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A restaurant manager was shot to death during an after-hours robbery. A second manager was murdered during a very similar robbery of another restaurant. Yet a third restaurant manager named Smotherman survived another similar robbery-shooting. During each crime, the robber fired two .38 caliber bullets; all six bullets were recovered by police investigators. Smotherman described his assailant to the police, and when the police showed him a photographic array, he picked P’s picture. P was arrested and police recovered from his house a .38-caliber revolver belonging to his mother, who shared the house with him. The State’s Department of Forensic Sciences concluded that the six bullets had all been fired from the revolver found at P’s house. P was charged with two counts of capital murder for the killings during the first two robberies. He was not charged in connection with the Smotherman robbery. The State's (D) strategy was to link P to the Smotherman robbery through eyewitness testimony and forensic evidence about the bullets fired at Smotherman and then to persuade the jury that, in light of the similarity of the three crimes and forensic analysis of the bullets and the P revolver, P must also have committed the two murders. Smotherman identified P as the man who robbed his restaurant and tried to kill him. Two other witnesses provided testimony that tended to link P to the Smotherman robbery. P maintained that he was innocent and presented witnesses who testified in support of his alibi that he was at work at a warehouse at the time of the Smotherman robbery. The six bullets and the revolver were the only physical evidence. No evidence was found at the crime scenes that could be used to identify the perpetrator (such as fingerprints), and no incriminating evidence was found at P’s home or in his car. D’s case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from P’s revolver. P’s attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000, which was the maximum he could grant, and that the attorney should file on a separate form if more was needed. P’s attorney did not file a request for more funding. The relevant statute had been amended to provide: “‘Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court.’” P's attorney, as well as the judge, were unaware that Alabama law no longer imposed a specific limit and instead allowed reimbursement for “any expenses reasonably incurred.” P's attorney made an extensive search for a well-regarded expert, but found only one person who was willing to take the case for the pay he could offer: Andrew Payne. P’s attorney “testified that Payne did not have the expertise he thought he needed and that he did not consider Payne’s testimony to be effective.” Payne testified that the toolmarks in the barrel of the revolver had been corroded away so that it would be impossible to say with certainty whether a particular bullet had been fired from that gun. He also testified that the bullets from the three crime scenes did not match one another. D’s two experts, by contrast, maintained that all six bullets had indeed been fired from the P revolver. The prosecutor discredited Payne. Payne admitted that he’d testified as an expert on firearms and toolmark identification just twice in the preceding eight years and that one of the two cases involved a shotgun rather than a handgun. Payne also conceded that he had had difficulty operating the microscope at the state forensic laboratory and had asked for help from one of the state experts. Payne also had one eye, and his expertise was in military ordnance, not firearms and toolmark identification, and Payne had graduated in 1933 (more than half a century before the trial) with a degree in civil engineering, whereas D’s experts had years of training and experience in the field of firearms and toolmark examination. The prosecutor made sure the jury understood the differences between the experts testifying at trial. The jury convicted P and recommended by a 10-to-2 vote that he be sentenced to death. The trial judge accepted that recommendation and imposed a death sentence. In his postconviction petition, P contended that his trial attorney was ineffective for not seeking additional funds when it became obvious that the individual willing to examine the evidence in the case for the $1,000 allotted by the court was incompetent and unqualified. P produced three new experts on toolmark evidence. One of the three, a forensic consultant named John Dillon, had worked on toolmark identification at the Federal Bureau of Investigation’s forensics laboratory and, from 1988 until he retired in 1994, had served as chief of the firearms and toolmark unit at the FBI’s headquarters. The other two postconviction experts had worked for many years as firearms and toolmark examiners at the Dallas County Crime Laboratory and had each testified as toolmark experts in several hundred cases. All three experts testified that they could not conclude that any of the six bullets had been fired from P's revolver. D did not submit rebuttal evidence during the postconviction hearing, and one of P’s experts testified that, pursuant to the ethics code of his trade organization, the Association of Firearm and Tool Mark Examiners, he had asked D’s expert, Yates, to show him how he had determined that the recovered bullets had been fired from the P revolver. Yates refused to cooperate. The Circuit Court held that P had not been prejudiced by Payne’s allegedly poor performance because Payne’s testimony did not depart from what P’s postconviction experts had said: The bullets could not be affirmatively matched either to one another or to P's revolver. The Alabama Court of Criminal Appeals affirmed by a 3-to-2 vote. The Supreme Court of Alabama reversed and remanded, focusing on Payne’s qualifications as an expert. On remand, the Circuit Court held that Payne was qualified to testify as a firearms and toolmark expert witness under the Alabama evidentiary standard in place at the time of the trial, which required only that Payne have had “knowledge of firearms and toolmarks examination beyond that of an average layperson.” The appellate court affirmed. The Alabama Supreme Court denied review. P appealed.

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