Representation of a huge volume of indigent defendants can lead to poor patterns of practice. The failure to seek funds to employ a defense expert when the case dictates use of an expertise is a bad habit which courts are refusing to tolerate.

Rationalizations Abound. Reasons defense at-torneys voice for not asking for funds for a defense expert include:

It really won't make a difference;

I don't have time to do all it takes to effectively obtain and use an expert;

I'll just cross-examine the state's expert.

Other reasons include the viewpoint that obtaining an expert is not the standard of practice in the city or county or judicial district, or knowledge that the judge has never previously granted a request for funds for experts.

Change is Inevitable. However, the practice of law is rapidly changing. With good reason, courts are increasingly finding counsel ineffective when they fail to obtain a defense expert to investigate; or they fail to ask for funds to have defense tests or evaluations conducted and instead rely on cross-examining the state's expert. A brief discussion of the federal constitutional standard and a review of cases finding counsel defective for failing to request expert assistance and holding the prejudice required reversal follows.

The standard for ineffective assistance of counsel under the sixth and fourteenth amendments is straightforward: "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prevail, a defendant has to show both deficient performance and prejudice:

Prevailing professional norms for requesting funds for expert help are set out in several well recognized national standards of practice. See, What National Benchmarks Require, Chapter 6.

The reasonable probability burden of proof is "a lower burden of proof than the preponderance standard." Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990).

The focus is on whether the defendant received the process due him, "not to grade counsel's performance." Id. at 2069.

When the deficiency is a failure to investigate, Strickland informs us that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 2066.

"The prejudice prong of the two-part Strickland test continues to be the primary hurdle to be cleared in sixth amendment assistance-of-counsel cases. This obstacle, however, is not insurmountable." Profitt v. Waldron, 831 F.2d 1245, 1251 (5th Cir. 1987). The following cases indicate increasing ability to hurdle the obstacles.

In Rogers v. Israel, 746 F.2d 1280 (7th Cir. 1984) the prosecutor's theory was that the mur-der defendant's first shot intentionally struck the victim and his second hit the ceiling. The defense theory of the case was that the defendant's first shot lodged in the ceiling and his second was fired during the struggle without criminal intent. "A factual dispute relevant to these two theories was whether Griffin would have been capable of engaging in a struggle after receiving his bullet wound. If the wound would have rendered Griffin incapable of such activity, the shot that preceded the struggle could not have caused the wound." Id. at 1290.

All eyewitnesses but one testified in support of the prosecution's theory. The state called a pathologist who said a person with a bullet wound in the heart and right lung could do strenuous activity for 1/2 hour. The defense attorney did not call on experts to rebut this testimony. Instead he "asked the jurors to use their common sense in concluding that [the victim] could not have engaged in a struggle after being shot through the heart." Id. at 1290.

The murder conviction was followed by post-conviction litigation, and presentation of a forensic pathologist who testified "that it would be virtually impossible for victims of such wounds to engage in the physical struggle that was described in the testimony at trial," and that victims with comparable wounds were "immediately incapacitated." Id. at 1290. The trial defense counsel testified that he discussed the state pathologist's conclusion with other physicians but not with any pathologists.

The 7th Circuit held the defense attorney was prejudicially ineffective since there was a "reasonable probability" that had the forensic pathologist's testimony presented at the habeas hearing had been presented at trial, "the jury would have had a reasonable doubt respecting guilt on the charge of first degree murder." Id. at 1294. Also, defense counsel owed a duty to his client "to ask a qualified expert whether [the victim would have been immediately incapaci-tated by his wound," and the failure to make such an inquiry was unreasonable and not "sound trial strategy." Id. at 1295.

In Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992) Mr. Sims was convicted of murdering his wife and he was sentenced to life. He told his counsel it was an accidental shooting. As his wife tried to commit suicide by shooting herself, Mr. Sims struggled with her and the fatal shot was fired. Trial defense counsel presented the defenses of accident and self-defense.

A quilt with three bullet holes and butterfly patterns of gunshot residue was examined by the FBI but not by the defense. In the post-conviction action, Sims claimed his counsel was ineffective for failing to obtain "the services of a forensic expert to examine the quilt, its bullet holes, and its powder burns, and the fatal bullet for traces of fabric from the quilt." Id. at 1577.

Mr. Sims contended that such an examination would have revealed that "the quilt was between Mrs. Sims and the pistol when the fatal shot was fired. The powder burns on the quilt, he alleged, account for the clean wound on Mrs. Sims' chest, and thus undermine the state's contention that Mrs. Sims must have been shot from a distance." Id.

During the federal evidentiary hearing, a forensic firearm examiner and the chief medical examiner for Atlanta offered forensic opinions to support these defense contentions.

The Sixth Circuit found that the defense attorney did not reasonably exercise his professional judgment when he failed to have the quilt examined by a defense expert. The failure to independently investigate key evidence was prejudicially defective assistance.

"Informed evaluation of potential defenses to criminal charges and meaningful discussion with one's client of the realities of his case are [the] cornerstones of [the] effective assistance of counsel." Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).

In cases involving mental health issues Courts have repeatedly stressed the "particularly critical interrelation between expert psychiatric assistance and minimally effective assistance of counsel." United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir. 1974).

The cases which follow demonstrate that defense attorneys are failing to investigate the mental health histories of their clients sufficiently for competent decisionmaking, and failing to present expert findings. The failure of the attorney to fully investigate almost always necessarily involves the failure of the attorney to ask for and obtain an expert to investigate by evaluating the defendant.

Jones v. Thigpen, 788 F.2d 1101 (5th Cir. 1986) held that the trial defense counsel's failure to present any evidence from a mental health expert as to the defendant's mitigation was "professionally unreasonable" and "prejudicial." Had "this evidence been presented, the jury would have concluded that death was not warranted." Id. at 1103.

The defense attorney presented no mitigation in the penalty phase. At the habeas hearing, a clinical psychologist said the defendant had an I.Q. of less than 41, was emotionally disturbed, and was "severely limited in his capacity to think and did not understand what was happening around him." Id. "Defense counsel either neglected or ignored critical matters of mitigation...." Id.

Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) found the Texas defense counsel ineffective for failing to investigate the mental health history of the defendant who counsel knew had escaped from a mental health institution in Idaho. Counsel failed:

The 5th Circuit made clear that obtaining the opinion of a court-appointed psychiatrist does not excuse counsel's duty to further investigate, that counsel could not make strategic or tactical choices on "faulty information" due to "ineffective investigatory steps," and that the lack of knowing about the law on the shift of the burden of proof to the prosecution "undercuts any claim that the decision to forego the insanity defense 'informed.'" Id. at 1249.

The mentally ill defendant in Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990) was charged with aggravated robbery and aggravated kidnapping. With the dubious help of his appointed counsel, Bouchillon pled guilty to robbery with kidnapping being dropped. He was sentenced to 20 years.

In a post-conviction action Bouchillon alleged he was denied the defense of insanity; he was incompetent to plead guilty, and his attorney was ineffective for failing to investigate his incompetency and insanity. At the post-conviction hearing, the defendant presented medical records; affidavits from his two sisters and a fellow inmate; and experts, including a psychologist who said the defendant was incompetent at the time he pled guilty.

The state presented the trial defense counsel at the post-conviction hearing who said he did no investigation of mental defenses because his client was lucid and able to assist in his own defense. Counsel said that he told Bouchillon that an insanity defense was difficult to prove in Lubbock, Texas when Bouchillon told him he had mental problems, had been institutionalized, and was on medication. The state presented no experts at the post-conviction hearing.

In observing that defense attorneys have a duty to make a reasonable investigation, the 5th Cir-cuit concluded that to "do no investigation at all on an issue that not only implicates the accused's only defense, but also his present competency, is not a tactual decision. Tactical decisions must be made in the context of a reasonable amount of investigation, not in a vacuum.... It must be a very rare circumstance indeed where a decision not to investigate would be 'reasonable' after counsel has notice of the client's history of mental problem." Id. at 597.

Significantly, the Court noted that "Bouchillon's attorney did not ask for a psychiatric evaluation." Id. Counsel's lack of investigation including asking for a defense evaluation "fell below reason-able professional standards." Id.

In Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991) defense counsel did not present any evidence of Brewer's mental history at the capital penalty phase. Brewer was the only penalty phase witness, and was sentenced to death.

As part of his presentence investigation, the trial judge ordered a psychological evaluation. That evaluation showed Brewer has an I.Q. of 76, which is in the lowest 7% of the population; had several shock therapy treatments at age 10; did not complete the 9th grade, has "a shallow mind that perceives the superficial aspects of reality," and had brain damage. Id. at 852-53, 857.

The Court granted the habeas since defense counsel's failure to investigate the mental history of a defendant with low intelligence demonstrates conclusively that he didn't "make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant's fate to the jury and to focus the attention of the jury on any mitigating factors." Id. at 857 quoting Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989).

Counsel's representation fell below an objective standard of reasonableness in view of his "failure to make reasonable investigation to discover this readily available evidence regarding Brewer's low I.Q., susceptibility to the influence of friends and disadvantaged background...." Id. at 858.

The 7th Circuit held "'there is a reasonable pro-bability that [if the jury had been aware of Brewer's low I.Q. and deprived background, it]...would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.' Strickland, 466 U.S. at 695, 104 S.Ct. at 2069." Id. at 858.

Ironically, the trial judge uncovered more mitigation in the standard presentence investigation process than defense counsel did in his investigation.

In Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991) trial defense counsel failed to invest-igate Blanco's mental history, presented no mitigation, and watched their client be sentenced to death. Counsel did not procure a psychiatric evaluation of the defendant; instead, counsel informed the trial judge "after a brief discussion with Blanco that no mental health mitigation evidence existed." Id. at 1503.

The 11th Circuit readily found that "given that this discussion constituted the extent of counsels' investigation into the availability of mental health mitigating evidence, that such evidence was available, that absolutely none was presented to the sentencing body, and that no strategic reason has been put forward for this failure, we find that counsels' actions were objectively unreasonable." Id.

An assessment of whether prejudice was a product of this deficient assistance of counsel was undertaken by the 11th Circuit. Blanco's brother and acquaintances could have testified to his difficult childhood and adolescence. Blanco was born through serious medical problems, including an initial lack of oxygen. He suffered seizures. His grandmother had psychosis. Blanco had organic brain damage and epileptic disorders. A psychiatrist at the federal evidentiary hearing testified Blanco's I.Q. was in the borderline range; he suffered from psychotic, paranoid and repressive tendencies, and had extremely poor contact with reality.

In light of this, the 11th Circuit found there was prejudice under the Strickland standard since there was a reasonable probability that had the defendant's mental health history been presented the sentencer would have balanced the mitigation and aggravation to a non-death sentence.

In Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981) the defense called the state mental hos-pital when he learned his client was confined twice in the state mental institution. Counsel decided the client's records from the institution would not be helpful, and that a psychiatric exam would be detrimental to an insanity defense. At trial, the only defense testimony was the client's mother and wife and his own unsworn statement.

"By not following up on the telephone call, to the state mental hospital where Beavers had been previously treated, counsel fell short of the thorough pretrial investigation to which the appellant was entitled." Id. at 116.

In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989) the court held that counsel's performance was deficient because he failed to present psychiatric testimony about his client's mental impairment in mitigation. Counsel knew his client had a history of mental difficulties but he did not conduct any investigation of them when there was a substantial mental illness history.

In Cunningham v. Zant, 928 F.2d 1006, 1017-18 (11th Cir. 1991) the defense attorney was found ineffective for failing to introduce evidence into the capital penalty phase as to his client's mild mental retardation, his medical records, headaches from a surgically implanted plate in Cunningham's head. While the defense attorney asked a neurosurgeon to review the medical records for an insanity defense, he failed to ask the expert to review them for the purpose of mitigation, and failed to introduce evidence through an expert of his client's I.Q. of 58 and his being mentally retarded.

When the sole defense is "insanity due to alco-holism...minimally effective representation must include an investigation into the defendant's past and present medical condition." Mauldin v. Wainwright, 723 F.2d 799, 800 (11th Cir. 1984). This is so even when defense counsel have no evidence of previous hospitalization for alcoholism.

When insanity is the only defense, the failure of defense counsel "to investigate cannot be excused by saying that it did not seem to be a very strong defense." Davis v. Alabama, 596 F.2d 1214, 1218 (5th Cir. 1979).

Having done no investigation into the mental history of their client, the lawyers asked for a continuance and asked the court to appoint a doctor to examine the defendant but did not allege he was indigent. Id. at 1216. The attorneys "did not explain why they had failed to make that request or to find a doctor themselves, during the several weeks they were involved with the case." Id. The failure to investigate insanity and develop it with an expert was deficient performance. Id. at 1220.

In Greer v. Beto, 379 F.2d 923, 925 (5th Cir. 1967) the failure to present any medical evidence relevant to the defendant's insanity was found to be error.

Relying on state experts without requesting and obtaining defense experts is ineffective assistance of counsel since a defendant does not receive the required defense perspective. See Indigent's Right to Independent Expert Help, Chapter 2.

The "ability to subpoena a state examiner and to question that person on the stand does not amount to the expert assistance required by Ake." Starr v. Lockhart, 23 F.3d 1280, 1289 (8th Cir. 1994).

In Loe v. United States, 545 F.Supp. 662 (E.D. Va. 1982) reasonable grounds existed to question the mental condition of the defendant. Defense counsel invested substantial efforts in developing the issue and raised the issue at trial.

He did not seek money for a defense psychiatrist. Instead, he relied on the testimony of doctors who examined him for competency, lay witnesses, records of past psychiatric examinations and cross-examination of prosecution doctors. Defense counsel stated that he did not seek a private examination because "he felt it would not pro-duce results helpful to the defendant." Id. at 669. He was found to have provided ineffective assistance of counsel since he did not have a mental examination by an expert who could give him a partisan perspective. Id. at 668. See also, Loe v. United States, 545 F.Supp. 673 (E.D.Va. 1982).

In Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1990) the defense attorney was found ineffective for failing to seek independent psychiatric assistance to develop an insanity defense and "put Loyd's mental condition in proper focus" where the defendant had been examined by several state hospital doctors. Id. at 158. See also United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976). The defense called the 3 state doctors at trial but not said his client was insane. The post-conviction hearing saw experts testify as to Loyd's serious mental impairment and their doubts about his sanity.

Appointment of experts to determine a defen-dant's competency does "not obviate the defen-dant's right to his own expert" for insanity investigation. United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973).

Defense attorneys who decide not to ask for funds for a defense expert because they think none is available should rethink their decision. Judges who refuse to order funds when requested on the belief that there are not funds available should reconsider.

Unused Money. Money for expert assistance to the defense is readily available. The 1994 General Assembly decided that counties had to contribute $12.5 cents per capita to a statewide indigent defense expert and resources defense fund with amounts above that coming from the state. KRS 31.185(3).

Defense attorneys who do not ask for funds for necessary defense expert investigation, evalua-tion or testimony, should reevaluate their decision in light of the substantial caselaw indicating the refusal to obtain the help is ineffective assistance.

Binion. The Kentucky Supreme Court has recognized the need for defense experts: "We are persuaded that in an adversarial system of criminal justice, due process requires a level playing field at trial.... [T]here is a need for more than just an examination by a neutral psychiatrist. It also means that there must be an appointment of a psychiatrist to provide assistance to the accused to help evaluate the strength of his defense. To offer his own expert diagnosis at trial, and to identify weaknesses in the prosecution's case by testifying and/or preparing counsel to cross-examine opposing experts." Binion v. Commonwealth, 891 S.W.2d 383, 386 (Ky. 1995).

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)

Rogers v. Israel, 746 F.2d 1280 (7th Cir. 1984)

Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992)

Jones v. Thigpen, 788 F.2d 1101 (5th Cir. 1986)

Profitt v. Waldron,  831 F.2d 1245 (5th Cir. 1987)

Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990)

Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991)

Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991)

Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981)

Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989)

Cunningham v. Zant, 928 F.2d 1006, 1017-18 (11th Cir. 1991)

Mauldin v. Wainwright, 723 F.2d 799, 800 (11th Cir. 1984)

Davis v. Alabama, 596 F.2d 1214, 1218 (5th Cir. 1979)

Greer v. Beto, 379 F.2d 923, 925 (5th Cir. 1967)

Starr v. Lockhart, 23 F.3d 1280, 1289 (8th Cir. 1994)

Loe v. United States, 545 F.Supp. 662 (E.D. Va. 1982)

Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1990)

United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973)

Binion v. Commonwealth, 891 S.W.2d 383, 386 (Ky. 1995)