Federal Corner: Has the Supreme Court Sent a Warning to All Criminal Defense Lawyers? – By F. R. Buck Files Jr.


On February 24, 2014, the Supreme Court, in a per curiam opinion, held that a defense counsel’s failure to request additional funds to replace an inadequate expert amounted to deficient performance. Hinton v. Alabama, 134 S. Ct. 1081 (2014). One sentence from that opinion leaped from the page and grabbed me by the throat: “Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Harrington v. Richter, 562 U.S. __, __, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). For the second time in three years, the Supreme Court has put us on notice that a defense lawyer should recognize the importance of determining whether an expert can be of assistance to him or her in the defense of a criminal case. 

Hinton’s attorney, whom we shall refer to as “John Doe,” was saddled with a difficult task. He wasn’t just appointed to represent Hinton in one capital case. No, he was appointed to represent Hinton on two capital cases that were consolidated for trial—and this occurred almost 30 years ago in Alabama.


        In February of 1985, a restaurant manager was shot and killed during a robbery. In July of that year, a second restaurant manager suffered the same fate. A few weeks later, a third was shot but survived. On each occasion, the robber fired two shots and the police recovered all six bullets from the bodies of the three victims. It was determined that all of the bullets were .38 caliber. The third restaurant manager identified Hinton as the person who shot him, and the prosecutor had two other witnesses who were expected to give testimony that would link Hinton to the third robbery. Hinton had alibi witnesses.

        During the course of the investigation, officers recovered a .38-caliber pistol that belonged to Hinton’s mother at his house. There were no fingerprints on the pistol. The pistol and the six bullets were the only items of physical evidence that were recovered during the investigation of the three shootings. The prosecutor retained two experts who were prepared to testify that all six bullets were fired from the revolver found at Hinton’s house. The prosecutor’s theory was that if Hinton committed the third robbery and if all the bullets fired came from Hinton’s pistol, he must be guilty of each of the capital murder cases.

As the Court noted in its opinion:

The category of forensic evidence at issue in this case is “firearms and toolmark” evidence. Toolmark examiners attempt to determine whether a bullet recovered from a crime scene was fired from a particular gun by comparing microscopic markings (toolmarks) on the recovered bullet to the markings on a bullet known to have been fired from that gun. The theory is that minor differences even between guns of the same model will leave discernible traces on bullets that are unique enough for an examiner to conclude that the recovered bullet was or was not fired from a given weapon.

Doe realized that he needed to have his own firearms and toolmark expert if he was to be able to adequately represent Hinton. He filed a motion with the trial judge for funding to hire such an expert. The judge responded with this statement:

“I don’t know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I’m granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate form and I’ll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this, and if it’s necessary that we go beyond that then I may check to see if we can, but this one’s granted.”

Unfortunately, the judge was in error. He was relying on a statute that had been amended to read: “Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court.”

Not being aware of the change in the statute, Doe did not request any additional funding from the trial court and went looking for an expert. All he could find was Andrew Payne, who Doe realized did not have the experience that he needed—but he was the only one Doe could hire for $1,000. This is what the Court’s opinion tells us about Mr. Payne and how the prosecutor destroyed him:

On cross-examination, the prosecutor badly discredited Payne. Payne admitted that he’d testified as an expert on firearms and toolmark identification just twice in the preceding eight years and that one of the two cases involved a shotgun rather than a handgun. Payne also conceded that he had had difficulty operating the microscope at the state forensic laboratory and had asked for help from one of the state experts. The prosecutor ended the cross-examination with this colloquy:

Q.  Mr. Payne, do you have some problem with your vision?
A.  Why, yes.
Q.  How many eyes do you have?
A.  One. Tr. 1667.

The prosecutor’s closing argument highlighted the fact that Payne’s expertise was in military ordnance, not firearms and toolmark identification, and that Payne had graduated in 1933 (more than half a century before the trial) with a degree in civil engineering, whereas the State’s experts had years of training and experience in the field of firearms and toolmark examination. The prosecutor said:

“I ask you to reject [Payne’s] testimony and you have that option because you are the judges of the facts and whose testimony, Mr. Yates’ or Mr. Payne’s, you will give credence to, and I submit to you that as between these two men there is no match between them. There is no comparison. One man just doesn’t have it and the other does it day in and day out, month in and month out, year in and year out, and is recognized across the state as an expert.”

Not surprisingly, the jury convicted Hinton and recommended by a 10-to-2 vote that he be sentenced to death. The trial judge accepted that recommendation and imposed a death sentence.

This is a history of Hinton’s case: 

Following affirmance of his capital murder convictions, 548 So.2d 547, defendant petitioned for postconviction relief. The Circuit Court, Jefferson County, James S. Garrett, J., Nos. CC–85–3363.10 and CC–85–3364.10, denied petition, and the Court of Criminal Appeals, Baschab, J., __ So.2d __, 2006 WL 1125605, affirmed. On certiorari review, the Alabama Supreme Court, __ So.2d __, 2008 WL 4603723, reversed and remanded. On remand, the Court of Criminal Appeals, Kellum, J., __ So.3d __, 2013 WL 598122, affirmed, and defendant petitioned for a writ of certiorari.

Continuing with the Court’s opinion,

To show that he had been prejudiced by Payne’s ineffective testimony, Hinton produced three new experts on toolmark evidence. One of the three, a forensic consultant named John Dillon, had worked on toolmark identification at the Federal Bureau of Investigation’s forensics laboratory and, from 1988 until he retired in 1994, had served as chief of the firearms and toolmark unit at the FBI’s headquarters. The other two postconviction experts had worked for many years as firearms and toolmark examiners at the Dallas County Crime Laboratory and had each testified as toolmark experts in several hundred cases.

        All three experts examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from the Hinton revolver. The State did not submit rebuttal evidence during the postconviction hearing, and one of Hinton’s experts testified that, pursuant to the ethics code of his trade organization, the Association of Firearm and Tool Mark Examiners, he had asked the State’s expert, Yates, to show him how he had determined that the recovered bullets had been fired from the Hinton revolver. Yates refused to cooperate. 82 USLW 3491, 82 USLW 4091, 14 Cal. Daily Op. Serv. 1863.

So how did the Supreme Court react to Doe’s performance in his defense of Hinton?

The Court’s opinion contains the following: 


This case calls for a straightforward application of our ineffective-assistance-of-counsel precedents, beginning with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.


[The First Prong of Strickland]

“The first prong—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’” Padilla, supra, at 366, 130 S.Ct. 1473 (quoting Strickland, supra, at 688, 104 S.Ct. 2052). “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688, 104 S.Ct. 2052 Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000.

[The Requirement for an Expert]

“Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Harrington v. Richter, 562 U.S. __, __ 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). This was such a case. As Hinton’s trial attorney recognized, the core of the prosecution’s case was the state experts’ conclusion that the six bullets had been fired from the Hinton revolver, and effectively rebutting that case required a competent expert on the defense side. Hinton’s attorney also recognized that Payne was not a good expert, at least with respect to toolmark evidence. Nonetheless, he felt he was “stuck” with Payne because he could not find a better expert willing to work for $1,000 and he believed that he was unable to obtain more than $1,000 to cover expert fees.

[The Lawyer’s Lack of Understanding of the Law]

As discussed above, that belief was wrong: Alabama law in effect beginning more than a year before Hinton was arrested provided for state reimbursement of “any expenses reasonably incurred in such defense to be approved in advance by the trial court.” Ala.Code § 15–12–21(d). And the trial judge expressly invited Hinton’s attorney to file a request for further funds if he felt that more funding was necessary. Yet the attorney did not seek further funding.

[Failure to Request Additional Funding Equals Deficient Performance]

The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.


Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.” An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.

[A Limitation on the Holding]

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland,466 U.S., at 690, 104 S.Ct. 2052. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.


Having established deficient performance, Hinton must also “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694, 104 S.Ct. 2052. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id., at 695, 104 S.Ct. 2052.

        Because no court has yet evaluated the prejudice question by applying the proper inquiry to the facts of this case, we remand the case for reconsideration of whether Hinton’s attorney’s deficient performance was prejudicial under Strickland.

My Thoughts

  • Imagination and a good expert can sometimes make the difference in the outcome of a criminal case. We all know that.
  • I take my hat off to the federal defenders of the Tyler Division of the Eastern District of Texas, who do not hesitate to spend whatever is necessary—from their meager budget—for experts in order that they can “raise every defense under the law in order that no man (or woman) may be deprived of life or liberty without due process of law” (Old Canon V).
  • A lawyer can fall in love with a case and read more into it than it actually says. I may have done this with Hinton; however, I am concerned that the Court has sent a message to lawyers (court-appointed and retained) in Harrington and Hinton that they should ask themselves this question in every case: Can an expert help me defend my client? If the answer is “yes,” there is no alternative other than to seek out that expert. A failure to do so could well be the basis of a claim of ineffective assistance of counsel and a habeas filing.
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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