Sentence Vacated After Court's Refusal to Appoint Expert Witness

Refusing to appoint a neuropsychological expert witness, a trial court has had its 59-year sentence of a 16 year old vacated by a US appellate court which found the lower court had abused its discretion under 18 USC 3006A(e) on resentencing.

In Pete v. USA, US Court of Appeals, 9th Cir., Apr 11. 2016, Branden Pete was a 16 year old Navajo youth, who was riding in a car with three other men when they picked up a female hitchhiker, who they then raped and murdered. Pete was convicted of second-degree and felony murder, as well as conspiracy to murder.

Before his case was transfered to adult court, Pete's request for a forensic psychiatric evaluation under 18 USC section 3006A(e). The forensic psychiatrist expert witness, Dr. Herschel D. Rosenzweig, concluded that Pete was a substance abuser (alcohol and cocaine) and testified that Pete was "a very salvageable young man."

The district court rejected Rosenzweig's conclusions, granting the transfer of the case to try Pete as an adult. At trial in 2005, Pete was convicted and sentenced to concurrent mandatory terms of life imprisonment without the possibility of parole.

In 2012, the Supreme Court held it unconstitutional for juvenile offenders to be sentenced to mandatory terms of life imprisonment without the possibility of parole (Miller v. Alabama, 132 S. Ct. 2455 (2012)). Pete moved for resentencing, which the district court granted, noting that the court was required under Miller to give a juvenile offender "an opportunity to present mitigating evidence to support a sentence less than life without parole," and ordering that Pete be resentenced on an open record.

Before the resentencing, Pete filed an ex parte motion for expert services pursuant to section 3006A(e),7 requesting that Marc Walter, PhD, Neuropsychology expert witness, be paid to assist him. Pete explained that Walter's help was "necessary to pursue information that might mitigate or lessen the sentence imposed on resentencing," including a neuropsychological evaluation which could gauge Pete's "mental age", any cognitive dysfunction which could make him more suggestible or impair his judgment, or any particular mental disorders which could have affected his behavior. In particular, Pete argued that Walter could assess his development and maturity since his incarcerationg, and the impact of his dozen years of incarceration, most of which he had spent in segregation.

The district court denied Pete's motion, holding that although Pete was financially qualified for an expert, he had not shown that Walter's services were "necessary" within the meaning of section 3006A. The court found that Pete's 2003 psychiatric evaluation included evidence to assist in mitigating his sentence. It held that the impact of 12 years of incarceration on Pete was "… not the type of mitigating evidence which Miller contemplates." The court imposed a 59-year sentence.

The appellate court disagreed, finding that the district court had abused its discretion in denying Pete's motion for appointment of a neuropsychological expert witeness. The appellate court pointed in particular to United States v. Hernandez (604 F.3d 48, 53–55 (2d Cir. 2010), in which the US Second Circuit ruled that a district court should have considered changes in the defendant after having spent 15 years in prision, including the affect of aging on the likelihood of his recidivism, "… his rehabilitation in the interim and intervening changes in sentencing law."

"[A] reasonable attorney," the appellate court wrote, "would have considered an up-to-date neuropsychological evaluation necessary had Pete been a nonindigent defendant."

The court vacated Pete's sentence and remanded for resentencing.