CAUTION: THIS MOTION IS FILED EX PARTE
AND MUST BE MAINTAINED UNDER SEAL

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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EX PARTE MOTION FOR FUNDS FOR EXPERT ASSISTANCE IN THE
FIELDS OF PSYCHIATRY/PSYCHOLOGY AND MITIGATION INVESTIGATION

COMES NOW JOHN CLIENT, by his attorneys, and moves this Court ex parte pursuant to Article 1 of the Louisiana Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, to order the parish to provide him with funds to retain experts in the fields of psychiatry, psychology, neurology, and mitigation investigation. As grounds for this motion, Mr. CLIENT states the following:
1. Defendant is an indigent who is represented by appointed counsel. The State has declared it will seek the death penalty in this case. To prepare adequately for this trial, defendant needs the services of independent experts in the fields of psychiatry, neurology, and mitigation investigation.
2. The United States Supreme Court has "long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense." Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d (1985). As the Court in Ake noted, this fundamental principle of due process "derives from the belief 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." Id. The Court, therefore, held that:

"[When a] question . . . [is] likely to be a significant factor in his defense . . . [the defendant is] entitled to the assistance of a[n expert] on this issue and . . . the denial of that assistance deprive[s] him of due process."

Id. at 86-87. Specifically, the Court held that where, as here, the defendant makes a threshold showing that his sanity is likely to be a significant issue at trial the defendant is entitled to a psychiatrist or psychologist to assist meaningfully in his defense. Id.
3. The Courts have held that the decision in Ake applies to all experts reasonably necessary for an effective defense. State v. Carmouche, 528 So. 2d 159 (La. 1988) (holding that, in capital cases, 'any reasonable request of the defendant" for expert assistance "should be granted"; trial court should have granted defendant's requests for "a neurologist, psychiatrist, and any additional experts that these doctors deem necessary," as well as "experts in fingerprint analysis and serology"); See also, e.g., State v. Langlois, 605 So. 2d 1155 (1992), after remand, 620 So. 2d 854 (La. 1993) (mandating the provision of $5,000 for defense experts); State v. Carmouche, 553 So. 2d 467 (La. 1989) (eye witness identification expert); State v. Carmouche, 527 So. 2d 307 (La. 1988) (neurologist & serologist); Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987) (en banc) (state's failure to provide indigent defendant with hypnotic expert violated defendant's right to a fair trial; Ake applied even though expert sought was not psychiatric; "[t]here is no principled way to distinguish between psychiatric and nonpsychiatric experts"); Moore v. Kemp, 809 F.2d 702, 711 (11th Cir.) cert. denied, 107 S. Ct. 2192 (1987) (Ake applied to intoxication expert); United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976) (defendant entitled to fingerprint expert); United States v. Patterson, 724 F.2d 1128 (5th Cir. 1984) (defendant entitled to expert when expert testimony is pivotal); Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980) (defendant denied equal protection, due process and effective assistance by Court's failure to provide a pathologist to assist with the defense); Thorton v. State, 339 S.E.2d 240 (Ga. 1986) (defendant entitled to funds to employ assistance of forensic dental expert since dental evidence was important to state's case and since experts consulted by the defense questioned the reliability of dental impression evidence in general; "the trial court shall appoint an appropriate professional, whose experience, at a minimum, is substantially the equivalent to that of the state's expert witness"); Washington v. State, 800 P.2d 252 (Okla. 1990) (Ake applied to defendant's motion for psychiatrist, forensic odontologist and chemist); State v. Coker, 412 N.W.2d 589 (Iowa 1987) (defendant entitled to intoxication expert to "assist him in the evaluation, preparation, and presentation of his intoxication defense"); State v. Moore, 321 N.C. 327, 364 S.E.2d 648, 656-658 (1988) (Ake extends to any expert as to which defendant makes threshold showing of need, including, inter alia, fingerprint expert); State v. Bridges, 385 S.E.2d 337 (N.C. 1989) (failure to grant defendant's motion for fingerprint expert at public expense was reversible error).
4. Further, the Supreme Court's holding in Ake clearly requires more than simply "the right to place the report of a 'neutral' [expert] before the court; rather it means the right to use the services of a[n expert] in whatever capacity defense counsel deems appropriate . . ." Smith v. McCormick, 914 F.2d 1155, 1157 (9th Cir. 1990) (reversing death sentence because court merely provided defendant with neutral psychiatrist). See also Johnson v. State, 529 So. 2d 577, 591-92 (Miss. 1988) ("an accused should . . . be afforded at State expense an independent expert" when accused provides name, specific cost, purpose and value of expert) (emphasis added); Lindsey v. State, 330 S.E.2d 563, 566-67 (Ga. 1985) (Ake mandates more than "neutral" psychiatrist; "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 expert"); Knott v. Mabry, 671 F.2d 1208, 1212-13 (8th Cir. 1982), cert. denied, 459 U.S. 851 (1982) ("[w]here there is a substantial contradiction in a given area of expertise, it may be vital in affording effective representation to a defendant in a criminal case for counsel to elicit expert testimony rebutting the State's expert testimony"); Buttrum v. Black, 721 F. Supp. 1268, 1312-1313 (N.D.Ga. 1989) ("It is clear that Ake contemplates a psychiatrist who will work closely with the defense"; United States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985) (state's duty under Ake "cannot be satisfied with the appointment of an expert who ultimately testifies contrary to the defense."); United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976) (fingerprint expert necessary to prepare counsel to cross examine state's expert, since "an 'adequate defense' must include preparation for cross-examination of government expert as well as presentation of an expert defense witness"). This independence is necessary if the expert is to fulfill his or her essential functions:
First the expert can aid a defendant in determining whether a [particular] defense. . . is warranted by the defendant's particular circumstances. Second, the expert can coherently present to the jury his or her observations. . . . Finally, the expert can "assist in preparing the cross-examination' of . . . experts retained by the government.

United States v. Fazzini, 871 F.2d 635, 637 (7th Cir. 1989), cert. denied, 110 S. Ct. 517 (1989) (citations omitted).
5. In addition to due process considerations, the constitutional guarantee of equal protection requires that a defendant be provided with investigative and expert assistance reasonably necessary to his defense. As the Supreme Court has observed, "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 17-19 (1956). In short, in a case where, as here, the defense may be devastated by the absence of expert testimony, and the accuracy of the jury's determination would be drastically enhanced by that testimony, the Supreme Court in Ake held that the "State's interest in its fisc" must yield to its interest in "an accurate proceeding." Id., 470 U.S. at 83.
6. The requirements of due process and equal protection apply with full force to capital sentencing proceedings. Accordingly, the Supreme Court's decision in Ake applies where a capital murder defendant makes a threshold showing that his mental condition will be a significant factor at the sentencing phase. See Ake, 470 U.S. at 87 (Burger, C.J., concurring). Numerous other courts have so held. See, e.g., Smith v. McCormick, 914 F.2d 1155, 1157 (9th Cir. 1990) (reversing death sentence because defendant's right to expert assistance in presenting mitigation evidence not satisfied by neutral psychiatrist); Harris v. Vasquez, 901 F.2d 724, 727 (9th Cir. 1990) (Ake applies to mitigation evidence at capital sentencing hearing); State v. Gambrell, 318 N.C. 249, 347 S.Ed.2d 390, 394 and n. 2 (N.C. 1986) ("Ake held that an indigent defendant is entitled to state furnished psychiatric assistance on issues relating to his mental state which may arise at a capital sentencing hearing"); Perri v. State, 441 So. 2d 606 (Fla. 1983) (error to deny defendant assistance of a psychiatrist to develop mitigation evidence even though defense of insanity not available); State v. Wood, 648 P.2d 71 (Utah 1982) (same); United States v. Sloan, 776 F.2d 926, 929 (9th Cir. 1985) (Ake compels appointment of a psychiatrist to assist the defense where the "mental condition" of the defendant is a real issue); United States v. Crews, 781 F.2d 826 (10th Cir. 1986) (same); Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (Ga. 1987) (defendant's motion for court appointment of independent psychiatrist held improperly denied because he was "entitled to the kind of independent psychiatric assistance contemplated in [Ake] on the questions of competency to stand trial, criminal responsibility, and mitigation of sentence") (emphasis added)).
7. Indeed, a defendant's need for investigative and expert assistance is especially strong in capital cases because of the extremely broad avenues of potentially relevant mitigation evidence. Under the Eighth Amendment, a defendant in a capital murder case must be allowed to proffer any evidence of mitigation submitted as a basis for a sentence less than death. Lockett v. Ohio, 438 U.S. 586 (1978). However, the defendant's absolute right under the Eighth Amendment to present forensic and medical evidence in mitigation is meaningless unless the State provides the funds needed to produce the evidence. Westbrook v. Zant, 704 F.2d 1487, 1496 (11th Cir. 1983). As the Court stated in Westbrook, "[p]ermitting an indigent capital defendant to introduce mitigating evidence has little meaning if the funds necessary for compiling the evidence [are] unavailable, [and t]he cost of protecting a constitutional right cannot justify its total denial." Id. at 1496. 8. In addition, a defendant is denied effective assistance of counsel where, because of the defendant's indigence, counsel cannot procure necessary expert assistance. Bertolotti v. State, 534 So. 2d 386, 388-89 (Fla. 1988) (relying on Ake, counsel's assistance held ineffective in failing to employ assistance of mental health expert in representation of capital defendant); Curry v. Zant, 371 S.E.2d 647 (Ga. 1987) (defense counsel held ineffective for relying on state psychiatrist instead of seeking independent evaluation). Adequate investigation and preparation is an indispensable prerequisite to effective assistance, since a lawyer who "'does not seek out all the facts relevant to his client's case is prepared to do little more than stand still at the time of the trial.'" McQueen v. Swenson, 498 F.2d 207, 217 (8th Cir. 1984); State ex rel. Busby v. Butler, 538 So. 2d 164, 169-173 (La. 1988) (defendant denied effective assistance of counsel because counsel failed to investigate and present to sentencing jury facts relating to defendant's mental condition); see also, Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982), cert. denied, 460 U.S. 1098 (1983) ("[a]t the heart of effective representation is the independent duty to investigate and prepare").
9. Newly-enacted federal law requires that funding for experts and investigators be provided in capital cases arising under federal law whenever it is reasonably necessary to the defense:
(4) (A) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time . . . shall be entitled to the . . . furnishing of such other services . . . .

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Section 7001, 102 STAT 4181, 4393 (to be codified as amended at 21 U.S.C. Section 848).
A. Psychiatric/Psychological Assistance
1. It is indisputable that psychiatric and psychological matters will be an extraordinarily significant factor at Mr. CLIENT's trial and sentencing proceeding. Mr. CLIENT requires expert assistance to present to the jury the full array of mitigating circumstances that exist in this case and to rebut any State's evidence tending to show aggravating circumstances. Mr. CLIENT has a constitutional right to retain psychiatric and psychological experts to assist him in developing mitigating evidence.
2. [Note to Counsel: Insert possible defense/mitigation testimony as presented in affidavit of expert you wish to hire, e.g. "It is Dr. Bizzaro's understanding from the facts of this case that Mr. CLIENT may be psychotic as Mr. CLIENT appears to exhibit delusional thinking on a regular basis and was committed to a psychiatric institution ten years ago. His sister reports that Mr. CLIENT has always insisted on sleeping with a battered velvet rabbit whom he calls 'Mr. Toblar'; currently Mr. CLIENT appears to be exhibiting separation anxiety from being denied access to 'Mr. Toblar' who has not yet been given a visiting day."]
3. Mr. CLIENT requires development of this defense as well as development of other mitigation, both statutory and non-statutory.
4. Mr. CLIENT's proposed expert is psychologist Dr. Bizarro. Her standard evaluation fee is $2000 plus expenses; consulting and testimony are charged at $100 per hour. Therefore, it is expected that her services will not cost more than $5,000.
5. This mental health expert will play a critical role in the preparation of the mitigation evidence in this case. A more detailed summary of her preliminary findings and proposed courses of action appears in the affidavit and vita attached hereto as Exhibits A. Should the Court find that this proffer needs to be supplemented, Mr. CLIENT requests that this Court notify counsel precisely how his proffer is inadequate so that he may supplement it.
B. Mitigation Investigator/Social Worker
1. In order to present a competent defense at his sentencing trial, Mr. CLIENT requires the services of an independent mitigation investigator/social worker, Greta Portnoy. See Mason v. Arizona, 504 F.2d 1345 (9th Cir. 1974) (effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the . . . appointment of investigative assistance for indigent defendants in order to ensure effective preparation of their defense by their attorneys); State v. Hickney, 317 N.C. 457, 468, 346 S.E.2d 648, 654 (1986) (Ake applies to investigators); State v. Madison, 345 So. 2d 485 (La. 1977) (right to private investigator may in many cases be adjunct to right to counsel; furnishing counsel to indigent defendant is not enough if counsel cannot secure information on which to construct a defense). Among other things, Ms. Portnoy will locate and interview potential mitigating witnesses and assist in locating Mr. CLIENT's school and medical records, including those records of his confinements at the State Hospital.
2. Defense counsel is unable without the assistance of an investigator to interview and prepare all witnesses. Ms. Portnoy's rates are $50 per hour, plus expenses, and she estimates that approximately 50 hours of work may be required. Therefore, in order to retain her services, the defense will require approximately $2500 in fees and reasonable expenses. An affidavit of Ms. Portnoy, detailing the tasks she has been asked to perform and her compensation rates, along with a resume, are attached as Exhibit B. Again, should the Court find that this proffer needs to be supplemented, Mr. CLIENT requests that this Court notify counsel precisely how his proffer is inadequate so that he may supplement it.
3. Only through the use of an investigator can Mr. CLIENT adequately develop the full range of mitigating circumstances that exist in this case. The holding in Ake--that an indigent defendant has a constitutional right to competent, independent psychiatric experts to assist in his defense--compels the appointment of these mental health experts in this case, where the defendant's psychiatric makeup will be a significant factor at trial. Under Ake, this Court must grant Mr. CLIENT's motion for funds to retain mental health experts.
For the foregoing reasons, Mr. CLIENT respectfully requests that this Court grant him funds to retain a psychologist and an investigator/social worker.
CAUTION: THIS MOTION IS FILED EX PARTE
AND MUST BE MAINTAINED UNDER SEAL
AFFIDAVIT OF DR. EDITH BIZARRO, Ph.D.
COMES NOW, EDITH BIZARRO, Ph.D., being duly sworn, and deposes and states as follows:

1. I am a licensed psychologist with a private practice in Texas. My business address is Psychological Associates, 400 Colony Road, Suite 1010, Houston, TX.
2. I received my B.A. from the University of Minnesota in March 1973, and my Ph.D. from Harvard University in May, 1977. I have been a licensed psychologist in the State of Texas since October, 1979, and am a Diplomate of the American Board of Psychology. Aside from my private practice, I have been teaching as a Clinical Professor at the Department of Psychology at Texas University. A copy of my curriculum vitae is attached to this affidavit.
3. In my professional work, I have been extensively involved with forensic psychology, including evaluations of individuals in the criminal justice system. I have frequently been qualified as an expert to testify in the Courts of the State of Louisiana, and have previously been involved as a witness in capital litigation.
4. I have been approached in this case, and have begun to assist the defense in their preparation for trial, both discussing potential defenses to the charges against him and evaluating the possible mitigating circumstances which could be adduced on his behalf at a sentencing hearing.
5. In a capital case, a psychologist must be more thorough even than under normal circumstances. In addition to questions of sanity and competence, the capital trial involves an extensive penalty phase where all of the defendant's psychiatric history may be relevant in mitigation.
6. I have been provided with certain information regarding the defendant's background, including, but not limited to: prior psychiatric evaluations, an extensive medical history, a social background, statements of various relatives, friends, teachers and other associates, and confidential information supplied by counsel. 7. From my review of this material, I can draw certain preliminary conclusions. Before commenting on them, however, I should note that I offer this affidavit solely as a very preliminary evaluation, necessitated by the defendant's inability to finance my complete evaluation without the permission of the Court. I would not attempt to diagnose anyone on the basis of the information available to me thus far, and all statements herein are very tentative impressions.
8. There is evidence of certain disorders found in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, 1994) (generally referred to as the DSM-IV), that could provide the basis for a defense of Not Guilty by Reason of Insanity. The DSM-IV is the primary diagnostic manual used by the psychiatric and psychological profession.
9. The defendant exhibits indicators of certain phobic disorders, or phobic neuroses. See DSM-IV Section 300.02. He also displays elements of Paranoid Type, exemplified by his persecutory delusions. See DSM-IV Section 297.10. From the school records, it is apparent that the defendant is of limited intelligence. A comprehensive battery of tests may show mental retardation. See DSM-IV Section 319.0x. Finally, it is clear that the defendant has a family and personal history consistent with a diagnosis of Alcohol Abuse. See DSM-IV Section 305.0x. These facets of the defendant's psychological profile are suggested by a review of the history provided to me. They certainly do not exclude the possibility of other, perhaps still more severe, psychological disorders.
10. These psychoses could result in severe emotional disturbance. Mental retardation often causes the individual to react unpredictably to stressors, and could lead to his being easily coerced into a criminal course of action, as well as reducing his awareness of the wrongfulness of the act. The defendant's long-term dependence upon alcohol and other drugs might also have influenced his ability to perceive the wrongfulness of the act alleged against him.
11. In order to fully develop an understanding of the defendant's mental profile, it would be necessary for me to administer a full battery of tests on the defendant, and complete the evaluation which I have begun. My own evaluation and trial services should be completed for a maximum of $5,000. I am available through my office if the Court desires further information from me.

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DR. EDITH BIZARRO, Ph.D.

Sworn to and subscribed to before
me this __ day of _________, 1994

_________________________________
NOTARY PUBLIC
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