Continuances To Ensure Competence & Independence (1)
United States v. Flynt,
756 F.2d 1352 (9th Cir. 1985), amended 764 F.2d 675 (9th Cir.
1985)
(reversing contempt conviction in part because a continuance should have
been granted so that defendant could obtain expert assistance in raising lack of
capacity defense)
Lighteard v. State,
982 S.W.2d 532 (Tx. Cr. App.
1998)
(Ake violated where expert
who had been appointed to assist in preparation of insanity defense left the practice of
clinical psychology after appointment but prior to the trial, and the court refused to grant
a continuance so defense counsel could obtain another expert; defendant was not
required to offer evidence that he was insane at time of offense in order to show
entitlement to expert assistance; appointment of "disinterested expert" who advised the
court did not satisfy Ake; defense counsel did not waive right to expert by waiting until
defendant was found competent to stand trial and a trial date was set (after several
findings of incompetency) before he contacted the expert and learned he had closed his
practice)
Frederick v. State,
902 P.2d 1092, 1098 (Ok. Ct.
Crim. App. 1995)(capital case)
(error for trial judge not to grant a continuance after a defense psychiatrist was
unable to evaluate defendant in time for trial; error was structural, as defendant's
insanity/multiple personality disorder was only possible defense and "affected the entire
conduct of the trial from beginning to end" thus obviating harmless error analysis)
State v. Eastlack,
883 P.2d 999, 1020 (Ariz. 1994), cert. denied,
115 S.Ct. 1978 (1995)(capital case)
(conviction and sentence reversed because defendant was denied
a continuance to obtain expert psychological testing and assistance; court noted
presence of several "red flags" including defendant's use of cocaine and history of
mental illness; held that remand was required because "the appointment of an
independent expert might well have produced mitigating evidence")
Hunter v. Commonwealth,
869 S.W.2d 719 (Ky.
1994)(capital case)
(finding "no
principled means of distinguishing between providing 'financial access' to a psychiatrist
. . . and providing the practical access" afforded by a continuance, court held it was
error to deny defense requests for continuance to secure further psychiatric testing that
was indicated by results of initial evaluation; error deprived defendant of opportunity
fully to develop meaningful mitigating evidence)
Ex Parte
Hearings (2)
U.S. v. Abreu,
202 F.3d 386 (1st Cir. 2000)
(defense made ex parte application under
3006A for funds for psychologist to support downward departure sentence; court would
not allow ex parte application and held adversarial hearing at which government
opposed motion and at which defense declined to place confidential matters on the
record; court denied the request and the defense therefore did not argue for downward
departure based on diminished mental capacity; Court of Appeals reversed; court relied
on Ake for proposition that defendant should have fair opportunity to marshall defense
for sentencing; not allowing ex parte application treats the indigent defendant unfairly,
requiring him to reveal matters nonindigent would not have to reveal; remanded for
consideration of ex parte application)
State v. Lee,
879 So.2d 173 (La.App. 2004)
(holding that appellant was entitled to ex
parte hearing if an in camera review revealed that defendant would
be prejudiced by a disclosure of his defense at a contradictory hearing
regarding expert funding in his pending criminal prosecution despite the
creation of the Louisiana Indigent Defense Assistance Board, which was
created to facilitate the provision of legal services to indigents)
Turpin v. Todd,
519 S.E.2d 678, 684 (Ga. 1999)
(remanding the case for a determination "whether
appellate counsel’s failure to raise in post-trial proceedings the
constitutionality of the trial court’s refusal to permit defense counsel
to apply for funds for expert assistance ex parte, constitutes
ineffective assistance of appellate counsel that would constitute
‘sufficient cause’ necessary to overcome the procedural bar erected" by appellate counsel’s failure)
Williams v. State,
958 S.W.2d 185 (Tex.Cr.App.
1997)(en banc)(capital case)
(defendant must be afforded an ex parte hearing on his motion for expert
assistance because to require disclose of defense theories to the state in order to make
the requisite showing under Ake and Caldwell v. Mississippi, 472 U.S. 320, 323-24 n.1
(1985), would not be "consistent with the due process principles upon which Ake rests")
Ex parte Moody,
684 So.2d 114, 120
(Ala.1996)
(finding "support" in Ake's concern
with fairness and in Fifth and Sixth Amendment cases, court holds defendant is entitled
to ex parte hearing on whether expert assistance is necessary)
State v. Bates,
428 S.E.2d 693 (N.C. 1993), cert. denied, 510 U.S. 984 (1993)(capital
case); State v. Ballard, 248 S.E.2d 178 (N.C. 1993), cert. denied, 510 U.S. 984
(1993)
(in order for defendant to make "particularized" showing necessary to obtain
expert under Ake while protecting defendants' rights to effective assistance of counsel
and against self-incrimination, defendant must be able to be heard ex parte and in
camera)
RIGHT
TO OTHER EXPERTS
Pediatrician
United States v. Warner,
62 M.J. 114 (2005)
(Violation of Article 46 of UCMJ when Air Force kept best shaken baby expert for itself and provided
defense with expert with no apparent experience. Prosecution expert was a pediatric specialist with special training and expertise in
shaken baby cases. Expert recommended to defense specialized in adolescents and had never handled a shaken baby case. As a
result, no expert testified for defense. The court held that the defense was not entitled to the expert of its choice but was entitled
to an adequate substitute, which might be more than required by the Ake
“competent expert” standard. The court presumed prejudice because since the defense did not have an expert it could not say how
it would have used an expert.)
State v. Burns,
4 P.3d 795, 799-803 (Utah 2000)
(defendant was charged with murder of her infant son by starvation and dehydration; defense
requested a pediatric medical expert to support defense that child's many serious illnesses caused death; trial court denied
motion for expert because defendant had retained counsel paid for by her father; defendant refused to give up retained
counsel for state-funded counsel; trial court should have determined if defendant was indigent instead of conditioning funding
for expert on defendant accepting state-funded counsel; denial of expert not harmless; remanded to determine if defendant
is indigent and therefore entitled to funds for expert; if so, new trial)
Dingle v. State,
654 So.2d 164, 166-67
(Fla.Dist.Ct.App. 1995)
(where state's experts
claimed fatal injuries were inflicted during only time infant was in defendant's care, trial
court's denial of request for pediatric specialist denied defendant the opportunity to
prepare and adequately present his defense that the injuries were inflicted earlier than
state's experts claimed)
Pathologists
Terry v. Rees,
985 F.2d 283 (6th Cir. 1993)
(defendant was denied an effective defense
when denied assistance of independent pathologist to challenge
goverment's theory regarding cause of victim's death)(error harmless
here)
State v. Burns,
4 P.3d 795 (Utah
2000)
(Medical expert necessary on cause of death to
allow meaningful defense, effective cross-examination of state's expert, and "to make
any informed decision with respect to plea bargaining")
Rey v. State,
897 S.W.2d 333 (Tex. Cr.
App. 1995)(capital case)
(after showing
reason to question state expert's opinion about mechanism of death, defendant was
entitled to pathologist to evaluate, pursue, and present a defense to intent element of
first degree murder, and to attack aggravating circumstance)(court finds error was
structural)
Harrison v. State,
635 So.2d 894 (Miss.
1994)(capital case)
(trial court's failure to
grant funds for a defense forensic pathologist and forensic odontologist resulted in
denial of due process because the only testimony on the crucial issue of whether
defendant had raped the victim prior to her death came from two state experts;
although defense motion was inadequate, inadequacy was attributed to state's
withholding of its experts' opinions in violation of discovery obligation)
Rodriguez v. State,
906 S.W.2d 70, 75 (Tex. Ct.
App. 1995)
("Meaningful access to
justice dictates that when there is a medical question as complex and central to the
case as is presented in the instant case [force required to cause brain to swell], we
must endeavor to give defendants, whose life and liberty depend upon the decision,
every reasonable opportunity to present their side of the story to the fact-finder")(error
aggravated by prosecutor's argument that defense could have used subpoena power to
call experts)(structural error)
DNA
Leonard v. Michigan,,
256 F.Supp.2d 723 (W.D.Mich. 2003)
(state court unreasonably determined defense counsel was knowledgeable and effectively cross examined state's witnesses as a basis for determining counsel did not need a DNA expert where the record revealed counsel did not prepare for suppression hearing, counsel's cross-examination was minimal and never challenged the validity of DNA evidence, and counsel lacked the necessary tools to challenge the state's witnesses; state court unreasonably ignored trial court's findings that DNA was central to the state's case who stated it was error to leave ineffective counsel on the case; state court unreasonably ignored defense counsel's admissions of ignorance and lack of preparedness with respect to DNA analysis)
State v. Scott,
33 S.W.3d 746, 752 (Tenn. 2000)
(due process required providing
defendant with funds for DNA expert; test is whether defendant is indigent and showed
a "particularized need" for expert assistance; under state law interpreting Ake,
establishing "particularized need" requires showing (1) defendant will be deprived of fair
trial without expert assistance and (2) it is reasonably likely the expert assistance will
materially assist in preparation of the case; defendant made both showings, and the
error was not harmless; new trial)
Richardson v. State,
767 So.2d 195, 197-200 (Miss. 2000)
(defendant facing rape charge was entitled to DNA
expert to analyze semen, even though state was not presenting DNA
evidence, because defendant contested penetration and state relied in
part on presence of semen to prove penetration; defendant met Ake's 3
requirements for being entitled to expert assistance)
Taylor v. State,
939 S.W.2d 148 (Tex.
Crim. App. 1996)
(where defendant was entitled to DNA
expert because expert "could buttress a viable defense," due process
needs were not met by expert who provided her report to the state
(because a true defense expert's report would have been work product),
and who was available to be "interview[ed]" by counsel (because she
could not assist defense in impeaching the accuracy of her own
tests))
DuBose v. State,
662 So.2d 1189 (Ala. 1995)(capital case)(
defendant entitled to DNA
expert because DNA evidence found in semen was only evidence linking defendant to
the crime, defense counsel could not be expected to respond to state's evidence
without expert assistance, and evidence was subject to varying expert opinions)(Ake
applies to indigent defendant who is able to retain counsel)(defense request timely;
reasonable to wait until prosecution's results were known before making request)
Cade v. State,
658 So.2d 550 (Fla. Dist. Ct. App. 1995), review denied, 663 So.2d 631
(1995)
(noting that scientific evidence is "impressive" to a jury and, in this case, the
DNA evidence was the strongest part of the prosecution's case, court reversed
conviction because of trial court's failure to provide $3,000 for defense DNA
expert)(court cites cases that refuse to apply harmless error analysis to Ake violations,
and notes there is no basis on which to find absence of expert assistance was harmless
here).
Fingerprint/Shoeprint
People v. Lawson,
644 N.E.2d 1172 (Ill.
1994)(capital case)
(a defense
fingerprint/shoeprint expert was necessary because the state relied heavily on its own
expert to place defendant at the scene of the crime and a defense expert could have
refuted the state's expert and aided the defense counsel in cross-examination)(court
found that the defense cross-examination of the state expert, which was done without
expert assistance, "could not constitute a sufficient defense on this issue")
State v. Bridges,
385 S.E.2d 337 (N.C.
1989)(capital case)
(reversal required where
state expert's testimony that latent thumbprints matched defendant was the only direct
evidence linking defendant to crime, defendant was unable to assess adequately state
expert's conclusions without expert assistance, and court could not say error was
harmless)
State v. Moore,
364 S.E.2d 648 (N.C.
1988)
(where victim was unable to identify
assailant, palm print at scene of attack was crucial to state's case; defendant's
retardation and counsel's inability to assess the reliability of the state expert's
conclusion was sufficient to show necessity and entitlement to expert under Ake without
first discrediting the state's expert testimony)
Hair/ Fiber
Williamson v. Reynolds,
904
F.Supp. 1529, 1562 (E.D. Okla. 1995), aff'd on other
grounds, sub nom., Williamson v. Ward, 110 F.3d 1508 (10th Cir.
1997)
(habeas
relief granted due to trial court's failure to provide funding for a hair and serology
experts where hair and semen samples were the only physical evidence connecting the
defendant and his co-defendant to the crime, there were conflicting expert opinions
about the hair evidence, and the state's population frequency statistics were
questionable)(court noted "when forensic evidence and expert testimony are critical
parts of the criminal prosecution of an indigent defendant, due process requires the
State to provide an expert who is not beholden to the prosecution. The fact that
forensic evidence and expert testimony are crucial to the prosecution is in and of itself a
sufficient showing of the need for expert assistance and that the defendant would be
prejudiced without it")
State v. Coffey,
389 S.E.2d 48 (N.C.
1990)(capital case)
(trial court granted funds for
expert in hair and fiber analysis, but defendant was not entitled to have conviction
reversed based on claim that trial court violated Ake by denying additional funds
because defendant failed to show denial deprived him of anything)
Handwriting
People v. Dickerson,
606 N.E.2d 762 (Ill.
App. Ct. 1992)
(trial court erred in vacating
order granting defense request for handwriting expert after state amended complaint by
dropping forgery charge and alleging only delivery of a forged document; defendant
was still entitled to expert because handwriting analysis could have forced the state to
rely solely on circumstantial evidence and could have weakened the credibility of state's
witnesses)
Arson
Sommers v. Kentucky, 843 S.W.2d 879 (Ky. 1992)(non-Ake based case)(where
cause of fire and cause of death were "matters of crucial dispute, resolvable only
through circumstantial evidence and expert opinion," defendant established "reasonable
necessity" for independent pathologist and arson expert)(defendant presented affidavits
from state experts stating that as law enforcement officers it would be a conflict of
interest for them to be confidential consultants to the defense in a criminal
case)(although case was decided on state law grounds, both sides concede that due
process requires state to provide funds necessary for indigent to mount a defense)
Gunpowder/Ballistics
Ex parte Moody,
684 So.2d 114, 119 (Ala.
1996)
(interprets Ex parte Sanders, 612
So.2d 1199 (Ala. 1993) as extending Ake to cover ballistics experts)
Commonwealth v. Bolduc,
411 N.E.2d 483 (Mass. 1980)(pre-Ake)
(where eyewitnesses were unable to say which of three holdup men
fired at police, defendant needed qualified and independent ballistician
to testify about gunpowder residue test performed on his jacket;
negative results would have supported defense that defendant was not the
shooter)
Auto
Crime
People v. Evans,
534 N.Y.S.2d 640 (N.Y. Sup.
Ct. 1988)
(due process required that
defendant--who had "succeeded in raising doubts" about ownership of vehicles he was
accused of burning-- have access to police department Auto Crime Unit experts, given
that department "holds a monopoly of expertise" on this subject)
Chemist
McBride v. State,
838 S.W.2d 248 (Tex. Ct. App. 1992)(non-Ake based case)
(error
to deny funding for services of chemist where the purity of a substance was material to
defense against charge of cocaine possession)
Toxicologist
Sanabria v. Superior Court of Santa Clara County,
2004 WL 249865 (Cal.App. 6th Dist. Feb. 11, 2004)(unpublished)
(holding the trial court abused its discretion by denying funds to retain an expert regarding the effects of alcohol and drug consumption because voluntary intoxication is relevant to specific intent notwithstanding the abolition of the diminished capacity defense)
Bright v. State,
455 S.E.2d 37 (Ga. 1995), cert. denied,
116 S.Ct. 196 (1995)(capital case)
(funds for a toxicologist were reasonably necessary to scientifically evaluate the
effects of a history of cocaine abuse on the defendant's mental condition for purpose of
presenting mitigating evidence)
City of Mount Vernon v. Cochran,
855 P.2d 1180
(Wash. App. Div. 1993)
(trial court
did not abuse its discretion by appointing expert to challenge reliability of breath alcohol
machine; defendant not required to establish admissibility of expert's testimony prior to
appointment)
State v. Volker,
477 N.W.2d 909 (Minn.
1991)
(Ake applies to request for funds for
expert evaluation of breath alcohol analyzer but defendant failed to make threshold
showing that additional funds beyond those initially approved were needed for defense)
State v. Coker,
412 N.W.2d 589 (Iowa
1987)
(applying standard that trial court should
approve request for expert where "counsel's request [for a given type of expert] is
reasonable under the circumstances and may lead to the development of a plausible
defense," court held that denial of request for expert to assist in intoxication defense
violated due process rights of defendant who had history of alcohol abuse and who
experienced withdrawal seizures and delirium after arrest)(although intoxication was not
a defense to the crime charged, expert could be used to show that condition rendered
defendant unable to form necessary intent)
Investigators
State v. Craig and State v. Harris,
637 So.2d 437 (La. 1994)(capital cases)
(both
defendants were entitled to an investigator, mitigation expert, and a psychologist)(see
further discussion, supra, § II)
In Re Wilson,
509 N.W.2d 568 (Minn.
1993)
(when state-funded public defender runs
out of money, the counties must bear the costs of providing a defendant with necessary
investigative and psychiatric services)
Bailey v. State,
424 S.E.2d 503, 508 (S.C.
1992)(capital case)
(investigator and
attorneys demanded payment above statutory caps for capital cases; state supreme
court found that the caps could not be interpreted as absolute limits on compensation
and that counties must provide necessary funding once caps are reached; additional
funding was necessary due to "the extraordinary time, effort, and commitment required
of defense counsel in capital cases")
Mitigation Specialist
United States v. Kreutzer,
61 M.J. 293 (2005)
(Kreutzer was the subject of stress and taunts in the military, had a very difficult time adjusting, and expressed
homicidal ideation prior to his crimes involving murder and attempted murder. Mental health professionals, both pre- and post-arrest described
him as “seriously and chronically mentally ill.” Prior to trial, Kreutzer requested, and was denied, the assistance of a mitigation specialist. The
lower court found that the denial of the expert deprived Kruetzer of due process. The Army appealed the courts ruling that the error was not
harmless. In an extensive analysis with a wealth of helpful language, the appellate court found that the error was not harmless because a
mitigation specialist could have assisted counsel in gathering, analyzing, and formulating mental health evidence, which a PCR social history
demonstrated was abundant, and identifying experts to present it as it related to state of mind.)
United States v. Kreutzer,
59 M.J. 773 (Army Crim. App. 2004)
(trial court's denial of funds for a mitigation specialist, a person to conduct "an inter-disciplinary, scientific analysis of
the psycho-social history of an individual," was not harmless error because the record revealed appellant's history of mental problems)
Commonwealth v. Shabazz,
2003 WL 1847388 (Va.Cir.Ct. 2003)(capital case)
(authorizing employment of a mitigation specialist in capital case for a maximum of twenty hours to develop evidence to demonstrate a "particularized need" for further mitigation specialist services)
Williams v. State,
669 N.E.2d 1372 (Ind.
1996)(capital case)
(trial court's limitation of
mitigation expert services to 25 hours per week was arbitrary and an abuse of
discretion; however, error was harmless because sufficient mitigating evidence was
presented at sentencing (jury deadlocked on punishment))
State v. Craig and State v. Harris,
637 So.2d 437, 447 (La. App. 1994)(capital
cases)
(both defendants were entitled to an investigator, mitigation expert, and a
psychologist)(see further discussion, supra, § II)
Social
Worker
In Matter of Application by Director of Assigned Counsel of New York,
603
N.Y.S.2d 676 (N.Y. Sup. Ct. 1993), aff'd,
207 A.2d 307 (N.Y. Sup. Ct. 1994)
(court
found that a reasonable fee for a certified social worker assigned to provide expert
services to an indigent defendant was $100 per hour and refused to reduce amount of
ordered payment to rate established in administrative guidelines)
Jury
Selection
Corenevsky v. Superior Court,
682 P.2d 360 (Ca. 1984); In re Titsworth (pre-Ake)
(trial judge's grant of funding for a jury selection expert was not an abuse of
discretion because the record contained ample evidence to support the request; court
abused its discretion by refusing to grant funding for law clerk services)
Hypnotists
Little v. Armontrout,
835 F.2d 1240 (8th Cir. 1987), cert. denied,
487 U.S. 1210 (1988)
(denial of state-provided hypnosis expert to assist in challenging rape victim's
post-hypnotic identification of defendant "probably had a material impact on the trial"
and denied defendant due process of law)
Other
Ex parte Moody, 684 So.2d 114 (Ala. 1996)(capital case)(capital
defendant entitled to a competent expert in the field of expertise that
has been found necessary to his defense)
1. See also Walker v. Attorney General, 167 F.3d 1339 (10th Cir. 1999)(where the
psychologist appointed by the court to determine trial competency recommended complete
psychiatric and psychological examination and the defense's psychiatrist recommended
neurological exam, under Ake capital murder defendant was entitled to a
continuance or the provision of funds so he could obtain a neurological
examination, but error was harmless)
2. Other pertinent cases in which the defendant was ultimately unsuccessful include:
Brooks v. State, 385 S.E.2d 81, 84 (1989), cert. denied, 494 U.S. 1018 (1990)(indigent defendant
who seeks appointment of expert is entitled to ex parte hearing on the motion); Arnold v. Higa,
600 P.2d 1383, 1385 (1979)(indigent defendant should be given opportunity to explain need for
expenses in ex parte hearing upon request, so that defendant can particularize reasons without
disclosing to State defensive theories); State v. Touchet, 642 So.2d 1213, 1219-21
(La.1994)(indigent defendant is entitled to make initial ex parte application for government
funding of expert assistance, but must make showing of prejudice in order to get ex parte hearing
on the application); People v. Loyer, 425 N.W.2d 714, 722-23 (1988)(holding unconstitutional
statute requiring disclosure to State of witness' names and expected testimony in order for
indigent defendant to obtain payment of subpoena and witness fees); McGregor v. State, 733
P.2d 416 (Okla.Crim.App.1987)(hearing on Ake motion must be conducted ex
parte); State v.
Barnett, 909 S.W.2d 423, 429-30 (Tenn.1995)(ex parte hearing
required in context of indigent's request for psychiatric
expert).