Bergman v. Howard

Decision Date12 December 2022
Docket Number21-2984
Parties Lisa BERGMAN, Petitioner-Appellant, v. Jeremy HOWARD, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Benton C. Martin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Detroit, Michigan, for Appellant. Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Benton C. Martin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Detroit, Michigan, for Appellant. Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

In Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that the Due Process Clause requires states to provide psychiatric experts to indigent defendants who have a credible insanity defense. Id. at 74, 105 S.Ct. 1087. Lisa Bergman relies on Ake to claim that she should have been provided an expert toxicologist at her criminal trial. The trial evidence showed that Bergman drove into an oncoming truck and killed its occupants. Scientists testified that she had prescription drugs in her system at the time of this crash (and at the time of several prior accidents), and the state's expert opined that these drugs impaired her driving. A state court held that Ake did not require the state to provide Bergman with a defense toxicologist because she failed to show a sufficient need for one notwithstanding the state's expert evidence. Bergman now argues that the state court misread Ake and misunderstood the record. In this federal case, however, she must meet the stringent standards for relief in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). Given the Supreme Court's lack of clarity over Ake ’s scope, she has not done so. We affirm.


In the summer of 2013, Bergman lived with her mother in Port Huron, an eastern Michigan city that sits on the southernmost tip of Lake Huron. Around midnight on July 20, Bergman's ex-boyfriend, John Weis, visited her home to show his new puppy to her kids. Bergman had left some of her children's items at Weis's house and told him that she wanted to pick them up. Weis lived a few miles to the west in nearby Kimball Township.

It was a rainy and foggy night. Despite the inclement weather, Bergman decided to follow Weis to his home in her Ford F-350 sometime after 1:00 a.m. Although Weis could see Bergman's truck in his rearview mirror for part of the drive, he eventually lost sight of her and assumed that she had stopped at a gas station.

Bergman never made it to Weis's house. A concerned Weis went looking for her. He came upon the scene of a horrendous accident involving Bergman's F-350 and a much smaller truck. The two trucks had crashed into each other head-on and come to rest in a ditch. Their front ends had become entangled, and debris had flown everywhere. The impact killed the smaller truck's occupants, young men named Russell Ward and Koby Raymo. Bergman was awake but injured, and paramedics took her to the hospital.

After rendering aid, officers began to investigate the accident. While in the hospital, Bergman told an officer that she had accidentally driven past Weis's home and had turned around heading eastbound at the time of the accident. Other officers on the scene discovered "gouge marks" "squarely" within the westbound side of the road. Bueche Tr., R.6-12, PageID 709, 710, 714. To the expert eye, these marks were "strong indicators" that the trucks had collided at this spot. Terpenning Tr., R.6-12, PageID 726. The impact would have caused the trucks to dip down and their parts to scratch the pavement. An accident-reconstruction expert thus had no doubt that Bergman's "big Ford pickup truck crossed the center line" at the time of the accident. Id. , PageID 727.

While searching Bergman's purse for her ID, an officer on the scene found a pint-size bottle of tequila that was a third full. The officer at the hospital obtained a blood sample from Bergman just before 5:00 a.m. Her blood-alcohol concentration came back under the legal limit at .04, which suggested that she might have had a "drink to a drink and a half in her system at the time of the blood draw." Glinn Tr., R.6-12, PageID 737, 746.

Yet other blood tests revealed prescription drugs in Bergman's system. She had taken oxycodone

, an opiate designed for pain relief. She had also taken Soma, a muscle relaxer. And she had likely taken Adderall, an amphetamine that helps one's concentration. Although Bergman had ingested only "therapeutic" levels of these drugs, Soma and oxycodone were depressants that could have "additive effect[s]" when taken together and with alcohol. Glinn Tr., R.6-12, PageID 738–39.

An expert in forensic toxicology, Dr. Michele Glinn, believed that Bergman could not "operate a motor vehicle properly" when taking the drugs. Id. , PageID 742. Glinn's opinion did not rest solely on this tragic accident. It also rested on Bergman's long history of reckless driving. She had many (known) incidents of taking drugs, getting behind the wheel, and driving dangerously.

January 2008 Incident : Early on New Year's Day, officers saw a car "driving erratically." Bockhausen Tr., R.6-8, PageID 471. They pulled the car over and arrested Bergman, its driver, after smelling intoxicants and finding pills and marijuana in the car.

March 17, 2012 Incident : On St. Patrick's Day, a family was out shopping when a Jeep rear-ended their car and fled. An officer tracked down the Jeep and its driver, Bergman. Bergman failed field sobriety tests, confessed to taking a muscle relaxer and an opiate, and had pills in her car. A blood test showed these drugs in her system.

March 27, 2012 Incident : Ten days later, a person called the police because a woman who turned out to be Bergman was "passed out" behind the wheel of a Jeep in a party store's parking lot. Singleton Tr., R.6-10, PageID 583. An officer woke up a dazed Bergman, who had her child in the backseat. She failed field sobriety tests and admitted to taking Soma and an opiate. A blood test revealed these drugs.

May 2012 Incident : Some six weeks later, several drivers called 911 because a car "couldn't stay in one lane" on the freeway. Boulier Tr., R.6-8, PageID 507. The officer who stopped this car found Bergman with pills. She again failed field sobriety tests, and a blood test again showed drugs in her system.

August 2012 Incident : Three months later, two men were heading home from a fishing trip with their boat in tow when Bergman rear-ended the boat. While waiting for the police, she passed out. At the hospital, Bergman said that she had also "blacked out" before the crash and confessed to taking prescription drugs. Mynsberge Tr., R.6-9, PageID 541. A blood test confirmed her confession.

February 2013 Incident : Six months later, Bergman rear-ended the car of a woman who was driving to pick up her daughter from a dance class. The woman, a substance-abuse counselor, told Bergman that she was "clearly intoxicated[.]" McKeever Tr., R.6-9, PageID 525–26. During field sobriety tests, Bergman could not recite the alphabet beyond "P." Phillips Tr., R.6-9, PageID 552. For a fifth time, a blood test showed that she had prescription drugs in her system.

June 2013 Incident : A month before the fatal crash, a driver on the freeway called 911 on a Jeep that was "all over the road" and that almost "lost control several times." Newcomb Tr., R.6-9, PageID 561–62. Bergman, the culprit, once again failed field sobriety tests. Among other things, she responded with "7" when asked to identify a number between "15" and "13." Hoffman Tr., R.6-9, PageID 567. An officer found pills in her car, and a blood test confirmed that she had taken the same drugs as before.

For the fatal accident, the state charged Bergman with six counts—three for each victim. It charged her with causing the death of Ward and Raymo by operating her truck with a suspended license. Mich. Comp. Laws § 257.904(4). It charged her with causing their death by operating her truck while intoxicated. Id. § 257.625(4). And it charged her with second-degree murder for both victims. Id. § 750.317. This murder charge required the state to establish that Bergman "knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of her actions." Instr., R.6-13, PageID 860. The state relied on her prior incidents to prove that she knew the risks of getting behind the wheel after taking prescription drugs. See People v. Bergman , 312 Mich.App. 471, 879 N.W.2d 278, 291–92 (2015).

At trial, the prosecution called many scientists. Some described their methods to identify the pills confiscated during Bergman's encounters with the police. Others described their methods to test Bergman's blood for drugs or alcohol and the results of the tests. Dr. Glinn also testified as an expert toxicologist, describing the drugs in Bergman's system and opining about their dangerous effects on her driving.

Bergman's counsel had anticipated these scientific witnesses before trial. Counsel had accordingly moved the trial court to provide Bergman with a state-funded expert toxicologist. At a pretrial hearing, counsel requested this expert for two reasons. Counsel could not understand the results of Bergman's blood tests. A toxicologist could explain in plain English whether problems existed with the state's testing and whether the drugs found in Bergman's system would have impaired her driving. Alternatively, counsel asked for a toxicologist to confirm the state's test results by retesting the preserved blood samples from Bergman's driving incidents.

The trial court denied this motion. It categorically rejected the request for an expert to retest the samples. As the court saw things, Bergman's speculation that the state scientists might have conducted invalid tests did not warrant a new...

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