In October of 1979, Glen Burton Ake quit his job as an oil field worker. He and a co-worker, Steven Keith Hatch, borrowed a car and drove to the home of Reverend and Mrs. Richard Douglass. Ake and Hatch held the Douglass’s and their two children, Brooks and Leslie, at gunpoint. They bound and gagged the mother, father, and son and attempted to rape twelve year old Leslie. They then shot all four of the Douglass family. Reverend and Mrs. Douglass died, but the children survived.
This horrible, life shattering evening was the predicate to the United States Supreme Court case that leveled the playing field in criminal law more than any cases since Gideon v. Wainwright. Prior to Ake v. Oklahoma in 1985, there was no constitutional guarantee of funding for indigent defendants to obtain experts to mount a defense. Ake, and its progeny, recognized that “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” 1
This paper is going to take a closer look at Ake, its background and the Supreme Court’s holding. Next, we’ll take a look at how the law developed to its current state and its application in Texas. Finally, we’re going to look at some practical application points for obtaining funding for your indigent, or sometimes even retained clients to be able to participate meaningfully when their liberty is at stake.
A Closer Look At Ake
From the introduction to this paper we can see that the facts of The State of Oklahoma vs. Glen Burton Ake are horrific. Two parents murdered and a family devastated. The judicial process afforded to Glenn Ake leading up to his Supreme Court appeal was almost as bad. During arraignment on two counts of murder in the first degree and two counts of shooting with the intent to kill, Ake’s behavior was so bizarre that the trial judge, sua sponte, ordered Ake examined for competency. 2 Ake was diagnosed with paranoid schizophrenia, and transferred to a state hospital with respect to his “present sanity”. 3
Six weeks after his transfer to the state hospital, Ake was declared competent to stand trial: as long as he had three daily doses of 200 milligrams each of Thorzine. For comparison, the current recommended dosage according to drugs.com is about 1/10th of that amount for the most severe cases of psychosis in an outpatient setting. Even the Oklahoma Court of Criminal Appeals acknowledged that Ake “stared vacantly ahead through the trial.” 4
In June of 1980 at a pretrial conference, Ake’s attorney informed the trial court that he intended to raise insanity as a defense to the charges against Ake. Ake’s attorney requested that the court either arrange for a psychiatrist to examine Mr. Ake for trial, or provide the funds for the tests to be arranged. The request was denied. 5
At trial the defense called each of the psychiatrists who had examined Mr. Ake at the state hospital to address his sanity at the time of the offense. However, none of those doctors examined Ake in regards to his sanity at the time of the offense. The State hammered that point on cross examination. The jury was instructed that Ake was presumed sane at the time of the offense unless he provided sufficient evidence to raise a reasonable doubt about his sanity at the time. 6 Ake had no expert witness to testify to his sanity. The jury rejected Ake’s defense of insanity and found him guilty on all counts.
At the sentencing proceeding no new evidence was presented. The State relied heavily on the testimony of the psychiatrists who all testified during the guilt phase that Ake was dangerous. Ake had no expert to rebut that testimony. He was sentenced to death on each of the murder counts and five hundred years imprisonment on the two counts of shooting with intent to kill. 7
Ake appealed to the Oklahoma Court of Criminal Appeals. He argued, among other issues, that as an indigent defendant he should have been provided the services of a court-appointed psychiatrist. His argument was rejected. The Oklahoma Court of Criminal Appeals held that even when attempting to impose the death penalty, “the State does not have a responsibility of providing such services to indigents charged with capital crimes.” 8
The Supreme Court granted certiorari and ultimately reversed the convictions. Relying on the Fifth and Fourteenth Amendments of the United States’ Constitution the Court determined that “mere access to the courthouse doors does not by itself assure” a fair trial. 9 Defendants needed “access to the raw materials integral to the building of an effective defense.” 10 The court applied a three part balancing test to determine when additional protections validated providing those raw materials: 1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the addition or substitute procedural safeguards that are sought and the risk of deprivation of the interest if the safeguards are not provided. 11
In Ake’s case, the first factor, the private interest, was clear: the State wanted to kill him. On the second factor, the State’s interest, the Supreme Court noted the minimal financial burden in providing expert assistance and that “a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cause a pall on the accuracy of the verdict obtained.” 12 Finally, the court recognized the necessity of psychiatric assistance crucial to mounting a defense. The three factors weighed heavily in Ake’s favor and his convictions were reversed.
In 1986 Glen Burton Ake was retried on two counts of First Degree Murder and two counts of Shooting with Intent to Kill. He was found guilty and sentenced to life imprisonment for each of the First Degree Murder charges and two hundred years imprisonment for each of the Shooting with Intent to Kill. 13 He died in a prison hospital April 23, 2011, at age 55.
The Aftermath of Ake
Ake v. Oklahoma provided a new foundation for obtaining expert assistance for indigent defendants. The specific holding, though, was narrow. The Supreme Court only ruled that “when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on the issue if a defendant cannot otherwise afford one.” 14
How is this applicable in non-capital cases? Can we obtain funds for experts for non-psychiatric issues? Does this type of assistance apply to pre-trial hearings? Is it a neutral expert, or one specifically provided for the defense? How can this standard affect other grounds for which a defendant should be entitled to expert assistance? Can this apply to a non-criminal case? We will address each of these critical questions in turn.
The Scope of Ake
As noted above, the holding in Ake was fairly limited. One of the first questions was if the right to expert assistance goes beyond psychiatric assistance. There were some early attempts by various States to limit Ake’s holding to psychiatric assistance only. 15
However, the general consensus among the states, including Texas, is that upon a showing of need, the court must provide an indigent defendant an expert, “regardless of the field.” 16 17 (“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.”). The same conclusion was reached on whether Ake applied to non-capital cases, and is accepted by most courts. 18 (“We [do not] draw a decisive line for due process purposes between capital and noncapital cases.”) 19
What about a non-criminal or quasi-criminal proceeding? Interestingly, a case pre Ake established the scope of expert assistance beyond that of only the criminal defendant. Little v. Streater was a paternity action that the Supreme Court labeled as “quasi-criminal”. 20 There an indigent defendant in a paternity suit had a right to a blood grouping test to determine paternity. 21
For non-criminal proceedings where indigent individuals are seeking court funded assistance, the Due Process analysis used in Ake is the same; weigh the private right balanced against the State’s interest and the probable value of the additional safeguard. Due process protections have been found to apply in a number of non-criminal proceedings. 22
Whose Expert Is It?
Ake was vague on the question of what role the expert to be appointed would have in the case. It was not clear if a ‘neutral’ expert reporting to the court would satisfy due process protections, or if a Defendant was entitled to their own expert. Justice Rehnquist’s dissent in Ake even noted in the opinion that “I see no reason why the defendant should be entitled to an opposing view, or to a ‘defense’ advocate” 23
Courts are split on the question. The Fifth Circuit has held that “a court-appointed psychiatrist, whose opinion and testimony is available to both sides, satisfies [the accused’s] rights” 24
The Texas Court of Criminal Appeals, however, has ruled that a ‘disinterested’ expert witness does not satisfy the due process protections of Ake. 25 The court recognized that a neutral examination could not provide technical assistance, evaluate strengths of a defense, identify weaknesses in the State’s case or witnesses, or be able to testify at trial for the defense if favorable. 26 A defendant requires their own expert to help prepare and present their defense.
Implications to Effective Representation
Now that our clients have the right to the assistance of an expert, what is our duty as attorneys to ask for that assistance? Does the failure to obtain an expert equate to a finding of ineffective assistance of counsel?
It may. If an attorney’s performance falls below “an objective standard of reasonableness under prevailing professional norms” that representation is ineffective.” 31
Briggs is a great case to review for appointed and retained attorneys alike. Ms. Briggs attorney was retained, and recognized that an expert was necessary to review medical records in a case involving the death of his client’s child. However she could not afford to retain experts. Ms. Briggs ultimately plead guilty to a lesser charge of injury to a child and was sentenced to seventeen years in prison. Her case was overturned on a writ of actual innocence and ineffective assistance of counsel. The court found that her attorney was ineffective in not procuring the necessary experts to investigate and assist in the case. 32 The court, quoting Wiggins and Strickland remind us that while “strategic choices… are virtually unchallengeable” we, as attorneys, “have a duty to make reasonable investigations” to make those strategic choices possible. 33
What is an objective standard of reasonableness when it comes to seeking out and obtaining expert assistance? “Prevailing norms of practice as reflected in the American Bar Association standards and the like…are guides to determining what is reasonable.” 34
The State Bar of Texas has adopted “Performance Guidelines for Non–Capital Criminal Defense Representation.” 35 Specifically:
“Counsel should consider whether expert of investigative assistance, including consultation and testimony, is necessary and appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of expert when it is necessary or appropriate to:
- The preparation of the defense;
- Adequate understanding of the prosecution’s case;
- Rebut the prosecution’s case or provide evidence to establish any defense;
- Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
- Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”
The test for effectiveness is the thoroughness of counsel’s investigation. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable…” 37 If an expert is consulted, and not used, or a theory investigated and not pursued, that is not ineffective. It’s when we don’t look or we don’t ask that our representation falls short.
With the boundaries of Ake better defined, where does the rubber meet the road? How do we get the expert assistance we need to defend our clients? What if my client can pay me, but cannot afford to hire the expert we need? What can I do when the Judge says “no”?
There is no specific format that any motion must be in. There are however some central points to include in your motion, as well as times where requests for assistance have failed because these things were not there.
The first thing to note is that your motion for assistance should be ex parte. The foundation for this application comes from Ake itself. 38 Texas courts, following the due process principles that Ake used reached the same conclusion. 39
If, however the State wants to stick its nose in your request for assistance do not limit your argument for the ex parte aspect of your motion just to due process analysis. An attorney’s ability to retain an expert without the State’s input or even knowledge triggers equal protection, effective assistance of counsel, and due course constitutional arguments as well.
Statement of Indigence
The central issues in Ake are that you need some expert assistance, and your client cannot afford it. Your motion must include some showing that your client is indigent and the reasons why you are asking the court to pay, i.e. why is the expert necessary.
Standards to determine indigence are found in the Texas Code of Criminal Procedure section 26.04(m). In determining indigence a court may consider: a defendant’s income; sources of income; assets; property owned; outstanding obligations; necessary expenses; number and ages of dependents; and spousal income that is available to the defendant. 40 The code specifically excludes a defendant’s ability to make bond, except that it reflects on their financial circumstances. 41
Additionally, Texas courts have held that it is the financial condition of the client, “not his parents or other relatives” that is relevant. 42 Indigence cannot be denied just because a defendant’s counsel is retained. 43 The question of indigence is at the time of the application, not the arrest or even based on previous findings of indigence. 44 Your motion does not have to lay out all of the arguments for indigence, but it must at least make the suggestion.
Centrality, Importance, and Complexity of the Issue to the Case
Just because you can get an expert does not mean that you will get an expert. “The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” 45 “The burden is on the defendant to provide concrete reasons for why the expert should be appointed.” 46
In Ehrke, an indigent defendant wanted an expert appointed to retest the methamphetamines he was charged with. The Court of Criminal Appeals held that the application was appropriately denied because his motion failed to make a preliminary showing of significance, or why there was any reason to doubt the first analysis. 47 The court noted that motions which are denied tend to lack support for the request, such as affidavits or other evidence in support of the defensive theory, explanation of the defensive theory, or how an expert will help establish that theory. 48
This doesn’t mean not to request the help to challenge what has been accepted as established expert or scientific evidence. Eyewitness ID, bite mark evidence, arson investigation, and even finger print analysis have been called into question and even debunked. Just make sure to give the court the reason why you need the help.
State all of your legal grounds
If you want to make your appellate counsel happy remember this one phrase: if you haven’t raised it, you’ve waived it.
Appellate courts have no latitude to reverse a trial court’s decision on new theories of law not previously presented to the trial court for its consideration. 49 This means too that if you’re only ever making a due process argument your appellate counsel will never be able to argue your equal protection, right to counsel, due course of law, confrontation clause and due course of law arguments on appeal. An objection stating one legal theory at trial cannot be used to support a different legal theory on appeal. 50
Some judges may grant your Ake motion without any real analysis or argument. Some may fight you tooth and nail to open the purse strings and you’re going to need to develop your record with affidavits and potentially even testimony to show what you need and why. At the very least, your motion should have in it every conceivable constitutional ground as a foundation for your request for assistance. Ake was decided on due process, but it is not the only leg the argument has to stand on.
What can you do when the Judge says “No”?
You’ve filed your motion and argued ex parte. You’ve shown a need and the centrality to your defensive theory, and supplemented with affidavits. You’ve urged and re-urged for your client and every time you hear “Denied counsel.” Or even better the judge gives you $250 for the DNA analysis central to your defense. Thanks…
What do you do? First you come to a hard realization: there is nothing we can do to make a judge do the right thing. They are not the judge because they are always right, they are always right because they are the judge… until they get overturned on appeal.
Most of the practical tips for what to do when you’re told “no” have already been addressed above. File your motion. Supplement and make your record. Make sure you’ve given your appellate counsel everything they need to develop a great argument on appeal if it’s needed. But also do all you can do. In Ex parte Briggs, discussed above, the Court of Criminal Appeals points out that if Ms. Briggs’ attorney had been denied the expert assistance he never sought he should have subpoenaed every doctor that ever made a note on the child’s health, introduce the medical records, and elicit their expert testimony. 51 If you’re denied the tools you need, use the tools you have.
Fighting the good fight does not hurt your client on appeal. In De Freece, the Court of Appeals attempted to explain away any harm of denying an expert because of defense counsel’s “admirable” cross-examination of the state’s psychological witness that succeeded in impeaching her without the benefit of expert assistance. 52 In response, the Court of Criminal Appeals pointed out that it “does not mean that he could not have done an even more effective job with the aid of an expert…” 53
That is the point; to do a better job for our clients. Before 1984 our scales of justice had a notable tip. Indigent Defendant’s had no right to the very basic of resources for their defense. Unless they were independently wealthy they didn’t have the vast resources which are available to the State. Often those with significant resources got a better shake than those without. It goes without saying that the State will almost always possess significantly more resources than the accused. Ake v. Oklahoma put a thumb on that scale to help balance out the scales of justice. It’s up to you to use the tools that the Supreme Court has now provided.
- Ake v. Oklahoma, 470 U.S. 68, 76 (1985).
- Ake, 470 U.S. at 71.
- Ake at 74.
- Id. at 73.
- Ake v. Oklahoma, 663 P.2d 1, 6 (1983).
- Ake, at 77.
- Ake v. State, 778 P.2d 460.
- Ake, 470 US at 74.
- See eg. Weeks v. Angelone, 176 F.3d 249, 265-66 (4th Cir. 1999).
- Rey v. State, 897 S.W.2d 333, 338 (Tex. Crim. App. 1995)(en banc).
- See also Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987)
- See also McBride v. State, 838 S.W.2d 248 (Tex.Crim.App. 1992).
- Little v. Streater, 452 U.S.1 (1981).
- See eg. Civil commitments as Sexually Violent Offenders Kansas v. Hendricks, 521 U.S. 346 (1997); parole hearings Morrissey v. Brewer, 408 U.S. 471 (1972); probation revocation hearings Gagnon v. Scarpelli, 411 U.S.778 (1973); juvenile hearings In. re Gault, 387 U.S.1 (1967); parental rights terminations Santosky v. Kramer, 455 U.S.745 (1982).
- Ake v. Oklahoma, 470 U.S. 68, 92 (1985) (Rehnquist, J. dissenting).
- Granviel v. Lynaugh, 881 F.2d 185, 191-92 (5th Cir. 1989).
- De Freece v. State, 848 S.W.2d 150, 159 (Tex. Crim. App. 1993).
- Ake, at 83.
- See also De Freece, at 159 (“We recognize that the accused is not entitled to a psychiatrist of his choice…”).28 The situation is analogous to that of right-to-counsel cases. 29See Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, Cornell Law Review Vol 90, Iss. 6 (September 2004) citing Chartered v. United States, 491 U.S. 153, 162 (“A defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney even if those funds are the only way that the defendant will be able to retain the attorney of his choice.”).
- Ex. Parte Briggs, 187 S.W.3d 458 (Tex. Court Crim. App. 2005) citing Wiggins v. Smith, 539 U.S. 510, (2003) and Strickland v. Washington, 466 U.S. 688 )(1984).
- Id. at 469.
- Id. at 467.
- Wiggins, 539 U.S. at 522, (quoting Strickland, 466 U.S. at 688–89).
- See generally Jeff Blackburn and Andrea Marsh, The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Tex. Bar J. 616 (July 2011) available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=1470.
- Id. at 624 (Guideline 4.1 B.9).
- Briggs, at 466 citing Wiggins, at 521-22.
- Ake v. Oklahoma, 470 U.S. 68, 82 (1985). (“When the defendant is able to make an ex parte threshold showing to the trial court…”).
- Williams v. State, 958 S.W.2d 186, 192-93 (Tex. Crim. App. 1997).
- Tex. Code. Crim. Proc. art. 26.04(m).
- Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim. App. 1986).
- Id. at 141.
- Ehrke v. State, 459 S.W.3d 606, 615 (Tex. Crim. App. 2015)(citing Ake, at 77).
- Id. (citing Ex parte Jimenez, 364 S.W.3d 866, 877-78 (Tex.Crim.App. 2012)).
- Id. at 616.
- State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998).
- Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
- Briggs at 468.
- De Freece at 153.
- Id. at 160.