Dave Shinn initially introduced himself to Kenneth Gay at the Los Angeles County Jail with Marcus McBroom. Mr. McBroom happened to be an assistant to Dr. Fred Weaver, a psychiatrist. Facing capital murder charges on the shooting death of a police officer, Kenneth Earl Gay retained attorney Shinn to defend him in both the guilt and penalty phases of his trial.

After being retained, Shinn hired Dr. Weaver to present expert testimony for mitigation at the penalty phase of the trial. The retention of Dr. Weaver by Shinn resulted from an agreement between them that Shinn would hire Dr. Weaver in all cases where McBroom assisted Shinn in obtaining new clients. In turn, Dr. Weaver would hire McBroom to assist in the performance of psychological testing.

In spite of this agreement, prior to Dr. Weaver accepting the position, Dr. Weaver explained to Shinn that he could not accommodate a lengthy or complicated matter. Dr. Weaver also had never worked on a capital murder case. Shinn assured Dr. Weaver that the matter would be short and uncomplicated. Thereafter, Shinn failed to adequately investigate the relevant mitigation issues and directed Dr. Weaver not to perform an extended medical analysis of Gay. Both Shinn and Weaver concluded that the case presented a hopeless situation, which did not warrant additional time and effort. Prior to Dr. Weaver's testimony, Shinn spent approximately five minutes with Dr. Weaver in the hallway outside the courtroom immediately prior to testifying. Gay was sentenced to death and petitioned the Supreme Court of California for a writ of habeas corpus for reversal of the death penalty verdict.

Holding: Shinn's failure to consider the use of other experts and failure to adequately investigate relevant evidence for mitigation resulted in ineffective assistance of counsel. Dr. Weaver, relying upon the representations of Shinn and extremely limited information, testified that Gay had an antisocial personality. On cross-examination, he furthermore admitted that his conclusion was inadequate. While not commenting on the competence of Dr. Weaver, the Court did hold that Shinn failed to meet constitutional standards of competence. The Supreme Court of California granted Gay's petition for a new penalty trial by vacating the sentencing judgment.

Stephen Golding, Ph.D. comments: In re Gay, presents obvious examples of unethical conduct by defense counsel and his chosen "forensic expert" psychologist and psychiatrist. There are practically no ethical codes nor guidelines that they did not violate: fraud, kickbacks, misrepresentation of qualifications, professional incompetence, negligent diagnosis, dual-role relationships, and so forth. Under the surface, however, are some disturbing themes and implications, especially for forensic practice in a death penalty context.

What responsibilities do courts, attorneys and professional organizations have in regulating expertise in a death penalty context? While jurisdictions commonly require attorneys to be death penalty—Ake qualified, few courts and jurisdictions have been willing to scrutinize the qualifications and expertise of forensic practitioners appointed or retained under Ake's "meaningful access to justice" standard. Thus, the prevailing view is that a defendant cannot claim ineffective assistance of counsel based upon counsel's expert's limited qualifications, or arguably negligent forensic evaluation.

Intensifying the problem, neither of the APAs nor their constituent groups have published any meaningful professional practice standards or guidelines for death penalty evaluations, in contrast to statements dealing with child custody or child sexual abuse contexts. Finally, when Congress adopted new rules with respect to habeas corpus in death penalty cases, it placed an additional responsibility on experts. Part of the Antiterrorism and Effective Death Penalty Act makes due diligence assumptions about the defense counsel's (and his witnesses') preparation for trial [28 U.S.C. § 2244(b)(2)()(i)]. Failure to obtain mental health records and information, that could have been obtained but for the lack of due diligence, is not a basis for appeal. Thus, in In re Magwood [113 F. 3d 1544 (11th Cir. 1997)] neither defense counsel nor experts discovered a set of prison, parole and Veterans Administration records noting that various state officials had considered Magwood insane prior to his committing a homicide for which he was sentenced to death. Arguably, if a defense counsel relies upon an expert and that expert fails to properly investigate a client's mental health history, there is a strong potential for violation of constitutional and civil rights, not to mention foreclosure of possible appeals due to the expert's negligence and unethical lack of proper methodology. What obligations, given these factors, do judges have to ensure that the experts they qualify are in fact qualified? What about the obligations of the defense and prosecution attorneys and the relevant professional organizations?

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No specific death penalty qualification`
No published professional practice standards
Expert morality bias
Jury misinterpretation of implications

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A second theme has to do with the influence of experts' attitudes and personal moral beliefs on their expertise. Our adversarial system creates strong self-selective pressures such that attorneys and experts who represent death penalty defendants, or who prosecute them, tend to have hard line anti- or pro-death penalty attitudes and moral convictions. Such a non-neutral stance by experts often places defendants at more risk in the penalty phase. Much has been written about the ethical and professional practice problems associated with experts who are pro-prosecution, but little attention has been paid to the opposite side of this issue. If defendants have, under the Eddings 1455 U.S. 104(1982)] and Lockett (438 U.S. 586 (1978)] precedents, a right to have all mitigating factors presented to the jury in order to ensure that their judgment represents a reasoned moral response, then one needs to question whether or not such mitigating evidence can be effectively presented to the juror by an expert who holds strong anti-death penalty beliefs and convictions. While empirical data are lacking (this would be an important issue for future research on death penalty decision making), my experience (and that of several colleagues) has been that the data and opinions of such experts on mitigating factors are often either dismissed or cause reactance or unintended consequences in juror decision making schemes. When an expert clearly has a bias, easily demonstrable during cross-examination when it is made clear that she has never testified for the prosecution in a death penalty case or would never do so, the value of her evidence is diminished or negated.

Similarly, when an expert over-readies, opining that a defendant's scores on the Wisconsin Card Sort implies he is incapable of intending to murder [often in the context of contradictory actus reus data] or deliberately minimizes a defendant's anti-social behavior or attitudes, juror reaction to the expert and a contextual ignoring of her more legitimate mitigation evidence appears to be common.

In addition, such over-reaching, especially with respect to evidence about the lack of control over aggressive impulses due to organic factors, substance abuse, or early exposure to violence and aggression, often produces unintended results. Specifically, the jury may conclude that the defendant is at great risk for future violence and is not controllable, even in a structured penal setting. This is how defense attorneys and defense experts alike may be unintentionally harming their clients by their advocacy. When individuals have been death penalty qualified and sit on such a jury, they are likely to be in great conflict over their role, and likely to react negatively to opinions or strategies that offend their sense of justice or disrespect the terrible moral burden that is placed upon them.