Obtaining The Necessary Funds To Save a Life - A Primer

The Bryan R. Shechmeister

Death Penalty College

Santa Clara University School of Law

Saturday August 5, 2006 - Thursday August 10 2006



Richard S. Jaffe

Jaffe Strickland & Drennan, P.C.

Birmingham, Alabama




In Ake v. Oklahoma, 470 U.S. 68 (1985), Justice Marshall, writing for the majority, recognized that a pivotal issue during both phases of the trial was the defendant's mental state. Accordingly, the Court reasoned that expert assistance, at government expense, on the issue of a defendant's mental state and mental history was constitutionally required for Mr. Ake. The mental status of the accused is of critical importance as it can impact the question of guilt and of future dangerousness as well as other issues relevant in the sentencing phase of a death penalty trial. It is crucial to note that an indigent defendant has a constitutional right under Ake for a defense psychiatrist (rather than a so-called "neutral" expert) who investigates the defendant's mental status by gathering facts through examinations, interviews with the defendant, interviews with third parties, as well as other sources. From these investigations, the defense expert draws conclusions regarding the defendant's mental condition.

One of the major reasons a defendant is entitled to his or her own defense expert includes the fact that counsel may decide, in appropriate cases, to not use the expert at all. This reason alone supports the conclusion that the mental health expert must be a defense expert whose thoughts, conclusions, or perhaps even existence is unavailable to the State or Government unless the defense so chooses. A defense expert can also aid a defense lawyer in preparing for the cross-examination of a State's expert, whether the defense expert testifies or not. This is another reason why a defendant must insist on his right to his own State funded expert.

Since 1985, courts across the land have applied the reasoning in Ake to cases other than those involving the death penalty, and to experts other than those in the mental health area. If the defense can make the required showing of the critical need for the defense expert, then it is often reversible error for such a request to be denied by the trial court. There are voluminous cases, too many to cite in this summary, to support that conclusion.

It is not enough, however, to simply show that the defense expert is wanted or useful or helpful; the defense must demonstrate a particularized need in the case in question, the denial of which would impair the defendant's ability to present his defenses. Accordingly, the defendant's right to a fair trial would be unconstitutionally jeopardized if the funding were denied.

It is crucial that counsel employ the appropriate use of specific language when requesting funds. For example, in Ake v. Oklahoma, supra, it is clear that counsel must "...make an ex parte threshold showing to the trial court that insanity is likely to be a significant factor in his defense." Ake, at 82-83. Alabama courts use the standard that the funds sought must be critically necessary. Ex Parte Moody, 684 So.2d 114, 119. In Florida, courts have denied expert assistance because counsel stated that the exam would be helpful rather than necessary. Robinson v. State, 761 So.2d 269 (Fla. 1999); see also Hoskins v. State, 702 So.2d 202 (Fla. 1997); see also Gary v. Schofield, 336 F.Supp.2d 1337 (M.D. GA. 2004).

When applying for funding, the motions for should always be filed ex parte and under seal. An ex parte hearing should be requested within the motion. An affidavit from the proposed expert supporting the motion should also be included. The motion should set out at least the following and consult any relevant statutes in the jurisdiction in question:

1. The critical nature of the funding

2. All relevant facts in support of the particularized need

3. The qualifications of the requested expert's said rates

4. The legal basis for the need of such expert assistance, including the theories of the defense case when necessary.

5. The amount needed

The defense should insist on having a court reporter present to transcribe the entirety of these ex parte proceedings, and that the notes be placed under seal in case of the need for appellate review.

Supporting affidavits should include the expert's qualifications, the materials the expert has reviewed in preparing the affidavit, a statement that the materials reviewed are the type generally relied upon by experts of his or her profession, the expert's opinion that such assistance has a factual basis, the expert's rate of pay, and a general overall cost of the expected amount of the expert's services.

Since Ake and its progeny, numerous other cases have expanded the basis for obtaining expert assistance to fact and mitigation investigators. For example, in Wiggins v. Smith, 539 U.S. 510 (2003), the Court took into consideration that prevailing professional standards for capital defense work require counsel to "discover all reasonably available mitigating evidence..." This includes "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, religious and cultural influences." Id. at 2537. In Rompilla v. Beard, 545 U.S. 374 (2005), the court mandated that "counsel must...investigate prior convictions...that could be used as aggravating circumstances or otherwise come into evidence. If a prior conviction is legally flawed, counsel should seek to have it set aside. Counsel may also find extenuating circumstances that can be offered to lessen the weight of a conviction."

Even prior to Wiggins and Rompilla, the United States Supreme Court decided the cases of Tennard v. Dretke 542 U.S. 274(2004), and Smith v. Texas 543 U.S. 37(2004). Tennard stands for the proposition that there exists virtually no limit to the introduction of relevant mitigating evidence regarding a capital defendant. Tennard at 285. Smith stands for the proposition that the jury must be given an effective vehicle in order to weigh mitigating evidence providing that the defendant has met a "low threshold for relevance." Smith at 44. These cases make clear that a defendant's impaired intellectual functioning is inherently mitigating regardless of whether a defendant established a nexus to the crime. Clearly, this means that the mitigation investigators role will be broad, time-consuming and expensive.

There is simply no possibility of performing all the tasks necessary to render competent representation without the assistance of a professional mitigation expert and investigators. As mandated by the current case law, which cites and supports the standards promulgated by the ABA, counsel must pursue all relevant and potential mitigation even with out the consent, or even over the objection, of his or her client.

The court in Wiggins v. Smith, 539 U.S. at 524 (2003), stated that counsel's investigation fell short of the standards for capital defense work articulated by the ABA Standards. In Rompilla, the court cited in Footnote 7 the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Section 10.7, comment. (rev. ed. 2003). It is important to realize that the ABA Guidelines are just that "...guides to determining what is reasonable, but they are only guides." ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) cited in Strickland v. Washington, 466, U.S. at 688 (1984). Nevertheless, reading Wiggins and Rompilla in the context of Ake and the ABA Guidelines, it is clear that counsel must thoroughly and completely investigate every factual and legal aspect of his or her client in the case to be even minimally effective under the Sixth Amendment. These duties would include vigorously seeking the necessary funds to present an adequate defense.

Accordingly, counsel at all stages should demand on behalf of the client all resources necessary to provide a high quality of legal representation. If such resources are denied, counsel must make an adequate record to preserve the issue for further review. ABA Guideline 10.4. Pursuant to Guideline 9.1, the Government's obligation is to insure funding for the full cost of a high quality legal representation. Other courts have held that in light of the recent Supreme Court decisions, trial courts should seriously and carefully consider requests for a mitigation specialist and should not deny the same without written findings of fact and conclusions of law to support such denial. United States v. Kreutzer, 61 N.J. 293, 299, N.7 (2005); Hutchinson v. State, 150 S.W. 3d 292, 307 (Mo. 2004).

When counsel is considering funding requests in a capital case, counsel should think as expansively as possible. At a minimum, ABA Guideline 4.1 states that a defense team should at least consist of two attorneys, a fact investigator, a mitigation specialist, and at least one member qualified by training and experience to screen individuals for the presence of mental disorders. In addition, ABA Guideline 4.1 requires that experts be fully compensated in order that counsel can provide the high quality of legal representation envisioned in the Guidelines. As they are "minimum" requirements, counsel should think well beyond the minimum. For example, in appropriate cases expert counsel to assist with motion practice and record preservation, or an attorney who is particularly knowledgeable about an area of scientific evidence should be seriously considered as additions to the defense team. Similarly, if some type of organic brain injury or damage is indicated, a neuro-psychologist or similar expert should be requested. If the defendant is from a foreign country and/or does not speak English, cultural experts and/or bi-lingual investigators should be additions to the defense team in order to provide adequate factual and mitigation investigation.

ABA Guideline 10.7 makes it clear that counsel have an obligation to conduct a through and independent investigation relating to the issues of guilt and penalty. The commentary to Guideline 10.7 states that counsel should aggressively reexamine all of the Government's forensic evidence and conduct appropriate analysis of all available forensic evidence. Questions regarding this evidence many times can only be resolved with assistance from an expert in that area. In addition, counsel should investigate at least three generations of the client's family as a multi-generational investigation will frequently disclose significant patterns of family dysfunction and may support a relevant diagnosis. (Commentary to Guideline 10.7).

Counsel should support requests for funds by utilizing the following when appropriate:

1. Eighth Amendment

2. Sixth Amendment Right to Counsel

3. Equal Protection Clause

4. Balance of Resource Arguments

5. Daubert/Frye

6. Due Process (Ake)

7. Relevant Statutes

8. The ABA Guidelines

In summary, counsel should make repeated requests for funds that are necessary to mount and present an adequate defense. In other words, we should never give up. The recent United States Supreme Court decisions, those of other States and jurisdictions, and the ABA Guidelines clearly recognize that without adequate funds, than the application of the death penalty is exactly as arbitrary as the disparity between the resources of the State and those that the defense lacks.

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