CASES NOT RELYING ON AKE

 

Williams v. Martin, 
618 F.2d 1021 (4th Cir. 1980)

(trial court's denial of motion for funds to retain a forensic pathologist violated defendant's rights to due process and effective assistance of counsel; victim died from a blood clot eight months after defendant shot her; expert was necessary to challenge accuracy of autopsy and state pathologist's opinion that clot was secondary to paraplegia caused by gun shot)

United States v. Hartsfield, 
513 F.2d 254 (9th Cir. 1975), 

(where experts and the court agreed that electroencephalogram (EEG) would be useful in explaining defendant's mental state at time of and shortly after offense, defendant had due process right to have EEG paid for pursuant to § 3006A)

Jacobs v. United States,
350 F.2d 571 (4th Cir. 1965)

(defendant was entitled to appointment of independent psychiatrist in collateral action challenging mental state at the time he pled guilty; defendant introduced lay testimony indicating he had an IQ of 57 and a history of mental problems, but was "restricted by the lack of such light as only a psychiatrist might have furnished")

State v. Punsalan,
133 P.3d 934 (Wash. 2006)

Indigent robbery and manslaughter defendants each retained private counsel, but moved for funds for expert assistance pursuant to a state statute that effectuates the requirements of Ake. The trial court found that defendants waived their right to state funds for expert assistance when they retained private counsel. The Supreme Court of Washington reversed, holding that the plain language of the statute entitled the defendants to funds for expert assistance and that such an outcome reinforced the right to counsel of one’s choice, and was “sensible policy” because it encouraged people to retain counsel and defray the costs of their defense.

State v. Brown,
134 P.3d 753 (N.M. 2006)

Indigent defendant represented by pro bono counsel requested funds from Public Defender for expert witness fees. Motion was denied. The New Mexico Supreme Court held that the federal and state constitutions guaranteed both the right to counsel and the right to tools for an adequate defense. The fact that the Public Defender has been designated the steward of the money does not relieve the court from its obligation to protect the rights of all indigent defendants. This outcome also supported as a matter of policy because participation of pro bono counsel would be chilled if they were required to take on all expert fees. The court notes that a majority of states have taken a similar approach.

State v. Carol M.D.,
948 P.2d 837 (Wash. Ct. App. 1997)

(parents accused of sexual abuse were denied due process when trial court refused request for appointment of expert on false memory syndrome; child denied memory of abuse until just before trial and after being subjected to improper and suggestive interview techniques)

State v. Greene, 
438 S.E.2d 743, 745 (N.C. 1994)(capital case)

(denying an ex parte hearing on defendant's motion for psychiatric expert compromised his right against self-incrimination and to effective assistance of counsel)(the court "cannot know what evidence defendant would have presented at an ex parte hearing[; w]ithout that knowledge, . . . cannot deem the error here harmless beyond a reasonable doubt")

Polk v. State, 
612 So.2d 381 (Miss. 1992)

(in an appendix to its opinion adopting a test for the admissibility of DNA evidence, the court "set forth guidelines for the bench and bar on DNA testing"; citing Ake, court states it is "imperative that no defendant have [DNA] evidence admitted against him without the benefit of an independent expert witness to evaluate the data on his behalf")

State v. Sireci, 
536 So.2d 231 (Fla. 1988)(capital case)

(post-conviction relief granted where court appointed psychiatrist's evaluation was not competent due to failure to test for organic brain damage, depriving the defendant of opportunity to develop facts in support of mitigation)

Mason v. State, 
489 So.2d 734 (Fla. 1986)(capital case)

(remanded for evidentiary hearing to determine the adequacy of a prior examination in light of new evidence of brain damage, mental retardation, drug abuse, and psychotic behavior)

Arnold v. Higa, 
600 P.2d 1383 (Co.Ct.App. 1984)

(if a criminal defendant is unable to pay for certain necessary defense services, the fact that he is represented by retained counsel does not preclude state funding for expenses; a defendant who requests investigative services should be given an opportunity to demonstrate his indigence and the necessity of the services in presenting an adequate defense)(petition for writ of prohibition against judge was appropriate)

English v. Missildine, 
311 N.W.2d 292 (Iowa 1981)

(defendant with retained counsel could not afford an investigator or a handwriting expert; court held that the Sixth Amendment right to effective assistance of counsel entitles a defendant to investigative services at public expense once his indigence is established)