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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0761%3A15. Public record. Not legal advice.