Investigation of Forensic Evidence – New 4th Circuit Case Involving Standards of Representation

On November 22, the Fourth Circuit decided a case involving a Sixth Amendment ineffective assistance of counsel claim based on the failure of counsel to investigate the State’s forensic evidence. In Elmore v. Ozmint, the Court found Elmore was entitled to relief, reversing and remanding the state capital murder conviction and directing the district court to award a writ of habeas corpus unless the State of South Carolina prosecutes Elmore in a new trial within a reasonable time.

The Fourth Circuit determined that the State’s case hinged on forensic evidence, though there was also evidence of a jailhouse confession, the defendant’s alleged guilty demeanor, and the lack of a corroborated alibi for the time when the medical examiner said the crime occurred. Despite the apparent significance of the forensic evidence and the fact that their client was asserting innocence, the attorneys’ only examination of the forensic evidence was a request to see the exhibits that the State intended to introduce a day or two before the trial in 1982. The Court found:

To paraphrase Rompilla, “[i]t flouts prudence to deny that a defense lawyer should try to look at [forensic evidence] he knows the prosecution will cull for [inculpatory] evidence, let alone when the [forensic evidence] is sitting in the [prosecutor’s office], open for the asking.” See Rompilla v. Beard, 545 U.S. 374, 389 (2005). (p. 144, full citation added.)

The forensic evidence presented by the State that was not challenged by Elmore’s attorneys included fingerprint evidence and evidence regarding scientific indicators of the time of death. Defense counsel also failed to expose the crime scene investigators’ failures to photograph, collect and package physical evidence at the crime scene and failed to question the misreporting of the contents of one item of evidence.

Given the significance of the forensic evidence, the Court found that the attorneys had a “professional obligation to investigate critical prosecution evidence” and that their failure to examine and investigate the evidence pre-trial was deficient. (p. 143) It stated:

…the circumstances necessitated that the defense work to engender doubt about the forensic evidence. Elmore’s lawyers attempted as much in their cross-examinations of the State’s witnesses, but, because the lawyers had twice squandered opportunities to investigate the forensic evidence (prior to the 1982 and 1984 trials), they were unarmed for the battle. (p. 146-147)

The Court critiqued the lawyers’ failure to investigate the State’s proposed exhibits, failure to investigate the other (possibly exculpatory) evidence that the State was bypassing, and failure to conduct an independent analysis of a single item of forensic evidence that was to be presented by the State. (p. 143)

This decision highlights the importance of investigating forensic evidence, including investigating evidence that the State may be bypassing, and conducting independent analysis, where appropriate. Attorneys should be aware this case and should consider citing to it when arguing that investigating and challenging forensic evidence is part of a constitutionally effective representation.


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