One element that a habeas corpus petition can claim is that there was a deficiency in forensic testing from defense counsel. Learn more about this element of habeas corpus here.
If the habeas petition alleges that defense counsel had deficiency because counsel failed to have certain forensic testing performed, habeas counsel must retain a qualified expert to conduct the requisite testing. This must happen without delay because the testing may take longer than anticipated or may give rise to further testing. Habeas counsel cannot get left with too little time to complete the testing, thus jeopardizing the habeas case. Further, without such testing, the petitioner cannot satisfy Strickland’s prejudice prong because the petitioner cannot show what the testing would have yielded if secured by defense counsel. See Aillon v. Meachum, 211 Conn. 352, 363-64 (1989)(no hair expert produced at habeas trial to demonstrate that expert testimony at original criminal trial would have been favorable).
However, before an expert gets retained, habeas counsel must confirm the existence and location of the items to get tested. This will generally require habeas counsel to travel to the court clerk’s office to review the trial exhibits or to travel to the police station or prosecutor’s office to review other items that did not become part of the trial.
If court approval must happen to take possession of an item and to have it tested, such approval should get sought without delay via an appropriately tailored motion. Also, the motion should cite Practice Book § 23-38; Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) [w]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is…entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry”)(internal quotation marks omitted; citation omitted); Giles v. Maryland, 386 U.S. 66, 74 (1967)(prosecution has a duty to disclose and/or make available any evidence that could be used in obtaining favorable evidence); and State v. Hammond, 221 Conn. 264, 292-93 (1992)(State has ethical duty, even after trial, to assist in pursuit of relevant, exculpatory evidence).
If the petitioner lacks the funds to hire a forensic expert, request should go to the Office of Chief Public Defender (OCPD), 30 Trinity Street, 4th FL, Hartford, CT 06106; telephone 860-509-6400, for permission to obtain an expert at OCPD’s expense. This happens even in a case where habeas counsel is privately retained.
In addition to requesting OCPD to fund the testing, counsel can file a motion (ex parte and under seal if necessary) with the habeas court, seeking court authorization to hire an expert at state expense, pursuant to the federal and state constitutions and Ake v. Oklahoma, 470 U.S. 68 (1985).
See infra S. HABEAS DISCOVERY RULES for additional guidance on this topic.
Are you interested in more information regarding the Connecticut habeas corpus petition? You can learn more on the other pages in this section.