I concur with the Fifth Circuit Court of Appeals rejection of del Toro's habeas corpus petition alleging ineffective assistance of counsel, but the case does point to a serious problem in the judicial system -- the need for the Defense to hire expert witnesses to counter the evidence produced by the State's expert witnesses.
Del Toro was convicted in Texas state court, by guilty plea, of injury to a child and was sentenced to seventeen years' imprisonment. Del Toro gave two statements to police acknowledging that he held a blanket over her face for one to two minutes to stop her crying. When he removed the blanket he noticed that she was having trouble breathing, so he took her to the hospital.
He gave a different story to the hospital personnel, not mentioning the blanket.
Alexyah was found to have severe neurologic, cardiac and respiratory dysfunction with an unexplained cause. As a result of the respiratory failure, her brain was severely damaged from lack of oxygen.
Del Toro had another infant child who died under similar circumstances. When the DA offered the plea deal to del Toro, he made it clear that if he refused to accept it, the other infant would be exhumed for investigative purposes. The plea deal would reduce his sentence from 99 years to 21 years. A second defense attorney negotiated the plea down to 17 years.
The first attorney did not hire an expert witness to examine the medical records, which might have challenged the State's conclusions, because the family could not afford to pay for one. The second attorney said he would hire an expert, but again, the family would have had to pay for it.
In his appeal efforts, an expert was consulted - Dr. Lloyd White. White provided the following medical opinion, as quoted in the Fifth Circuit Court's opinion:
He concludes that Alexyah's medical records indicate that she had previous health problems that could result in the symptoms she suffered when del Toro took her to the hospital, and that her family history, including the death of her brother, who had demonstrated similar symptoms, and the infant deaths of three cousins, indicated a possible genetic disposition to natural cardio-respiratory arrest. White concluded that "there is a reasonable medical probability that the injuries suffered by [Alexyah] were not caused by an action by [del Toro] or any other person."
The Fifth Circuit Court rightly ruled that failure to consult a medical expert did not constitute ineffective assistance of counsel because both attorneys suggested it.
What the Court does not, and cannot, address is the inability of most defendant's, or their families, to consult experts. Experts come with hefty price tags, and in addition to legal fees, can be well beyond the financial means of most.
Some states provide funds for Defense expert witnesses, but if that was available to del Toro, no one told him so.
The odds are already in favor of the State, with its investigative and prosecutorial resources. The State has many experts to use, to present its interpretation of the evidence. Attorneys do not have the necessary training to properly interpret this scientific evidence -- no matter how good their cross examining skills, they need another expert opinion to effectively counter the State's experts.