that they all were.
That was the testimony of the defense expert called at the habeas trial. Relying on that testimony and comparing it to the state’s expert above, both the habeas court and the appellate court concluded that it was ineffective not to hire an independent expert and that failure affected the outcome of the trial. The dissent [PDF] comes to the same conclusion, but the majority engages in some nifty verbal gymnastics to argue that this only means that the expert herself didn’t link the trichomonas to sexual abuse, not that there is no connection. Which isn’t the point at all.
The other evidence presented at trial was the testimony of the complainant, a nurse practitioner and an expert on behaviors. The complainant, upon testing positive for trichomonas was questioned whether anyone had inappropriately touched her. She said no. DCF required all family members to get tested for it; only her mother tested positive. The defendant, who had moved out a while prior, did not submit to testing. It was only a year after the medical exam that the complainant disclosed that the defendant had touched her inappropriately.
There are two opposing schools of thought on child sex abuse cases: there are those on this side of the aisle who are terrified of the ease of obtaining convictions in these types of cases, given jurors’ hesitation to label a complaining child a liar or mistaken and then there are those on the other side who take the position that many offenders go free because children aren’t regularly believed.
Neither side, however, would deny the impact of medical evidence in a case that otherwise would rely only on a credibility determination. If the child has an STI and the mother had the same STI and the defendant was sleeping with the mother and refused to submit to STI testing, well, then it’s a fucking duck and it’s quacking as loud as my morning alarm.
This is what we in the know call “corroboration”. And we, in the know, know that corroboration is the death knell of any defense.
To sit back and say that cross-examination is enough to counter these claims belies a fundamental misunderstanding of the impact of these cases and this type of evidence on the jury. Your client can’t rely on appellate courts to protect his rights and ensure fair trials given the ridiculously high bars to relief that only seem to get higher year to year. He has you, the last and only line of defense. He relies on you to get it right the first time.
So what if the appellate courts say that perfect defense is not required or that we don’t mandate “error free” defenses. Would it be good enough for you if your lawyer said “hey, I did most of it right”? Is that the level of representation you’d expect and demand if your liberty were on the line?
If there’s one thing that I’ve come to believe in the recent past, it’s that a cross-examination is not an the effective tool for ferreting out truth that it’s been plumped up to be. I might even go so far as to say that in every case involving scientific/medical evidence, a criminal defense lawyer should always consult with a medical professional and give serious thought to presenting the testimony of one at trial. The Supreme Court, perhaps unknowingly, suggests as much:
This court has never adopted a bright line rule that an expert witness for the defense is necessary in every sexual assault case. See Gersten v. Senkowski, 426 F.3d 588, 608 (2d Cir. 2005) (defense counsel simply conceded medical evidence without consultation with expert), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006). We decline to adopt such a rule in this case. Although we recognize that, in certain instances, the employment of an expert for the defense may be constitutionally mandated by the facts and surrounding circumstances of the case, we do not find it mandated by the present case. Although an expert may have been helpful to the defense, there is always the possibility that an expert called by one party, upon cross-examination, may actually be more helpful to the other party.
Consult a professional. You’re not a doctor and this isn’t TV. So don’t play one.
1Per Wikipedia: While the J.D. is considered a doctorate degree, lawyers usually use the suffix of “esquire” as opposed to the prefix “doctor.” Although calling a lawyer “doctor” would not be incorrect, it is more commonly employed overseas than in the U.S. /Smartass comments preempted.
Image via BBC.