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NJ Counsel Ineffective for Not Consulting Forensic Pathologist


by in Criminal Appeals

State v. Kurt Lutchman, unpublished opinion, App. Div. Docket No. A-2745-08T4 (April 6, 2010) – Murder conviction reversed, case remanded for new trial. “In challenging his conviction on PCR, defendant contends that his trial attorney failed to inquire as to the significance of an autopsy finding that the victim had an arteriovenous malformation (AVM) and to consult with a forensic pathologist. Had counsel done so, he would have discovered that there was medical support for the position that Carol’s death was not a homicide caused by blunt force trauma, as testified to by the then Bergen County Medical Examiner, but rather the result of a ruptured AVM which led to the subarachoid hemorrhage causing death….

[D]efendant has shouldered his burden on prong one related to his trial counsel’s failure to consult a medical expert regarding the AVM issue and to present this aspect of the causation issue to the jury…. [T]rial counsel, during both cross-examination and his summation, argued that there was reasonable doubt regarding whether defendant’s blows caused the hemorrhaging in his girlfriend’s brain because none of her bones were broken.

Having already decided to present alternative and conflicting theories to create a reasonable doubt as to defendant’s guilt and expressly having already pursued the causation argument, it was not within the wide range of professionally competent assistance to ignore the AVM finding in the autopsy report and what it could have led to if further explored by consulting a pathologist.

Here, it was not merely ignored, defense counsel did not even understand what AVM meant and did not bother to find out. The defense of causation could have been supported by scientific testimony which would have strengthened the defense immeasurably….

Defendant’s trial counsel was ineffective because there would have been a reasonable probability of a different result if defendant had presented expert testimony that defendant’s blows to his victim could not have directly caused the brain hemorrhages which killed her and that instead the hemorrhages were caused by a burst AVM…. While we can only speculate as to how defense counsel might have altered his trial strategy had he engaged a forensic pathologist, it would not be surprising if the defense was less diffused – blaming others for the attack, intoxication, and causation – and more focused test.

We lack confidence in the jury’s murder verdict on the causation issue in an effort to create reasonable doubt in the jurors’ minds. In any event, we are persuaded that defendant has satisfied the second prong of the Strickland.”






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