You have a client charged with aggravated sexual assault of a child. There is DNA evidence, a SANE nurse exam, and a forensic interview of the child at the child assessment center. In addition, there are, potentially, witnesses who may be able to provide rock-solid alibis for some of the occasions the sexual assaults allegedly took place.
Through your preliminary investigation you realize you need experts to deal with issues with cross-contamination of the DNA evidence, possible misinterpretation of the medical evidence by the SANE nurse, and problems with the CAC interview. In addition, you know you will need investigative assistance to be able to locate and interview those alibi witnesses.
Whether you’re court-appointed or retained, it can be daunting to know how to get sufficient funds to mount a proper defense. It can be done, though, and if done properly, the Court will have no choice but to help fund your defense.
Client’s Right to Court-Appointed Expert
In its seminal case Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court recognized that is patently unfair to not give indigent defendants access to funds for their defense, if a need was shown for the funds, simply because the defendant is indigent and cannot afford the funds for experts and investigators. The Court went on to say it was patently unfair that the state/government had unlimited resources to get the experts, testing, and investigators that the indigent defendant simply could not afford. While it is true that “the State need not ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy,’ it must provide him the basic tools to present his defense within our adversarial system.” Rey v. State. 897 S.W.2d 333 (Tex. Crim. App. 1995) (citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985)).
The Supreme Court specifically held in Ake that upon a particularized showing of need, a trial court must provide reasonable funds for the defense to hire experts or investigators. The Supreme Court also realized that to make this particularized showing of need, a defendant would necessarily have to divulge trial strategy and facts maybe not known to the state/government. Thus, the Supreme Court stated that due process required these requests could be made ex parte.
The Texas Court of Criminal Appeals, in De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993), adopted the holding of the United States Supreme Court in Ake. In Williams v. State, 958 S.W.2d 186, 191 (Crim. App. 1997, reh’g denied), the CCA also held, consistent with Ake, that these requests were to be ex parte.
The Court of Criminal Appeals in Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) (en banc), specifically held that Ake applies to non-psychiatric experts, too, and also addressed the proper error analysis for a situation where a proper request for funds is made and the Court denies the request. At issue in Rey was the trial court’s denial of the defense’s proper request for the assistance of a pathologist. Pursuant to the Rey Court, Ake is not limited to psychiatric experts; but the type of expert requested is relevant to the determination of whether the trial was fundamentally unfair without the expert’s assistance. Id. at 338. Regarding an error analysis, if a proper request for funds is made as described below and denied by the trial court, that denial affects a right so integral to the defendant receiving a fair trial that the error is considered structural. Id. at 345. Thus, when a properly preserved request for funds made to the court has been denied, no harm analysis needs to be performed prior to defendant being granted relief.
What happens, however, if the attorney has been retained but the family or defendant either has run out of money or cannot afford the necessary expert or investigative costs? In Ex Parte Briggs, 187 S.W.3d 158 (Tex. Crim. App. 2005), the Court of Criminal Appeals stated it was ineffective assistance of counsel for retained defense counsel not to seek funds from the court when the defendant cannot afford the necessary expert or investigator. It is true that the Court of Criminal Appeals did not explicitly hold that a court had to give funding to defense counsel of a retained defendant who cannot afford the expert or investigator. However, it would be ineffective for retained counsel not to seek funding from the court for expert assistance essential to the case where the accused has subsequently become indigent.
Procedure to Obtain Court Funds in Appointed Cases
In order to obtain funds, you need to demonstrate to the court a particularized need for the funds. In the case of an expert, a particularized need means showing the issue for which the assistance is sought will be contested at trial or will be of importance to the defendant’s case. In the case of an investigator, a particularized need can be shown by demonstrating why the investigator’s service is needed to prepare for or further the defense. Remember, a particularized need is required; generalized boilerplate language will be insufficient. Also, remember all motions for funding need to be ex parte and sealed.
To preserve the issue for review the particularized need must be detailed. Defense counsel will have to identify the defendant’s theory of the case, what the defenses are, and how the expert or investigator is necessary and material to further the theory or further the defense. This can be accomplished by attaching a detailed affidavit to the motion, describing the facts within the motion itself and verifying the motion—or on the record in an ex parte hearing.
Without this detail, the appellate court cannot properly evaluate if the trial court committed error by denying the funds to a defendant.
As stated above, the motion to obtain funds needs to be done ex parte. Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997), specifically states the defendant is entitled to pursue expert funds ex parte. See also Ake, 470 U.S. at 82–83, 105 S.Ct. at 1096. Defense counsel should not file the motion until counsel has had the judge sign an order sealing the motion. Otherwise, if the judge refuses to sign the order and the motion is not sealed, the defendant’s trial strategy becomes a matter of public record for the State to be able to discover by simply going to the District Clerk’s office. It is also wise for defense counsel to include a certificate of presentment to the trial court when the motion for funding is presented to the court. We have all had the situation arise where a trial court takes an inordinate amount of time to rule on a motion (perhaps with the hope that defense counsel will forget to obtain a ruling). Make the record. Obtain a ruling. Even if the court denies the request for funds, a record will have been made, and it is rare a court that will refuse to sign the order sealing the motion.
In more rural counties or with newer judges, defense counsel should bring a copy of Williams v. State when approaching the court for ex parte funds. Usually, judges in these situations are not aware of the law entitling counsel to an ex parte hearing, and you may have to educate the judge on counsel’s right to the hearing.
To ensure you secure enough funding, always contact the expert and find out how much the expert requires to complete the necessary work as well as testify, if needed (if travel is also necessary, the comptroller’s office pays those expenses). For an investigator, get an estimate for completing the work and being available during trial to assist if matters come up requiring the investigator’s assistance. Since the investigator is the one interviewing the witnesses, the investigator will need to be present during trial to possibly impeach said witnesses.
If a judge refuses to sign an order to seal the motion, even if he/she denies the request for the additional funds, the judge can be subject to a mandamus action. Signing the order is a ministerial act, which if not performed means there is no adequate legal remedy available to the defendant. In fact, refusal to sign the sealing order will be certain to cause irreparable damage to the defense. In addition, if a judge refuses to sign an order sealing the motion and/or order, even if the access to funds is denied, this act should make the judge subject to recusal.
However, whether to pursue mandamus is, of course, a strategic decision. To do so counsel will have to file the motion and proposed order and thus give the state access to defendant’s trial strategy or access to facts the State may not have been aware of—potentially detrimental to the defense case. The author would suggest only pursuing a writ of mandamus if you pursue recusal and the recusal is denied.
Out of Money? Ask for More
More often than not, a trial court will provide funding for expert assistance. However, that funding is typically insufficient and perfunctory at best. The question then is what to do. Use the money provided and ask for more in the steps outlined above. Explain why more funding is necessary and what will be done with the additional funds. Explain what work was done with the previously allocated funds.
Remember, there is no limit on the number of times you can request additional funding from the court. Hinton v. Alabama, 134 S.Ct. 1081 (2014), is instructive on this issue. In Hinton, a death penalty case, the defense requested funding from the court for a “firearms and toolmark” expert. The court granted the request in an amount of up to $1,000 and invited the defense to ask for more. However, the defense never did ask for more funding, and the expert assistance the defense was able to obtain was “inadequate.” The U.S. Supreme Court held that Hinton’s counsel rendered ineffective assistance for failing to request additional funds for an expert because he mistakenly believed that funding for the expert was capped at $1,000.
In requesting additional funds, remind the trial court in written motion and/or on the record that the trial court’s allocation of a grossly insufficient amount of money for expert assistance effectively denies the accused one of the “basic tools to present his defense,” and that the resultant lack of expert assistance will necessarily call into question the fundamental fairness of the accused’s trial. Basically, do it right or get ready to do this thing all over again.
Procedure to Obtain Court Funds in Retained Cases
The Court of Criminal Appeals has made clear that simply because a defendant is represented by retained counsel does not mean that the defendant cannot qualify as indigent for other purposes. See Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim. App. 1986) (“Outside sources such as relatives and even employers are not to be considered unless they are legally bound to pay for defendant’s appellate expenses” (citation omitted)). In fact, the CCA has found retained attorneys ineffective when they have failed to seek funding for necessary experts in cases where defendants have become indigent but where the attorneys were previously retained. Ex Parte Briggs, 187 S.W.3d 458, 463 (Tex. Crim. App. 2005).
In retained cases, just as in court-appointed cases, there needs to be a particularized need demonstrated to get the court to pay for experts and investigators. The additional step in a retained case requires a showing to the court that there has been a significant change in the defendant’s financial circumstances resulting in defendant’s indigence or inability to pay for the expert or investigator.
If the court refuses to enter the order funding the expert or investigator, or will not fund these experts and investigators for a defendant with retained counsel, retained counsel must consider filing a motion to withdraw. While the court has likely committed reversible error by denying the funds in an instance like this, the Court of Criminal Appeals held in Ex Parte Briggs it was not only ineffective assistance to not seek the funds, but also to not seek to withdraw if counsel could not obtain the necessary funds for the defense.
Once Funding Is Approved
Once the court approves the funds, defense counsel should take the motion and signed order to the district clerk. Also bring a manila folder for the clerk to put the motion and order into. Once the motion and orders are file-stamped, counsel should get a certified copy of the motion and for the file. In addition, counsel should get at a minimum three certified copies of the order appointing the expert or investigator. This allows counsel to provide a certified copy to the expert or investigator, keep a copy for counsel’s file, and retain an extra in case it is needed.
The next step is to contact the expert or investigator and notify them that the court has signed the order of appointment. For the expert/investigator to be effective, counsel should provide any deadlines in effect. Finally, as the facts of the case dictate, counsel should get the expert/investigator access to the client and/or any documents and materials needed to get the work completed credibly. It is also critical for counsel to emphasize that the expert is a defense expert, even though the court is paying the fee. It is helpful to send a cover letter with the order clarifying this relationship to eliminate any confusion on the expert’s part.
Following these simple steps, you should be able to properly fund your client’s defense at the court’s expense.