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Defense Attorney’s Failure to Retain Expert Wins Defendant PCR Hearing


by in Criminal Appeals

State v. Edward J. Roman, Sr., unpublished opinion, App. Div. Docket No. A-2199-08T3 (October 19, 2010) – Denial of PCR affirmed in part, reversed in part, remanded for evidentiary hearing.

“Defendant argues in Point I that his privately retained trial counsel did not call Dr. John J. Shane, defendant’s forensic pathologist, because defendant did not have the funds to pay the expert’s $2500 testimonial fee…. Defendant maintains that he decided to testify believing his expert would be called as a witness. He also claims that the $50,000 fee he paid his trial counsel included payment of the expert. Whether or not defendant’s payment included expert fees, trial counsel should not fail to call a needed expert witness due to defendant’s lack of funds without first seeking assistance from the public defender…. Defendant argues that his forensic pathologist might have persuaded the jury to convict him of the second degree crime of reckless manslaughter…. Dr. Shane’s testimony went to the very heart of the causation of the child’s death. The jury had concerns about the strength of the State’s case in that they did not convict defendant of causing the rib injuries to either child. Evidence was presented that defendant had been a caring, involved parent. If trial counsel, knowing the weaknesses in Dr. Shane’s evidence, chose not to call him for strategic reasons, such a decision would not be evidence of ineffective assistance of counsel…. If the decision was indeed made exclusively on economic grounds without concern for trial strategy, however, defendant might well be entitled to a new trial if the court finds that the lack of the expert testimony resulted in a ‘miscarriage of justice.’”






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