Defense attorney, prosecutor spar over expert’s qualifications

A Shenandoah County man serving a life sentence argues that the trial judge erred by allowing a jury to consider testimony by an unqualified expert witness.

A jury found Patrick Wakeman guilty on one count of rape at the end of a three-day trial in Shenandoah County Circuit Court on May 3, 2017. The jury found Wakeman not guilty on a second count of rape. The jury recommended that Wakeman serve life in prison for the crime. Judge Dennis L. Hupp upheld the jury’s verdict and sentenced Wakeman to life in prison.

Charlottesville attorney J. Lloyd Snook III filed a petition for appeal to the Virginia Court of Appeals on March 19 on Wakeman’s behalf. Katherine Quinlan Adelfio, an attorney for the commonwealth, filed a brief in opposition to the petition. An appellate court judge reviewed the petition June 15 and granted the request for an appeal. Snook filed his opening brief on Wednesday, according to the appellate court records.

The opening brief states that Hupp erred in allowing Raymer Balciunas to testify as an expert sexual assault nurse examiner when she had not received licensure in that field.

Balciunas examined the victim looking for biological evidence. Balciunas took a cervical vaginal swab later found to contain Y-chromosome DNA consistent with the Y-chromosome DNA of Wakeman, the brief notes.

“It would also have been consistent with the Y-chromosome DNA of any other male relative of Patrick Wakeman,” the brief states. “The defense challenged Ms. Balciunas’ expertise to perform this test because although she had attended the classes, there was no assurance that she was actually competent to perform the test. Judge Hupp ruled that she could testify as an expert.”

Snook states that the Virginia Supreme Court “has warned about the dangers to the criminal justice system of uncritically accepting forensic evidence.” Snook cites the court’s opinion in the case of Billips v. Commonwealth: “there is a risk that those essential components of the judicial system may gravitate toward uncritical acceptance of any pronouncement that appears to be ‘scientific,’ and the more esoteric the field, the more difficult it becomes for laymen to greet it with skepticism. That tendency has given rise to frequent complaints of ‘junk science’ in the courts. To guard against that risk, we continue to require a ‘threshold finding of fact with respect to the reliability of the scientific method offered.'”

The prosecution would need to show not only proof of the reliability of the examination method but also the competence of the person performing the examination, Snook states.

Balciunas collected the Y-chromosome DNA evidence linked to Wakeman. While trained as an emergency room nurse, Balciunas did not complete the requirements to receive certification as a sexual assault nurse examiner, so there was no evidence she demonstrated competence in the field, Snook states.

Hupp permitted Balciunas to testify as an expert – an error that went to the prosecution’s burden of proof, Snook argues. Balciunas testified as to her credentials that included degrees in nursing and sociology and certification as a forensic nurse. Balciunas trained as a sexual assault nurse examiner but did not sit for her licensure, Snook notes.

The Virginia Supreme Court has pointed out that some statutes specify the criteria for qualification as an expert witness. Snook argues that Balciunas has never passed the test that would verify she learned how to properly conduct a sexual assault examination. Snook adds that Balciunas conducted the examination while not working under the supervision of anyone found competent to perform such an examination.

Wakeman’s defense attorney objected to the court permitting Balciunas to testify as an expert on sexual abuse examinations. Hupp deemed Balciunas an expert in sexual abuse forensic examination.

Balciunas testified about the examination and the taking of the sample from the vaginal cervical area. Balciunas testified that she did not use a speculum that Snook argues would have given a clearer, straighter path to the cervix than the method she did employ.

“The issue of the failure to use the speculum – failing to use best practices – is tied in with Ms. Balciunas’ lack of credentials,” the brief states. “When a (sexual assault nurse examiner) is certified, that means that the nurse has passed an examination, proving that he or she has mastered the information necessary to do forensic examinations.”

Snook contends that the court’s error caused harm to his client. The attorney asks the appellate court to remand the case to the circuit court for a new trial.

A brief in opposition to Snook’s petition for appeal, filed in March by then Shenandoah Deputy Commonwealth’s Attorney Louis Campola, argues the court did not err by declaring Balciunas an expert on sexual abuse examinations. Campola states that Balciunias “has expert knowledge of a subject beyond that of persons of common intelligence and ordinary experience.”

“Generally, a witness is qualified to testify as an expert when the witness possesses sufficient knowledge, skill, or experience to make the witness competent to testify as an expert on the subject matter at issue,” Campola states.

Campola argues that Snook’s reading of the statute is incorrect because there are no statutory requirements for a sexual assault nurse examiner to be certified as such. Since there is no statutory requirement for a sexual assault nurse examiner to be certified, Balciunas is more than qualified to testify as an expert because she possesses “expert knowledge of a subject beyond that of persons of common intelligence and ordinary experience,” Campola said.