New Trial Ordered Because of (a) Third Party Bullying of Defense Experts, and (b) Ineffective Assistance of Trial Counsel

State v. Beecroft & Beecroft v. State, Minn.S.Ct., 5/23/2012.  A badly splintered supreme court has granted Ms. Beecroft a new trial reversing her conviction of first degree premeditated murder of her just born baby and vacating her sentence of life with possibility of parole.  In doing so the court could not muster a majority opinion to support this laudable result.  Ms. Beecroft’s plight has been in the news practically since the prosecution began but most certainly since the bullying of defense experts by James Backstrom, the Dakota County Attorney – an office that was not prosecuting Ms. Beecroft – came to light.  Mr. Backstrom had been leading the charge in a campaign to prevent medical examiners from ever testifying for the defense on the theory that such behavior was a “conflict of interest.”  Mr. Backstrom was apparently totally unaware of a state statute, Minn.Stat. 390.251, which authorizes medical examiners to perform physical examinations or tests incident to any matter of a criminal nature “when requested” by a publicly appointed criminal defense attorney.  The Minnesota County Attorneys Association, in which Mr. Backstrom has been an active member, including its president, supported recent revisions to this statute.

Ms. Beecroft, then seventeen,  apparently hid her pregnancy and then gave birth alone and unaided.  The state alleged that she then immediately inflicted many stab wounds upon the just born baby.  Whether the baby was alive at the time of the stabbing became the mother of all “battle of the experts.”  The state said, yes; the defense said, no.

The state presented four experts, two in its case in chief and two more in rebuttal, all of whom opined that the baby had been born alive and had died of multiple sharp force injuries.  Sandwiched in between the state’s two pairs of experts the defense presented two experts –Anoka County Medical Examiner Dr. Amatuzio and former chief medical examiner from Suffolk County, New York Dr. Wetli -  both of whom opined that the baby had not been alive at the time of the stabbing. 

The defense had intended calling a third expert, Dr. Susan Roe, then an assistant medical examiner for Dakota County.  Dr. Roe had also agreed to serve as the defense’s in-court observer of the testimony of other experts to assist defense counsel both in cross examining the state’s experts and in preparing the defense expert’s testimony.  The defense had also consulted with Dr. Janet Ophoven, a part time assistant St. Louis County Medical Examiner.    Dr. Ophoven’s opinion was that the baby had been still born.

Mr. Backstrom got wind of the planned testimony and consultation services of these defense experts, especially Dr. Roe, and complained to Dr. Roe’s boss, Dr. Thomas.  He threatened not to renew the contracts of both doctors should Dr. Roe testify for the defense, whether in Ms. Beecroft’s case or another.  Meanwhile the Anoka County Attorney’s Office also got wind of Dr. Amatuzio’s planned testimony , most likely from an assistant Washington County Attorney who doubled as counsel for the Minnesota Sheriff’s Association and in that capacity complained to Mr. Backstrom about the nerve of medical examiners testifying for the (Beecroft) defense.  The Anoka County Attorney’s office “suggested” that it would behoove Dr. Amatuzio to testify as a private physician rather than in her official capacity.  Dr. Amatuzio took that suggestion to heart, stating, emphatically one supposes although the opinion doesn’t say, that she was in the court room only as a private citizen as though she was just some doctor who wandered in off the street and into the courtroom having nothing better to do.  Without those credentials coming into the record the trier of fact – the judge here – was free to discount her opinions:  “well, after all, the state’s experts were all medical examiners so her opinion doesn’t quite stack up to theirs.  Dr. Roe, on the other hand, bailed out of the Beecroft case all together, fearing for her and her boss’s financial livelihoods.  She said that she would neither testify nor consult with defense counsel.  That left Dr. Ophoven, who had already told defense counsel that her employment contract forbid her from testifying for the defense, an employment clause that had been inserted into her contract in furtherance of Mr. Backstrom’s  campaign that such testimony would be a “conflict of interest.”  Dr. Ophoven reluctantly agreed to assume Dr. Roe’s consulting role but she adamantly refused to testify and defense counsel did not try to force her to do so.

The trial court convicted Ms. Beecroft of first degree premeditated murder and sentenced her to life without possibility of parole.  On appeal – direct appeal and appeal from denial of a post conviction petition – the central issue was whether the shenanigans of Mr. Backstrom and his cohorts in pressing this “conflict of interest” theory interfered with Ms. Beecroft’s right to present her own witnesses and the ability to consult with her own expert witnesses such that she should be given a new trial.   (The supreme court had already sanctioned Mr. Backstrom for these behaviors.  In re Backstrom, 767 N.W.2d 453 (Minn. 2009).

The plurality opinion –Justices Paul Anderson, Meyer and Page – concluded that there had been “substantial interference” with Ms. Beecroft’s aforementioned right to present her own witnesses as a result of the actions of Mr. Backstrom and Dr. Ophoven’s boss, Dr. Uncini.  This interference was error, but it did not, according to the plurality, affect Ms. Beecroft’s substantial rights.  Similarly, the plurality concluded that Mr. Backstrom, et.al. also interfered with Ms. Beecroft’s ability to consult with her own expert witnesses – Dr. Roe – but this interfere did not affect Ms. Beecroft’s substantial rights.

The plurality latches onto “interests of justice” to support granting Ms. Beecroft a new trial:

Beecroft’s right to present a complete defense was limited by the conduct of several state actors. The record before us demonstrates that this conduct was not isolated.  It appears instead that there is a widespread point of view among law enforcement officials, prosecutors, and perhaps other state actors that it is a “conflict of interest” for medical examiners to work with criminal defendants. Here, the conduct of state actors interfered with Beecroft’s ability to consult with and call expert witnesses. These mistaken efforts by state actors unquestionably interfered with the independence of medical examiners, contravened clear legislative intent, and risked undermining Beecroft’s constitutional rights; therefore, we conclude that we must exercise our supervisory powers and reverse Beecroft’s conviction in the interests of justice.

So, where to get that fourth vote and how?  The plurality picks up the fourth vote necessary to reverse the conviction from Justice G. Barry Anderson, who concluded that Ms. Beecroft’s trial counsel had been ineffective:

I conclude that defense counsel’s failure to act to defend Beecroft’s substantial and fundamental interest in a fair trial, when faced with government interference with potential defense witnesses and inappropriate third-party contact with the trier of fact, requires reversal and a remand for a new trial. Because I conclude that defense counsel’s failure to act was objectively unreasonable and Beecroft was prejudiced by defense counsel’s inaction, I concur in the plurality’s decision to reverse Beecroft’s conviction and remand for a new trial.

Chief Justice Gildea and Justice Deitzen dissented, concluding that “interests of justice” did not warrant granting a new trial, and that defense counsel had not been ineffective.  This dissent concluded that Mr. Backstrom, et.al. had not substantially interfered with Ms. Beecroft’s rights, or if he did it was harmless error.  Justice Stras agreed with this dissent except for the part about “interests of justice.”  Justice Stras concluded that because there was, in his opinion, neither error in nor prejudice from Mr. Backstrom’s bullying there was no need to invoke “interests of justice.”  He also  thought that without either error or prejudice that this concept was a bit to squishy to be utilized.

There is good language in the plurality opinion proclaiming the independence of medical examiners and the absolute necessity that the defense be on an equal footing with the state in access to experts.  Here’s but two of many examples:

Medical examiners must be allowed to complete their death investigations without
the interference, or the appearance of interference, by other state actors, including law enforcement officials and prosecutors. Law enforcement officials and prosecutors must respect the independence, autonomy, and neutrality of medical examiners. Law enforcement officials and prosecutors also have a duty to help ensure the vindication of a
criminal defendant’s constitutional right to the consulting and testimonial assistance of medical examiners.

and,

Section 390.251 recognizes that forensic science is not and should not become the sole province of the police and prosecutors. In the search for truth and justice, forensic science must be “equally available to law enforcement officers, prosecutors, and defendants.”NRC Report, supra, at 17 (emphasis in original). Likewise, medical examiners, in their role as forensic scientists, must not be beholden to the police and prosecutors. Instead, as independent public officials, medical examiners must be available to advise and assist publicly appointed defense counsel and to testify on behalf of criminal defendants. See Minn. Stat. § 390.251; see also Minn. Stat. § 611.21 (2010) (requiring a district court to authorize expert witness fees for indigent defendant if the court finds that the expert services are necessary). Today, we reaffirm what the law already mandates—medical examiners are independent public officials, free to make examinations on behalf of, submit reports to, consult with, and testify at the request of criminal defendants.

Mr. Backstrom has accepted the plurality’s repudiation of his “conflict of interest” crusade, announcing its abandonment (at least in Minnesota) as a result of this opinion.  Who knows.  If next month the U.S. Supreme Court extends Graham’s exclusion of life without possibility of parole to all juveniles who commit a homicide then Ms. Beecroft will have one less risk to face on retrial.