Judge Nancy Gertner’s Call to Action for Criminal Defense Attorneys

April 13th, 2011

In a UCLA Law Review article titled “Commentary on the Need for a Research Culture in the Forensic Sciences ” (58 UCLA L. Rev. 789 (2011)), Judge Nancy Gertner discusses the need for attorneys to familiarize themselves with the forensic sciences. In the wake of the National Academy of Sciences Report, which calls for drastic changes in the scientific community regarding forensic science standards, Judge Gertner advocates for change within the legal community as well. She believes that defense counsel’s lack of forensic knowledge could be grounds for a successful ineffective assistance of counsel claim. Judge Gertner cites US v. Pena (586 F.3d 105 (2008)) to illustrate a defense attorney’s failure to follow through with a Daubert hearing after it had been granted by the court. Defense counsel should know how the science works so they can actively challenge it at trial.

She writes, “Counsel have to learn that advocacy in cases involving forensic evidence requires familiarity with the kind of issues the NAS Report raised. And further, courts need to make it clear that such familiarity may be one of the benchmarks in evaluating when assistance of counsel is constitutionally ineffective.”

Although not mentioned in the article, this issue arose last year in Judge Gertner’s own courtroom in the case of James Hebshie. Hebshie was convicted of arson based largely on unvalidated forensic science. His attorneys failed to request a Daubert hearing regarding any of the arson testimony, despite the fact that Judge Gertner repeatedly asked them if they would like to do so. Judge Gertner granted Hebshie a new trial, citing his counsel as being constitutionally deficient for failing to challenge the arson science.