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CAUTION: THIS MOTION IS FILED EX PARTE
AND MUST BE MAINTAINED UNDER SEAL
IN THE CIRCUIT COURT OF_________ COUNTY, ____________
NAME OF PLAINTIFF )
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V. ) NO.
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NAME OF DEFENDANT )
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EX PARTE MOTION FOR FUNDS FOR EXPERT ASSISTANCE IN THE
FIELDS OF PSYCHIATRY/PSYCHOLOGY AND MITIGATION INVESTIGATION
COMES NOW ____________________, by his attorneys, and moves this Court
ex parte pursuant to _________ Code Ann. ___________ , ________ Const. Art. _______,
Sections ________, and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution, to order the county to provide him with funds to retain experts in the fields
of psychiatry/psychology/neurology, and mitigation investigation. As grounds for this motion,
Mr. __________ states the following:
1. Defendant is an indigent who is represented by appointed counsel. The State
has declared it will seek the death penalty in this case. To prepare adequately for this trial,
defendant needs the services of independent experts in the fields of psychiatry, neurology, and
mitigation investigation.
2. The United States Supreme Court has "long recognized that when a State
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brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take
steps to assure that the defendant has a fair opportunity to present his defense." Ake v.
Oklahoma , 470 U.S. 68, 76 (1985). See also Douglas v. California , 372 U.S. 353 (1963) (state
must insure that defendant has a meaningful chance to present his defense). As the Court in Ake
noted, this fundamental principle of due process "derives from the belief that justice cannot be
equal where, simply as a result of his poverty, a defendant is denied the opportunity to
participate meaningfully in a judicial proceeding in which his liberty is at stake." Id . The Court,
therefore, held that:
"[When a] question . . . [is] likely to be a significant factor in his
defense . . . [the defendant is] entitled to the assistance of a[n
expert] on this issue and . . . the denial of that assistance
deprive[s] him of due process."
Id . at 86-87. Specifically, the Court held that where, as here, the
defendant makes a threshold showing that his sanity is likely to be
a significant issue at trial the defendant is entitled to a psychiatrist
or psychologist to assist meaningfully in his defense. Id.
3. The __________ Supreme Court has held that
the decision in Ake applies to all experts reasonably necessary for
an effective defense. See Johnson v. State , 529 So.2d 577, 591-92
(Miss. 1988) ("an accused should . . . be afforded at State expense
an independent expert" when accused provides name, specific cost,
purpose and value of expert); Case v. State , Order, __________
Supreme Court, No. 90-M-1251 (June 20, 1991) (defendant
"entitled to funds which are sufficient to assure him the
opportunity of securing experts who represent his interest and can
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assist in preparing for cross-examination of the State's experts
rather than experts who are 'neutral.'"); Wilson v. State , 574 So.2d
1338 (Miss. 1990) (specific expenditures that may be incurred on
behalf of __________ include "the cost of an investigator, the cost
of an expert witness, and a trip to interview witnesses.")
Numerous United States Court of Appeal and State Supreme
Courts have agreed.
See Little v. Armontrout , 835 F.2d 1240 (8th Cir. 1987) (en banc)
(state's failure to provide indigent defendant with hypnotic expert
violated defendant's right to a fair trial; Ake applied even though
expert sought was not psychiatric; "[there is no principled way to
distinguish between psychiatric and nonpsychiatric experts");
Moore v. Kemp , 809 F.2d 702, 711 (11th Cir.) cert. denied , 107
S.Ct. 2192 (1987) ( Ake applied to intoxication expert); United
States v. Durant , 545 F.2d 823, 827 (2d Cir. 1976) (defendant
entitled to fingerprint expert); United States v. Patterson , 724 F.2d
1128 (5th Cir. 1984) (defendant entitled to expert when expert
testimony is pivotal); Williams v. Martin , 618 F.2d 1021 (4th Cir.
1980) (defendant denied equal protection, due process and
effective assistance by Court's failure to provide a pathologist to
assist with the defense); State v. Carmouche , 528 So.2d 159 (La.
1988) (holding that, in capital cases, 'any reasonable request of the
defendant" for expert assistance "should be granted"; trial court
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should have granted defendant's requests for "a neurologist,
psychiatrist, and any additional experts that these doctors deem
necessary," as well as "experts in fingerprint analysis and
serology"); Thorton v. State , 339 S.E.2d 240 (Ga. 1986)
(defendant entitled to funds to employ assistance of forensic dental
expert since dental evidence was important to state's case and since
experts consulted by the defense questioned the reliability of
dental impression evidence in general; "the trial court shall appoint
an appropriate professional, whose experience, at a minimum, is
substantially the equivalent to that of the state's expert witness");
Washington v. State , 800 P.2d 252 (Okla. 1990) ( Ake applied to
defendant's motion for psychiatrist, forensic odontologist and
chemist); State v. Coker , 412 N.W.2d 589 (Iowa 1987) (defendant
entitled to intoxication expert to "assist him in the evaluation,
preparation, and presentation of his intoxication defense"); State
v. Moore , 321 N.C. 327, 364 S.E.2d 648, 656-658 (1988) ( Ake
extends to any expert as to which defendant makes threshold
showing of need, including, inter alia , fingerprint expert); State v.
Bridges , 385 S.E.2d 337 (N.C. 1989) (failure to grant defendant's
motion for fingerprint expert at public expense was reversible
error).
4. Further, the Supreme Court's holding in Ake
clearly requires more than simply "the right to place the report of a
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'neutral' [expert] before the court; rather it means the right to use
the services of a[n expert] in whatever capacity defense counsel
deems appropriate . . ." Smith v. McCormick , 914 F.2d 1155,
1157 (9th Cir. 1990) (reversing death sentence because court
merely provided defendant with neutral psychiatrist). See also
Case v. State , Order, __________ Supreme Court, No. 90-M-1251
(June 20, 1991) (same); Johnson v. State , 529 So.2d 577, 591-92
(Miss. 1988) ("an accused should . . . be afforded at State expense
an independent expert" when accused provides name, specific cost,
purpose and value of expert) (emphasis added); Lindsey v. State ,
330 S.E.2d 563, 566-67 (Ga. 1985) ( Ake mandates more than
"neutral" psychiatrist; "we conclude that, in addition to examining
the defendant, the psychiatrist must assist the defense by aiding
defense counsel in the cross-examination and rebuttal of the State's
medical expert"); Knott v. Mabry , 671 F.2d 1208, 1212-13 (8th
Cir. 1982), cert. denied , 459 U.S. 851 (1982) ("[w]here there is a
substantial contradiction in a given area of expertise, it may be
vital in affording effective representation to a defendant in a
criminal case for counsel to elicit expert testimony rebutting the
State's expert testimony"); Buttram v. Black , 721 F.Supp. 1268,
1312-1313 (N.D.Ga. 1989) ("It is clear that Ake contemplates a
psychiatrist who will work closely with the defense.... Ake
requires more than explanation of psychological terms and
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assistance in preparation for cross-examination"); United States v.
Sloan , 776 F.2d 926, 929 (10th Cir. 1985) (state's duty under Ake
"cannot be satisfied with the appointment of an expert who
ultimately testifies contrary to the defense. . ."); United States v.
Durant , 545 F.2d 823, 827 (2d Cir. 1976) (Fingerprint expert
necessary to prepare counsel to cross-examine state's expert, since
"andadequate defense' must include preparation for cross-
examination of government expert as well as presentation of an
expert defense witness"). This independence is necessary if the
expert is to fulfill his or her essential functions:
First the expert can aid a defendant in determining whether a
[particular] defense. . . is warranted by the defendant's particular
circumstances. Second, the expert can coherently present to the
jury his or her observations. . . . Finally, the expert can "assist in
preparing the cross-examination' of . . . experts retained by the
government.
United States v. Fazzini , 871 F.2d 635, 637 (7th Cir. 1989), cert.
denied , 110 S.Ct. 517 (1989) (citations omitted).
5. In addition to due process considerations, the
constitutional guarantee of equal protection requires that a
defendant be provided with investigative and expert assistance
reasonably necessary to his defense. As the Supreme Court has
observed, "[t]here can be no equal justice where the kind of trial a
man gets depends on the amount of money ha has." Griffin v.
Illinois , 351 U.S. 12, 17-19 (1956). In short, in a case where, as
here, the defense may be devastated by the absence of expert
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testimony, and the accuracy of the jury's determination would be
drastically enhanced by that testimony, the Supreme Court in Ake
held that the "State's interest in its fisc" must yield to its interest in
"an accurate proceeding." Id. , 470 U.S. at 83.
6. The requirements of due process and equal
protection apply with full force to capital sentencing proceedings.
Accordingly, the Supreme Court's decision in Ake applies where a
capital murder defendant makes a threshold showing that his
mental condition will be a significant factor at the sentencing
phase. See Ake , supra , 470 U.S. at 87 (Burger, C.J., concurring).
Numerous other courts have so held. See , e.g. , Smith v.
McCormick , supra , (reversing death sentence because defendant's
right to expert assistance in presenting mitigation evidence not
satisfied by neutral psychiatrist); Harris v. Vasquez , 901 F.2d 724,
727 (9th Cir. 1990) ( Ake applies to mitigation evidence at capital
sentencing hearing); State v. Gambrell , 318 N.C. 249, 347 S.Ed.2d
390, 394 and n. 2 (N.C. 1986) (" Ake held that an indigent
defendant is entitled to state furnished psychiatric assistance on
issues relating to his mental state which may arise at a capital
sentencing hearing"); Perri v. State , 441 So.2d 606 (Fla. 1983)
(error to deny defendant assistance of a psychiatrist to develop
mitigation evidence even though defense of insanity not available);
State v. Wood , 648 P.2d 71 (Utah 1982) (same); United States v.
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Sloan , 776 F.2d 926, 929 (9th Cir. 1985) ( Ake compels
appointment of a psychiatrist to assist the defense where the
"mental condition" of the defendant is a real issue); United States
v. Crews , 781 F.2d 826 (10th Cir. 1986) (same); Holloway v.
State , 257 Ga. 620, 361 S.E.2d 794 (1987) (defendant's motion for
court appointment of independent psychiatrist held improperly
denied because he was "entitled to the kind of independent
psychiatric assistance contemplated in [ Ake ] on the questions of
competency to stand trial, criminal responsibility, and mitigation
of sentence ") (emphasis added).
7. Indeed, a defendant's need for investigative and
expert assistance is especially strong in capital cases because of the
extremely broad avenues of potentially relevant mitigation
evidence. Under the Eighth Amendment, a defendant in a capital
murder case must be allowed to proffer any evidence of mitigation
submitted as a basis for a sentence less than death. Lockett v.
Ohio , 438 U.S. 586 (1978) (plurality opinion); Jackson v. State ,
337 So.2d 1242, 1256 (Miss. 1976); Jordan v. State , 518 So.2d
1186 (1987), cert. denied , 109 S. Ct. 57 (1988); West v. State , 519
So.2d 418, 426 (Miss. 1988) (holding that exclusion of testimony
of defendant's ballistics expert constituted reversible error in both
the guilt and sentencing phases). However, the defendant's
absolute right under the Eighth Amendment to present forensic and
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medical evidence in mitigation is meaningless unless the State
provides the funds needed to produce the evidence. Westbrook v.
Zant , 704 F.2d 1487, 1496 (11th Cir. 1983). As the Court stated
in Westbrook , "[permitting an indigent capital defendant to
introduce mitigating evidence has little meaning if the funds
necessary for compiling the evidence [are] unavailable, [and the
cost of protecting a constitutional right cannot justify its total
denial." Id. at 1496. State law is in accord with this constitutional
imperative. See Miss. Code Ann. 99-15-17 (Supp. 1988) ("the
judge shall allow reimbursement of actual expenses"); Wilson v.
State , 574 So.2d 1338, 1341 (Miss. 1990) (expenses may include
"the cost of an investigator, the cost of an expert witness, and a trip
to interview witnesses").
8. In addition, a defendant is denied effective
assistance of counsel where, because of the defendant's indigence,
counsel cannot procure necessary expert assistance. Bertolotti v.
State , 534 So.2d 386, 388-89 (Fla. 1988) (relying on Ake ,
counsel's assistance held ineffective in failing to employ assistance
of mental health expert in representation of capital defendant).
Curry v. Zant , 371 S.E.2d 647 (Ga. 1987) (defense counsel held
ineffective for relying on state psychiatrist instead of seeking
independent evaluation). Adequate investigation and preparation
is an indispensable prerequisite to effective assistance, since a
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lawyer who "'does not seek out all the facts relevant to his
__________'s case is prepared to do little more than stand still at
the time of the trial'"); McQueen v. Swenson , 498 F.2d 207, 217
(8th Cir. 1984); State ex rel. Busby v. Butler , 538 So.2d 164, 169-
173 (La. 1988) (defendant denied effective assistance of counsel
because counsel failed to investigate and present to sentencing jury
facts relating to defendant's mental condition); see also , Goodwin
v. Balkcom , 684 F.2d 794, 805 (11th Cir. 1982), cert. denied , 460
U.S. 1098 (1983) ("[a]t the heart of effective representation is the
independent duty to investigate and prepare").
9. Newly-enacted federal law requires that funding
for experts and investigators be provided in capital cases arising
under federal law whenever it is reasonably necessary to the
defense:
(4) (A) Notwithstanding any other provision of law to the
contrary, in every criminal action in which a defendant is charged
with a crime which may be punishable by death, a defendant who
is or becomes financially unable to obtain adequate representation
or investigative, expert, or other reasonably necessary services at
any time shall be entitled to the appointment of one or more
attorneys and the furnishing of such other services . . . .
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 7001, 102
STAT 4181, 4393 (to be codified as amended at 21 U.S.C. 848 ).
A. Psychiatric/Psychological Assistance
10. It is indisputable that psychiatric and
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psychological matters will be an extraordinarily significant factor
at Mr. __________'s trial and sentencing proceeding. Mr.
__________ requires expert assistance to present to the jury the
full array of mitigating circumstances that exist in this case and to
rebut any State's evidence tending to show aggravating
circumstances. Mr. __________ has a constitutional right to retain
psychiatric and psychological experts to assist him in developing
mitigating evidence.
11. [ Note to Counsel : Insert possible
defense/mitigation testimony as presented in affidavit of expert you
wish to hire, e.g. "It is Dr. __________'s understanding from the
facts of this case that Mr. __________ may be psychotic as Mr.
__________ appears to exhibit delusional thinking on a regular
basis and was committed to a psychiatric institution ten years ago.
His sister reports that Mr. __________ has always insisted on
sleeping with a battered velvet rabbit whom he calls 'Mr.
__________'; currently Mr. __________ appears to be exhibiting
separation anxiety from being denied access to 'Mr. __________'
who has not yet been given a visiting day."]
12. Mr. __________ requires development of this
defense as well as development of other mitigation both statutory
and non-statutory including, but not limited to, the following:
(b) The offense was committed while the defendant was under the
influence of . . . mental or emotional disturbance.
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(e) The defendant acted under . . . duress or under the substantial
domination of another person.
(f) The capacity of the defendant to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law
was . . . impaired.
________ Code Ann. ___________
13. Mr. __________'s proposed expert is
psychologist Dr. __________. His standard evaluation fee is
$00.00 plus expenses; consulting and testimony are charged at
$00.00 per hour. Therefore, it is expected that his services will not
cost more than $00.00.
14. This mental health expert will play a critical role in the
preparation of the mitigation evidence in this case. A more
detailed summary of his preliminary findings and proposed courses
of action appears in the affidavit and vita attached hereto as
Exhibits A . Should the Court find this proffer needs to be
supplemented, Mr. __________ requests that this Court notify
counsel precisely how his proffer is inadequate so that he may
supplement it.
B. Mitigation Investigator/Social Worker
15. In order to present a competent defense at him
sentencing trial, Mr. __________ requires the services of an
independent mitigation investigator/social worker, __________
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__________. See Mason v. Arizona , 504 F.2d 1345 (9th Cir.
1974) (effective assistance of counsel guarantee of the Due Process
Clause requires, when necessary, the . . . appointment of
investigative assistance for indigent defendants in order to ensure
effective preparation of their defense by their attorneys); State v.
Hickney , 317 N.C. 457, 468, 346 S.E.2d 648, 654 (1986) ( Ake
applies to investigators); State v. Madison , 345 So.2d 485 (La.
1977) (right to private investigator may in many cases be adjunct
to right to counsel; furnishing counsel to indigent defendant is not
enough if counsel cannot secure information on which to construct
a defense). Among other things, Ms. __________ will locate and
interview potential mitigating witnesses and assist in locating Mr.
__________'s school and medical records, including those records
of his confinements at the State Hospital.
16. Defense counsel is unable without the
assistance of an investigator to interview and prepare all witnesses.
Ms. __________'s rates are $00.00 per hour, plus expenses, and
she estimates that approximately 50 hours of work may be
required. Therefore, in order to retain his services, the defense
will require approximately $00.00 in fees and reasonable expenses.
An affidavit of Ms. __________, detailing the tasks she has been
asked to perform and him compensation rates, along with a
résumé, are attached as Exhibit B . Again, should the Court find
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that this proffer needs to be supplemented, Mr. __________
requests that this Court notify counsel precisely how his proffer is
inadequate so that he may supplement it.
17. Only through the use of an investigator can Mr.
__________ adequately develop the full range of mitigating
circumstances that exist in this case. The holding in Ake --that an
indigent defendant has a constitutional right to competent,
independent psychiatric experts to assist in his defense--compels
the appointment of these mental health experts in this case, where
the defendant's psychiatric makeup will be a significant factor at
trial. Under Ake , this Court must grant Mr. __________'s motion
for funds to retain mental health experts.
For the foregoing reasons, Mr. __________ respectfully requests
that this Court grant him funds to retain a psychologist and an
investigator/social worker.
Respectfully submitted,
________________________________
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