Amicus Curiae Brief — McWilliams v. Dunn, 137 S. Ct. 808 (2017) (No. 16-5294)

IN THE

Supreme Court of the United :

JAMES EDMOND MCWILLIAMS, JR.,

Petitioner,

JEFFERSON 8S. DUNN, COMMISSIONER, ALABAMA

DEPARTMENT OF CORRECTIONS, et ai.,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES

Court or APPEALS FOR THE ELEVENTH Circuit

= nm

BRIEF OF THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE, NATIONAL LEGAL AID AND DEFENDER

ASSOCIATION AND TWENTY-THREE CAPITAL ATTORNEYS

AND INVESTIGATORS AS AMICI CURIAE IN

SUPPORT OF PETITIONER

JANET Moore, Co-Chair,

Amicus Committee, National

Association for Public Defense

For identification purposes only:

ASSOCIATE PROFESSOR

UNIVERSITY OF CINCINNATI

COLLEGE oF LAW

2540 Clifton Avenue

Cincinnati OH 45221

Jo-ANN WALLACE, President

and CEO

Travis STEARNS, of Counsel

NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION

1901 Pennsylvania Avenue, N W,

Suite 500

Washington, DC 20006

Georce H. KENDALL

Counsel of Record

JENAY NURSE

Corrine A. IRISH

Squire Parton Boces (US) LLP

30 Rockefeller Plaza

New York, New York 10112

(212) 872-9800

george.kendall@squirepb.com

Davip Oscar Markus, Co-Chair,

Amicus Committee Nationa]

Association of Criminal

Defense Lawyers

40 NW Third Street, PH!

Miami, FL 33128

I.

If.

i

TABLE OF CONTENTS

AKE V. OKLAHOMA CLEARLY

ESTABLISHED AN INDIGENT

DEFENDANT'S RIGHT TO THE

ASSISTANCE OF AN INDEPENDENT

MENTAL HEALTH EXPERT AT A

CAPITAL SENTENCING

IEE i chindalastndssnediinishataneneduscesemnsecetiods 3

A. Ake Unequivocally Requires

the Provision of an

Independent Expert........................65. 5

B. Ake’s Requirement of a State

Funded Mental Health Expert

Reinforced Pre-existing State

Practice in Most Jurisdictions........... 7

IN THE INITIAL YEARS AFTER AKE

STATE LAW IN NUMEROUS

CAPITAL JURISDICTIONS

SUPPORTED THE RECOGNITION OF

STATE-FUNDED EXPERTS AS

INDEPENDENT OF THE STATE .................. 8

A. Texas, Florida, and California

Law Recognized that Court-

Appointed Defense Experts

Must Be Independent........................ i)

B. Georgia, North Carolina and

Virginia Construed Ake as

Requiring an Independent

Ill.

CONCLUSION

il

C. Other States With the Death

Penalty During This Time

Recognized the Independence

of Defense Experts......................0005. 15

ON-THE GROUND PRACTICES IN

EIGHTEEN THEN-ACTIVE

JURISDICTIONS SHOW

INDEPENDENT EXPERT

ASSISTANCE WAS AVAILABLE

UPON A SUFFICIENT

DEMONSTRATION OF NEED..................... 17

A. RAE Rea Se rece earner WERE, 18

B. | ETE aa cP een 19

C. a 20

D. a 20

E. ESSERE Reh a ernPee st arar ee 22

F. I ECT aR A Ree MNT 23

G. CS EERE Wee emer en eee eeen Waee 24

H. ET ERIE SESEEES Bea aver Mee Oe = 25

I. ESSERE ean POSE 26

J. aE AER RE Sea 27

K. LCT a RP Oe oe 27

L. EEA Sanne aoe ae tein Pre 29

M. EEE Renee oe eee 29

N. Ni itostsaninatieencatientig ton 30

QO. Ed Ce ee ESR a 31

,. ERIE ERE ESSER Pera atcene we neem nttee 31

Q. PIII sine senkctonslociniesniunnosiaaiuna 32

R. , SLATS PAN SE MY See a P” 33

SPAS AE Mig Ce EO OR UN DN Peg ee BS 35

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ake v. Oklahoma,

ee Te i atsncicnscessbeccessccesesesancctseene: passim

Ballew v. State,

640 S.W.2d 237 (Tex. Crim. App.

DEPT acdcndedsseceecesconcsveserssecesedesendsoesencesecccscsvseneescecess 12

Barefoot v. Estelle,

i I ona os igs adabinndianenubenuaadebebaii A

Burns v. Ohio,

EE oss sed ceaamegnmendinsbsbineesed eamanetes 4

De Freece v. State,

848 S.W.2d 150 (Tex. Ct. Crim. App.

ae 12, 13

Douglas v. California,

Sa sss sens dnnebononsadeniilaia 4

Evitts v. Lucey,

I censuenadbionsseenuvenuenines 4

Furman v. Georgia,

EE IS RITES SE pe Rie BOERNE RAPE REE 9

Gideon v. Wainwright,

a iensiiamnianpnnendepnenineteie 4

Griffin v. Illinois,

Be Gre Bae Ci nsesecscncccosccsccnncecssoncscsosesssedexvisioss 4

iv

Hicks v. Commonwealth,

670 S.W.2d B37 (Ky. 1984).....cesccccscreeerensseenensneens 29

Holloway v. State,

9861 S.E.2d 794 (Ga. 1987). ....ccccceeesseneeeeereenereeenees 13

Hutchinson v. People,

742 P.2d 875 (Colo. 1987) -.-.....-cceeeereeeeeeerenneeeeeenes 16

Lindsey v. State,

330 S.B.2d 563 (Ga. 1985) .....cccccceerreeeeeeeeennees 14, 15

McWilliams v. State,

BAO So. 2d QBZ (1991) .....cccceceereeseererreeeeereneneneeesersnes 4

Miller v. District Court,

737 P.2d B34 (Colo. 1987) .....ccceececereeereeeererenerees 16

In re Ochse,

938 P.2d 561 (Cal. 1951) ......cccccceeeeeseeereeneeeees 10, 11

People v. Lines,

531 P.2d 793 (Cal. 1975) .......cccccceccecereeeeereeeeererenns 11

Rose v. State,

506 So. 2d 467 (Fla. Dist. Ct. App.

United States ex rel. Smith v. Baldi,

344 U.S. 561 (1953).......cccccereceeeessseesneeneesennannensanens 5

State v. Clemons,

363 A.2d 33 (Comm. 1975). ..c.cecercerersieeereeeeeeeerrensees 16

State v. Gray,

126 Conn. App. 512 (2011)...ccccccereereeererrrrrreeeeres 16

State v. Kociolek,

EBD A.BE BIT (IGT) oncece. ccccccescsoonsscevccseveres

State v. Moore,

364 S.E. 2d 648 (N.C. 1988).................08

State v. Pratt,

398 A.2d 421 (Md. 1979) ....................0000s.

Strickland v. Washington,

gS re

Tuggle v. Commonwealth,

334 S.E.2d 838 (Va. 1985)............ccceeeeeeees

Statutes

Ohio Rev. Code section 2929.024..................

§18 U.S.C. 3006A (1)(1982)...................2e0ee0e

Vt. Stat. Ann. Tit. 13, § 7101 et seq. .............

Other Authorities

ee Be re. BP, FN ONO vciccacccccceccscccsesusens

http://www.bjs.gov/index.cfm?ty=pbdeta

U&iid=3595 (last visited Mar. 1,

SPEED ekinhcheinistscepesksnusabminstinnninbalidaniiiimnssneds

http://www.bjs.gov/index.cfm?ty=pbdeta

il&iid=4066 (last visited Mar. 1,

jineniesbmnin 9

vi

http://www.deathpenaltyinfo.org/new-

hampshire-l#sent;

ff e enaltyinfo.org/sou

th-dakota-O#sent (last visited Mar.

By UD toctntticincmeenias

Supreme Court Rule 37

INTEREST OF AMICUS CURIAE

Undersigned amici are lawyers and investigators

who were on the ground representing indigent

defendants when Ake v. Oklahoma, 470 U.S. 68

(1985), was announced. Collectively, we are public

defenders, solo practitioners, and investigators who

have sought to ensure that indigent clients secure

expert assistance necessary for a proper defense.

Amici believe the reported cases in the first six years

after Ake was decided fail to fully capture how Ake,

in conjunction with state law, was applied to death

penalty cases. Amici were practicing in trial courts

where the state was seeking the death penalty and

have first-hand experience with Ake’s application

during those years.

This brief is also submitted on behalf of three

prominent non-profit legal organizations: the

National Association of Criminal Defense Lawyers

(NACDL), The National Legal Aid & Defender

Association (NLADA), and the National Association

of Public Defense (NAPD). NACDL is a nonprofit

voluntary professional bar association that works on

behalf of criminal defense attorneys to ensure justice

and due process for those accused of crime or

misconduct. NACDL was founded in 1958. It has a

nationwide membership of many thousands of direct

members, and up to 40,000 with affiliates. NACDL

members include private criminal defense attorneys,

public defenders, military defense counsel, law

professors, and judges.

NACDL is the only nationwide professional bar

association for public defenders and private criminal

defense lawyers. NADCL is dedicated to advancing

the proper, efficient, and just administration of

2

justice. NACDL files numerous amicus briefs each

year in the United States Supreme Court and other

federal and state courts, seeking to provide amicus

assistance in cases that present issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal] justice system as a whole.!

NLADA, founded in 1911, is America’s oldest and

largest nonprofit association devoted to excellence in

the delivery of legal services to those who cannot

afford counsel. For 100 years, NLADA has pioneered

access to justice and right to counsel at the national,

state, and local level. NLADA serves as a collective

voice for our country’s public defense providers and

civil legal aid attorneys and provides advocacy,

training, and technical assistance to further its goal

of securing equal justice. The Association pays

particular attention to procedures and policies that

affect the constitutional rights of the accused, both

adults and youth.

NAPD is an association of more than 14,000

professionals who deliver the right to counsel

throughout all U.S. states and territories. NAPD

members include attorneys, investigators, social

workers, administrators, and other support staff who

are responsible for executing the constitutional right

to effective assistance of counsel, including regularly

researching and providing advice to clients in death

penalty cases. NAPD’s members are the advocates in

! Pursuant to Rule 37, counsel note this brief was not

authored by counsel for either party, and neither the parties

nor their counsel have made any monetary contributions to the

preparation or submission of this brief. The law firm of Squire

Patton Boggs (US) LLP undertook the printing and filing of this

brief on a pro bono basis. The parties have consented to the

filing of this brief.

3

jails, in courtrooms, and in communities and are

experts in not only theoretical best practices, but also

in the practical, day-to-day delivery of services. ‘Their

collective expertise represents state, county, and

local systems through full-time, contract, and

assigned counsel delivery mechanisms, dedicated

juvenile, capital and appellate offices, and through a

diversity of traditional and holistic practice models.

NAPD provides webinar-based and other training to

its members, including training on the utmost

importance of providing vigorous defense advocacy in

all phases of capital litigation. Accordingly, NAPD

has a strong interest in the issue raised in this case.

SUMMARY OF THE ARGUMENT

We submit this brief to make three important

points. First, Ake itself clearly and unambiguously

held as a matter of due process that indigent capital

defendants must be provided with independent

expert assistance upon a reasonable showing of need.

The Court was unanimous on this point and swept

aside aging precedent that had held provision of

neutral assistance was adequate.

Second, Ake was hardly a revolutionary decision. As

the Court noted, many states already provided

expert assistance. In the first six years after Ake,

numerous states explicitly held independent expert

assistance must be provided upon an adequate

showing of need.

Third, the full story of the availability of

independent expert assistance for indigent capital

defendants cannot be fully appreciated from

inspection of reported case law. We show that in

nearly 20 capitally-active jurisdictions, trial courts

4

and public defender offices routinely provided for

independent expert assistance upon a showing of

need. These practices are found in the policies and

practice of those defender offices and in often sealed

orders of the trial court. They are confirmed by

twenty-three distinguished amici who were in the

capital trial court trenches in the 1980s and early

1990s.

ARGUMENT

I. AKE V. OKLAHOMA CLEARLY

ESTABLISHED AN INDIGENT

DEFENDANT’S RIGHT TO THE

ASSISTANCE OF AN INDEPENDENT

MENTAL HEALTH EXPERT AT A

CAPITAL SENTENCING PROCEEDING

In Ake v. Oklahoma, 470 US 68 (1985), this Court

plainly recognized that in the context of capital

sentencing, a defendant is entitled to an independent

mental health expert upon an adequate showing of

need. When discussing the penalty phase of trial in

Ake, the Court explained it was upholding the

practice of permitting psychiatric testimony on the

question of future dangerousness where “the

defendant has had access to an expert of his own.”

Ake, 470 U.S. at 84 (citing Barefoot v. Estelle, 463

U.S. 880, 896-905 (1983)) (emphasis added).

Acknowledging the importance of the factfinder

having both views of the prosecutor’s psychiatrists

and the “opposing views of the defendant’s doctors,”

Ake, 470 U.S. at 84 (quoting Barefoot, 463 U.S. at

899), the Court determined that fair adjudication in

capital sentencing proceedings, where the state

5

presented psychiatric evidence, required that a

defendant have access to an independent expert. The

Court emphasized that without such assistance there

is a risk that the “ultimate sanction” could be

“erroneously imposed.” Jd.

This right derives from the Court’s evolving

recognition of due process and meaningful access to

justice for indigent defendants.” Fundamental

fairness requires that indigent defendants possess

the tools necessary to mount an effective defense or

appeal. Ake, 470 U.S. at 77. The Court has “required

that such tools be provided to those defendants who

cannot afford to pay for them.” Jd. Depriving

indigent defendants of an independent expert to

assist in developing a defense or _ providing

meaningful assistance at the capital sentencing

hearing, as the court did in McWilliams v. State, 640

So. 2d 982 (1991), denies defendants a basic defense

tool and is inconsistent with Ake and its progeny.

A. Ake Unequivocally Requires the

Provision of an Independent Expert

In Ake, the Court explicitly rejected as inadequate

the state trial court’s reliance on the decision in

2 See Griffin v. Illinois, 351 U.S. 12 (1956), entitling

indigent defendants to transcripts necessary for appeal; Burns

v. Ohio, 360 U.S. 252 (1959), holding that indigent defendants

are not required to pay a fee before filing a notice of appeal;

Gideon v. Wainwright, 372 U.S. 335 (1963), entitling indigent

defendants to the assistance of counsel at trial; Douglas v.

California, 372 U.S. 353 (1963) entitling indigent defendants

the right to counsel on the first direct appeal as of right;

Strickland v. Washington, 466 U.S. 668 (1984), establishing

defendant’s right to effective assistance of counsel at trial;

Evitts v. Lucey, 469 U.S. 387 (1985), holding that counsel in

appellate proceedings must be effective.

6

United States ex rel. Smith v. Baldi, 344 U.S. 561

(1953), where the Court determined that no

additional expert assistance was required after a

neutral mental health expert examined the

defendant. Ake, 470 U.S. at 84-85. The Court

fundamentally disagreed with the state trial court’s

reliance on Smith, explaining that Smith was

decided during a period when “indigent defendants

in state courts had no constitutional right to even the

presence of counsel.” Jd. at 85. The Court recognized

that since Smith, not only has psychiatry played an

enhanced role in criminal law, but there has also

been an “increased commitment to assuring

meaningful access to the judicial process” and

“fundamental fairness today requires a different

result.” Id.

The Court’s recognition of the pivotal role of

mental health experts to the defense and the

adversary process provides further support that the

Court contemplated this role to be independent of the

prosecution. At capital sentencing, the Court

emphasized that the need for meaningful psychiatric

testimony is especially relevant to the defense

because it provides “an expert’s well-informed

opposing view” and without such testimony a

defendant “loses a significant opportunity to raise in

the jurors’ minds questions about the State’s proof of

an aggravating factor.” Denial of meaningful

assistance of an independent expert at capital

sentencing is a denial of due process. The Court in

Ake believed that “due process requires access to a

psychiatric examination on relevant issues, to the

testimony of a psychiatrist and to the assistance in

preparation at the sentencing phase.” /d. at 84.

7

Additionally, Ake emphasized the role of the

psychiatrist as one who will “conduct a professional

examination on issues relevant to the defense, to

help determine whether the insanity defense is

viable, to present testimony, and to assist in

preparing the cross-examination of a_ State's

psychiatric witnesses.” Ake, 470 U.S. at 82. The

consistent theme of the aforementioned

responsibilities is the expert’s assistance and

dedication to the defense. The Court further

explained what the assistance of a _ psychiatrist

entailed “gather{ing|] facts, through professional

examination, interviews, and elsewhere, that they

will share with the judge or jury; they analyze the

information gathered and from it draw plausible

conclusions about the defendant’s mental condition,

and about the effects of any disorder on behavior;

and they offer opinions about how the defendant's

mental condition may have affected his behavior at

the time in question.” Jd. at 80. These important

duties cannot be satisfied without independence from

the prosecution and allegiance to the defense. A

neutral expert cannot effectively aid in mounting a

defense. The defendant and defense attorney cannot

be completely candid with a neutral expert, without

concerns about that expert’s split allegiances,

conflicts of interest or possible divulgence of

damaging information. Consultation with a neutral

expert has the potential to undermine the defense

and is not the type of expert assistance envisioned by

this Court in Ake.

Even then-Justice Rehnquist, the sole dissenter

in Ake, recognized that the holding in Ake entitled

the defendant to an independent expert. Ake, 470

U.S. at 92 (Rehnquist, J, dissenting). In his view, if

a defendant is entitled to an expert, it should not be

8

one who would assist in “evaluation, preparation,

and presentation of the defense.” Jd. at 92. He

recognized “unfairness” would arise if the only

competent witnesses on the question of sanity were

hired by the state. Jd. Instead, he believed that “all

the defendant should be entitled to is one competent

opinion—whatever the witness’ conclusion—from a

psychiatrist who acts independently of the

prosecutor's office.” Jd. The bottom line of Justice

Rehnquist's dissent was to narrow the role of the

expert to the bare minimum to ensure fairness—

independence from the prosecution.

B. Ake’s Requirement of a State

Funded Mental Health Expert

Reinforced Pre-existing State

Practice in Most Jurisdictions

The Ake Court recognized that provision of a

mental health expert to assist the defense was

neither a novel idea nor over burdensome to the state

since “[mJore than 40 states, as well as the Federal

Government, have decided either through legislation

or judicial decision that indigent defendants are

entitled, under certain circumstances, to the

assistance of a psychiatrist's expertise.” Ake, 470

U.S. at 79. The Court listed statutes and cases going

as far back as 1977, where states, including those

who enforced the death penalty, entitled indigent

defendants to state funded expert assistance in

capital and noncapital cases. Jd. at n.4. Additionally,

the Court emphasized that a federal statute already

provided for “the assistance of all experts necessary

for an adequate defense.” Ake, 470 U.S. at 79-80

(quoting §18 U.S.C. 3006A_ (1)(1982)). Ake

constitutionalized what was already existing federal

9

and state practice, “these statutes and court

decisions reflect a reality that we recognize today,

namely, that when the State has made the

defendant’s mental condition relevant to his criminal

culpability and to the punishment he might suffer,

the assistance of a psychiatrist may well be crucial to

the defendant’s ability to marsha! his defense.” Jd. at

80.

Il. IN THE INITIAL YEARS AFTER AKE

STATE LAW IN NUMEROUS CAPITAL

JURISDICTIONS SUPPORTED THE

RECOGNITION OF STATE-FUNDED

EXPERTS AS INDEPENDENT OF THE

STATE

Between 1985, when Ake was decided, and 1991,

when Petitioner McWilliams’ conviction was

affirmed, 34 states used capital punishment; the

remaining jurisdictions either de facto or by law had

no operational death penalty during this time.®

8 By 1991, the following jurisdictions did not have the death

penalty: Alaska, District of Columbia, Hawaii, lowa, Kansas,

Maine, Massachusetts, Michigan, Minnesota, New York, North

Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.

Bureau of Justice Statistic Bulletin: Capital Punishment 1991

(“BJS Bulletin 1991”), Dept. of Justice at 1, 5, Oct. 1, 1992,

available at http://www. bis.gov/index.fm?t v=pldetanl& iid=4066

(last visited Mar. 1, 2017). While Vermont had a death penalty

statute in 1985, Vt. Stat. Ann. Tit. 13, § 7101 ef seq., it was

invalidated by Furman v. Georgia, 408 U.S. 238 (1972), and

never amended. Therefore, while Vermont is the only state of

the above jurisdictions listed that is included in the 1985 BJS

Bulletin as a jurisdiction with death penalty law, it effectively

did not have the death penalty. See Bureau of Justice Statistic

Bulletin: Correctional Populations in the United States, 1985

(“BJS Bulletin 1985”), Dept. of Justice, at 106-107, Dec. 1, 1987,

available at Iii p//www_bjs.gov/index.cfm?ty=pbdctal&iid=3695

(last visited Mar. 1, 2017) (reporting Vermont had no prisoners

10

During this time, courts in a significant number of

these states recognized Ake required an independent

expert.

A. Texas, Florida, and California Law

Recognized that State-Funded

Defense Experts Must Be

Independent

By 1991, Texas had 340 death-sentenced

prisoners; Florida had 311 death-sentenced prisoners

and California had 301 death sentenced prisoners —

combined representing 38% of prisoners sentenced to

death in the United States at that time. All three

states around the time Mr. McWilliams’ conviction

was affirmed explicitly required that court-appointed

and funded criminal defense experts be independent

from the State.

Dating back to 1980, Florida required that “where

counsel has reason to believe that the defendant may

be incompetent to proceed or that the defendant may

have been insane at the time of the offense” the court

under sentence of death in 1985). Further, between 1985 and

1991, New Hampshire and South Dakota imposed no death

sentences. State-by-State Database, Death Penalty Information

Center, available at http://www. deathpenaltyinfo.org/new-

hampshire-l#sent, /hws /

dakota-O#sent (last visited Mar. 1, 2017). The BJS Bulletin

1991 also confirms that these states had no prisoners under

sentence of death by yearend 1990 and 1991. See BJS Bulletin

1991, at 8; See also BJS Bulletin 1985 at 107 (reporting that

New Hampshire and South Dakota had no prisoners under

sentence of death at yearend 1985); Bureau of Justice Statistic

Bulletin: Capital Punishment 1987 (“BJS Bulletin 1987”), Dept.

of Justice, at 6, July 1, 1988 (reporting that Vermont, New

Hampshire and South Dakota had no prisoners under sentence

of death at yearend 1987).

* BJS Bulletin 1991, at 1. The total population of death-

sentence prisoners was 2482 in 1991. /d.

must “appoint one expert to examine the defendant

in order to assist counsel in the preparation of the

defense” who “shall report only to the attorney for

the defendant and matters related to the expert shall

be deemed to fall under the lawyer-client privilege.”

Fla. R. Crim. P. Rule 3.216, Insanity at Time of

Offense or Probation or Community Control

Violation: Notice and Appointment of Experts (eff.

July 1, 1980; amended Jan. 1, 2010) (allowing the

appointment of additional experts upon motion of the

state or defense); see Rose v. State, 506 So. 2d 467,

471 (Fla. Dist. Ct. App. 1987) (discussing the one

expert for the defense requirement).

In 1951, California recognized that where defense

counsel requires a psychiatrist’s aid in interpreting

defendant’s mental condition, the defendant is

entitled to a _ private consultation with that

psychiatrist. In re Ochse, 238 P.2d 561, 562 (Cal.

1951). In Ochse, a psychiatrist retained by the

defense was denied a private examination of

defendant, who was confined pre-trial because the

sheriff overseeing the jail would only allow the

examination to be conducted “in the presence of

alienists appointed by the court.” Jd. at 561. In

granting relief to the defendant, the court reasoned

that:

A fundamental part of the

constitutional right of an accused to be

represented by counsel is that his attorney

must be afforded reasonable opportunity to

prepare for trial. To make that right effective,

counsel is obviously entitled to the aid of such

expert assistance as he may need in

determining the sanity of his client and in

preparing the defense. Adequate legal

12

representation, of course, requires a_ full

disclosure of the facts to counsel, and in order

to assure that a client may safely reveal all

the facts of his case to his attorney, the law

has long recognized the need for secrecy with

respect to communications between them.

Id. (internal citations omitted)

Subsequently, in 1975, the California Supreme

Court made clear that court-appointed experts must

be held to the standard in Ochse. In People v. Lines,

the court held that where a psychotherapist is

appointed by the court in a criminal proceeding to

examine the defendant in order to provide the

defendant’s attorney with information, “the results of

such examination, including any report thereof, and

all information and communications relating thereto,

are protected from disclosure by the attorney-client

privilege notwithstanding the fact that the defendant

has theretofore or thereafter tendered in said

proceeding the issue of his mental or emotional

condition.” 531 P.2d 793, 802-03 (Cal. 1975).

By 1980, Texas recognized that the attorney

client privilege attached to “psychiatrists hired by

the defense attorney to aid in the preparation of a

sanity defense.” Ballew v. State, 640 S.W.2d 237, 240

(Tex. Crim. App. 1980). Following Ake, the Texas

Court of Criminal Appeals, in 1993, consistent with

“the greater weight of authority”, held that when

mental health is at issue, the provision of “a single

neutral psychiatrist to service both parties” cannot

be sufficient to mect the due process minimum of

Ake. De Freece v. State, 848 S.W.2d 150, 158 (Tex.

Ct. Crim. App. 1993) (holding that trial court erred

in denying appellant’s request for the appointment of

13

a psychiatrist to aid in the preparation and

presentation of his insanity defense in the penalty

phase). The court in De Freece found that:

In an adversarial system due process

requires at least a reasonably level

playing field at trial. In the present

context that means more than just an

examination by a “neutral” psychiatrist.

It also means the appointment of a

psychiatrist to provide technical

assistance to the accused, to help

evaluate the strength of his defense, to

offer his own expert diagnosis at trial if

it is favorable to that defense, and to

identify the weaknesses in the State’s

case, if any, by testifying himself and/or

preparing counsel to cross-examine

opposing experts. We recognize that the

accused is not entitled to a psychiatrist

of his choice, or even to one who believes

the accused was insane at the time of

the offense. Ake makes this much clear.

But even a psychiatrist who ultimately

believes the accused was sane can prove

invaluable by pointing out contrary

indicators and exposing flaws in the

diagnoses of State’s witnesses.

Id. at 159.

B. Georgia, North Carolina and

Virginia Construed Ake as

Requiring an Independent Expert

Georgia, North Carolina, and Virginia, each

active death-sentencing jurisdictions which held

14

approximately 9% of death sentenced prisoners in

1991,5 ruled prior to that time that Ake required the

independent assistance of a court-appointed mental

health expert when the need for such an expert had

been established.

In Holloway v. State, the Georgia Supreme Court

reversed the conviction where the defendant had

been denied funds for an independent psychiatrist,

even though defendant had been examined by a

psychiatrist at the state hospital. 361 S.E.2d 794,

795-96 (Ga. 1987). The court held that “Holloway

was entitled to the kind of independent psychiatric

assistance contemplated in Ake v. Oklahoma, supra,

on the questions of competency to stand trial,

criminal responsibility, and mitigation of sentence.

Since he was denied this necessary assistance, his

conviction must be reversed, and the case remanded

for further proceedings.” Id. at 796; see also Lindsey

v. State, 330 S.E.2d 563, 566 (Ga. 1985) (“Based on

this language from the Ake opinion, 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 experts”).

The North Carolina Supreme Court held in State

v. Moore, that the trial court erred in failing to give

the defendant an independent expert who could not

only testify for the defendant, but assist the

defendant in evaluating, preparing and presenting a

defense. 364 S.E.2d 648, 653-654 (N.C. 1988). The

court determined that evaluation by a state forensic

psychiatrist for the purposes of determining

5 Georgia had 101 prisoners under sentence of death in

1991; North Carolina had 74; and Virginia had 47. BJS

Bulletin 1991 at 15.

15

competency could not satisfy the mandate of Ake. Jd.

at 652, 654. In so ruling, the court acknowledged the

many ways an independent psychiatrist could have

assisted in this defense (a false confession defense):

A psychiatrist, unlike lay witnesses,

could have gathered and analyzed pertinent

information about the nature of defendant’s

confession, and drawn plausible conclusions

about its trustworthiness. A psychiatrist also

could have impressed upon the jury the

frequent plight of the mentally retarded when

they become embroiled in a_ criminal

prosecution. . . . Another way in which a

psychiatrist might have assisted defendant at

trial was by facilitating the preparation and

presentation of a renewed motion to suppress

defendant’s confession on the grounds that he

did not knowingly and intelligently waive his

constitutional rights.

Id. at 654, 655.

The Virginia Supreme Court, in Tuggle v.

Commonwealth, reconsidered the defendant’s case on

remand from the United States Supreme Court in

light of Ake. 334 S.E.2d 838, 839 (Va. 1985). The

defendant in Tuggle had been evaluated by two state

mental health experts pursuant to a court order to

determine whether he was competent to stand trial

and whether he was sane at the time of the offense.

Id. at 840. After the examiners found defendant

both competent and sane, the trial court denied the

defendant’s motion for an examination by a forensic

psychologist on the same issues because the

defendant had already been examined. Jd. at 840-

841. The Virginia Supreme Court, held that “in light

16

of Ake {| the trial court erred in denying Tuggle’s

motion for an independent psychiatrist to rebut the

Commonwealth’s psychiatric evidence of future

dangerousness.” Id. at 844.8

C. Other States With the Death

Penalty During This Time

Recognized the Independence of

Defense Experts

Connecticut, long before this Court’s ruling in

Ake, required that “[w]here the state has access to

expert testimony and plans to utilize such testimony,

the state should provide an indigent defendant

access to an independent expert upon a showing of

reasonable necessity by the defendant for such an

expert.” State v. Clemons, 363 A.2d 33, 38 (Conn.

1975); State v. Gray, 126 Conn. App. 512, 514 (2011)

(“In State v. Clemons...our Supreme Court held that

an indigent defendant is entitled to the assistance of

a state funded expert witness.”). The Connecticut

Supreme Court also “encourage[d] the necessary

expenditure of state funds to provide indigents with

an adequate means of presenting reasonable

defenses.” Clemons, 363 A.2d at 38.

In addition, states had a_= general and

longstanding rule, prior to Ake, and undisturbed by

Ake’s ruling, that attorney-client privilege applied to

mental health experts. See, e.g., Miller v. District

Court, 737 P.2d 834, 835, 838 (Colo. 1987)

(recognizing as “now settled that a _ psychiatrist

retained by defense counsel to assist in the

6 The court held that that defendant did not make the

requisite “significant factor” showing to entitle the defendant to

an independent psychiatrist at the guilt phase. Tuggle, 334

S.E.2d at 843.

17

preparation of the defense is an agent of defense

counsel for purposes of the attorney-client

privilege.”)’; State v. Pratt, 398 A.2d 421, 423, 424-

25 (Md. 1979) (“[I]n criminal causes communications

made by a defendant to an expert in order to equip

that expert with the necessary information to

provide the defendant’s attorney with the tools to aid

him in giving his client proper legal advice are

within the scope of the attorney-client privilege”;

privilege is not waived solely by asserting an

insanity defense); See also State v. Kociolek, 129 A.2d

417 (1957).

Ii. ON-THE GROUND PRACTICES IN

EIGHTEEN THEN-ACTIVE

JURISDICTIONS SHOW INDEPENDENT

EXPERT ASSISTANCE WAS AVAILABLE

UPON A SUFFICIENT

DEMONSTRATION OF NEED

For numerous active capital jurisdictions, funding

practices for mental health and other necessary

experts in capital cases during the first seven years

after Ake was announced cannot be accurately

determined from review only of the usual sources:

available trial court and appellate court decisions.

In some states, indigents secking necessary defense

funding applied confidentially to public defender

offices that had expert-fund budgets. In other states,

applications were made ex parte to a trial judge and

resulting orders would be sealed.

———

’ See also Hutchinson v. People, 742 P.2d 875, 880 (Colo.

1987)(ruling that the prosecution’s use of a defense expert in its

case-in-chief in the absence of waiver or compelling justification

violates a criminal defendant's constitutional right to effective

assistance of counsel.)

18

The twenty-three individual amici on this brief

have extensive experience and knowledge of these

practices of three decades ago in states that span

eighteen jurisdictions that were prosecuting capital

cases in the late 1980s and early 1990’s. We submit

their declarations that describe these practices.

Collectively, their observations show that in eighteen

state jurisdictions in the late 1980’s and early 1990's,

it was understood that once an indigent capital

defendant made the necessary showing that a mental

health or other expert was necessary to his or her

defense at the guilt phase or to prepare mitigation at

the penalty phase, Ake and often state law required

the defendant be provided with expert resources

independent of the prosecution.

A. Illinois

During the first seven years after Ake’s

announcement, indigent capital defendants seeking

expert resources for their defense in Chicago had two

avenues to pursue. If their attorney was a staff

public defender, the defense would request funding

from the office expert fund. App. 22a. But if that

fund was exhausted for that year, or if the defendant

was represented by an appointed counsel, the

request was made to the trial court. The key factor

was whether the defense made an adequate showing

of need. As amici law school Dean Andrea D. Lyon, a

former capital trial lawyer during those years, makes

clear in her declaration, in those cases “when the

court determined we had shown the necessity for

particular expert assistance, we always had the

authority to retain an independent expert.”

19

App. 23a. By 1990, this was also the practice in

capital cases throughout I[1linois.®

B. New Jersey

New Jersey's post-Gregg capital statute became

law in 1981 and was repealed in 2007. Throughout

the 26 years it was on the books, the state public

defender office was responsible to provide adequate

defense funding to all indigent cases, whether the

client was represented by staff public defenders or

private appointed counsel. The judiciary played no

role in defense funding issues. App. 73a. Amici

David A. Ruhnke served both as a staff public

defender and appointed counsel and represented 15

capital clients in New Jersey state courts, and is

thoroughly familiar with funding policies and

practices throughout this time. Ruhnke never had a

funding request in a capital case denied, and

authorized defense experts would always be

independent of the prosecution. This was the

practice both before and after Ake was announced in

all New Jersey capital cases.9

8 Amici Lyon spent the 1980's in Chicago’s Public Defender

Office trying homicide and capital cases, and was Chief of the

Homicide Unit for five years before founding and directing the

Illinois Capital Resource Center where she worked on capital

case from all over Illinois. See App. 22a. She later was a

Clinical Professor of Law at the University of Michigan School

of Law, was Director of the Center for Justice in Capital Cases

and Associate Dean for Clinical Programs at DePaul University

Cullege of Law, and since 2014, serves as Dean of the

Valparaiso University Law School. Throughout her four decade

career, she has worked on hundreds of capital cases and has

written and lectured on all aspects of the capital trial process.

® Amici Ruhnke is one of the nation’s most experienced

capital trial attorneys. He has tried 17 capital cases to final

resolution before juries, six in New Jersey and eleven in federal

20

Cc. Missouri

Both prior to and after Ake was announced,

Missouri provided funding for independent experts to

indigent capital defendants through its public

defender system. App. 83a. Whether the attorney

was a staff public defender or a private lawyer on

contract with the defender office, application for

funding would be made to the appropriate regional

defender office. Amici Sean D. O’Brien, who is a

former appointed public defender, reviewed requests

for funding for individual experts and if he

determined the “expense was reasonably necessary, |

would authorize the expenditure.” App. 84a. The

defense was free to retain independent expert

assistance. !°

D. California

This large state has long operated a hybrid

system for the provision of necessary defense funding

for indigent capital defendants. Both before and

after Ake was handed down, public defenders could

district courts throughout the country. He is a member of the

Federal Death Penalty Resource Counsel Project and lectures

frequently on capital defense. In both federal and states courts,

he has been qualified to testify as an expert witness on the

capita! defense function. App. 72-73a.

10 Amici O’Brien has worked for or closely with the Missouri

Public Defense system for nearly four decades. Throughout this

time, he represented scores of persons who were either facing

capital charges or who were already condemned to death row.

O’Brien left the fulltime practice of law in 2005 when he

became a law professor. He is currently a full time tenured

professor at the University of Missouri-Kansas City School of

Law where he teaches criminal law and procedure and teaches

and supervises students in clinics concerning capital post-

conviction and actual innocence cases. App. 83a.

21

seek necessary resources from their office expert

fund. All such requests and decisions on these

requests were confidential. Any expert retained by

the defense would be independent of the prosecution.

For private lawyers who had been appointed by the

trial court, the process called for counsel to file, on an

ex parte basis, requests for necessary resources.

Again, both the applications and subsequent orders

granting funding were sealed. And here too, the

experts retained would be independent of the

prosecution. As one amici, Russell Stetler noted,

California death penalty training materials in the

1980s and 1990’s “repeatedly stressed” the “capital

defense team’s right to independent mental health

experts in the development and presentation of

penalty phase evidence.” App.97a. Stetler was

involved in more than two dozen capital cases during

the 1980’s and early 1990’s. Whenever experts were

provided in those cases, “these expert consultations

were confidential and independent.” App. 91a.!!

Amici California capital trial lawyers Marcia A.

Morrissey!? and James S. Thomson! fully agree with

'! Amici Stetler is one of the most experienced capital case

investigators in the United States. Working as a private

investigator in the 1980’s in California, he worked on cases

throughout the state. In the 1990’s he became Chief

Investigator at the California Appellate Project, a not-for-profit

law office that assists post-conviction counsel. From 1995

through 2005, he was the Director of Investigation and

Mitigation at the New York Capital Defender Office. In 2005,

he returned to California and has served since as the National

Mitigation Coordinator for the federal death penalty cases.

Amici Stetler has published and lectured widely on the

investigation of capital cases and has qualified repeatedly in

state and federal court as an expert in the investigation of

capital cases. App. 90-93a.

12 Amici Morrissey’s Los Angeles-based law practice for the

past three decades has focused almost entirely on capital cases.

22

Stetler’s assessment that, upon a showing of need,

indigent California capital defendants would receive

necessary expert assistance that would be

independent of the prosecution. App. 59a and App.

45a. Both have handled scores of California capital

cases, have applied for expert assistance in those

cases, and secured independent experts for their

clients. Both affirm these practices and traditions

were in place throughout the 1980’s and 1990's

throughout California.

E. New Mexico

Prior to and after Ake, New Mexico has

discharged its obligation to provide necessary expert

services to indigents in capital cases by yearly

appropriations made to and distributed by its public

defender system. This system began in 1980, in part

a response to capital prosecutions that were brought

in the wake of a deadly prison riot. App. 67a. Ifa

capital defendant was represented by a state

defender, the request for necessary services was

made and acted on within the office confidentially.

Private counsel appointed to represent a capital

defendant would also seek expert resources from the

She has been a leader in the capital defense bar, and served in

multiple leadership positions in California Attorneys for

Criminal Justice. She has taught and consulted on all phases

of capital trial representation though much of her career. App.

56-58a.

'3 Amici Thomson began representing capital defendants in

1981 from his office in Oakland. Ever since he has represented

many indigents charged with capital crimes at trial and in later

appeals. He co-founded one of the country’s most demanding

and intensive capital training programs at Santa Clara

University in 1992 and has taught there and elsewhere on all

matters pertaining to effective representation in capital cases.

App. 44-45a.

23

public defender. In cases where funding disputes

arose, the matter would be heard ex parte by a

district court judge.

Santa Fe based amici Mark H. Donatelli, a noted

attorney, was the director of the New Mexico Prison

Riot Defense from 1980 to 1983 and was deputized to

ensure those charged with crimes received both

competent counsel and necessary independent expert

assistance. This system continued to operate after

Ake constitutionalized the “right to funds for expert

assistance.” App.68a. Experts retained in these

cases were independent of the prosecution.'*

F. Colorado

In capital cases in the 1980s and 1990's, the

provision for necessary expert assistance was the

responsibility of the State Public Defender in cases

where staff counsel was representing the indigent

client. When the indigent was represented by private

appointed counsel, funding requests were heard by

the Office of Alternate Defense Counsel. App. 76a.

Amici David D. Wymore, who served as Chief Trial

Deputy Public Defender, held the authority for

determining expert retention and funding from 1982

through the 1990’s. Upon a showing of need, his

policy was to retain experts who were both

independent and highly trustworthy. App. 76a. The

Office of Alternative Defense Counsel sought to

provide similar high caliber and independent expert

14 Amici Donatelli has focused his practice that began in

1976 on the representation of criminal cases and took on his

first capital case in 1980. Due to his experience as a litigator

and his broad familiarity with all phases of capital trial

representation, he has been a member of the Federal Death

Penalty Resource Counsel Project since 2007.

24

assistance in the private counsel cases. App. 76a.

Wymore is “unaware of any substantial dispute

arising in a capital case in Colorado regarding the

provision of independent expert assistance, ... .”

App. 78a.!5

G. Arizona

Both before and after Ake was announced,

Arizona has maintained a duel system for providing

necessary expert assistance to indigents facing

capital crime. App. 49a. If the defendant was

represented by a staff public defender, the defender

would confidentially seek expert resources from his

or her own office and with available funds would

always retain independent’ experts. Private

attorneys representing indigents were required to

apply for funds from the trial court and were

required to demonstrate funding was reasonably

necessary to present a defense at trial. App. 49a.

Amici Natman Schaye, who began representing

capital clients in Arizona in 1984 and continues to do

so presently, noted that Ake led the state supreme

court “to more carefully consider indigent

defendants” funding claims. App. 49a. Schaye, who

has trained lawyers for capital representation for

decades, observed that if private counsel persuaded

the trial court to provide funding, appointed counsel

16 Amici Wymore held various positions in the Colorado

Public Defender Office from 1976 through 2004. From 1982

through 2004, he served as Chief Trial Deputy and was directly

responsible for approximately 80 capital cases litigated by the

office during that time. While at the defender office, none of

that office’s capital clients were sentenced to death, Wymore

believes a very important reason was that office’s ability to seek

out and retain independent expert assistance on those cases.

App. 75-78a.

25

would retain expert assistance independent of the

prosecution both before and after Ake.'®

H. Delaware

Delaware also had a state public defender system

in place in 1985 when Ake was handed down.

App. 42a. If the indigent client was represented by

an assistant public defender, application for expert

funds would be made within the office and

independent experts would be retained. If the client

was presented by private counsel, application for

resources was made to the trial court, and the

defendant had to first demonstrate sufficient need to

secure funding. When funding was approved, counsel

were free to and did hire experts independent of the

prosecution. Amici Kevin J. O’Connell, an assistant

public defender and former private practitioner has

been involved in numerous capital cases since 1989,

confirmed trial counsel would retain independent

experts. !”

‘6 Amici Schaye has practiced lawyer in Arizona since 1981,

and has devoted a large percent of his practice to capital cases.

As a private practitioner until 2010, he is deeply versed in the

policies and practice of securing adequate resources for capital

clients. During his long career, he has served on several

committees appointed by the Arizona Supreme Court to

improve the defense function in capital cases. App. 47-48a

‘7 Amici O’Connell has practiced law in Delaware since

1984 and had focused on criminal law. In 1989, as a court-

appointed conflicts attorney, he became involved in his first of

many state capital cases. As a private lawyer representing

indigent defendants facing the death penalty, he sought

adequate funding for experts in all of those cases. In 2005, he

joined the Offices of Defense Services in Delaware where he

continued to represent capital clients. App 42-43a

26

I. South Carolina

This state directs funding for expert services

issues in capital cases to the trial courts. App. 88a.

Well before Ake was announced, upon an adequate

showing of need, trial judges authorized funds for the

retention of independent experts and further

approved fees in excess of initially low statutory

caps. App. 88a. This practice continued after Ake.

Amici David I. Bruck, whose law practice from 1984

to 2004 focused upon representing indigent capital

defendants in South Carolina, wrote “it is therefore

unsurprising that a search of South Carolina death

penalty appellate decisions does not disclose a single

case in which a death-sentenced prisoner has relied

on or cited Ake as authority to reverse the denial of

funding for defense expert or investigative services

at trial.” App. 88a. Given these practices, “the

independence of defense mental health experts is an

issue that has simply never arisen in South Carolina

89a.” Moreover, “as far as I am aware, no South

Carolina circuit court has ever required a capital

defendant to rely on state-employed or state- allied

mental health experts to assess the presence of

possible mitigating evidence, ....” App. 89a.'8

'® Amict Bruck has specialized in capital litigation for

nearly all of his 41 years as an attorney. Twenty four of those

years, 1980 — 2004, were devoted to representing indigents in

capital cases in South Carolina. During those years, Bruck was

invited on several occasion to lecture at state judicial

workshops for state judges on death penalty law and procedure.

He has taught at several law schools, and since 2004 has been

the Clinical Professor of Law at Washington & Lee School of

Law and Director of the Virginia Capital Case Clearinghouse, a

resource center for lawyers representing capital clients in

Virginia and elsewhere. App. 86-87a,

27

J. North Carolina

In the years before and after Ake, trial judges

heard motions for funds for expert in indigent capital

cases. Such resources would be made available, but

only after a showing of need. While defendants were

not always permitted to choose their experts,

“ counsel for defendant usually identified the expert

to be retained.” App. 25a. Amici Malcolm Ray

Hunter, Jr., who was the State’s Appellate Defender

from 1985 until 2000, represented a young,

intellectually disable man who was denied an

independent expert where his mental status was the

key issue in the case. In State v. Moore, 364 S.E.2d

648 (1988), the court held upon an adequate showing

of need, indigent defendants were entitled to

independent experts to aid their defense.'*

K,. Florida

In the years after Ake, indigent capital defendant

seeking expert assistance would file funds motions in

the trial court. Three experience amici — Carey

Haughwout, the long-time elected Public Defender in

Palm Beach, Bill White, the former elected Public

Defender in Jacksonville, and David Fussell,

“learned counsel” in capital cases and assistant

public defender in Orlando — each confirm that so

long as the defense could make an adequate showing

of need, the trial court would make funds available

19 Amici Hunter was North Carolina’s Appellate Defender

from 1985 until 2000. His office handled all capital direct

appeals and other non-capital appeals to the state appellate

courts. Beginning in 1989, his office housed the North Carolina

Death Penalty Resource Center, which assisted lawyers with

capital cases in the trial and post-conviction courts. App. 24-

25a.

28

for the retention of independent expert assistance.

As PD Haughwout put it: “since the late 1980’s it has

been the accepted and expected practice in the

defense of capital cases to obtain independent

experts to assist the defense in exploring and

presenting mental health mitigation in death penalty

proceedings.” App. 62a. PD White said much the

same: “Prior to and .. . since [Ake], our office

routinely requested, and was- granted the

appointment of independent defense experts for use

at trial and in mitigation in capital cases.” App. 41a.

And in Orlando, learned counsel Fussell summed up:

upon an adequate showing of need, the trial court

“would sign an order approving the expert” [and]

“the expert was independent of the prosecution and

worked solely for the defense.”2° App. 19a.

L. Maryland

This state provides indigent defenses services

through the Maryland Office of the Public Defender.

20 Amici Haughwout joined the Florida Bar in 1983 and has

long been qualified to represent capital clients. In 1987-1990

she was assigned to the capital division of the Palm Beach

County Defender Office. Both as a public defender and private

practitioner, she has represented more than fifty capital

defendants. She is presently serving her fifth term as the Public

Defender for the Fifteenth Judicial Circuit. Amici White joined

the Jacksonville public defender office in 1974 and immediately

began to work on capital cases. He is a co-founder of Life Over

Death, Florida’s capital trial training program. During his

career, he has handled dozens of capital cases, as both first and

second chair and for decades has taught at capital litigation

training programs. From 2004 to through 2008, he served as

the elected Public Defender of the Fourth Judicial Circuit.

Amici Fussell has represented indigent capital clients in the

Orlando area since 1987 and has handled twenty cases that

were charged as capital cases. He has since qualified a “learned

counsel” in capital cases in the federal courts.

29

Before and after Ake, the Canital Defense Division

supervised all capital litigation in the state. Amici

Gary Christopher served as the Chief Attorney of

this division from early 1984 thought the summer of

1989. App.63a. Ake required no changes in

Maryland because “(t]he Agency already had a

system in place for the retention and funding of

independent expert witness[es].” App. 64a. The

Agency had a fund for expert witnesses that was

administered by the Chief Public Defender.

Christopher recalis “[iJn every case I can recall the

Chief Defender deferred to my judgment on the

subject of retaining experts for a given case.”

App. 64a. Upon an adequate showing of need,

indigent capital defendants received independent

expert assistance.?!

M. Kentucky

This is another state that had a settled system in

place, prior to Ake, for indigent capital defendants to

secure independent expert assistance so long as the

defense could show such services were reasonably

necessary. Amici Edward C. Monahan, Public

Advocate of Kentucky, explained that with the state

supreme court’s decision in Hicks v. Commonwealth,

670 S.W.2d 837 (Ky. 1984), “Kentucky courts

provided funding for the retention of independent

expert assistance so long as the defense could make a

reasonable showing the expert was necessary .. .”

App. 29a. After Hicks, the key point of litigation has

21 Amici Christopher served as head of the Maryland Public

Defender system’s capital defense unit during the years prior to

and after Ake was announced. He was a vital decision-maker

concerning funding for expert assistance in all capital cases in

the state during those years. App. 63-64a.

30

not been whether the expert needed to be

independent, but whether the defense had made a

sufficient showing of need. App. 29a. Ake confirmed

the correctness of this approach.??

N. Washington

During the 1980's and early 1990's, appointed

counsel in Washington in capital cases were required

to seek funds necessary for the defense from the trial

court. App. 70a. Before Ake, the trial bench

sometimes resisted holding these hearing ex parte,

but if a sufficient showing was made, the defense

would receive funding to hire an independent expert.

After Ake, these requests were heard ex parte and

the amount of funding increased. App. 70a. Amici

Kathryn Ross, who handled capital cases in

Washington throughout the 1980’s and 1990’s and

met regularly with other capital trial attorneys,

wrote “[t]here is no question that in Washington

State defendants in capital cases at trial, on

sufficient showing of need, were granted funding for

independent mental health experts before and after

publication of Ake v. Oklahoma.” App. 71a.?°

22 Amici Monahan has spent thirty-seven of the last forty-

one years representing indigent clients in Kentucky. While

now the Public Advocate for the Commonwealth of Kentucky,

from 1980 to 2001, he served as the Director of Education and

Development for the Department of Public Advocacy and was

keenly aware of the developments in counsel and expert

funding issues. He has represented twelve capital clients in

trial and appellate courts. App. 27-30a.

23 Amici Ross was admitted to the Washington State Bar in

1976 and has represented persons charged with crime

throughout her entire career. In the 1980's she met regularly

with other capital defense counsel to keep in touch with legal

developments in the capital cases under the auspices of the

Washington Association of Criminal Defense Lawyers, and

31

QO. Ohio

Before and after the Ake decision, Ohio state law

provided that indigent capital defendants would

have access to independent expert services upon a

showing of adequate need. App. 12a. Prior to Ake,

indigent defendants would often not make a

sufficient showing of necessity to gain such services.

But after Ake, amici S. Adele Shank explains “death

penalty defense attorneys regularly relied upon Ohio

Rev. Code section 2929.024 when requesting

independent expert assistance during the 1980’s and

early 1990’s and the Ohio courts regularly granted

such requests.”24 App. 14a.

r. Oregon

In the 1980’s and 1990’s, the Oregon State

Indigent Defense Services agency provided skilled

trial counsel for capital cases by contracting with

experienced trial counsel to handle these cases.

App. 16a. Amict Duane McCabe became a contractee

in 1989 when he joined up with another contract

attorney, Ralph H. Smith, Jr. McCabe continues to

serve in this capacity to this day. In the 1980’s and

1990’s, counsel representing an indigent capital

twice chaired or co-chaired the Association’s death penalty

committee. From 2005 to 2015, she was the Director of the

Washington Death Penalty Assistance Center. App. 69-71a.

24 Amici S. Adele Shank began her legal career in 1980 as a

prosecutor. In 1984, she joined the Ohio Public Defender Office,

Death Penalty Section. There she represented indigent capital

defendants at trial and throughout the appellate process. She

also became Chief Counsel for Trial Assistance and Death

Penalty Education. In 1992, she went into private practice and

has continued to focus on the representation of capital indigent

clients. App. 12-13a.

32

defendant, to obtain expert funds, “would submit an

ex parte motion to the court with a showing of the

necessity for funding the specific expert.” App. 16-

17a. When the motion was granted, the attorney

could “retain the expert as an agent... .” App. 17a.

In all of McCabe’s and Smith’s cases, so long as they

made an adequate showing, the court authorized

funds, and they would always retain independent

experts. This was the standard practice in capital

cases in the wake of Ake. App. 17a.25

Q. Pennsylvania

Philadelphia had a very active death penalty

docket during the 1980s and 1990s due to the policy

of the then District Attorney to seek the death

penalty in nearly all charged aggravated murder

cases. The Public Defender was barred from

representing capital clients until 1993; individual

trial judges kept a list of attorneys in private

practice from which to make appointments in capital

cases. App. 5la. Amici Samuel Stretton represented

numerous capital clients in Philadelphia and other

Pennsylvania counties in the 1980s and 1990s.

Stretton recalled that prior to Ake, “most of the trial

judges were very tough on funds motions.” App. 52a.

25 Amici McCabe has been an active member of the Oregon

Bar since 1974. He is a founding member of the Oregon

Criminal Defense Lawyers Association and led an effort to

create a subgroup devoted entirely to the defense of capital

cases. Nearly all of his practice has concerned criminal defense

representation. McCabe established the Public Defender Office

in Coos County, Oregon, and later moved to the Deschutes

County defender office. He has been a regular instructor at

death penalty training seminars. As a contract capital lawyer

for nearly three decades, he is familiar with all Oregon policies

and practices that concern securing resources for an effective

defense. App. 15-16a.

33

After Ake, “the problems I encountered concerned

mostly the amount of funding provided for approved

expert services.” But upon an adequate showing of

need, Stretton and other private lawyers obtained

services “independent of the prosecution.”

App. 52a.76

R. Tennessee

In both Knoxville and Nashville, indigent capital

clients in the 1980s and 1990s were required to seek

expert resources from the trial court. In Knoxville,

this process would begin with the filing of an ex parte

motion. App. 9a. If the defense could show both a

particularized need and reasonableness, the trial

court would grant funds. At that, the defense would

be free to hire an independent expert. Amici Mark

Stephens, who has practiced in Knoxville since the

1980s, followed this very practice while representing

Richard Tate on capital murder charges and

obtained funds and hired an independent mental

health expert. Stephens recalled, when other

counsel followed these procedures and made an

adequate showing of need, counsel “were routinely

able to secure independent expert services during

that time period.” App. 10a.?’

26 Amici Stretton has been an attorney in Pennsylvania

since 1973. He has devoted his entire career to representing

persons charged with criminal offenses. Through his very

active practice in the 1980s and 1990s in Philadelphia, he is

aware of the policies and procedures that governed submissions

for funding for expert assistance in capital cases. App. 51-52a.

27 Amict Stephens has been the elected Public Defender in

Knox County, ‘Tennessee since 1990. Prior to becoming the

Public Defender, he was in private practice devoted to indigent

defense where he tried capital and other serious felony cases.

App. 8-9a.

34

These same _ procedures were followed in

Nashville during this period in the wake of Ake.

App. 54a. The public defender office had no funding

for experts so requests were made to the trial court.

Such requests were made ex parte and were filed

under seal. Amici J. Michael Engle, who practiced in

the courts there since 1978, recalled motions “would

detail the specific need and its relation to the facts of

the case. The proposed expert’s credentials would be

appended, often with the proposed expert’s affidavit

as to why their assistance would/could be helpful.”

App. 54a. In the event the motion was granted, “in

capital case, [the] experts were always

independent.”28 /d.

28 Amici Engle has devoted most of his four-decade career to

the defense of indigents in the County of Davidson, Tennessee.

For twenty five years, he was a supervisor for felony trials and

is certified as a specialist in criminal trial advocacy and meets

the standards to serve as lead counsel in capital trial cases.

App. 53a.

35

CONCLUSION

Ake’s requirement that appointed defense expert

assistance must be independent of the prosecution is

clearly established and was so by 1991.

Respectfully submitted,

JANET MOORE, Co-Chair, GEORGE H. KENDALL

Amicus Committee, National Counsel of Record

Association for Public Defense JENAY NURSE

For identification purposes only: CORRINE A. [IRISH

ASSOCIATE PROFESSOR SQUIRE PATTON BOGGS

UNIVERSITY OF CINCINNATI (US) LLP

COLLEGE OF LAW 30 Rockefeller Plaza

2540 Clifton Avenue New York, New York 10112

Cincinnati OH 45221 (212) 872-9800

george. kendall@squirepb.com

JO-ANN WALLACE, President

and CEO DAVID OSCAR MARKUS, Co-

TRAVIS STEARNS, of Counsel Chair, Amicus Committee

NATIONAL LEGAL AID AND National Association of

DEFENDER ASSOCIATION Criminal Defense Lawyers

1901 Pennsylvania Avenue, NW, 40 NW Third Street, PH1

Suite 500 Miami, FL 33128

Washington, DC 20006

Counsel for Amicus Curiae

APPENDIX

la

APPENDIX A — INDEX OF AMICI

DAVID I. BRUCK is currently a Clinical Professor of

Law at Washington & Lee School of Law and Director

of the Virginia Capital Case Clearinghouse. Mr. Bruck

has specialized in capital litigation for nearly all of his 41

years as an attorney. Twenty-four of those years, 1980-

2004, were devoted to representing indigents in capital

eases in South Carolina.

GARY CHRISTOPHER is currently a practicing attorney

in Maryland. Mr. Christopher served as Chief Attorney

of the Capital Defense Division of the Maryland Office of

the Public Defender from 1984 through 1989. As Chief

Attorney, he was a vital decision-maker concerning

funding for expert assistance in all capital cases in the

state.

MARK H. DONATELLI is currently a practicing attorney

in New Mexico where he represents capital defendants in

state and federal court. Mr. Donatelli began representing

individuals facing the death penalty in 1980. He served

as a public defender from 1980 to 1983. After entering

private practice in 1983, Mr. Donatelli continued to assist

private attorneys and public defenders with capital cases.

J. MICHAEL ENGLE is currently a practicing lawyer

in Nashville, Tennessee who has dedicated most of his

four-decade career to defending indigent clients as an

attorney in Metropolitan Nashville-Davidson County

Public Defender’s Office. For twenty-five years he was a

supervisor for felony trials in the public defender’s office

and has tried numerous death penalty cases.

2a

Appendix A

DAVID FUSSELL is currently a practicing attorney in

Orlando, Florida. Mr. Fussell has represented individuals

in state and federal capital cases since 1989. He was an

assistant public defender in the 9“ Circuit of Florida

(Orange and Osceola counties) from 1987-1990 where he

was an attorney in the capital crimes unit. As an attorney

in the capital crimes unit, he represented at least 20

individuals charged with crimes where the state sought

the death penalty.

CAREY HAUGHWOUT is currently the elected Public

Defender of the Fifteenth Judicial Circuit of the State of

Florida. She has held that position since January 2001.

Ms. Haughwout began representing clients charged

with capital crimes in 1986. She worked as an attorney

in the capital division of the Palm Beach County Public

Defender’s Office from 1987-1990 before entering private

practice in West Palm Beach. Ms. Haughwout has tried

approximately 20 death penalty cases and handled over 50

capital cases in multiple jurisdictions throughout Florida.

MALCOLM RAY HUNTER, JR. is a practicing attorney

in North Carolina. Mr. Hunter served as Appellate

Defender for the State of North Carolina from 1985 until

2000 where he represented indigent clients convicted of

capital and non-capital crimes in state appellate courts.

Beginning in 1989, his office housed the North Carolina

Death Penalty Resource Center, which assisted lawyers

with capital cases in the trial and post-conviction courts.

ANDREA D. LYON is currently the dean of Valparaiso

University Law School in Valparaiso, Indiana. Ms. Lyon

3a

Appendia A

has tried hundreds of cases, including numerous capital

cases, throughout the state of Illinois. She was the founder

and director of the Llinois Capital Resource Center. In

the 1980’s, Ms. Lyon was an attorney in the Cook County

Publie Defender’s Office in Chicago where she tried

homicide and capital cases and served as Chief of their

Homicide Task Force.

DUANE MCCABE is a practicing attorney in Oregon and

has represented indigent clients charged with crimes since

1974. Mr. McCabe established the Public Defender Office

in Coos County, Oregon, and later moved to the Deschutes

County defender office. As a contract capital lawyer for

the state of Oregon for nearly three decades, he is familiar

with all Oregon policies and practices concerning securing

resources for an effective defense.

EDWARD C. MONAHAN is currently the Public

Advocate of Kentucky. He has spent the last 37 years

representing indigent clients charged with crimes at

the trial and appellate levels. He has represented twelve

clients facing the death penalty. Mr. Monahan served as

chair of the Kentucky Department of Public Advocacy’s

Death Penalty Task Force and Director of Education and

Development from 1980 to 2001.

MARCIA A. MORRISSEY is currently a practicing

attorney in Los Angeles, California. For the past 30 years,

Ms. Morrissey’s practice has almost exclusively focused

on defending indigent individuals in capital cases, in state

and federal court and at the trial and post-conviction

stages. Ms. Morrissey has also consulted with attorneys

4a

Appendix A

in over 150 murder cases, on a variety of issues involving

competence and sanity.

SEAN D. O’BRIEN is currently a tenured full-time

professor at the University of Missouri-Kansas City School

of Law where he teaches criminal law and procedure and

post-conviction representation clinics involving capital

punishment. Mr. O’Brien has represented indigent

clients charged with capital crimes in Missouri since

1983. In years immediately after Ake was announced he

served as the appointed Public Defender in the Sixteenth

Judicial Circuit, Jackson County, Missouri where his

responsibilities entailed administration of the public

defender’s budget, including funding for expert witnesses.

KEVIN J. O°;CONNELL is currently an assistant public

defender in the Delaware Office of the Public Defender

where he represents clients charged with capital murder.

Since 1989, Mr. O’Connell has represented dozens of

indigent individuals on trial, appeal and post-conviction

review of capital cases.

KATHRYN ROSS is a practicing attorney in the State of

Washington. Since 1978, Ms. Ross has been representing

individuals facing the death penalty at trial or in post-

conviction proceedings. She also twice chaired or co-

chaired the Washington Association of Criminal Defense

Lawyers death penalty committee.

DAVID A. RUHNKKE is currently a practicing attorney

in Montclair, New Jersey and New York City. Since 19838,

Mr. Ruhnke’s practice has been dedicated to defending

5a

Appendix A

individuals charged with capital murder. Mr. Ruhnke has

tried 17 capital murder cases and has represented capital

defendants in state and federal appeals, and in state and

federal post-conviction proceedings in New Jersey and

throughout the country.

NATMAN SCHAYE is currently Senior Trial Counsel for

the Arizona Capital Representation Project, a non-profit

devoted to vigorously representing individuals facing the

death penalty in Arizona. Mr. Schaye has practiced law in

Arizona since 1981, focusing almost exclusively on trial,

appeal and post-conviction representation of clients in

capital cases.

S. ADELE SHANK is currently a practicing attorney

in Columbus, Ohio where she handles capital cases at

all stages of proceedings. In 1984, she joined the Ohio

Public Defender Office, Death Penalty Section. There

she represented indigent capital defendants at trial

and throughout the appellate process. She also became

Chief Counsel for Trial Assistance and Death Penalty

Education. In 1992, she went into private practice and

has continued to focus on the representation of capital

indigent clients.

RUSSELL STETLER is one of the most experienced

capital case investigators in the United States. He is

currently the National] Mitigation Coordinator for federal

capital cases. Mr. Stetler worked as a private investigator

on capital cases throughout the state of California in the

1980’s. In the early1990’s, he served as Chief Investigator

at the California Appellate Project.

6a

Appendia A

MARK STEPHENS is currently the elected District

Public Defender for the Sixth Judicial District (Knox

County) for the State of Tennessee where he maintains a

caseload of primarily murder cases and supervises a staff

of approximately 60 employees. He has held the position

as the District Public Defender since 1990. As District

Public Defender, his responsibilities entail administration

of the Knox County Community Law Office, including

administration of the public defender’s budget.

SAMUEL STRETTON is currently a practicing attorney

in West Chester, Pennsylvania. For 35 years he has

represented indigent clients charged with serious crimes.

During the 1980’s and through the 1990’s he represented

more than two-dozen indigent defendants charged with

capital crimes in Philadelphia.

JAMES S. THOMPSON is currently a practicing

attorney in Berkeley, California. Mr. Thompson has

represented indigent clients charged with capital crimes

in California since 1981, and is the co-founder of the Bryan

R. Schechmeister Death Penalty College at Santa Clara

University. Mr. Thomson is familiar with court rules,

statutes and state and federal case law that govern the

provision of funds for both capital and non-capital cases

in California.

BILL WHITE is a retired attorney in Florida. Mr. White

was the elected Public Defender for the Fourth Judicial

Circuit of Florida from 2004 to 2008. Mr. White began

representing clients in capital cases in 1976. Before his

retirement, he represented dozens of individuals in capital

7a

Appendix A

cases at the trial and appellate level and supervised senior

assistant public defenders in countless capital cases.

DAVID D. WYMORE is currently a practicing attorney

in Boulder, Colorado. Mr. Wymore held various positions

in the Colorado Public Defender Office from 1976 through

2004. From 1982 through 2004, he served as Chief Trial

Deputy and was directly responsible for approximately

80 capital cases litigated by the office during that time.

Among other distinctions, Mr. Wymore is chiefly credited

with developing a system of capital jury selection widely

known at the Colorado Method of Capital Voir Dire.

Ra

APPENDIX B — DECLARATION OF MARK

STEPHENS, DATED MARCH 2, 2017

STATE OF TENNESSEE

COUNTY OF KNOX

DECLARATION OF MARK STEPHENS

The affiant, Mark Stephens, after being duly sworn as

required by law, does hereby make oath and affirm that

the following is a true and correct representation to the

best of my knowledge and belief:

1. That I am the elected District Public Defender

for the Sixth Judicial District (Knox County) for the

State of Tennessee, having been elected to that position

on September 1, 1990. I was re-elected on September

1, 1998, September 1, 2006 and again on September 1,

2014. My current business address is 1101 Liberty Street,

Knoxville, Tennessee 37919.

2. That my responsibilities as the elected District

Publie Defender include administration of the Knox

County Public Defender’s Community Law Office and the

budget that goes with the office. The Knox County Public

Defender’s Community Law Office has approximately 60

individuals working in the office and handles approximately

Ten Thousand (10,000) cases each year.

3. In addition to my management role at the CLO, I

maintain a reduced caseload — mainly murder cases.

Ya

Appendix B

4. I was in private practice for nearly ten years prior

to becoming District Public Defender in 1990. In 1990, I

was aware of the rules governing capital litigation in the

Criminal Courts of Knox County as well as the general

and customary practice and procedures in capital cases

in Knox County.

5. Access to funding for court appointed counsel

representing indigent defendants is governed by Rule

13 of the Tennessee Supreme Court Rules. Funding

for investigative or expert services in capital cases is

further governed by Tenn. Code Ann. s. 40-14-207. See,

e.g., State v. O’Guinn, 709 S.W.2d 561, 568 (Tenn. 1986)

(“This statute permits a court in a capital case, when in its

discretion it determines that expert, investigative or other

similar services are necessary to protect the constitutional

rights of an indigent defendant, to authorize these services

at state expense”). Both rule and statute allow appointed

counsel to request funding by means of an ex parte

hearing, at which counsel must show a particularized need

for the requested funding and the reasonableness of the

requested funding. Both rule and statute were in effect

prior to August 1990. Thus, as of August 1990, funding

for independent expert services was available, through

ex parte request, for appointed counsel in capital cases.

6, On August 2, 1990 I was elected to the position of

District Public Defender for the Sixth Judicial District. I

was sworn in on September 1, 1990.

7. In August 1990, prior to my swearing in, Judge

Randall E. Nichols appointed me to serve as co-counsel

10a

Appendia B

to the Hon. Brandt Davis in the case of State of Tennessee

v. Richard Tate (Knox County Criminal Court Docket

#40351 and #40352). This case was handled consistent

with Rule 13. Mr. Tate was charged with first degree

murder and the state was seeking the death penalty. In

Mr. Tate’s case, funding was authorized to secure the

services of an independent mental health expert- effective

August 20, 1990.

8. While Richard Tate is a specific example given

to illustrate that funding was available in 1990-91 for

independent mental health experts in capital indigent

cases under Ake v. Oklahoma, it is simply typical of cases

where public defenders and private appointed counsel

were routinely able to secure independent expert funding

during that time period.

Signed this 2nd day of March, 2017.

/s/

MARK E. STEPHENS

2.

lla

APPENDIX C — DECLARATION OF 8S. ADELE

SHANK, DATED MARCH 2, 2017

DECLARATION

IS. Adele Shank, am an attorney licensed to practice

law in the State of Ohio and have been so licensed

since November 17. 1980.

The primary focus of my legal work has been criminal

law. | was a legal intern with the Union County. Ohio.

Prosecuting Attorney’s Office and, upon admission to

the Ohio bar, was hired as an assistant prosecuting

attorney. In 1982. I went to Tanzania, East Africa.

While there I taught courses in evidence, torts, and

civil procedure at the University of Dar es Salaam.

I returned to Ohio and in March 1984. I joined the

Ohio Public Defender Office, Death Penalty Section,

where | handled death penalty trials. Appeals, post-

conviction proceedings, and clemency for more than

eight years. While at the Ohio Public Defender’s Office

I became Chief Counsel for Trial Assistance and

Death Penalty Education. In that position I provided

assistance to lawyers throughout the state who were

handling death penalty trials. I also helped to design

and implement training programs to certify defense

counsel for appointment in capital cases. After leaving

the Ohio Public Defender’s Office. I went into private

practice where I have continued, for over twenty-

five years, to handle capital cases at all stages of

proceedings.

12a

Appendix C

I have been asked to deseribe based on my personal

knowledge and experience, the availability, in Ohio

capital cases, during the 1980’s and up to 1991, of an

independent mental health expert for the investigation

and preparation of an insanity defense.

Ohio’s death penalty sentencing structure was held

unconstitutional in Lockett v. Ohio, 438 U.S. 586

(1978). A new death penalty sentencing scheme was

enacted by the Ohio General Assembly and went into

effect on October 19. 1981. Ohio Rev. Code §2929.02-

06.

Ohio Rev. Code §2929.024 (Eff. 10-19-81) required that

indigent defendants charged with aggravated murder

be provided with “reasonably necessary” investigative

services and experts, at state expense.

The Ohio Supreme Court addressed the parameters

of Ohio Rev. Code §2929.024 in State v. Jenkins, 15

Ohio St.3d 164, 192-194 (1984) cert. den. 472 U.S. 1032

(1985) rehrg. den. 473 U.S. 927 (1985). Using Britt

v. North Carolina, 404 U.S. 226 (1971) as guidance,

the court held that §2929.024 “requires the court to

provide an indigent defendant with expert assistance

whenever, in the sound discretion of the court, the

services “* * *are reasonably necessary for the

proper representation of a defendant charged with

aggravated murder * *.” 15 Ohio St. 3d at 192-93.

The Ohio Supreme Court further held that Jenkins

had failed to show that the services of a social

13a

Appendix C

scientist to assist in jury selection were reasonably

necessary, and noted that Jenkins request was not

comparable to the requests in cases where disputed

factual issues were involved and expert assistance

was thus necessary. It cited among several examples.

Bush v. McCollum, 231 F.Supp. 560 (N.D. Tex. 1964),

affirmed, 344 F.2d 672 (C.A.5, 1965) which involved

“psychological evaluations of defendant where the

sanity of the accused was an issue:” 15 Ohio St. 3d at

194.

8. The Ohio Supreme Court again addressed the

10.

parameters of Ohio Rev. Code §2929.024 in State v.

Esparza. 39 Ohio St. 3d 8 (1988) cert. den. 490 U.S.

1012 (1989). Citing Ake v. Oklahoma. 470 U.S. 68.

76 (1985), the court said that the services provided

for under §2929.024 “are available to the indigent

defendant solely for his own purposes in mounting a

defense in a capital trial.” and held that the statute

entitles the defendant to “access to a competent

expert, bur does not guarantee such defendant the

right to handpick an expert at the state’s expense.”

In State v. Broom. 40 Ohio St.3d 277 (1988) cert.

den. 490 U.S. 1075 (1989), the Ohio Supreme Court

observed that its interpretation of Ohio Rev. Code

$2929 024 in State v. Jenkins, 15 Ohio St.3d 164 (1984)

met the requirements of Ake v. Oklahoma, Id. at 283.

Ohio Rev. Code §2929.024 (Eff. 10-21-81) and the

Ohio Supreme Court’s interpretation of it in State

v. Jenkins. 15 Ohio St.3d 164 (1984) established

l4a

Appendix C

the indigent defendant’s right to an independent

mental health expert in capital cases. Death penalty

defense attorneys regularly relied on Ohio Rev. Code

§2929.024 When requesting independent expert

assistance during the 1980’s and early 1990’s and the

Ohio courts regularly granted such requests.

I declare under penalty of perjury that based on my

personal knowledge and experience, the foregoing is

true and correct.

Executed on: March 2, 2017

/s/ — as

S. ADELE SHANK (OH 0022148)

LAW OFFICE OF S. ADELE SHANK

3380 Tremont Road, Suite 270

Columbus, OH 43221-2112

(614) 326-1217

15a

APPENDIX D — DECLARATION OF DUANE

MCCABE, DATED MARCH 2, 2017

DECLARATION

My name is Duane McCabe. I am a an active member

of the Oregon State Bar and I have been so since 1974. In

addition to membership in the Oregon Bar Association, I

am a bar member of the United States District Court for

the State of Oregon, the United States Court of Appeals

for the Ninth Circuit and the United States Supreme

Court. For a period of time I was also an active member

of the Idaho State Bar and practiced in the United States

District Court for the State of Idaho. I am a founding

board member of the Oregon Criminal Defense Lawyers

Association (OCDLA). I also headed the movement to

create a specialized subgroup of the Oregon Criminal

Defense Lawyers Association devoted entirely to death

penalty defense (Capital Defender section). | further led

successful efforts to obtain funding for a death penalty

resource counsel in Oregon. I have spoken several times

at death penalty training seminars offered by the Capital

Defender section of OCOLA. With rare exception | have

attended national training sessions on how to provide a

constitutionally mandated defense of those charged with

capital offenses on a yearly basis.

Almost my entire practice has been devoted to the

representation of indigent defendants charged with

crime. I established the Public Defender Office for Coos

County Oregon and while director I was assigned my first

two death penalty cases. After moving to the Deschutes

16a

Appendix D

County defender office I continued to represent indigent

clients charged with capital offenses. At that time the

Oregon State Indigent Defense Services agency began

contracting with select attorneys throughout the state

to provide full time statewide representation to indigent

capital defendants. In 1989 I joined Ralph H. Smith, Jr,

the first contract attorney (now deceased) on a full time

contact with the Oregon State Indigent Defense Services

agency to provide representation to indigent defendants

charged with capital offenses. My contract has continued

to this day.

Oregon’s history with the death penalty is one of

start and stop; the death penalty was reinstated by

voter initiative in 1978, ruled unconstitutional in 1981

by the Oregon Supreme Court, and reinstated by voter

initiative in 1984. I am familiar with the history and

necessity of expert services to indigents in capital cases

in Oregon in the 1980’s and 1990’s In any capital trial-

level case, appointed counsel had the responsibility to

fully investigate the case for guilt-phase defenses, to

challenge the prosecution’s case for the death penalty,

and to develop mitigating evidence and a case for a life

sentence. In every capital case, effective representation

requires that counsel have access to independent expert

assistance. They might be investigators, or mental health

professionals, or forensic experts, or a combination of

these experts.

In Oregon during the 1980’s and 1990’s once counsel

had determined there was a need for expert assistance,

he or she would submit an ex parte motion to the court

17a

Appendix D

with a showing of the necessity for funding of the specific

expert. Once the ex parte Order was granted, it allowed

the attorney to retain the expert as an agent and further

directed the specific funding source, county and/or state,

to make payment upon submission of an invoice. In all of

the cases I personally handled and those of my partner,

Ralph H. Smith, Jr., of which I was aware such requests

were granted by the courts. This was the statewide

practice prior to and after Ake v. Oklahoma, 470 U.S. 68

(1985) through the 1990’s. In Oregon during this period

of time it is my understanding and belief that if funding

was denied it was because the attorney failed to make an

adequate showing of need for a particular expert.

I affirm that the foregoing is accurate and true.

fs sisipaneasesieidl

Duane J. McCabe

Dated March 2, 2017

18a

APPENDIX E — DECLARATION OF

DAVID FUSSELL, DATED MARCH 2, 2017

DECLARATION

I, David Fussell, make oath and say that the following

content is true and correct to the best for my knowledge,

information and belief:

1. ] am an attorney, admitted to practice in Florida.

I have continuously been a member in good standing

of The Florida Bar since admission. I am a Florida

Bar, Board Certified Criminal Trial Specialist and

have been for more than 20 years. I meet the criteria

for both lead counsel and second chair in Florida

capital cases pursuant to Rule 3.112, Florida Rules

of Criminal! Procedure. I have met lead counsel since

the rule was first created several] years ago. I am

also a member of the United States District Court

for the Middle District of Florida and have been so

in good standing continuously since approximately

1991. I also meet the standards for Learned Counsel

in the federal court system. I practice primarily in

the area of criminal law, in both state and federal

courts, mainly within Florida.

2. | was an assistant public defender in the 9th Circuit

of Florida (Orange and Osceola counties) from 1987

through 1990. One of my positions while an assistant

public defender was as a member of the unit which

handled capital crimes. As such my responsibilities

included representing clients charged in potential

19a

Appendix EB

death penalty cases. I have represented at least

20 individuals accused of First Degree Murder for

which the state was originally seeking the death

penalty. Of those I tried at least 3 which resulted in

guilty verdicts and continued on to penalty phase.

3. I have been appointed to represent individuals

eligible to receive the death penalty in the federal

system. I have served in the role of both guilt phase

and penalty phase counsel (Learned Counsel) in

federal prosecutions. I have served as Learned

Counsel in two death eligible cases prosecuted in

the United States District Court for the Middle

District of Florida. After extensive preparation, the

government, due to mitigation was dissuaded from

seeking death for my federal clients.

4. The state of Florida, for as long as 1 can remember,

has had a formal process to obtain assistance of

mental health experts in all criminal cases, in regards

to competency and insanity. In regards to the need

for mental health professionals sought by the defense

for other purposes, for example testing, diagnosis

and testimony concerning mitigating circumstances

in death cases, the process was to file a motion with

the trial court. If the trial court determined the

defense had demonstrated appropriate need, the

court would sign an order approving the expert. At

the time, the county was responsible for paying costs

of litigation including expert costs. The expert was

independent of the prosecution and worked solely

for the defense.

20a

Appendix

5. I used the above process since I first began

representing individuals in capital cases in

approximately 1989 until subsequently, when the

state became responsible for payment of expert costs

for indigent defendants.

And, further, I say not.

March 2, 2017

ls/

David Fussell

Fussell Law Firm, P.A.

650 E. Robinson Street

Orlando, Florida 32801

2la

APPENDIX F — DECLARATION OF

ANDREA D. LYON, DATED MARCH 1, 2017

DECLARATION

My name is Andrea D. Lyon. I have been a lawyer since

1976. 1 am amember of the Bar of the State of Illinois, the

District of Columbia and the State of Michigan. I am also a

member of the Bar of the Supreme Court of Illinois, of the

United States District Court in the Southern District of

Illinois, the United States District Court for the Seventh

Circuit, and the Supreme Court of the United States.

For much of my career, I have represented indigent

citizens charged with crime. I currently am the dean of

the Valparaiso University Law School. Before taking

this position in 2014, I was a Clinical Professor of Law,

Director of the Center for Justice in Capital Cases

and Associate Dean for Clinical Programs at DePaul]

University College of Law. Before joining the DePaul

faculty, I was an Assistant Clinical Professor of Law at

the University of Michigan Law School for five years from

1995 to 2000. Before that, I was the founder and director

of the Illinois Capital Resource Center (ICRC) for five

and a half years. ICRC was established by the Illinois

Supreme Court to respond to the need for post-conviction

and habeas corpus counsel for Illinois prisoners who had

been sentenced to death, but whose legal procedures had

not yet been exhausted. Before holding that position,

I was a member of the Cook County Public Defender’s

Office in Chicago, spending most of my thirteen and a

half years there as a member of (and ultimately Chief of)

22a

Appendix F

the Homicide Task Force. I have tried hundreds of cases,

written nearly a hundred appeals and habeas petitions,

and have trained hundreds of defense attorneys at various

CLE programs throughout the country, including the

National Criminal Defense College in Macon Georgia.

Shortly after graduating from law school, I became a staff

attorney at the Office of the Public Defender in Chicago.

Throughout my career as a trial attorney, I have

represented scores of individuals charged with capital

crime. I have consulted on many other capital cases, in

Illinois and throughout the country. I have taught a broad

array of topics at capital litigation training programs in

Illinois and throughout the country. I have published in

this area as well.

One of the most important challenges a capital trial

lawyer faces representing an indigent client is obtaining

sufficient resources to properly investigate the case

and present defenses. In the years leading up to Ake

v. Oklahoma (1985) and in the seven years after its

announcement, in Chicago, public defenders would seek

funds from our office. If trial counsel made a showing that

particular expert services were necessary for either the

defense at the guilt phase or for mitigation or to confront

the prosecution’s case in aggravation, the defender office

would make available funds for the retention such services.

In those instances, experts were always independent of

the prosecution. In complex cases that required multiple

experts, or if the defender office expert fund was depleted,

we would present funds motions to the trial court. While

there were disputes about whether we could make these

23a

Appendix F

presentations ex parte, (some judges would allow it, others

would not), or whether we had made a sufficient showing

to obtain expert assistance, when the court determined we

had shown the necessity for particular expert assistance,

we always had the authority to retain an independent

expert.

In my years at the Resource Center, I became familiar

with funding practices throughout Illinois in the wake of

Ake. Throughout the state, if and when an indigent capital

defense made out a sufficient case that a particular type

of expert assistance was necessary, overwhelmingly,

the court would provide funds for the retention of an

independent expert.

I hereby declare that the foregoing is true and correct.

Dated this 1* day of March, 2017.

/s/

24a

APPENDIX G — DECLARATION OF MALCOLM

RAY HUNTER, JR., DATED MARCH 1, 2017

Declaration of Malcolm Ray Hunter, Jr.

I am attorney licensed to practice law in the state

courts of North Carolina as well as the Fourth Circuit

Court of Appeals and United States Supreme Court.

I served as the Appellate Defender for the state of

North Carolina from 1985 until 2000. The primary

mission of the Office of the Appellate Defender was

to represent indigent defendants convicted of capital

and non-capital crimes in the state appellate courts.

In 1989, the Death Penalty Resource Center was

established and it was placed in the Office of the

Appellate Defender and the Appellate Defender

appointed and supervised the Director of the Death

Penalty Resource Center. The Death Penalty

Resource Center was created to assist attorneys

appointed to represent indigent capital defendants

at trial and in post conviction.

The right of indigent defendants to experts as part

of representation was recognized by state law prior

to Ake v. Oklahoma. North Carolina General Statute

7A-450(a) entitled indigent defendants not only

to counsel, but also “other necessary expenses of

representation.

25a

Appendix G

During the period from 1985 until 2000, counsel

applied to the trial court for funds for experts. Upon

a showing that an expert was necessary, the court

would authorize funds or otherwise make an expert

available for the defendant’s case. Just as with

appointed counsel, defendants did not have a “right”

to a particular expert of his choice, but in practice,

counsel for defendant usually identified the expert to

be retained. In any event, the expert was understood

as independent of the state.

Beginning in 1987, as appellate defender, I represented

Billy Moore, a young man convicted of sexual assault

based mainly on his confession to police. Mr. Moore

suffered from mental retardation and there was a

significant question as to whether his confession

was voluntary and accurate. Mr. Moore had been

examined by a state psychiatrist concerning his

competency to stand trial at a state forensic unit.

The forensic psychiatrist examined the defendant

and found the defendant competent to stand trial.

The defendant moved pretrial for an independent

psychiatrist to assist counsel. When this motion

was denied, the defendant called the state forensic

psychiatrist, who gave testimony favorable to the

defendant at the motion to suppress and the trial,

but defendant lost the motion to suppress and was

convicted as charged. On appeal, the Court held that

the trial court erred in failing to give the defendant

an independent expert who could not only testify for

the defendant, but assist the defendant in evaluating,

preparing and presenting a defense. State v. Moore,

321 N.C. 327, 364 S.E. 2d 648 (1998)

26a

Appendix G

7. Thus, at least after Moore, it was clear in North

Carolina that the right to an expert included not just

access to testimony, but an expert who was a member

of the defense team.

This the 1st day of March, 2017

Ls/

Malcolm Ray Hunter, Jr.

27a

APPENDIX H — DECLARATION OF

EDWARD C. MONAHAN AND EXHIBITS,

DATED MARCH 1, 2017

Declaration of Edward C. Monahan,

Public Advocate, Commonwealth of Kentucky

1. [ am the chief public defender for Kentucky’s

statewide public defender program, the Kentucky

Department of Public Advocacy (hereinafter, DPA). I am

duly licensed to practice before state and federal courts in

the Commonwealth of Kentucky, the United States Court

of Appeals for the Sixth Cireuit, and the United States

Supreme Court. I have spent thirty-seven of the last

forty-one years representing indigent clients accused of

crimes or otherwise facing incarceration on both the trial |

and appellate levels. During that time, I have represented

clients facing the death penalty on twelve occasions. |

served as the chair of the DPA’s Death Penalty Task Force.

2. In addition to representing clients, I served

as DPA’s Director of Education and Development for

twenty-one years, from 1980 to 2001. This placed me in

a position to know the status of many legal developments

in the criminal justice community in Kentucky during

that time, including the evolving awareness of the need

to provide funds to defense counsel for the employment

of independent defense experts when a proper ex parte

showing of reasonable need was made to the court.

Kentucky, along with numerous other states, developed

a process remarkably similar to that eventually required

in Ake v. Oklahoma, 470 U.S. 68 (1985). What follows is

a broad description of that development.

28a

Appendia H

3. At the time Ake was decided, the Kentucky Public

Defender System already had a system in place for

funding independent expert defense witness and other

necessary expenses as the result of Kentucky Revised

Statutes (K RS) Chapter 31, the enabling legislation which

created DPA in 1974. KRS 31.110(1) provided that a needy

person charged with a serious crime was entitled:

a) To be represented by an attorney to the same

extent as a person having his own counsel is so

entitled; and

b) To be provided with the necessary services

and facilities of representation including

investigation and other preparation. The courts

in which the defendant is tried shall waive all

costs.

KRS 31.185 provided:

Any defending attorney operating under the

conditions of this chapter is entitled to use

the same state facilities for the evaluation

of evidence as are available to the attorney

representing the Commonwealth. If he considers

their use impractical, the court concerned may

authorize the use of private facilities to be paid

for on court order by the county.

This was the statute which the courts interpreted to

require funding for independent defense experts such as

psychologists.

29a

Appendix H

4. In 1979, the Kentucky Supreme Court decided

Young v. Commonwealth, 585 S.W.2d 378 (Ky. 1979), which

held that the authorization of funds under KRS 31.185

had to take place prior to the procurement of the defense

expert services. An Office of Attorney General Opinion

dated 1980 concluded that:

As relates to psychological examinations, KRS

31.185 applies. Where the defense attorney

considered the use of state facilities as being

impractical, the court concerned may authorize

the use of private facilities to be paid for on court

order by the county. Young v. Commonwealth,

585 S.W.2d 378 (1979). (See OAG 80-401.)

5. In 1984, in Hicks v. Commonwealth, 670 S.W.2d 837

(Ky. 1984), the court interpreted the word “necessary”

in KRS 311.110(1) to require a “reasonably necessary”

showing of the need for an independent defense expert.

6. In the wake of Hicks, Kentucky courts provided

funding for the retention of independent expert assistance

so long as the defense could make a reasonable showing the

expert was necessary to a defense at trial or for mitigation

at the penalty phase of a capital trial.

7. Thereafter, the primary issue that would rise for

appellate review was whether the defense had made an

adequate showing for those services. For instance, in 1987,

in Smith v. Commonwealth, 734 S.W.2d 437 (Ky. 1987),

the court decided that the defendant had not made an

adequate showing. The court reached that decision again

30a

Appendia H

in 1988 in Simmons v. Commonwealth, 746 S.W.2d 393

(Ky. 1988). In both Smith and Simmons, the defense right

to the funding was not at issue.

8. In 1985, the United States Supreme Court decided

Ake v. Oklahoma, and cited KRS 31.070, KRS 31.110,

KRS 31.185, and over forty other state statutes and court

opinions, in support of its decision. See Ake, 470 U.S. at 79

n. 4, 105 S.Ct. at 1094 n. 4. The court perceived its decision

to be an adoption of several practices already in effect.

9. Once Ake v. Oklahoma was decided, DPA training

incorporated the decision in an ongoing effort to teach

criminal defense attorneys how to make an adequate

showing of the reasonable necessity for funds for

independent experts. The training reflected our

understanding of the state of development of the issue at

the time. We were teaching:

* Ake v. Oklahoma, 470 U.S. 68 (1985) established a

U.S. constitutional due process right to funding for

an independent defense expert when necessary;

* The need to make the motion ex parte;

* How to make a threshold showing that a defense

expert would be reasonably necessary to the

defense;

* Howto demonstrate that a state expert or “neutral”

expert would not be sufficient. (Note the training

materials attached. These are letters from state

dla

Appendix H

experts attesting to the fact that they could not

serve as defense experts.)

I made essentially the same points in an article entitled,

“Obtaining Funds for Experts in Indigent Cases,” which

was published in the magazine of the National Association

of Criminal Defense Lawyers, The Champion. (See, The

Champion, National Association of Criminal Defense

Lawyers, August 1989, pp. 10-18.)

10. In 1992, in Sommers v. Commonwealth, 843

S.W.2d 879 (Ky. 1992), the court found that the defense

counsel had demonstrated the reasonable necessity of

funds and declared the failure to grant such funds to

be prejudicial error, requiring reversal. The defendant

Sommers had been indicted in 1988 for the killing by

suffocation of his two daughters and the subsequent arson

of the home. The central issue of the case was whether

death had occurred prior to the arson and not because of

it. There were no eyewitnesses to any of the events alleged

by the Commonwealth, and the Commonwealth’s case

was comprised almost entirely by six expert witnesses

for the prosecution. This was trial by expert, and the

Commonwealth was seeking the death penalty.

11. After reviewing a lengthy pretrial hearing by the

trial court, the Kentucky Supreme Court ruled that the

defense in Sommers had made an adequate showing of

reasonable necessity by establishing the following:

* Defense experts were necessary to interpret the

technical language of the prosecution reports, to

32a

Appendix H

explain the findings, to look for inconsistencies in

them, and to analyze possible flaws in methodology;

* Defense experts were necessary to explore the

possibility that the circumstances might well have

been consistent with accidental death;

¢ State and prosecution witnesses were unable to

offer confidential consulting services to the defense.

(The defense established this by the proffer of

affidavits from both the State Fire Marshal and the

Chief Legal Officer of the Kentucky State Police.)

12. The Kentucky Supreme Court ruled that:

To us, itis clear from the record that the defense

demonstrated “reasonable necessity,” and was

entitled to the assistance of an independent

pathologist and an independent arson expert or

the equivalent. We hold that denial of the motion

to authorize funds to provide such assistance

constituted prejudicial error. (Sommers, at

885.)

13. In 1994, the Kentucky Supreme Court heard a

case based on events which had occurred in 1990. Hunter

v. Commonwealth, 869 S.W.2d 719 (Ky. 1994) involved

another case of alleged murder and arson, and the trial

court had sentenced the defendant, James D. Hunter, to

death. The central question on appeal was whether the

trial court had committed abuse of discretion by refusing

to grant a continuance to the defense in order to secure

33a

Appendix H

the services of an independent psychiatrist to evaluate

the defendant.

14, After witnessing a steady decline in the nineteen

year old defendant’s mental and emotional state, the

defense moved the court for a competency examination,

and the court ordered the defendant to be examined

by a state psychologist employed by the Kentucky

Correctional Psychiatric Center (hereinafter, KCPC).

The court also ordered KCPC to include information

regarding the availability of legal defenses or mitigating

factors based upon the defendant’s state of mental health.

The subsequent KCPC report declared the defendant

competent to stand trial, but did not address any issues

of mental capacity. The KCPC psychologist, however, did

personally contact the defense to express his concerns

regarding the defendant’s possible mental deterioration.

The defense moved the court for funds for an independent

expert to explore possible defenses and mitigation

evidence, and a continuance in order to employ the expert.

The court denied the continuance. The defense renewed

the motion for funds and a continuance after the guilty

verdict in March 1991, in order to prepare for sentencing.

The court denied the motion again.

15. In its analysis of events, the Kentucky Supreme

Court applied Ake v. Oklahoma and followed its reasoning

carefully. It ruled that the defense was entitled not only

to the funds for, and services of, an independent defense

expert, but that that right also entailed a right to the time

necessary to procure and use those services as well. The

trial court’s refusal to grant a continuance was ruled an

34a

Appendix H

abuse of discretion under Kentucky law, and a denial of the

Fourteenth Amendment to the United States Constitution

right to due process.

16. lnsummary, Kentucky, like very many other states,

had already established a right to funds for independent

expert assistance for indigent defendants when reasonably

necessary, before Ake v. Oklahoma held that the Due

Process Clause of the Fourteenth Amendment requires

that same right, pointing to states such as Kentucky for

support of the ruling.

March 1, 2017

/s/

Edward C. Monahan

35a

Appendix H

THE SECRETARY FOR HUMAN RESOURCES

COMMONWEALTH OF KENTUCKY

FRANKFORT 40601

March 27, 1986

Edward C. Monahan

Assistant Public Advocate

Office for Public Advocacy

State Office Building Annex

Frankfort, Kentucky 40601

Dear Mr. Monahan:

You have requested the Cabinet for Human Resources

to assist in the preparation of a defense based on insanity

or diminished responsibility on behalf of Kevin Fitzgerald,

a defendant in a capital case. The Cabinet for Human

Resources maintains a forensic psychiatric facility

through which we provide competency evaluations of

criminal defendants on request of Judges throughout the

Commonwealth, and in which convicted prisoners are

treated for mental illness. It has been a long time policy of

the Cabinet to decline requests to serve as experts in the

preparation of criminal cases either for the prosecution or

the defense. We must adhere to that position for several

reasons. We regard the protection of our objective stance

as necessary to maintain our credibility and integrity

when serving as a resource to the courts in competency

determinations and prevent circumstances in which our

professional staff may be pitted against each other as

adversaries.

36a

Appendix H

I am sorry that I must decline your request for our

assistance and wish you well in your search for professional

assistance.

Sincerely

E. Austin, Jr.

Secretary

37a

Appendix H

THE SECRETARY FOR HUMAN RESOURCES

COMMON WEALTH OF KENTUCKY

FRANKFORT 40601

May 19, 1980

Mr. Edward C. Monahan

Assistant Public Advocate

Office for Public Advocacy

State Office Building Annex

Frankfort, Kentucky 40601

Dear Mr. Monahan:

This is in reply to your letter dated May 14, 1980 in

which you ask whether this Department or any other state

agency has medical and mental health professionals “who

can appropriately assist the defense in the investigation

of matters relevant to the defense.” You state that you

are not looking for professionals who are aligned with the

prosecution or the courts.

This Department maintains the Grauman Forensic

Psychiatry Unit on the grounds of Central State Hospital

in Louisville, Kentucky, to assist courts in the evaluation of

criminal defendants for both the competency to stand trial

(KRS 504.040) and for the determination of existence of

mental! disease or defect at the time of the alleged criminal

act (RRS 504.020, .030 and .050). These evaluations are

provided pursuant to court order and are supplied as a

service to the court, and not to either the prosecution or

the defense.

38a

Appendia H

After checking with both my program and legal

staffs, I have determined that this Department will not

be able to assist you with your request. To do so, in this

instance, could compromise the integrity of our program

to provide effective evaluations to the courts of Kentucky.

If in this or any other case you desire such an objective

evaluation, please contact the staff of the Forensic

Unit, 2108 Lakeland Road, Louisville, Kentucky 40223

(502-245-9738).

To reiterate, this department cannot allow itself to

be used as the tool for either side in criminal matters but

must maintain an objective stance. Thank you for your

inquiry into this matter. Please feel free to contact me if

you have any further questions.

Most sincerely,

ls/ _

W. Grady Stubo, M.D.

Secretary

39a

APPENDIX I — DECLARATION OF

BILL WHITE, DATED MARCH 1, 2017

DECLARATION OF BILL WHITE

For clarity, my given name is William Pierce White,

III. When I was elected in 2004 to serve as Public

Defender for the Fourth Judicial Circuit of Florida, |

petitioned the Supreme Court of Florida to change my

name for purposes of signing legal documents to the

name I used during my campaign, Bill White. In 2008, I

was defeated in a bid for reelection as Public Defender.

Although not actively practicing, [ remain a member in

good standing of the Florida Bar.

I joined the Office of the Public Defender for the

Fourth Judicial Cireuit in July of 1974, after completing

an externship there from the University of Florida College

of Law. During that internship, I began working with

other attorneys in that office on the appeal and post-

conviction pleadings in Dobbert v. State involving a client

sentenced to death for the murders of two of his children.

As an assistant public defender, I continued to work on

the Dobbert case, and in July of 1976, upon being named

Chief Assistant Public Defender, [ wrote the petition for

writ of certiorari to the Supreme Court of the United

States in that case. The writ was granted, and after

writing the briefs for the appellant, I appeared in that

losing effort with Lou Frost, the Public Defender, at the

oral arguments in that case before the Court.

Beginning in early 1976, I was assigned to handle

capital cases. Turnover in our office was such that over

95% of the staff present when I arrived was gone by

this time, and I was woefully inadequate to the task. My

40a

Appendia I

inexperience was masked by winning a number of jury

trials, but inevitably, a client was sentenced to death. We

preserved a Tedder issue before Tedder was decided, and

the client returned and received a life sentence.

I was, with Lou Frost one of the founders of the Life

Over Death capital trial trial training program developed

for the Florida Publie Defender Association, and was a

presenter at several of the first sessions of that program.

1 have handled dozens of capital cases as first and

second chair, and as Chief Assistant Public Defender,

and later the elected Public Defender, I supervised senior

assistant public defenders in handling dozens more. I have

argued appeals at the Circuit, District Court of Appeals,

and Supreme Court of Florida levels.

I taught for over fifteen years at the Prosecutor/Public

Defender Program at the University of Florida College

of Law. As a visiting adjunct, I taught trial practice

programs at Nova University College of Law, Florida

State University College of Law, and judged mock trials

and appellate practice a t the University of Florida College

of Law.

| served on the Supreme Court of Florida Death

Penalty Study Commission that developed Rule 3.850, of

the Florida Rules of Criminal Procedure, and both served

on and chaired the Criminal Procedure Rules Committee

of the Supreme Court of Florida. I also both served on

and chaired the Executive Council of the Criminal Law

Section of the Florida Bar. I served on and chaired several

committees of the Jacksonville Bar Association, including

the Criminal Law Committee.

4la

Appendix I

I was a recipient of the NLADA Outstanding Service

Award, and the Florida Public Defender Association

Outstanding Service Award (since renamed the Craig

Stewart Barnard Award).

During my tenure as elected Public Defender, | served

as the Legislative Chair, and in my final year, as President

of the Florida Public Defender Association.

I am fully aware of the holding in Ake v. Oklahoma,

(1985). Prior to and for some time since that holding,

our office routinely requested, and was granted the

appointment of independent defense experts for use at

trial and in mitigation in capital cases. Florida finally

established a “Due Process” budget entity for Public

Defenders. That fund obviated the need to seek approval

from the courts for experts. The elected Public Defender

would review requests, but it has long been common

practice throughout the Florida trial jurisdictions with

which I am familiar for the elected officials or their

designees to grant them.

I have read the forgoing and it is a true and correct

statement of the facts contained therein. Done this 1* day

of March 2017.

is/

BILL WHITE

1307 4" Street

Neptune Beach FL 32266

(904) 502-2141

Florida Bar No: 0188706

42a

APPENDIX J — DECLARATION OF KEVIN J.

O’CONNELL, DATED MARCH 1, 2017

Declaration of Kevin J. O’Connell

1. I am an attorney duly licensed to practice before

state and federal courts in the State of Delaware, as well

as the Third Circuit Court of Appeals and the United

States Supreme Court. I began the practice of law here in

Delaware in 1984, and my primary area of representation

became criminal defense in 1989, when I became a court-

appointed conflict lawyer for the Superior Court. In

that capacity, I began handling felony cases on behali of

indigent defendants including the trial, appeal and post-

conviction review of capital cases. Over the next sixteen

years I represented dozens of indigent clients facing

capital murder charges at trial, on appeal and on state and

federal post-conviction review. In September of 2005, I

became an assistant public defender in what is now known

as the Office of Defense Services here in Delaware. As

an assistant public defender, | have represented several

clients charged with capital murder over the last twelve

years.

2. I have been asked to describe Delaware’s funding

mechanism for independent experts, including mental

health experts, in response to Ake v. Oklahoma, 470 U.S.

68 (1985). The Delaware Office of the Public Defender

already had a system and a budget in place for the

retention of expert witnesses, including mental health

experts, at the time of the Ake decision. In the case of

court-appointed counsel, our practice was to apply to

43a

Appendix J

the judge assigned to the particular case for the funds

necessary to retain expert assistance, including mental

health experts. Throughout the time that I handled capital

cases (from 1990-2005) as a court-appointed lawyer, so

long as I made a showing of sufficient need, no Superior

Court judge ever denied me the funds necessary to hire an

independent mental health expert to assist my client in the

guilt or penalty phases of a capital trial. I have conferred

with another colleague, Jerome Capone, Esquire, who also

handfed court-appointed conflict cases here in Delaware

post-1985. Like my experience in capital cases, Mr. Capone

cannot recall ever being denied the resources necessary to

hire independent mental health experts in a capital case.

3. In summary, it is my and Mr. Capone’s experience,

that the State of Delaware consistently provided counsel

for indigent defendants the funding necessary for the

retention of independent expert assistance, including

mental health experts, in capital cases since the Supreme

Court’s decision in Ake v. Oklahoma.

| make this declaration, under the penalty of perjury

under the laws of the State of Delaware and the United

States, that the foregoing is true and correct to the best

of my knowledge.

Dated this 1* day of March, 2017.

/s/

Kevin .J. O’Connel!

44a

APPENDIX K — DECLARATION OF JAMES S.

THOMSON, DATED MARCH 1, 2017

DECLARATION

James S. Thomson

My name is James S. Thomson. I am a licensed

attorney in the State of California. My office address is

819 Delaware Street, Berkeley, California, 94710. I was

admitted to the California Bar in 1978 and have practiced

law continuously since then.

Throughout my career, I have represented individuals

charged with crime. The vast majority of my clients have

been indigent. While most of my legal work has been

performed throughout the State of California, I have also

represented clients in state and federal courts in Arizona,

Florida, Montana, Nevada, Tennessee, and the Territory

of America Samoa.

For much of my career, | have represented clients

charged with capital crimes in state and federal trial

courts, and also on appeal and in state and federal

habeas proceedings as well as in clemency matters. I first

represented a capital client in 1981. I have represented

eleven defendants charged with federal capital crimes in

several jurisdictions.

During my career, I have served on state and county

bar association committees to improve the quality of

indigent defense representation. In 1992, I co-founded

45a

Appendix K

the Bryan R. Schechmeister Death Penalty College at

Santa Clara University. This program offers a one-week

intensive training for capital trial attorneys. I have served

on its faculty ever since, contributed articles to capital

defense training manuals in California and Arizona,

and lectured at continuing legal educational programs

for California Attorneys for Criminal Justice and the

California Public Defenders Association.

In every capital case I have handled in the trial court,

my clients have been indigent. In each, I have had to

request that the court authorize funds for the retention

of expert and ancillary services. I am familiar with all

the court rules, statutes and state and federal case law

that govern the provision of funds for expert services in

both capital and non-capital cases in California, and with

the actual court practices in Alameda, Merced, Placer,

Sacramento, San Joaquin, Sierra, Siskiyou, and Yolo

counties, and I am familiar with the practice in a number

of other counties.

I have reviewed the Declaration of Russell Stetler that

sets forth the policies and practices for capital defendants

in California to secure expert funding in the 1980s and

1990’s. Mr. Stetler’s declaration both comprehensively and

accurately sets forth those policies and practices.

Throughout this period, so long as the defense was

able to make an adequate showing of need for an expert,

investigator or other ancillary services, the defense

would receive funding so it could secure the services

of an independent expert. For example, I have secured

46a

Appendix K

court funding for psychologists, neuropsychologists,

psychiatrists, criminalists, pathologists, anthropologists,

sociologists, demographers, investigators, mitigation

specialists, medical doctors, fingerprint examiners,

ballistic personnel, crime scene reconstructionists,

toxicologists, substance use and abuse experts, social

historians, eyewitness identification experts, gunshot

residue experts, statisticians, social psychologists and

sentencing consultants.

I affirm the foregoing it truthful and accurate.

ls/_ 3/1/17

JAMES THOMSON

47a

APPENDIX L — DECLARATION OF NATMAN

SCHAYE, DATED MARCH 1, 2017

Declaration of Natman Schaye

I, Natman Schaye, under penalty of perjury, declare

the following to be true and accurate to the best of my

knowledge, information and belief:

1. I am a lawyer and have been licensed to practice

in the State of Arizona since 1981. I am also licensed

to practice in the United State District Court for the

District of Arizona, the United States Courts of Appeal

for the Ninth and Tenth Circuits, and the United States

Supreme Court. I have practiced law full-time since 1981.

My practice has almost entirely focused on the defense

of criminal cases. I have represented clients facing the

death penalty since 1984. Since then, my practice has

primarily involved the trial, appeal and post-conviction

representation of clients in capital cases. I am a charter

and life member of the Arizona Attorneys for Criminal

Justice, a non-profit association of criminal defense

lawyers and other members of the criminal defense

community founded in 1986. Since 1987, I have taught a

variety of topics, including obtaining necessary resources,

working with experts, and providing effective assistance

of counsel, at death penalty defense seminars in Arizona

and throughout the United States.

2. | was in private practice from 1981 to 2010. Since

April 1, 2010, I have worked full-time as Senior Trial

Counsel for the Arizona Capital Representation Project,

48a

Appendix« L

a non-profit devoted to ensuring that all persons facing

the death penalty in the State of Arizona are vigorously

and effectively represented, and are treated fairly by the

courts. In this capacity, I provide direct representation

to capital clients, as well as consultation and training for

capital defense teams in the State of Arizona.

3. I served on the following committees by appointment

of the Arizona Supreme Court: a) the committee charged

with revising Rule 32 of Criminal Procedure (which

governs post-conviction proceedings) from 1996-1997:

b) the Committee on the Appointment of Counsel in

Capital Cases from 1996-2002; c) the Arizona Criminal

Rules Committee from 1995-2000; d) the Capital Case

Oversight Committee from 2013-present; and e) the Task

Force on the Arizona Rules of Criminal Procedure from

2015-present.

4. I am familiar with the standards and procedures

for the appointment of defense experts for indigent

defendants, including mental health experts, in the State

of Arizona from 1981 to the present. My familiarity is

based on my own law practice, the experiences described

above, and from having consulted with and trained may

defense lawyers in Arizona, and from having worked and

spoken with Arizona’s judges and justices.

5. | was asked to describe the manner in which

Arizona provided funding for independent experts for

indigent defendants, including mental health experts,

in response to Ake v. Oklahoma, 470 U.S. 68 (1985). For

more than sixty years, the State of Arizona has placed the

49a

Appendix L

burden of funding indigent defense in felony cases on its

fifteen counties. State v. Apelt, 176 Ariz., 349, 365 (1993);

State v. Knapp, 114 Ariz. 531, 539 n.2 (1977); A.R.S. §

13-4013; A.R.S. § 13-1673(B) (1956). Both before and after

Ake, county public defender offices had their own budgets,

this enabling the retention of independent defense

experts without court authorization. Before and after

Ake, private lawyers representing indigent defendants

under court appointment were required to obtain funding

for independent experts from trial courts. Such funding

was provided only if the court found it to be “reasonable

necessary adequately to present [a] defense at trial ...”

A.R.S. § 13-1673(B) (1956).

6. While this system was in place when Ake was

decided, that decision caused the Arizona Supreme Court

to more carefully consider indigent defendants’ claims that

they were constitutionally entitled to expert assistance. In

State v. Vickers, 159 Ariz. 532, 536-537 (1989), that court

quoted and applied the three factors set forth in Ake:

The first is the private interest that will be

affected by the action of the State. The second is

the governmental interest that will be affected

if the safeguard is to be proved. The third is the

probable value of the additional or substitute

procedural safeguards that are sought, and the

risk of an erroneous deprivation of the affected

interest if those safeguards are not provided.

Id. at 536, quoting Ake, 470 U.S. at 77. Further, it became

common for Arizona state court litigators and judges

50a

Appendix L

to refer to motions for funds to retain independent

defense experts as “Ake motions.” In cases in which

private appointed counsel requested independent expert

assistance, funds would be proved upon a showing that

such assistance was “reasonable necessary.” State v.

Williams, 166 Ariz. 132, 139 (1987), citing Ake.

Dated this 1* day of March, 2017.

Ls/ —_

Natman Schaye

5la

APPENDIX M — DECLARATION OF SAMUEL

STRETTON, DATED MARCH 1, 2017

DECLARATION

My name is Samuel Stretton. I am a licensed attorney

in the State of Pennsylvania. I have been a member of

the Bar of the State of Pennsylvania since 1973. I am a

member of the bar of the Pennsylvania Supreme Court and

the United States Court of Appeals for the Third Circuit.

For the past 35 years. I have maintained a statewide

law practice with my main office being in West Chester,

Pennsylvania.

During my entire career as an attorney, I have

represented persons charged with criminal offenses, many

through appointment by the state trial courts and many

as private clients. During the 1980’s through the 1990’s,

| represented more than two dozen indigent defendants

charged with capital crimes in Philadelphia and other

courts. The District Attorney of Philadelphia at that time,

Lynn Abraham, sought the death penalty in nearly al!

aggravated murder cases. Other private attorneys who

represented capitally-charged indigent defendants were

Gary Server, Esquire, David Rudenstein, Esquire, Jules

Epstein, Esquire, Mark Wallace, Esquire and others.

During this time, indigent capital defendants received

their lawyers through appointment by the trial judge.

Several Philadelphia judges kept my name on their list of

attorneys to be appointed in these serious cases.

52a

Appendix M

One of the many responsibilities appointed capital trial

counsel must deal with is seeking necessary resources for

an effective defense. In the early 1980’s, most of the trial

judges were very tough on funds motions. This reluctance

to provide resources was altered after the announcement

of Ake v. Oklahoma, 470 U.S. 68 (1985). Ake made clear

that upon a sufficient showing of need, the defense

was entitled to receive funds to retain competent and

independent expert services. Even then it was difficult to

get enough funds. The court system often would cut the

fees of experts making it difficult to get them to continue

to do court appointed work.

In the numerous cases I handled in the seven years

after Ake, the problems I encountered concerned mostly

the amount of funding provided for approved expert

services. Often, the low amount made it difficult to find an

expert willing to work for what was often an insufficient

fee. But in my cases, and other capital cases handled by

other private attorneys, once the court determined an

adequate showing had been made to require access to

expert services, those services were always independent of

the prosecution. Indeed, in my cases that required mental

health expertize, I would often hire Dr. Gerald Cooke, Dr.

Robert Sadoff or Dr. Stephen Samuel. There was only one

case, Commonwealth v. Anthony Reid, where Judge Sabo

refused me money for an expert witness and told me to

use the court staff psychologist. I refused to do so.

I affirm the truth and accuracy of the foregoing.

ls/ pa ie Dated: March 1, 2017

58a

APPENDIX N — DECLARATION OF J. MICHAEL

ENGLE, DATED MARCH 1, 2017

STATE OF TENNESSEE

COUNTY OF DAVIDSON

DECLARATION

I, J. Michael Engle, make oath and say that the

following content is true and correct to the best for my

knowledge, information and belief:

1. lam an attorney, continuously licensed by the State

of Tennessee since 1976 and currently in good standing.

From 1978 until 1980 and from 1990 until 2016, I was

employed by the Metropolitan Nashville-Davidson County

Public Defender. Except for the first nine months, I served

as a supervising attorney in the felony trial courts. I am

certified as a specialist in Criminal Trial Advocacy by the

National Board of Trial Advocacy. I meet the standards of

the Tennessee Supreme Court for lead representation in

death penalty trials of which I have done four to verdict

and more that were resolved before trial.

2. | utter this Declaration to address the availability

of independent expert assistance in capital cases in

the Davidson County court system in the 1980s, and

particularly after Ake v. Oklahoma, 470 U.S. 68 (1985)

was handed down.

3. The Metro Public Defender, a local agency, has never

had independent resources to obtain expert assistance in

54a

Appendia N

their representations. In the death penalty cases in early

1990s, the process to obtain assistance of an independent

mental health expert was much as it is today.

4. The process to obtain an independent expert on

a client’s mental health began with an ex parte showing

to the trial judge by detailed motion under seal. The

Motion would detail the specific need and its relation to

the facts of the case. The proposed expert’s credentials

would be appended, often with the proposed expert's

affidavit as to why their assistance would/could be helpful.

If the proposed rate was unusual or if the expert was

located more than one hundred and fifty miles from the

trial court, an additional showing would need to address

those variances. The Motion would be heard ex parte in

chambers and, if granted, an Order would issue under seal.

This process was followed in capital cases, and experts

were always independent.

5. The trial court Order would be transmitted to the

Administrative Office of the Courts, Tennessee Supreme

Court. Upon their endorsement, the services could begin.

If approval was denied, an administrative appeal would

be reviewed by the Chief Justice. Upon completion of

the services, the mental health expert would invoice

the attorney and, upon the attorney’s endorsement, the

Administrative Office of the Courts would eventually issue

payment to the expert.

6. I used this process many times in 1991 in cases

when a mental health expert was needed.

55a

Appendix N

And, further, I say not.

fs/ _

J. Michael Engle

Sworn to and subscribed before me on the 1* day of

March, 2017

=

Notary Public

56a

APPENDIX O — DECLARATION OF MARCIA A.

MORRISSEY, DATED FEBRUARY 28, 2017

DECLARATION OF MARCIA A. MORRISSEY

I, Marcia A. Morrissey, declare as follows:

1. lama lawyer licensed to practice since 1975. I have

devoted my career to the practice of criminal defense. For

the past 30 years, my practice has been almost exclusively

capital cases, in state and federal court and at the trial

and post-conviction stages of the proceedings. 1 have

tried six capital cases to juries. I have been appointed as

“learned counsel” (18 U.S.C. § 3005) in ten federal death

penalty cases. I have been counsel of record in eight

28 U.S.C. § 2254 cases challenging state court death

judgments. I represented Angela Johnson in 28 U.S.C.

§ 2255 proceedings in the Northern District of lowa, Case

No. C 09-3064-MWB. After Ms. Johnson’s death sentence

was reversed by the district court, | was appointed to

represent her at the retrial of the penalty phase of her

case, and which did not occur because the government

withdrew its Notice of Intent to Seek the Death Penalty.

2. I have provided declarations and expert testimony

regarding the standard of care in capital cases, and |

have served on the planning committee or faculty of death

penalty defense training programs at least once a year

for the past 28 years. I served on the Los Angeles County

Bar Association Indigent Criminal Defense Appointments

Committee from 1990 to 1993. In that capacity, I worked

with judges and other attorneys to develop criteria,

57a

Appendix O

evaluate and classify hundreds of private attorneys for

appointment to criminal cases. I currently serve on the

Capital Habeas Attorney Panel Advisory Committee

for the Central District of California. This Committee,

which consists of district court judges and attorneys, is

responsible for evaluating and approving private attorneys

for appointment to represent state court prisoners under

a sentence of death in habeas corpus proceedings in the

Central District of California.

3. For more than 30 years, I have been a member

and officer of California Attorneys for Criminal Justice

(CACJ). CACJ is a non-profit California corporation that

currently has approximately 2,000 members, primarily

criminal defense attorneys practicing before state and

federal courts. In 1998, I was President of CACJ. Before

serving as President, I served as President-Elect, Vice

President, Treasurer and Secretary. I co-chaired the

CACJ Death Penalty Committee from 1994 to 1996, and

in 2005 and 2006.

4. | have lectured on issues related to criminal defense

at continuing legal education conferences and seminars,

including the annual CACJ and CPDA Capital Case

Defense Seminar and the Bryan R. Shechrneister Death

Penalty College in Santa Clara, California. In 1992 and

1993, I was Chair of the CACJ Capital Case Defense

Seminar Planning Committee. I was Co-Chair of the

Planning Committee for the Seminar in 2006.

5. I have consulted with attorneys in over 150 murder

cases, on a wide variety of issues involving competence,

58a

Appendix O

sanity, guilty and penalty phase and appellate and post-

conviction issues. These topics include the selection of

defenses, plea negotiations, working with investigators,

experts and other witnesses, the development and

presentation of statutory and constitutional issues, and

other litigation questions.

6. I have been asked to address the practices

regarding the provision of experts and ancillary services

reasonably necessary to the development and presentation

of a defense in death penalty cases in the trial courts of

California in the 1980’ and 1990’s.

7. Because the great majority of the defendants I have

represented in capital cases at the trial level have been

indigent, the defense was funded by the trial court. In

California, funding for capital cases is provided pursuant

to California Penal Code Section 987.9 In order to obtain

funding, the defense is required to make a showing that

the services requested and reasonably necessary for the

preparation and presentation of a defense. All funding

applications pursuant to the state statute are confidential.

In addition, applications for appointment of experts and

investigators in capital cases are not heard by the trial

judge, but by judge designated by the Presiding Judge of

the Criminal Division of the Superior Court to review and

rule on such applications in all capital cases.

8. Ancillary services provided to the defense in

capital cases include investigative and paralegal services,

mitigation specialists and a variety of experts, the nature

of which varies from case to case. For example, I have

59a

Appendix O

sought and obtained the appointment of jury consultants,

polling and expert assistance for a change of venue motion,

psychologists, psychiatrists, neuropsychologists, experts

to conduct neurological evaluations, including PET scans,

MRIs and functional MRIs, CT scans and sleep studies,

crime scene reconstruction experts, forensic pathologists,

pediatric forensic pathologists, toxicologists, criminalists,

fingerprint and handwriting examiners, social historians

and substance abuse experts.

9. | have read the Declaration of Russell Stetler

regarding the practices and policies for funding capital

cases in California in the 1980’s and 1990’s. Mr. Stetler

has accurately described the applicable practice and

procedure during this period of time.

I declare under penalty of perjury that the foregoing is

true and correct, and that this declaration was dated this

28th day of February, 2017, at Santa Monica, California.

/s/

Marcia A. Morrissey

60a

APPENDIX P — AFFIDAVIT OF CAREY

HAUGHWOUT, DATED FEBRUARY 238, 2017

AFFIDAVIT OF CAREY HAUGHWOUT

Carey Haughwout, having been duly sworn, deposes

and says:

1. | am the elected Public Defender of the Fifteenth

Judicial Circuit of the State of Florida, now serving my

fifth term. I took office in January of 2001. I have been

a member of The Florida Bar since 1983. I am a board

certified criminal trial lawyer and meet the qualifications

for handling death penalty cases in Florida.

2. | have practiced criminal defense for over 33 years. |

handled my first capital case in 1986 and have represented

people charged with capital crimes since that time. I

worked in the capital division of the Palm Beach County

Public Defender’s Office from 1987-90, spent a decade in

private practice in West Palm Beach during which time I

handled numerous capital cases, and since being elected

Public Defender have continued to actively represent

indigent persons accused of capital crimes.

3. Over the course of my career I have handled in excess

of 50 death penalty cases, I have tried approximately 20

such cases, and I have represented death sentenced

individuals in the Florida Supreme Court. I have handled

death penalty cases in a number of jurisdictions in Florida.

I have also testified as an expert in death penalty litigation

in several post-conviction cases. I currently represent

6la

Appendia P

in the trial court several clients in capital cases and I

provide direct oversight to our capital division that has

the responsibility for more than 25 cases where the State

has announced its intention to seek the death penalty if

there is a conviction of a capital offense.

4. As an advocate for the indigent accused, I have

worked with many organizations throughout the State of

Florida. I am a member of the Palm Beach County, state

and national Association of Criminal Defense Lawyers,

the Palm Beach County Criminal Justice Commission,

Legal Aid Society and the Florida Association of Women

Lawyers. I have spoken at numerous seminars specializing

in capital defense as well as state and national conferences

on various criminal defense topics.

5. | served at the request of Governor Chiles and

Governor Bush on the Domestic Violence Clemency

Panel and served at the request of the Supreme Court on

the Special Advisory Committee to Establish Minimum

Standards for Counsel in Capital Cases. I have been

recognized with the ACLU Harriet S. Glasner Freedom

Award, The Lord’s Place Ending Homelessness Award,

the Voter’s Coalition of Palm Beach County, the March

of Dimes Women of Distinction Award, the Palm Beach

County Bar Association’s Professionalism Award, the

Legal Aid Society Pro Bono Award for Criminal Law

service, and the Judge Barry M. Cohen “Champion of

Justice” Award.

6. I am very familiar with the standards of practice

for criminal defense in the 1980’s after Ake v. Oklahoma

62a

Appendix P

and to the present. Since the late 1980’s it has been the

accepted and expected practice in the defense of capital

cases to obtain independent experts to assist the defense

in exploring and presenting mental health mitigation in

death penalty proceedings. Upon request, trial judges

in the State of Florida have routinely entered orders

authorizing funds for independent experts in cases where

the defense had satisfied the Ake requirement that mental

health would be a significant issue at the sentencing

hearing.

FURTHER AFFIANT SAYETH NOT.

Ls/

CAREY HAUGHWOUT

Sworn to and subscribed before this 28 day

of February, 2017, by Carey Haughwout who is

personally known to me or who provided the following

identification:

63a

APPENDIX Q — DECLARATION OF GARY

CHRISTOPHER, DATED FEBRUARY 238, 2017

DECLARATION OF GARY CHRISTOPHER

1) | am an attorney duly licensed to practice before

the state and federal courts in the State of Maryland.

2) The Maryland Office of the Public Defender (“the

Office”) was and is an independent State Agency within the

Executive Branch of State government. It has statewide

authority to assure the delivery of legal defense services

in criminal cases. It is headed by a Chief Public Defender

who is appointed by a Board. The Office is provided with an

annual budget intended to cover all operational expenses

The Capital Defense Division is headed by an Assistant

Public Defender who answers to the Chief Defender. I was

appointed to serve as the Chief Attorney of the Capital

Defense Division of the Office in the Spring of 1984, and

I served in that capacity until August of 1989.

3) The Capital Defense Division is a statewide unit

responsible for providing guidance, support, instruction,

and litigation resources for all Office of the Public

Defender and panel cases across the State of Maryland

in which the prosecution sought the death penalty.

3) My responsibilities as Chief of the Capital Defense

Division included oversight and administration of the

publie defender’s budget with regard to the litigation of

capital cases. This responsibility necessarily included

the authorization of expenditures for the retention and

funding of expert witnesses.

64a

Appendix Q

4) I have been asked to describe Maryland’s funding

mechanism in capital cases for the retention of independent

expert witnesses, including mental health experts, in

response to Ake v. Oklahoma, 470 U.S. 68 (1985).

5) Ake had no substantial effect on the way in which

the Maryland Public Defender’s Office selected, utilized,

and compensated expert witnesses in capital cases. The

Agency already had a system in place for the retention

and funding of independent expert witness at the time

Ake v. Oklahoma was decided. The Public Defender was

responsible for administering the budget to effectively

perform its function of zealous representation of indigent

defendants charged with criminal offenses, including

the management of case-related expenses, such as the

retention and funding of independent expert witnesses.

The Office of the Public Defender was not required

to seek approval from the judiciary, the executive, or any

other authority in order to retain and fund the independent

expert witnesses utilized in its cases. Funds for these

expenses were committed on a case-by-case basis based

upon a determination by the Public Defender, or his

designee, that the expense was reasonably necessary to

assure zealous representation on behalf of the individual

client. In making this determination, I regularly consulted

the Chief Public Defender regarding expert appointments.

In every case I can recall the Chief Defender deferred

to my judgment on the subject of retaining experts for a

given case.

6) In my capacity as Chief of the Capital Defense

Division, with the authorization and approval of the Public

Defender, and in consultation with the attorneys providing

65a

Appendix Q

direct representation to the client, I exercised the authority

to retain and fund experts in capital cases. This included

all mental health experts, forensic experts, and social

work and mitigation experts. Upon my determination that

the expense of retaining a suitable expert was reasonably

necessary to assure zealous representation of the capital

client, the expert would be appointed.

7) I left my position as Chief of the Capital Defense

Division in 1989, though I continued to serve as an

Assistant Public Defender for several years and accepted

appointment in several capital cases after 1989. I can

attest that the system that was in place for the approval

and payment of expert expenses in capital cases during my

tenure in the public defender’s office after 1989 continued

to be essentially unchanged.

8) In summary, Maryland was already providing

for the retention and funding of independent expert

assistance for indigent capital defendants prior the

issuance of the United States Supreme Court’s opinion

in Ake v Oklahoma prior to 1985 and has continued at all

times since then to provide for the retention and funding of

independent expert witnesses when reasonably necessary

to ensure zealous representation in all capital cases.

I declare under the penalty of perjury under the laws

of the State of Maryland and the United States that the

foregoing is true and correct.

Dated this 28" day of February, 2017.

/s/ acetic

Gary Christopher

66a

APPENDIX R — DECLARATION OF MARK H.

DONATELLI, DATED FEBRUARY 27, 2017

DECLARATION OF MARK H. DONATELLI

I, Mark H. Donatelli, hereby state and declare as

follows:

1,

I am an attorney licensed to practice law in the State

of New Mexico. I am also licensed in federal court in

New Mexico and the Tenth Circuit Court of Appeals.

I have specialized in the representation of persons in

criminal matters since 1976 and I have represented

clients facing the death penalty since 1980. I have been

a member of the Federal Death Penalty Resource

Counsel Project since 2007.

I served as a public defender from 1976 to 1983.

Between 1980 and 1983, I was the New Mexico Prison

Riot Defense Director responsible for providing

representation to all targets of capital prosecutions

stemming from the 1980 New Mexico Prison Riot.

I have been in private practice since 1983 and have

represented capital defendants in State and Federal

Courts.

My responsibilities as Prison Riot Defense Director

included administration of funding for expert

witnesses.

I have been asked to describe New Mexico’s funding

mechanism for independent experts including mental

6.

67a

Appendix R

health experts in response to Ake v. Oklahoma, 470

U.S. 68 (1985). Beginning in 1980 the New Mexico

Public Defender system established a system for

independent expert witnesses and defense litigation

expenses pursuant to the New Mexico Indigent

Defense Act, NMSA 1978, Sections 31-16-1 through 31-

16-10. The New Mexico Public Defender department

created its own capital defense unit which received

appropriations for its expert witnesses as deemed

necessary by counsel. Private counsel who may have

been appointed to capital cases were provided fees

for expert witnesses directly from the Chief Public

Defender. Any dispute between private counsel and

the Chief Public Defender over expert witness fees

would be resolved ex parte by a district court but

always with the result that the Public Defender

Department provide fees for expert witnesses as

deemed necessary by counsel.

After I entered private practice in 1983, I continued to

assist private attorneys and public defender attorneys

with capital cases. I can attest that the system that

was in place for the approval and payment of expert

and other extraordinary expenses during my tenure

in the public defender’s office continues to be the

process for requesting, approving, and paying for such

expenses for indigent defendants in New Mexico.

In summary, New Mexico was already enforcing

a right to funds for expert assistance for indigent

defendants when Ake v. Oklahoma held that the due

process clause of the 14° Amendment requires that

indigent defendants be provided an independent

68a

Appendix R

mental health expert when reasonably necessary

to an issue in any case. Ake elevated this obligation

to a constitutional imperative and confirmed the

procedure that was already in place and being

followed in criminal cases.

I declare under penalty of perjury under the laws of

the State of New Mexico and the United States that the

foregoing is true and correct.

DATED: February 27, 2017

By &/

MARK H. DONATELLI

69a

APPENDIX S — DECLARATION OF KATHRYN

ROSS, DATED FEBRUARY 27, 2017

DECLARATION OF KATHRYN ROSS

I am an attorney in Washington State. I was admitted

to the Washington State Bar in 1976. I am also admitted to

practice in Eastern and Western Districts of Washington,

District of Montana, the Ninth Cireuit Court of Appeals

and the United States Supreme Court.

My practice has been either exclusively criminal

defense or including criminal defense for my entire career.

I have represented individuals facing the death penalty at

trial or in post-conviction proceedings since 1978.

Starting in the 1980s, capital defense trial attorneys

throughout Washington State met regularly, usually

every other month, to discuss their pending death penalty

cases. The meetings and communications among capital

defense counsel was under the auspices of the Washington

Association of Criminal Defense Lawyers (WACDL). I

served two separate three year terms as chair or co-chair

of the WACDL Death Penalty Committee. In addition,

from 2005 to 2015 I was the Director of the Washington

Death Penalty Assistance Center (DPAC).

Both the WACDL Death Penalty Committee and

DPAC monitored every aggravated murder trial in the

state and kept in communication with trial counsel.

70a

Appendix S

I have been asked to address whether capital

defendants in Washington, upon a sufficient showing of

need, have been provided funds for independent mental

health experts for the defense since Ake v. Oklahoma, 470

U.S. 68 (1985). The answer is “yes.” Even before the Ake

decision was announced, capital defendants in Washington

were granted funding for mental health experts. Defense

counsel selected the experts. The first capital trial I

worked on, as a public defender in Snohomish County,

WA., was State v. Nicky Kirby in 1978. In that case we

were granted funds to secure a psychologist for the

defense. At that time the defense was required to bring a

motion for funding in open court and the prosecution was

permitted to oppose the funding. However, even then, I

was unaware of any capital defendant being required to

accept evaluation at a state hospital in lieu of a separate

defense expert.

After publication of Ake, the practice in Washington

improved for defendants as defense counsel were allowed

to submit expert services requests ex parte and the

amount of funding increased. I can personally attest

to the practice in the early post-Ake era as I was lead

counsel in the case of State v. Hutchinson in rural Island

County starting in 1987. The defense in that case was

allowed to present motions for expert funding ex parte to

the trial judge. We were granted funds for three mental

state experts, a psychologist, a neuro-psychologist, and

a neuropharmacologist. In the Hutchinson case, the trial

court was following the already established practice of

granting funds for mental health experts selected by

the defense. See: State v. Poulsen, 45 Wash App 706, 726

P2na 1036 (1986).

T7la

Appendix S

There is no question that in Washington State

defendants in capital cases at trial, on sufficient showing

of need, were granted funding for independent mental

health experts before and after the publication of Ake v.

Oklahoma.

I declare the foregoing to be true and correct

under penalty of perjury under the laws of the State of

Washington.

Dated: February 27, 2017, at Seattle, Washington.

ls/__

Kathryn Ross WSBA No. 6894

72a

APPENDIX T — DECLARATION OF DAVID A.

RUHNKE, DATED FEBRUARY 26, 2017

DECLARATION OF DAVID A. RUHNKE

I, David A. Ruhnke, pursuant to 28 U.S.C. § 1746,

hereby declare as follows:

1. I am an attorney at law in private practice with

offices in Montclair, New Jersey and New York City. I am

admitted to practice in the States of New York and New

Jersey, the United States District Courts for the Eastern

and Southern Districts of New York, the District of New

Jersey, the United States Court of Appeals for the First,

Second, Third, Eighth and Tenth Circuits, and the United

States Supreme Court. I serve on the Criminal Justice

Act panels in the Southern and Eastern Districts of New

York and the District of New Jersey. From 1976-1983, I

was an Assistant Federal Public Defender for the District

of New Jersey.

2. Since 1983 a substantial part of my practice has

been devoted to the defense of capital murder cases. I

have personally tried 17 such cases to a final resolution

before juries in the State of New Jersey (six such cases)

and various United States District Courts (11 such cases).

I have also represented capital defendants in state and

federal appeals and in state and federal post-conviction

proceedings and have settled, short of trial, dozens of

potentially capital cases. I am a member of the Federal

Death Penalty Resource Counsel Project (and have been

for nine years), an organization funded by the Office of

73a

Appendix T

Defender Services of the Administrative Office of the

United States Courts to advise attorneys handling federal

capital cases around the country. I lecture frequently

on the topic of capital defense and have been qualified

to testify as an expert on the defense of capital cases in

several state and federal courts.

3. I have been asked to discuss the impact of the

Supreme Court’s 1985 Ake v. Oklahoma decision on the

practice of capital defense in the State of New Jersey. New

Jersey enacted a post-Gregg capital punishment scheme

in 1981. In 2007 the state legislature repealed the statute

and New Jersey no longer has a death penalty. During

those 26 years, I represented numerus defendants facing

capital punishment in the state courts of the State of New

Jersey and am very familiar with the prevailing practices.

4. At the time Ake was decided, New Jersey had

an existing and well-funded statewide Public Defender

system that was responsible, inter alia, for the funding of

expert services in cases handled by staff public defenders

and private attorneys who took public defender cases on

an assigned basis. When the death penalty was re-enacted

in 1981, the Public Defender fully funded requests in

those cases for independent experts, specifically in the

area of mental health but also in the many other areas

where expert or investigative assistance was deemed

appropriate. The judiciary was not involved in this funding’

1. By caselaw, the Public Defender is also required to fund

investigative and expert resources even in cases where a defendant

has a privately retained lawyer so long as the showing is made

that the services are necessary and the defendant lacks the ability

74a

Appendia T

since it was handled as an administrative matter within

the Public Defender’s office. That funding never flagged

during the 26 years of death penalty litigation from 1981

to 2007. During that period, I personally handled at least

15 such cases and I never recall a funding request for

an independent expert being denied. Experts were paid

substantial fees and were paid promptly.

5. As footnote 4 in Ake recognized, a substantial

number of states appeared at that time to provide for

independent expert services to indigent defendants

upon an adequate showing of need. At the time of the

Ake decision, in both capital and non-capital cases, New

Jersey was already in compliance with Ake’s due process

rule requiring provision of independent expert services.

I hereby declare under penalty of perjury that the

forgoing is true and correct.

“a oi

David A. Ruhnke

Dated: Montclair, New Jersey

February 26, 2017

to fund those services. See, e.g., In re Cannady, 126 N.J. 486, 600

A.2d 459, 1991 N.J. LEXIS 827 (N.J. 1991).

75a

APPENDIX U — DECLARATION OF DAVID D.

WYMORE, DATED FEBRUARY 25, 2017

DECLARATION OF DAVID D. WYMORE

1, lam an attorney licensed to practice in the state and

federal courts of the State of Colorado since 1976. I have

specialized in the practice or criminal law since 1976. I

became a deputy Public Defender for the statewide public

defender office in 1976. I was Office Head of the Ft. Collins

Regional Office from 1980 to 1982.

2. In the 1982, | was appointed as the Chief Trial

Deputy Defender for the Colorado State Publie Defender.

In addition, hiring and training of new and seasoned

lawyers and administrative duties arising from a statewide

office, as Chief Trial Deputy I was directly responsible

for capital litigation in our statewide office. I continued

as Chief Deputy Public Defender until my retirement in

2004. In my 22 years as Chief Deputy. I was involved in

approximately 80 capital cases arising in all regions of

the State of Colorado.

3. In 2004, I entered private practice in Boulder.

Colorado. Throughout my tenure as Chief Deputy Public

Defender 1, along with my colleagues in

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