[Click here to download motion and order.]

COMMONWEALTH OF KENTUCKY                                                                         PLAINTIFF

VS.

______________                                                                                                     DEFENDANT

Comes the indigent defendant, through counsel, and hereby moves this Court to enter a finding that there is a "reasonable necessity" for expert assistance in support of a defense to these charges, and in support of his right to present evidence and defend against the penalty of death sought by the Commonwealth. The defendant further moves for funding to retain the assistance of the necessary experts in order to prepare for a trial of guilt/innocence and punishment. This funding assistance would otherwise be an expense of the Fiscal Court, so the accused moves the Court to enter an order directing that funds be provided from the newly created indigent funding pool administered by the Finance and Administration Cabinet pursuant to KRS 31.185 and KRS 31.200.

The accused's mental status at the time of the offense will be a significant factor in the guilt and penalty defense to these charges and expert assistance will be necessary to prepare and present the defense. Counsel are unable to retain a psychiatrist or psychologist due to Mr. _____'s indigence and the unavailability of state facilities or personnel to act in the capacity of confidential consulting defense expert.

Counsel cannot provide effective assistance of counsel or ensure protection of Mr. _____'s constitutional and statutory rights in this death penalty prosecution in the absence of expert mental health assistance. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985). Without the necessary tools for effective assistance of counsel, defendant could never announce "ready" for trial.

The Kentucky Supreme Court recently addressed the issues at stake when a capital murder defendant seeks access to mental health expert assistance:

Mr. ______ needs the assistance of at least three experts in order to prepare a defense to these capital murder charges:

1. A psychologist to evaluate _____'s mental status at the time of the offense, to assist counsel in understanding the nature of the charged crime and evaluate possible defenses, including insanity, extreme emotional disturbance, and duress, and to evaluate all these factors to determine whether penalty phase statutory and non-statutory mitigation exists if the presence of mental illness, emotional disturbance, or duress does not rise to the level of a defense in the guilt phase, and to testify if appropriate. The psychologist will also conduct a battery of neurological testing to make an initial determination regarding the possibility of brain damage resulting from a history of childhood and adolescent head trauma and polio with which the defendant was stricken before age 2. Prison records indicate that _____ suffers hallucinations which may be the product of organic or psychiatric dysfunction. The psychologist will also advise as to the necessity for psychiatric and neurological examinations.
2. A psychologist with expertise in mental retardation to evaluate ________'s current and past intellectual and adaptive functioning, to assist counsel in preparing for a pretrial hearing pursuant to KRS 532.135[1] and 532.140, to determine whether the defendant is mentally retarded to the extent of exempting the death penalty as a sentencing option, and to assist in preparing and presenting a defense involving mental retardation or subaverage intellectual functioning. One intelligence test dating from school age indicates that ______'s IQ is 71. Other tests done by prison personnel or contractors resulted in scores in the 70's, indicating either mental retardation or borderline intellectual capacity. In fact, prison mental health experts diagnosed him as borderline mentally retarded.
3. A social worker with expertise in assessing family dynamics to evaluate the effect upon ____ of his troubled childhood, including poverty, abuse, social ostracism, racial confusion, polio victimization, early hospitalization and trauma, and the family structure. ______ comes from a large black family in which one of his brothers was obviously white and later grew up to be a successful professional football player while _________ ended up on death row. His relationship with this brother and with other family members appears to be significant to his character, behavior, and the crime itself.
4. If needed, a neurologist or neuropsychologist to perform testing to determine the extent of brain damage and to explain the impact of these injuries and malfunctioning upon ____'s behavior to a jury in the guilt and/or penalty phase of trial.

_____ is charged with an offense for which the prosecutor is apparently seeking the penalty of death[2] and thus is confronted with defending himself, for the second time, in two separate trials -- a guilt/innocence trial and a penalty phase where his life or death will be decided. He is an indigent African-American prison inmate charged with the murder of a white female prison employee of which he was originally convicted and sentenced to death in 1985. No experts testified on his behalf either in the guilt or penalty phases of 's first trial. Mental health expert assistance will be required in order for _____ to receive a fair retrial.

In the first phase of his trial, the guilt/innocence phase, ______ must defend against the charge of murder. The circumstances surrounding the impulsive, confessed but unexplained homicide of _____'s friend ______ and the circumstances of __________'s background and mental status indicate that an affirmative mental health defense of insanity, extreme emotional disturbance,[3] and/or duress is present and that expert assistance will be necessary in presenting this defense. The indigent defendant has a right to present a defense and to expert assistance in exercising that right. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985); Sommers v. Commonwealth, Ky., 843 S.W.2d 879 (1992) (copy attached).

In the penalty phase, ___________ will be forced to defend against death by electrocution by presenting evidence which mitigates against the penalty of death. Federal constitutional law recognizes the fundamental right to present mitigation evidence which is defined as "aspects of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). Relevant mitigation evidence encompasses the "compassionate or mitigating factors stemming from the diverse frailties of humankind." McCleskey v. Kemp , 481 U.S. 279, 304 (1987), quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976). The defendant must have expert assistance to identify, evaluate, and present this mitigating evidence in a form which can be understood by the jury, and which would provide a basis for penalty phase instructions on the statutory mitigating factors of extreme emotional disturbance, insanity, duress, as well as nonstatutory mitigation.

Kentucky caselaw also recognizes the right of a defendant to present mitigating evidence and the right to have the sentencing jury instructed to consider and give effect to such evidence mitigating against imposing the death penalty. Smith v. Commonwealth, Ky., 845 S.W.2d 534, 538 (1993); see, also, KRS 532.025(2), cited in Smith. The Kentucky Supreme Court in Smith analyzes federal caselaw regarding mitigating circumstances and states

Juvenile and prison records indicate that psychological evaluations of _____ conducted many years ago during juvenile commitments and adult incarceration revealed that ____ has suffered from mental illness in the past. He engaged in group counseling at Frenchburg Boys Center and Kentucky Village, but was not treated medically. Two MMPIs were administered by prison personnel (one in 1975 and one in 1980) which reflect extremely high scoring on scales that indicate psychosis, suggesting a severe mental disturbance. Probation reports indicate that the community of Tompkinsville did not want him returned to the community because they believed him to be mentally ill. The evaluation in 1980 was done because the parole board had serious concerns about his mental stability. Although the testing indicated that ______ was mentally ill, the evaluators concluded that he was not actively psychotic at the time.

Prison records indicate that ______ suffers from hallucinations and that he has been treated at Kentucky State Penitentiary with antidepressants and anti-anxiety medication, but no extensive psychiatric treatment has been provided. Undersigned counsel have also observed indications of significant mental disturbance (irrational thoughts and behavior, emotional ability, obsessive and overly suspicious thoughts, disinhibition, tangential speech, other communication problems, etc.) which clearly demonstrate that the assistance of mental health experts will be necessary in evaluating the circumstances of the charged crime, including possible mental health defenses, as well as _____'s character, background, and intellectual capacity.

In addition ______ suffered a very troubled childhood which have obviously impacted upon his character and behavior but which counsel can not begin to understand or present to a jury without expert assistance. _______ grew up as a mentally deficient polio victim in a large, poor black family. He did poorly in school; records reflect an IQ score of 71. He operated on a very low, simplistic level and apparently was only socially promoted. _______ did not progress far as his behavioral problems began in the early teens and thus, he was introduced into the juvenile justice system at an early age.

His mother, ______, worked as a domestic for wealthy white families. There were nine children in the family, of various parentage. ______'s brother ______, who grew up to be a successful professional football player, appears to be white. Racial issues, including his relationship with ______, have deeply affected in ways which relate to the crime and to his character but which counsel do not currently understand.

There is a possibility of neurological damage caused by polio and/or head trauma as _____ has suffered several severe blows to the head, including falling from a barn, being hit with a lead pipe, and various beatings and fights as a child. Reported hallucinations may be the result of an organic brain dysfunction. _______ was stricken with polio which has resulted in a withered leg, numerous invasive surgeries in Louisville far from home at an early age, social ridicule, a devastated self-esteem, and possible neurological damage.

Records of IQ tests and an adaptive behavior test (Vineland examination done by Penitentiary employee or contractor Wayne Fuller) indicate that ______ is either mentally retarded or so close as to render his functioning significantly below the level of most of the adult population. In addition, counsel have observed deficits in adaptive behavior and a low intellectual functioning with behavior improving in a structured, familiar environment with low conflict. This is significant as a factor in a guilt phase defense and to the appropriate penalty for this crime. Counsel need the assistance of experts to prepare a guilt/innocence and penalty defense and to present this information to a jury coherently.

A psychologist will be needed to evaluate _____'s mental status at the time of the offense, assist counsel in understanding the nature of the charged crime and evaluating possible defenses, and to testify if appropriate. The psychologist is needed also to conduct initial testing to determine whether brain damage has been sustained and whether further neurological or neuropsychological testing is recommended.

A social worker, specifically a clinically experienced expert, will be needed to evaluate the effect upon ______ of his troubled childhood, including poverty, abuse, social ostracism, racial problems, polio victimization, early hospitalization for extended periods of time involving invasive surgery, and other issues. This expert will be needed to assist defense counsel in explaining the impact of these factors to a jury and to assist counsel in understanding the meaning of these various mitigating factors in relation to penalty for this crime.

An expert in mental retardation is needed to evaluate ______'s current and past intellectual and adaptive ability, to assist counsel in preparing for a pretrial hearing pursuant to KRS 532.135 and 532.140, and to assist in preparing and presenting a defense involving mental retardation.

There are no state agencies which can provide the assistance sought by defendant. The Cabinet For Human Resources cannot provide these services through its facility at the Kentucky Correctional Psychiatric Center [KCPC].[4]  It is the Department of Public Advocacy which must provide this service through the funding of independent experts.[5]

Access of the accused to expert assistance involves fundamental constitutional rights. The leading case authority on this issue is Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985).

In Ake the specific issue was the petitioner's entitlement to an independent expert on mental health issues to assist the defense counsel in the preparation and presentation of a defense. The trial court had forced the defendant into using the "state employed psychiatrist". As a result the defendant was rendered unable to present a defense in which mental health was to have played a "substantial part."

It was determined that without the needed expertise, Ake was denied the ability to "meaningfully participate" in his judicial proceeding. The Court said:

_____ has a constitutional and statutory right to introduce mitigating evidence in the penalty phase. 532.025; Smith v. Commonwealth, Ky., 845 S.W.2d 534 (1993). The Eighth Amendment provides that ______'s jury may not be precluded from "considering, as a mitigating factor," or from "giving independent mitigating weight to," any "aspects of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604-05; Smith v. Commonwealth, Ky., 845 S.W.2d 534, 539 (1993); see, e.g., Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.E.2d 256, 277 (1989);, Mills v. Maryland 486 U.S. 367, 374-84 (1988); McCleskey v. Kemp , 481 U.S. 279, 304 (1987); Kubat v. Thieret , 867 F.2d 351, 372-74 (7th Cir. 1989).

A capital defendant's right to present relevant mitigating evidence, and the sentencer's obligation to consider it, are not "free-floating" constitutional requirements, nor sympathetic concessions to a convict facing the ultimate punishment. Instead, both are grounded in, and mandated by, the core Eighth Amendment principle that "death is a punishment different from all other sanctions in kind rather than degree." Woodson v. North Carolina, 428 U.S. 302, 303-304 (1976). As the Supreme Court has explained,

The Supreme Court has repeatedly emphasized the "indispensable" character of this requirement that a capital sentencer consider all relevant mitigating evidence before imposing sentence, and has not hesitated to reverse death sentences obtained in violation of this principle. For example, two years after Woodson, the Court struck down an Ohio statute limiting the relevant "mitigating circumstances" which a capital sentencer might take into account. Lockett v. Ohio, 438 U.S. 586 (1978). Observing again that "the imposition of death by public authority [is] profoundly different from all other penalties," the Court accordingly held that

The Supreme Court rejected the Oklahoma courts' narrow view, finding that "the limitations placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett." Eddings, 455 U.S. at 113. Significantly, the Court in Eddings reversed despite the fact that some of Eddings' mitigating evidence had considered by the trial court in imposing sentence. Eddings, 455 U.S. at 109-110, 115-116. Thus, Eddings establishes that full consideration of all relevant mitigating evidence is a constitutional prerequisite to the imposition of death, and lends strong support to the conclusion that a capital sentencing proceeding in which available and relevant mitigating evidence is neither presented nor considered -- through no fault of the defendant's -- cannot satisfy the strict requirements of the Eighth Amendment.

The Court's more recent decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989) compels the same conclusion. In Penry, a capital sentencing jury was permitted only to answer whether Penry, a mentally retarded man who had suffered serious abuse as a child, had acted "deliberately" in killing, had acted "unreasonably" in response to any provocation by the deceased, and would probably be dangerous in the future. 109 S.Ct. at 2948-2949. The Court conceded that the jury could weigh Penry's mental retardation and background of abuse in determining whether he had acted "deliberately," and in gauging the "reasonableness" of his response to provocation, but nevertheless concluded that additional jury instructions were necessary to ensure the full consideration of this evidence in support of a sentence less than death. Id. at 2950-2952.

The centrality of this requirement of individualized sentencing to the Supreme Court's contemporary death penalty jurisprudence is also evident from the variety of contexts in which the Court has invoked the Lockett principle to invalidate other practices. For example, the Court has determined that jury instructions which require unanimity as to the existence of particular mitigating factors violate the Eighth Amendment under Lockett. Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 433 (1990). In addition, the Court has held that Lockett mandates that prospective jurors during voir dire who would be unwilling to consider mitigating evidence in determining punishment be excluded for cause. Morgan v. Illinois, 122 S.Ct. 2222 (1992).

In sum, the Supreme Court's cases since Woodson speak with a single voice: the "heightened reliability" required in capital sentencing forbids the imposition of death when available and relevant mitigating evidence, through no fault of the defendant's, is neither presented to nor considered by the sentencer. The complete absence of such vitally important information so undermines the reliability of the proceeding that death is constitutionally unavailable as a sentencing option. See Gardner v. Florida, 430 U.S. 349 (1977) (where defendant has no opportunity to explain or rebut evidence in aggravation, due process forbids the imposition of death). Individualized sentencing, affected through the presentation and consideration of mitigating evidence, is "constitutionally indispensable" in a capital case (Woodson, supra), and in its absence death may not be imposed consistent with the Eighth Amendment.

Just as Mr. ______ has an Eighth Amendment and Section 17 right to an individualized determination of his sentence, he has a Sixth Amendment and Section 11 right to the effective assistance of counsel at both phases of trial. Failure of counsel to seek out and present through experts mitigating evidence would result in a denial of this right. See, e.g., Cooper v. Tennessee, 847 S.W.2d 521 (Tenn. Cr. App. 1992) (failure to interview expert witnesses and present evidence of mental disturbance through these experts at the penalty phase of capital case was ineffective assistance of counsel regardless of lack of guilt phase mental health defense).

Kentucky's recognition of _______'s rights relating to mitigation evidence parallels the federal. "Mitigation evidence" is "... all evidence that would tend to excuse or alleviate appellant's responsibility ..." Smith v. Commonwealth, Ky., 599 S.W.2d 900 (1980); White v. Commonwealth, Ky., 671 S.W.2d 241 (1984); Skaggs v. Commonwealth, Ky., 694 S.W.2d 672 (1985) (jury may be instructed that it may consider defendant's age, character, and record, and any other circumstances it considered mitigating). "Mitigating circumstances" are defined as factors put forth to show the appropriate sentence is a sentence less than death. Smith v. Commonwealth, Ky., 725 S.W.2d 597 (1987) (evidence admissible on mitigating factors of intoxication, drug abuse, a prior mining accident, affection for family, etc.); Foster v. Commonwealth, Ky., 827 S.W.2d 670 (1992) (evidence of long term effects of child abuse in mitigation). Circumstances to be considered as mitigating are not limited to the "statutory mitigators." Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980). White v. Commonwealth, supra, (instructions permitted which allowed consideration of mitigation circumstances in addition to "listed mitigating factors").[7]

See, also, Moore v. Commonwealth, Ky., 634 S.W.2d 426 (1982), in which the Supreme Court found reversible error in the trial court's disallowing testimony about defendant's youth, his abandonment by a parent, his repeated placement in foster homes as a child, and his difficulties in maturing both spiritually and psychologically. Citing KRS 532.025(2), the Supreme Court included such evidence as falling within the provision "...any mitigating circumstances otherwise authorized by law [as well as the] statutory mitigating circumstances ...." Id. at 434. The fact that the trial court viewed it as cumulative should not have kept it from the jury. Id. at 434.

In the most recent case in which the Kentucky Supreme Court addressed defendants' rights to present mitigation evidence, Smith v. Commonwealth, Ky., 845 S.W.2d 534, 538 (1993), the Court observed

This Motion is not an attempt by counsel to embark upon a "fishing expedition." See Hicks v. Commonwealth, Ky., 670 S.W.2d 837 (1984); Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985). More specific information regarding the need for expert assistance, the experts' credentials or fees, or any other relevant issue will be gladly provided to this Court, should such a need be determined by this Court. Counsel request an ex parte hearing should the Court decline this funding request in whole or in part.

The Supreme Court of Kentucky addressed the right of indigents to expert assistance in Sommers v. Commonwealth, Ky., 843 S.W.2d 879 (1992). In a lengthy opinion summarizing prior cases addressing a defendant's rights to expert or investigative assistance, the Court stated "due process requires that indigence may not deprive a criminal defendant of the right to present a defense, KRS 31.110(1) ...." In Sommers it was held to be prejudicial error for the McCracken Circuit Court to have denied the assistance requested by defense counsel in that case.

It is often pointed out by courts and prosecutors that KCPC is available for the evaluation of indigents. This may be true if a defendant was entitled to nothing more than an evaluation on "insanity" at the time of the crime and/or competency at the time of trial which will be shared with the prosecution and the Court even before defense counsel has sufficient information to notice the prosecution of any intentions to proffer evidence of a mental disease or defect. See KRS Chapter 504 and RCr 7.24(B).[8]

The Cabinet For Human Resources [KCPC] will not provide expert assistance to the defense in this or any case. It will not provide the assistance to defendant and his attorney envisioned by Ake v. Oklahoma when a mental health issue will play a substantial role in the proceedings. See the following exhibits relating to this problem:

1. Letter to Attorney John Halstead, June 6, 1989 - rejection of a specific request to serve as defense expert and/or consultant on behalf of Mr. Halstead's indigent client;

2. Letter to Attorney John Halstead dated June 15, 1989 - same as above, but with a request under KRS 441.047, refused as the services sought herein are not "necessary medical care" ...

3. Letter to Attorney Neal Walker dated 3 March 88 - refusing to "assist the defense or the prosecution in an investigation of matters or the development of mitigating circumstances ..."

4. Letter to Attorney Edward C. Monahan dated 19 May 80 - refusal on part of KCPC to act in role as defense consultant because to do so would "... compromise the integrity of our [CHR/ KCPC] program to provide effective evaluations to the courts of Kentucky ... To reiterate, this Department cannot allow itself to be used as the tool for either side in criminal matters ...".

5. Letter to Attorney Edward C. Monahan dated 27 March 86 -same as above. CHR/KCPC refusing to act in the capacity of the expert envisioned by Ake.

6. Letter to Attorney George Sornberger, dated 11 October 89 - CHR/KCPC declines to act to assist defense counsel Sornberger by allowing one of its doctors to be utilized as an "... expert witness and to help develop mitigating circumstances for [Mr. Sornberger's client's] defense." Based upon a "policy" established by that agency, these "additional services" were denied.

7. Affidavit of George Hancock dated 19 July 90 - same as above. Setting out in Affidavit format CHR/KCPC's position on assuming the role envisioned by Ake for the assistance to defense counsel in the presentation and preparation of a defense, including mitigation help.

8. Letter to Attorney Mike Williams, dated 8 April 92, from Hon. Masten Childers, General Counsel for Ky Department of Human Resources - explanation of policy relating to CHR/KCPC's use as defense experts and/or investigators on defendant's behalf in the case of Commonwealth v. Donald Herb Johnson, pending before Perry Circuit Court.

The practical impossibilities of assigning a state agency [against its will and probably against the law] to assist the defense counsel herein were highlighted in Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970). The appointment of the FBI to serve as defense counsel's investigator presented obviously conflicting duties and loyalties. This error of constitutional proportions cost a retrial. The Court held that

CHR/KCPC makes it clear it could not afford defendant and defense counsel with any sort of confidentiality or privileged communications. Every attorney representing a client of financial means has this opportunity. Counsel for Mr. _______ must consult with an expert and discuss how best to prepare for hearings and the trial. This means the expert will be informed of defense counsel's strategies, his thinking, the fruits of any investigations, and the like. In civil cases this material would never be subject to disclosure. See Hickman v. Taylor, 329 U.S. 495 (1947); CR 26.03(3)(4)(b); Transit Authority v. Vinson, Ky. App., 703 S.W.2d 482 (1985); and Newsome v. Lowe, Ky. App., 699 S.W.2d 748 (1985).

It is recognized that the 5th Amendment protects a "private inner sanctum of individual feelings and thoughts" of a defense attorney. United States v. Nobles, 422 U.S. 225 (1975). Defendant and his attorney will be unfairly and unconstitutionally constrained in their preparation for trial if forced to share confidential information with persons or agencies who will be unable to afford them confidentiality. Couch v. U.S., 409 U.S. 322; Ake v. Oklahoma, supra; United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974); United States v. Sloan, 776 F.2d 926 (10th Cir. 1985); Blake v. Kemp, 758 F.2d 523 (10th Cir. 1985); and, Lindsey v. State, 330 S.E.2d 563 (Ga. 1985) (the defense expert must be more than a "neutral expert"); DeFreece v. Texas, 848 S.W.2d 150 (Tex.Cr.App. 1993) (right to a defense consulting expert, not just a "neutral" expert). A client of financial means would never have to tolerate this. U.S. v. Sanders, 459 F.2d 1007 (9th Cir. 1972). See also United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973) (services for indigent defendant comparable to those which a reasonable attorney would seek for a client of independent financial means). See also Gathier v. United States, 291 A.2d 1364 (D.C. App. 1978).

The Kentucky Supreme Court recognized the need for independent expert assistance in Sommers, not just access to state experts.[10] See, also, Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995). KCPC cannot act in that capacity in this case. Counsel request an evidentiary hearing should the Court have questions regarding the need for independent defense experts and the inability of KCPC to provide this assistance.

Without the requested assistance, Mr. _______ will not be able to present an effective defense in either the guilt or penalty phases. This is for no other reason than his indigence; therefore, ______ would be deprived of the equal protection of the laws as guaranteed by the 14th Amendment to the United States Constitution. See Griffin v. Illinois, 351 U.S. 12 (1956); Draper v. Washington, 372 U.S. 487 (1963). See also, Kentucky Constitution, Sections 1, 2, 3, 11 and 17.

The Commonwealth, with all of its resources, will employ any and all necessary persons to convict and kill Mr. _______. If investigation needs to be done, the Commonwealth has an entire agency to conduct investigations, the Kentucky State Police, as well as personnel at the Kentucky State Penitentiary. At the first trial a pathologist, neurosurgeon, and serologist all testified. In addition, lead investigator Detective _______________ gave what amounted to expert mental health testimony regarding the defendant's motivation for killing. Defense counsel need the assistance of mental health experts to cross examine prosecution witnesses regarding such conclusions. If the Commonwealth needs experts, the Commonwealth will have the funds to hire them. Defense counsel do not have these resources.

_______ is on trial for his life. If he were a person of financial means, he would retain assistance; however, he is indigent. Without expert assistance, he cannot defend against these charges. A significant imbalance of wealth exists between the defendant and the Commonwealth. It is up to this Court to offset this imbalance. United States v. Durant, 545 F.2d 823 (2nd Cir. 1976) (citing Criminal Justice Act); United States v. Hartfield, 513 F.2d 254 (9th Cir. 1975).

If ________ is denied the expert assistance he seeks because of his poverty, then the "justice" administered in this case is inherently unequal. See Gideon v. Wainwright, 373 U.S. 335 (1963); Powell v. Alabama, 287 U.S. 45 (1932); see also Evitts v. Lucey, 469 U.S. 387 (1985). For this reason, counsel urges this Court to place defendant on the same footing as a defendant of financial means, and grant him the expert funding requested.

Wherefore, the defendant moves for a finding that funding in the amount of $2500 for Dr. X to evaluate ______ and perform preliminary neuropsychological testing, $5000 for psychologist/mental retardation expert Dr. Y , and $3000 for social worker Z is reasonably necessary to assist counsel in preparation and presentation of the defense. Further, defendant moves for an order that the Kentucky Finance and Administration Cabinet, administrator of the special fund for indigent defendants pursuant to KRS 31.185 and KRS 31.200, shall set aside the amount of $10,500 to be payable to the experts upon proof of rendering of services and further order(s) of this Court. Estimates for fees of the requested experts and their vita are attached to this Motion. Counsel request an evidentiary hearing should this request be denied in whole or in part.

Please take notice the foregoing document was mailed to the Hon. __________, Judge, and the Circuit Clerk on this day of January, 1994, to be sealed and filed in the record.

COMMONWEALTH OF KENTUCKY                                                                                 PLAINTIFF

VS.

_____________                                                                                                                DEFENDANT

On defendant's ex parte Motion, and the Court being sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that

1. The Court finds there is a reasonable necessity on defendant's behalf to grant him funding to retain the services of experts to assist in the preparation and presentation of a defense to this capital murder case;

2. The sum of $10,500 shall be allocated for this purpose. Defense counsel shall approach the court if additional funding beyond this amount appears to be necessary;

3. But for the 1994 Amendments to KRS 31.185 and KRS 31.200 this expense would have been the responsibility of the _______ Fiscal Court; however, it is now the expense of the Kentucky Department of Finance;

4. Before any payments are made to the experts, a bill for said person's services shall be tendered to the Court. Concurrent with the tendering of this billing, defense counsel shall also tender an Order for said payment.

5. All orders, billings, and the like, shall be retained by the Court, but sealed from view by anyone except the Court, its court reporter, and those persons associated with defense counsel. The Department of Finance shall maintain this confidentiality. The Commonwealth shall undertake no measures to discover from the Department of Finance or its personnel the contents of any order of an ex parte nature that have been issued by this Court in the case.

SO ORDERED THIS ________ DAY OF ______________ 1996.

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[1] The deadline for filing this motion is January 28, 1994 so counsel request a ruling within sufficient time to have the testing done in order to file the motion within the statutory time limit.

[2] Defense counsel do not believe a notice of intent to seek death and/or a notice of aggravating circumstances has been filed.  However, as noted in the Motion for a Change of Venue, Special Prosecutor ________ has already publicized, in the Paducah Sun, his belief that death is the appropriate penalty for _______, prior to his trial.

[3] At the first trial an instruction on manslaughter based on extreme emotional disturbance was given.

[4] See discussion below.

[5] See discussion below.

[6] The Court reserved the question whether the Constitution might permit a mandatory death sentence where "the need to deter certain kinds of homicide" was great and the offense very narrowly defined to that end (e.g., murder by a life-term prison inmate).  Lockett, 438 U.S. at 604 n.11.  Significantly, the Court subsequently answered that question "no," holding that even in such cases the presentation and consideration of mitigating evidence was constitutionally necessary.  Sumner v. Shuman, 483 U.S. 66 (1987).

[7] A defendant has an absolute right to prove evidence in mitigation that does not pertain to a specific statutory mitigation factor, but is relevant to either the character of the defendant, or the crime he committed under Lockett, supra. This can include, but is not limited to: That the defendant turned himself in, People v. Murtishaw, 29 Cal. 733 (Cal. 1981); good conduct in prison, State v. Watson, 628 P.2d 943 (Ariz. 1981); defendant saved another's life, State v. Holtan, 287 N.W.2d 671 (Neb. 1980); the love of the defendant's family for the client, Cofield v. State, 274 S.E.2d 530 (Ga. 1981); defendant invented an alternative energy source, Jordan v. State, 518 So.2d 1186 (Miss. 1988); remorse, Clark v. Commonwealth, 257 S.E.2d 784 (Va. 1979); prosecutor offered a sentence less than death prior to trial, Cook v. State, 369 So.2d 1251 (Ala. 1978); that the defendant took and passed a polygraph, State v. Bartholomew, 682 P.2d 1089 (Wash. 1984); defendant was a war hero, Halliwell v. State, 323 So.2d 557 (Fla. 1975); defendant was not armed when the altercation began, Thompson v. State, 328 So.2d 1 (Fla. 1976); the defendant was father to two young children, Jacobs v. State, 396 So.2d 713 (Fla. 1980); the victim's father did not want the defendant to receive death, Romine v. State, 305 S.E.2d 92 (Ga. 1983); the defendant suffered from post-traumatic stress, State v. Gadd, 707 S.W.2d 846 (Tenn. 1986); the defendant served in the Salvation Army, and was a Christian, Hooper v. State, 476 So.2d 1253 (Fla.1985); the defendant is a slow learner, Neary v. State, 384 So.2d 881 (Fla. 1980); the defendant behaved while on death row prior to his second trial, Delap v. State, 440 So.2d 1242 (Fla. 1983); the defendant was a poet, People v. Harris, 36 Cal. 3d 36 (1984).

[8] As the mental condition might relate to guilt.

[9] State expert did the typical 50 minute session with defendant to determine competency at the time of the act and to stand trial.

[10] "To us it is clear from the record that the defense demonstrated 'reasonable necessity,' and was entitled to the assistance of an independent pathologist and an independent arson expert or the equivalent."  Sommers, supra, at 885 (emphasis added).
 

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