If any of y'all have had the defense expert Mark Cunningham in the past, or may have him in the future, you should contact Bobby Bell, the CDA in Jackson County, at 361-782-7178. Read the San Antonio Express news article posted below, because it is pretty interesting.

Here is what is going on: Y'all know Bobby to be an outstanding prosecutor and a very prepared lawyer. In an effort to prepare for cross of Cunningham, Bobby went the extra mile and went through his old testimony...turns out, and I am paraphrasing some, that Cunningham apparently doesn't like to testify about how much $$ he makes for the defense, and is vague about the times he says he gave opinions favorable to the state. So, Bobby sent subpoenas to him for that information, so that he'd be prepared for cross on those subjects and Cunningham couldn't offer vauge answers. Seems to me, that is some great lawyering. Defense bar didn't like that too much.

Bottom line is, I think it is safe to say Bobby has a low opinion of Mr. Cunningham's testimony as an expert on behalf of the defense, and would like to talk with you if you have had Cunningham, or expect to have him. Also, I think Bobby would like to volunteer his services if you have Cunningham in the future...I think he will come and do the cross if you'd like!

Anyhow, read the story below...

Psychologist's files won't be at trial

Web Posted: 12/17/2007 11:12 PM CST

John MacCormack
Express-News

VICTORIA � A state judge on Monday tossed aside subpoenas issued last month by a prosecutor for a defense expert in a capital murder case that had provoked widespread complaints from defense lawyers.
In their motion to quash, lawyers for forensic psychologist Mark Cunningham labeled the prosecution's subpoenas "an unprecedented, unconstitutional and unlawful attempt to invade" privileged areas for the expert witness and defense attorneys.


While denying Jackson County District Attorney Bobby Bell access to Cunningham's professional and financial records, Judge Joseph Kelly found that the prosecutor had not acted in bad faith and should not be sanctioned.

Cunningham, who was hired by lawyers representing LeJames Norman, 20, accused of killing three people in nearby Edna in 2005, attended the hearing but did not testify, despite efforts by Bell to call him to the stand.

Cunningham came from San Antonio and returned there after the hearing under the watch of an armed bodyguard because of concerns for his safety, according to his brother, a San Antonio lawyer who traveled with him.

"Our fear factor and concern were at such a high level that we hired an off-duty highway patrolman to accompany us. I'm dead serious about this," said Glenn Cunningham. "We're taking every precaution to protect his reputation and well-being."

The case has drawn widespread attention from defense lawyers, and among the eight lawyers seated near Norman were lawyers with unrelated death row cases from San Antonio, Victoria, Huntsville and El Paso.

"I've never seen anything like this in 30 years of practice, where a prosecutor subpoenas a defense expert and tries to get into the decision-making process," said John Wright, who represents death row inmate John Paul Penry.

"I think lawyers from around the country are concerned about a precedent being established, that a district attorney can issue an onerous subpoena and effectively destroy a defense team," said James Beeler, a death row lawyer from Victoria.

"It gives the district attorney an unfair advantage. If he doesn't approve of a particular defense expert, he can issue a subpoena and force him to withdraw," he said.

Mark Cunningham is a widely recognized mitigation expert who regularly provides testimony in death row cases about the future danger to society of defendants.

In the hour of legal argument before Judge Kelly ruled, the two sides bickered about the appropriateness of Bell's attempts to extract voluminous past case information from the defense's expert.

"If he complies with the subpoena, he's destroyed professionally. If he refuses, he runs the risk of being in contempt of court," said Jay Norton, who represented Cunningham.

Bell, on the other hand, said he believes Cunningham's opinions are "flawed and don't make sense" and that he sought the information from prior cases for impeachment purposes at trial.

"He has never testified that a capital murder defendant has a probability of being violent in prison," Bell said.

Although Cunningham has asked to withdraw from the case, saying he can no longer provide effective assistance to Norman, Kelly on Monday put off ruling on the request.

The judge however, denied a separate request to withdraw by Elliott Costas, Norman's court-appointed lawyer, who said the loss of his main expert witness has destroyed his case.

"Mr. Norman is left without a mitigation case. I'm telling the court it's a fatally flawed case," Costas said. "I can't do this case anymore within the proper ethical mandates."

Jury selection is under way for Norman, who is expected to go to trial in Victoria next month. Because he already has acknowledged his role in the triple homicide, the main issue to be decided will be whether he gets life in prison or the death penalty.

"I'm extremely concerned about Mr. Norman's ability to get a fair trial," Cunningham said as he prepared to leave the courtroom after the hearing. "And until the judge quashed the subpoenas, I was extremely concerned about the constitutional rights of hundreds of capital defendants around the United States."

What the heck is the defense whining about? Assuming the defense expert is a testifying, rather than consulting, expert, the opposing party has every right to request information about that witness. The proper method for obtaining that information before trial is by subpoena duces tecum.

And, during trial, the State has the absolute right to question that witness outside the presence of the jury as to the witness' qualifications. The State can challenge the witness' background, training, experience, etc., in an effort to establish that the witness is not sufficiently reliable to be heard by the jury.

There is nothing in the article that explains why the subpoena should be quashed.

Years ago, when I was a prosecutor in Houston, I was assigned to challenge the local defense expert on the Intoxilyzer. This guy, a professor at Rice University, made lots of money when hired by defense lawyers to come in and pontificate on how the breath test instrument was flawed.

So, I issued a subpoena for his background, articles he had written and relied upon, and so forth. Even went to his office, where he provided me with copies of what was requested. We used that information to challenge his expertise and to impeach him on the witness stand. Isn't that what the adversarial process requires?

What am I missing here? What would "destroy" the expert witness by providing information about how he formed his opinion?

[This message was edited by JB on 12-19-07 at .]

Doesn't the defense regularly do the same to the State's witnesses? Is this really an invasion of the attorney-client privilege or the work product doctrine. Seems that it goes to the heart of witnesses biases, motives, and expertise.

JAS

"Mr. Norman is left without a mitigation case. I'm telling the court it's a fatally flawed case," Costas said. "I can't do this case anymore within the proper ethical mandates."

I wonder if we'll see another instance of Cannon v. State

Mr. Newell, there are a plethora of great reasons why Harris County hired you, but chief among them is your legal accumen. Bravo!

Why is this not relevant credibility and bias evidence? Certainly, an expert's credentials and WORK HISTORY should be reviewable, and since there is no easy or uniform way to gather the information necessary, it is entirely reasonable to have the witness provide his stats.

How many experts have you seen, particularly those in the breath test instrument unreliability "expert" witness catagory, who make outlandish claims of testifying mostly for the State or saying "I haven't charged anything yet and don't know what I will charge"? I have seen more than one expert make very spurious claims in a court of law, under oath, and as said above, what's good for the goose is good for the gander.

I think this was a brilliant legal strategy by CDA Bobby Bell, who I've never met, and frankly think it is just the remedy for the vague expert who can never cite one case where he testified for the State despite claims he "often" testifies for the State.

Only halfway kidding here, I wonder if the phrase "testify for the State" means to some that they answered questions under cross examination as an adverse witness to the State? I have asked that question before, and once got a yes.

Fairness is a two way street.

...apparently one of the things Cunningham has said in court in the past is that once he has been consulted by the defense, they have elected not to use him. In other words, trying to imply that his opinion was favorable to the state. It is my understanding that in order to test that on cross, Bobby asked him to be prepared to supply the specifics on those cases....that is, what cases were they and how many times did that happen?

Sounds like Bobby is being very thorough. Of course, I can see why the defense doesn't like it.

If a defense expert says something like that, then he may have violated the attorney-client privilege by releasing confidential information. Furthermore, if the question was whether an expert had ever testified for the State; being dropped as a defense witness is not the same as testifying for the State.

Of course, if an expert says the truth: "I pretty much make my living by consulting for defendants," then that expert's days as an expert are numbered.

For details on Cunningham, check out his web page that advertises his services.

"If he complies with the subpoena, he's destroyed professionally"

That line says it all. If he is such an outstanding scientist, there must be some other way he could make a living than by testifying--and isn't the testifying supposed to be a by-product of his expertise, not the creation of it?

Judge will decide today if defendant gets new lawyer
Attorney in Edna shooting trial wants to step down


BY LESLIE WILBER - VICTORIA ADVOCATE
January 23, 2008 - 10:30 p.m.
A judge should announce today if a man accused in a triple slaying gets a new lawyer.
Lead defense lawyer Elliot Costas filed a motion to withdraw from LeJames Norman's trial on Jan. 17.

During a Tuesday hearing, Jackson County District Attorney Bobby Bell said he also wanted to see Costas leave the case.

Norman agrees with the motion, too, he said, when Victoria District Judge Joseph P. Kelly asked for the defendant's opinion.

Costas has twice asked to withdraw from the case. Kelly denied Costas' first request in December. At that time, Costas called the case he had to present fatally flawed, because the mitigation expert for the defense stepped down.

Forensic psychologist Mark Cunningham left the defense team after Bell subpoenaed records from cases in which he had testified. Kelly quashed that subpoena.

Costas can't find a new expert, in part because of the subpoena, he said.

Dr. Mark D. Cunningham is the premier expert in the mitigation field and its members do not take kindly to his savaging,Costas wrote in his Jan. 17 motion to withdraw.

But Bell said the defense never really tried to find a replacement.

Norman is accused in the 2005 shooting deaths of Samuel Justin Roberts, Tiffani Marie Peacock and Celso Lopez.

[One has to wonder whether the latest strategy by anti-death penalty people is to just refuse to provide the lawyers and experts required by case law to obtain a conviction and sentence.]

I KNEW THAT WAS GOING TO HAPPEN! I must've having a smart day when I wrote my earlier post.

Are these articles accurate? "Defense expert quits because he will have to answer questions that show his bias. Defense attorney quits because he doesn't have a defense"?

New attorney appointed in Edna capital murder case

ADVOCATE STAFF REPORT
January 24, 2008 - 11:40 a.m.

A judge allowed LeJames Norman�s head defense lawyer to leave the case today. �While I do not find the findings in the motion are true and correct, I grant that motion,� Victoria District Judge Joseph P. Kelly said. The judge heard former lead-defense attorney Elliot Costas� motion to withdraw Tuesday. Jackson County District Attorney Bobby Bell agreed that Costas should quit during the hearing. Allen Tanner, who Bell recommended to Kelly, was assigned to lead Norman�s defense. Right now, there are no plans to select a new jury and the trial is scheduled to start May 5, Kelly said. �Under the law, the defendant is entitled to a fair jury,� Kelly said after the announcement. �I think we have that.�

Second jury selection begins in capital case
Edna triple-slaying case moved to Victoria for change of venue

BY LESLIE WILBER - VICTORIA ADVOCATE
July 28, 2008 - 10:57 p.m.

Jury selection began for a second time Monday in the trial of an Edna man charged in a triple slaying.

LaJames Norman, 22, is charged with killing Samuel Roberts, 24, Tiffani Peacock, 18, and Celso Lopez, 38 during a 2005 robbery at their home in Edna. Kersean Ramey, Norman's co-defendant, was sentenced to death by a Victoria County jury in 2007.

The case was moved to Victoria on a change of venue.

But Norman's trial has rolled haltingly forward. The first jury selection began last October.

It took months for lawyers to pick 12 jurors for the death-penalty case. Meanwhile, defense attorney Elliot Costas twice asked District Judge Patrick Kelly to let him step down.

In January, Kelly let Costas leave the case, and appointed Houston attorney Allen Tanner to defend Norman. The judge ruled Tanner would be allowed to pick a new jury.

Trouble with the trial began when Jackson County District Attorney Bobby Bell subpoenaed records from forensic psychologist Mark Cunningham's past trials. Cunningham was an expert witness for the defense.

Kelly quashed that subpoena.

But Cunningham still refused to work on the case, citing ethical concerns.

Costas' case was destroyed without the expert witness, he said.

"Dr. Mark D. Cunningham is the premier expert in the mitigation field and its members do not take kindly to his savaging," Costas wrote.


Details.

quote:

---

Originally posted by JB:
"Dr. Mark D. Cunningham is the premier expert in the mitigation field and its members do not take kindly to his savaging," Costas wrote.

---

"If you bother questioning us, we're going to refuse to talk to you at all instead of being confident that our methods can stand up to questions." Yeah, that makes me confident in the experts in the "mitigation field".

Seems to me that the next prosecutor that cross-examines Dr. Cunningham could ask, "Isn't it true that the last case in which you were an expert you quit rather than answer the prosecutor's questions? Well, sir, then what are you hiding from this jury?"

Hi all,
I was involved in a case recently where Mark Cunningham was the petitioner's expert on MR. In the opinion (which I think is published, although there is no F. Supp cite yet), he questions the credibility of Cunningham, stating that he appeared to be more of an advocate against the death penalty than an objective expert. The Case is Hall v. Quarterman, 2009 WL 612559. The case has apparently already made its rounds in the expert community, and Cunningham has taken somewhat of a beating for it (deservedly so).

Carole S. Callaghan
Assistant Attorney General
Office of the Attorney General of Texas
Postconviction Litigation Division
carole.callaghan@oag.state.tx.us
Tele: 512-475-4670
Fax: 512-320-8132

From the opinion:

On cross-examination, Dr. Cunningham testified that he has never been employed by the State in a capital case, but has been employed approximately 135 times by inmates in capital cases.