34expart

LOUISIANA PUBLIC DEFENDER BOARD

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IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION FOR PERMISSION TO PROCEED
EX PARTE ON APPLICATIONS FOR FUNDS

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to allow him to proceed ex parte on his applications for funds. In support of his motion, Mr. CLIENT states as follows:
1. Mr. CLIENT submits this motion and memorandum to demonstrate that such ex parte proceedings are essential to protect confidential attorney-client communications and attorney work-product material which must be disclosed to make a showing of need for the requested assistance. Disclosure of this information would violate Mr. CLIENT's rights to present a defense, to the effective assistance of counsel, to compulsory process to secure witnesses, to confront the evidence against him, to due process, to equal protection of the laws, to freedom from cruel and unusual punishment, and against compulsory self-incrimination.

2. Mr. CLIENT wishes to make it very clear: At this investigative stage, he is not going to disclose what expert assistance he needs for his defense, and he is not going to disclose why he needs it. He is only going to say that he wishes to ask for some expert assistance.
3. This much is apparently required of him. The Louisiana Supreme Court very recently decided the case of State v. Touchet, ___ So. 2d ___, 1994 WL 477190 (La. Sept. 6, 1994), which deals directly with this issue. The holding in Touchet may be stated as follows:
an indigent defendant may file a motion for expert funding ex parte. Notice of the filing of this motion should be given to the state, which may file an opposition to the hearing being held ex parte and/or to the request for funding. The trial court should first determine, in camera, either on the face of the allegations of the motion or upon taking evidence at an ex parte hearing, whether the defendant would be prejudiced by a disclosure of his defense at a contradictory hearing. If so, then the hearing on expert funding should continue ex parte. If not, then the hearing should be held contradictorily with the District Attorney. If either side seeks appellate review of a ruling as to the ex parte nature of the hearing, the motion and other proceedings to this point should remain under seal until the appellate review is completed, and thereafter if the ruling is in favor of an ex parte hearing.

State v. Touchet, Slip Op. at 14 (emphasis in original). This is nothing new, since the Courts of Louisiana have frequently ordered that such ex parte hearings should be held. See, e.g., State v. Madison, 345 So. 2d 485, 490 (La. 1977); State v. Larson, 548 So. 2d 945 (La. 1989) (order that "the record of the in camera, ex parte hearing on defendant's motion for funds for expert assistance" be put under seal and not disclosed to the prosecution); State v. Benoit, 576 So. 2d 41 (La. 1991) (granting writ; "Relator's motion for an ex parte hearing for the purpose of presenting evidence in support of her motion for funds for expert witnesses is granted").
4. It is not clear what the District Attorney's interest is in being present in this case. Under Touchet, it is "the state's substantial interest in protecting its fisc [that] does mitigate in favor of its being allowed notice and some ability to dispute requests that may needlessly drain its resources." State v. Touchet, Slip Op. at 12. In this parish the D.A.'s Office has no interest in the fisc at all, since the Parish Attorney is the one who represents the local fisc. Even were this not so, in light of the recent amendments to La. R.S. 15:304, the local authority is not likely to be the funding source that is liable to pay. If, on the one hand, the State of Louisiana is liable, the proper party to represent it is the Office of the Attorney General, not the D.A. If, on the other hand, funding is to come from the statewide office (the Louisiana Indigent Defender Board) then again the District Attorney has no interest at all. Mr. CLIENT therefore requests an evidentiary hearing at which the prosecution must demonstrate what its interest is in attending this hearing.
5. Even if the prosecution can show an interest, it is outweighed by Mr. CLIENT's rights in this case. Under Touchet, the accused must apparently make a showing that the hearing should be held ex parte. The burden on the accused is not a heavy one, since "a defendant need only make a showing that certain essential and potentially meritorious elements of his defense will be disclosed to the state if there is a contradictory hearing on the request for funds, and that these elements are not obvious to the state." State v. Touchet, Slip Op. at 11. This is an easy burden to show in this case.
6. Certain parts of the criminal process in this case have already been carried out ex parte. For example, Mr. CLIENT has not been consulted by the District Attorney to assist in the decision as to which Assistant District Attorneys should be involved in this case. Neither Mr. CLIENT nor his counsel was summoned to the grand jury when the prosecution was presenting its case for indictment. They were not invited to hear the testimony, cross-examine any of the witnesses or make any statements to assist the grand jurors in their deliberations. To this day, most of the proceedings before the grand jury remain a secret.
7. Nor has Mr. CLIENT or his counsel been asked to help the prosecution determine which investigators to use or what experts to employ in the prosecution of the case against him. Similarly, an application for an arrest or search warrant is usually presented to a judicial officer ex parte without notification to the accused or his counsel. Certain interests of the criminal justice system are served by these ex parte proceedings involving the prosecution function.
8. Where the prosecution may partake of ex parte proceedings without making disclosures to the defense, what is sauce for the goose must be sauce for the gander. Indeed it is not just the logic of an aphorism which compels the conclusion that the defense may play by the same rules as the prosecution. It is also compelled by the Constitution: "the Due Process Clause . . . forbids enforcement of . . . rules unless reciprocal rights are given to criminal defendants." Wardius v. Oregon, 412 U.S. 470, 472, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973).
9. Indeed, it is now well established that ex parte proceedings relating to the defense function are equally essential to protect a number of important constitutional rights of an indigent accused as well as other vital interests of the criminal justice system. In this motion and memorandum, Mr. CLIENT will review the circumstances, principles and precedents which require ex parte applications and proceedings. In Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), the United States Supreme Court held that where the assistance of an expert is needed to prepare or present a defense, the showing of need was to be made ex parte:
When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense , the need for the assistance of a psychiatrist is readily apparent. . . . [T]he State must [then], at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Id. at 82-83 (emphasis added). Every court which has considered the issue has determined that such hearings should be held on an ex parte basis. See, e.g., McGregor v. State, 733 P.2d 416, 416-17 (Okla. Crim. App. 1987), conviction rev'd after remand, 754 P.2d 1216, 1217 (Okla. Crim. App. 1988) (intention of Ake majority that hearings be held ex parte is "manifest"); Brooks v. State, 385 S.E.2d 81, 82-84 (Ga. 1989); People v. Loyer, 169 Mich. App. 105, 425 N.W.2d 714, 721-22 (1989); Johnston v. State, Mississippi Supreme Court Order, No. 90-M-0271 (May 23, 1990); State v. Hickey, 317 N.C. 457, 346 S.E.2d 646, 654 (1986) (dicta); State v. Poulsen, 45 Wash. App. 706, 726 P. 2d 1036, 1038 (1986) (dicta); Wall v. State, 289 Ark. 570, 715 S.W.2d 208, 209 (Ark. 1986) (dicta); People v. Thornton, 80 Mich. App. 746, 265 N.W.2d 35, 38-39 (1978) (dicta); Lindsey v. State, 330 S.E.2d 563, 566 (Ga. 1985) (findings of Ake expert privileged to defendant). Other jurisdictions have preserved the constitutional rights of the accused through a statute which expressly allows ex parte applications to the trial judge. See, e.g. Minn. Stat. Section 611.21 (1982); Nev. Rev. Stat. Section 7.135 (1983); N.Y. County Law Section 722-C (McKinney Supp. 1984-85); Kan. Stat. Ann. Section 22-4508 (Supp. 1981); Tenn. Code Ann. Section 40-14-207 (1988); Cal. Pen. Code Section 987.9 (1983) (allowing an ex parte hearing before a different judge than the trial judge to preserve the accused's right). No reported decision of any appellate court has held that the constitution does not require such ex parte hearings.
10. In this case, Mr. CLIENT must make a showing to receive the funds he needs. Ake provides that an indigent defendant is entitled to defense services at state expense only upon a threshold showing that such assistance is required to deal with a significant factor in the defense of the case. Ake, 470 U.S. at 86-87. See also Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (defendant must support request for investigator and fingerprint and ballistics experts with something more than general statement of need). In Touchet, the Court recapitulated the traditional Ake requirement that the accused demonstrate a need for the expert assistance. This burden is not a heavy one: The defendant need only show that "it is more likely than not that the requested expert assistance will be required to answer a serious issue or question raised by either the prosecution's or the defense's case. If a defendant makes this showing, then the trial court is to order that the funds be provided by the state." State v. Touchet, Slip Op. at 14.
11. In this case the accused will be required to disclose matters of trial strategy that would be privileged in order to secure the expert assistance that he needs. Such revelations to the other side are generally not allowed by the rules of discovery. The Louisiana rules of discovery protect internal defense documents made in connection with the investigation or defense of a case, statements made by the defendant or by witnesses to the defendant or his attorneys, and the names of witnesses and prospective witnesses. La. Code Crim. Pro. art. 728. This information is protected because it is the attorney's work product. With the exception of exculpatory evidence and names of witnesses, the defense may not seek this kind of protected material from the state. La. Code Crim. Pro. art. 723. As stated by the United States Court of Appeals for the Fifth Circuit, proceeding must be held ex parte because "[d]issemination of information critical to the defense permits the government to enjoy unauthorized discovery which is forbidden under our concept of criminal procedure . . . ." United States v. Edwards, 488 F.2d 1154, 1162 (5th Cir. 1974); see also United States v. Greschner, 802 F.2d 373, 379-80 (10th Cir. 1986), cert. denied, 480 U.S. 908 (1987) (although waived by defense, court of appeals notes on its own motion that it was error for trial court to allow government attorneys to attend hearing on application for penologist, pathologist, blood tests and subpoenas at which defendants were required to disclose their theory of self-defense in support of their applications); United States v. Meriwether, 486 F.2d 498, 506 (5th Cir. 1973) (intent of ex parte provision is to shield theory of defense from prosecutor's scrutiny); Blazo v. Superior Court, 315 N.E.2d 857, 860 n.8 (Mass. 1974) ("[t]he reason ex parte application is allowed is that, just as a defendant able to foot the costs need not explain to anyone his reasons for summoning a given witness, so an impecunious defendant should be able to summon his witnesses without explanation that will reach the adversary"); People v. Loyer, 169 Mich. App. 105, 425 N.W.2d 714, 722 (1989).
12. There is a serious Equal Protection problem with making Mr. CLIENT disclose his case. As the Fifth Circuit held in United States v. Meriwether, 486 F.2d 498 (5th Cir. 1973), cert. denied, 417 U.S. 948 (1974):
When an indigent defendant's case is subjected to pre-trial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny, serious equal protection questions are raised.

See also United States v. Holden, 393 F.2d 276 (1st Cir. 1968).
13. Mr. CLIENT also needs assistance to interpret the State's expert work. The State has no business knowing what Mr. CLIENT needs to know about this. Mr. CLIENT's counsel will not be prepared to rebut the State's evidence without meaningful consultation with experts for the defense. Nor can counsel appropriately investigate aspects of their client's case without the type of assistance that any attorney would obtain for a financially able defendant. Such assistance is essential for proper functioning of the adversary system, in which it is rarely justifiable that one party have exclusive access to the means of understanding, presenting, and explaining relevant facts:
[The defense] expert fills a different role. He supplies expert services "necessary to an adequate defense," which embraces pretrial and trial assistance to the defense as well as availability to testify. His conclusions need not be reported to either the court or the prosecution.

United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971), cert. denied, 411 U.S. 984 (1973); see also United States v. Bass 477 F.2d 723, 725-26 (9th Cir. 1973) (expert may be partisan witness whose services include pretrial and trial assistance to the defense); Ford v. Wainwright, 477 U.S. 399, 414, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) ("without any adversarial assistance from the [defendant's] representative . . . the fact finder loses the substantial benefit of potentially probative information").
14. The expert appointed pursuant to Ake is expected to "assist the defense by aiding defense counsel in the cross-examination and rebuttal of the state's . . . experts," and thereby protect his Sixth Amendment right to confront the evidence against him. Lindsey v. State, 330 S.E.2d 563, 567 (Ga. 1985); see also United States v. Fessel, 781 F.2d 826, 834 (10th Cir. 1986) (services of expert appointed in ex parte proceeding include those necessary for cross-examination of government witnesses as well as presentation of defense expertise). Thus, "[j]ust as an indigent defendant has a right to appointed counsel to serve him as a loyal advocate he has a similar right under properly proven circumstances to investigative aid that will serve him unfettered by an inescapable conflict of interest." United States v. Marshall, 423 F.2d 1315, 1319 (10th Cir. 1970) (error to deny ex parte hearing on need for investigative assistance, and appointment of F.B.I. agent cannot suffice to satisfy request).
15. The failure to allow ex parte applications for assistance would inevitably deprive Mr. CLIENT of the benefit of effective counsel such as a non-indigent defendant might expect to receive. Counsel will be forced either to forgo an application for assistance in order to keep attorney-client communications, work-product and trial strategy confidential or make the needed request, breach his duty of confidentiality and prematurely reveal matters no competent attorney would disclose prior to trial. See State v. Hamilton, 448 So.2d 1007, 1008-09 (Fla. 1984) (basis for request for expert founded on communications between lawyer and client; inquiry into basis would violate attorney-client privilege). An ex parte procedure obviates the need for such an untenable choice. In contrast, it would be error for this Court to give the State a voice in deciding whether Mr. CLIENT was entitled to certain investigators or expert witnesses or in determining who should provide that assistance.
16. To the extent that the prosecution wants to learn about the defense case, there is no authority for it. Before making such a request, though, the prosecution should consider the fact that there is authority for the trial court to order such disclosures from the prosecution. In Touchet, the Louisiana Supreme Court approved particularly of the decision in Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987) (en banc): "Given the similarity between Louisiana's statutes . . . and the statutes [from Georgia] forming the basis for the court's opinion in Moore, we find Moore to be both applicable and persuasive, and adopt its approach." State v. Touchet, Slip Op. at 5. If Moore is authoritative, then the prosecution should be warned that the court suggested that the defense be allowed to discover the prosecution's theory of its case in support of the defense request for funds:
In a jurisdiction like Florida, which accords the defendant substantial discovery rights . . . the defendant should have no difficulty in demonstrating the theory of the government's case and outlining the evidence the prosecution will probably present at trial. The difficulty of the defendant's task will vary depending on the scope of the jurisdiction's discovery rules. In a jurisdiction still employing "trial by ambush," the defendant might have to ask the court to make the prosecutor disclose the theory of his case. . . .

Moore v. Kemp, 809 F.2d at 721 n.10. Discovery in Georgia--whence arose Moore--is more extensive than in Louisiana, so the argument is all the stronger to mandate disclosures by the prosecution here.
For the reasons stated herein, Mr. CLIENT is entitled to proceed ex parte, with a sealed record, in his applications for the funds necessary for his defense.
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