Money and resources make a difference in how well a public defender is able to represent her clients. More and more, funds for expert help are necessary for minimally adequate defense representation.

The Kentucky Supreme Court has long held that indigent defendants are entitled to funds for necessary expert assistance. "We readily concede that indigent defendants are entitled to reasonably necessary expert assistance." Young v. Commonwealth, 585 S.W.2d 378, 379 (Ky. 1979).

From 1972-1994 the county fiscal court bore the responsibility to provide the funding.¹ The 1994 General Assembly changed the funding mechanism for 119 counties. Jefferson County continued under the system in place for the last 22 years until 1998 when the General Assembly brought Jefferson County into the state indigent defense fund. Under the revised KRS 31.185 all counties pay $.125 per capita into a special statewide fund. The money generated is available to satisfy court orders for funds for experts. If exhausted, the state is responsible for the additional funds.

For the first time in the history of the Commonwealth, the 1994 change made money available statewide to provide indigents funds for resources necessary to investigate and present their defense.

The right to funds for indigents is being enforced in Kentucky. In Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992) the Kentucky Supreme Court reversed the two murder convictions and the 500 year sentence of David Sommers because the trial judge refused to provide the indigent defendant funds for independent expert assistance.

The two victims were found in a house destroyed by fire. State testing indicated that the killings were from suffocation prior to the fire, and that the fire was deliberately started. The Commonwealth's theory was that the defendant killed to silence the girls he had sexually abused, and the fire was set to conceal the homicides.

The Court observed "that due process requires that indigence may not deprive a criminal defendant of the right to present an effective defense...." Id. at 883. According to the Court, this constitutional principle is recognized in KRS 31.110 by requiring an indigent to be represented by counsel and provided the resources necessary for competent representation. Id.

In Sommers, due process and KRS Chapter 31 required "funding of a pathologist and an arson investigator to serve as consultants and/or witnesses for the defense." Id. at 883. There was reasonable necessity for funds for the "assistance of an independent pathologist and an independent arson expert or the equivalent," Id. at 885, because "both the cause of death and the genesis of the fire were matters of crucial dispute, resolvable only through circumstantial evidence and expert opinion." Id. at 884.

Kentucky courts appreciate the pivotal role experts play in criminal defenses. In Hunter v. Commonwealth, 869 S.W.2d 719 (Ky. 1994) the Kentucky Supreme Court explicity recognized that indigent defendants were entitled under Ake to be provided "a psychiatrist to assist in building an effective defense." Id. at 722. In cases where the mental state is at issue, Hunter readily acknowledges that Ake requires a competent psychiatrist to assist in evaluation, preparation and presentation of a defense. Id.

The Kentucky Supreme Court in a unanimous opinion written by Justice Wintersheimer in Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995), decided that a neutral expert was not enough to satisfy due process, Ake v. Oklahoma, and the necessity of a level playing field.

When an indigent defendant is entitled to funds for an expert, the indigent is entitled to a defense expert who will assist in evaluation, preparation and presentation of the defense. As the Court stated in Binion, a case involving a Madison County rape and robbery tried by Ernie Lewis: "The appointment of [the KCPC contract psychologist] as a neutral mental health expert was insufficient to satisfy the constitutional requirement of due process because the services of a mental health expert should be provided so as to permit that expert to conduct an appropriate examination and assist in the evaluation, preparation and presentation of the defense. The benefit sought was not only the testimony of a mental health professional, but also, the assistance of an expert to interpret the findings of the expert used by the prosecution and to aid in the presentation of cross-examination of such an expert. The defendant was deprived of his right to a fundamentally fair trial and due process without such assistance. Cf. U.S. v. Sloane, 776 F.2d 926 at 929 (10th Cir. 1985).

This Court has previously explicitly recognized that indigent defendants are entitled under Ake to be provided with a psychiatrist to assist in building an effective defense. Hunter v. Commonwealth, Ky., 869 S.W.2d 719 (1994).

We are persuaded that in an adversarial system of criminal justice, due process requires a level playing field at trial. As noted in DeFreece v. State, 848 S.W.2d 150 (Tex.Cr.App. 1993), there 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."

Young v. Commonwealth, 585 S.W.2d 378 (Ky. 1979)

Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992)

Hunter v. Commonwealth, 869 S.W.2d 719 (Ky. 1994)

U.S. v. Sloane, 776 F.2d 926 (10th Cir. 1985)

DeFreece v. State, 848 S.W.2d 150 (Tex.Cr.App. 1993)

¹Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954, 957 (Ky. 1984). ("...the Perry County Fiscal Court is directed and ordered to pay the reasonable fees of such expert witnesses as are reasonably necessary for the defendant Harlow Gwinn."); Cf. Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 762 (Ky.App. 1984) ("We hold the appellant fiscal court was obliged to appropriate and thus provide sufficient funds in addition to those supplied by the state and those generated by reimbursement to sustain the public advocacy system it elected, once state and other funds provided had been depleted. This obligation included providing funds to pay Sparrow's $325.00 fee in question.").