Having the constitutional and statutory right to funds for resources for the defense of an indigent is critical. It does not mean a simple request for those funds will be adequate to persuade a judge or an appellate court to authorize them. A particularized showing to the fact-finder will be persuasive.

Competent criminal defense attorneys make developed factual and legal showings to the trial judge when requesting funds for resources for two reasons:

When the particularized showing is made, our state and federal Constitutions require funds for help for the indigent. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985) the Court termed this a "threshold showing," and found it was made in that case by the following facts: "Ake's mental state at the time of the offense was a substantial factor in his defense;" the trial court was put on notice of the need by a request by the defense; the defendant's sole defense was insanity; the defendant's behavior was bizarre; there was a need to assess competency; a state psychiatrist felt the defendant incompetent; when found competent 6 weeks later it was only on the condition that he be medicated; state psychiatrists felt he was mentally ill; the burden of showing a defendant insane is on the defense. Id. at 1097-98. "Taken together, these factors make clear that the question of Ake's sanity was likely to be a significant factor in his defense." Id.

In Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992), the Court found the particularized showing was made based on a substantial evidentiary showing. The evidence included an affidavit from the Kentucky State Police concerning the unworkable conflict the police would be put in if working for the defense, and an affidavit from the Kentucky Correctional Psychiatric Center (KCPC) concerning its inability to provide the help the defense needed.

There is a recognized methodology or standard of practice for demonstrating the reasonable necessity for funds for defense expert resources in a particular case. That persuasive evidentiary showing, most usually made ex parte, involves the following ten dimensions:

1)   Type of the resource;

2)   Nature and stage of assistance;

3)   Who will provide the help, qualifications of that person, costs of their help;

4)   Reasonableness of both the rates and total cost;

5)   Factual basis for the resources in this case including the theory of the case and relevant themes;

6)   Counsel's observations, knowledge, in-sights about this case and this defendant;

7)   Legal bases for expert in this case;

8)   Legal reasons for defense resources;

9)   Inadequacy of or unavailability of state resources;

10) Evidentiary documentation.

Making the threshold showing is feasible but demands careful attention to detail. The development and presentation of the showing will take time, work and energy. The ultimate re-ward will be having the capacity to represent the client competently.

1.     Type of Resources. Precisely detail to the fact-finder the type of help needed, e.g., a specialist in hair analysis, investigator, pharmacologist, mental health expert, interpreter, additional counsel, serologist, transcript, out-of-state witnesses, and travel expenses.

2.     Nature and Stage of Assistance. Describe the stage at which the resources will be needed:

a) pretrial,
b) trial,
c) penalty phase before the jurors,
d) sentencing before the judge.

Specifically describe what assistance will be required:

a) investigating,
b) testing,
c) interviewing,
d) evaluating,
e) consulting,
f) rebutting,
g) presenting mitigation in capital cases,
h) testifying.

Following are five examples to illustrate ways to communicate the nature and stage of expert help:

a)     a psychologist to evaluate and testify both pretrial and at trial to the voluntariness of the defendant's waiver;

b)     a social worker to find the client's records, interview persons relevant to culpability, develop a social history and testify at the sentencing phase;

c)     a consulting mental health expert to provide expertise on the mental health dimensions of the case: developing cross-examination of the state's mental health expert, identifying the mental health theory of the case, advising on what kind of mental health disciplines are called for by the facts of the case;

d)     a psychiatrist to testify at trial to the defendant's state of mind.

e)     a pathologist to determine cause of death as either intentional strangulation or suffocation from an accidental fire.

f)     a firearms/gunshot wound expert to determine the range and direction of fire, entrance and exit wounds, residues.

3.     Name, Qualifications, Fees. Fully explain who the expert you want to hire is, her qualifications, the hourly rate for the work and the expected range of the total costs for the services.

For example, Dr. Jones is a practicing clinical forensic psychologist with the following vitae indicating her education, experience and licensing. She charges $100 per hour for out-of-court work and travel and $500 per day to testify. Her estimate of a total fee for testing, inter-viewing, travelling, and reporting is $2,500 - $3,000 plus necessary expenses with an additional fee of $500 per day for testifying.

4.    Reasonableness of Rates and Total Cost. Demonstrate to the judge that the hourly rate and total expected costs are within the range of rates and total costs for competent work by similar qualified experts in the region. An affidavit from one or more other experts could demonstrate the reasonableness of the costs. The attorney could represent by affidavit or otherwise to the court that these fees are within the range of other fees quoted to the attorney by other professionals. Courts have for some time found significant hourly rates, Matter of Machuca, 451 N.Y.S.2d 338 (NY 1982), and significant total amounts to be reasonable in these times when expert services are very costly. United States v. Bryant, 311 F.Supp. 726 (D.C. 1970).

5.    Factual Basis, Theory, Themes in this Case. Communicate the specific facts, theory, and themes in this case which justify the particular resources requested. This is the most critical part of the threshold showing: It must be case specific and fully developed to be persuasive. Several brief illustrations follow:

A. THIS CLIENT IS SEVERELY MENTALLY & EMOTIONALLY ILL. Eugene is mentally and emotionally ill, and brain dam-aged. His illnesses are chronic and severe. A vulnerable man, rendered chronically ill, Eugene raped and killed the 12 year old girl. For his sentencers to both consider and give effect to the statutory mitigation of mental illness and emotional disturbance, a psychiatrist, psychologist, social worker and neurologist are necessary. They are necessary to investigate and evaluate and rebut the prosecution's case that the defendant intentionally killed, and to provide in the penalty phase all evidence which lessens the defendant's culpability. Funds for a psychologist in a case with these facts were obtained in Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980).

B. REASONABLE NOT RECKLESS DRIVING. Jeff Jones did not drive recklessly. Jeff was driving at a reasonable speed and within the speed limit. The road and terrain are very challenging, especially in difficult weather. The physical evidence shows that Jeff drove his truck in a reasonable manner. The killing of the 4 campers in the tent was a tragic accident. An accident reconstructionist is necessary to analyze all the evidence to demonstrate that the driving was not reckless and to counter the prosecutor's evidence and expert testimony. For the successful request of an accident reconstruction expert in a case with these facts, see State v. Van Scoyoc, 511 N.W.2d 628 (Iowa App. 1993).

C. ACCIDENTAL FIRE CAUSED THE DEATHS. The fire was not intentionally set and the victims were not suffocated. The defendant set a space heater in a place that ignited the fire. The fire began through accident or negligence at most. The cause and origin of the fire is the subject of dispute by reasonable experts and the defense is entitled to its perspective on that. The cause of death is also in dispute. The two girls did not die of suffocation. The low level of carbon monoxide in them present multiple explanations and the defense is entitled to investigate those with its own pathologist. Funds for an arson independent expert and an independent pathologist were obtained in a case where these facts were presented, Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992).

D. MACHINES ARE NOT PERFECT. Don Gimble is a decent, hardworking man whose arrest for DUI was due to poorly executed police procedures, incomplete investigation, an improperly administered a preliminary breath test (PBT), and a malfunctioning breathalyzer. A fallible machine must be prevented from improperly condemning Don. An expert in breath analysis is necessary to demonstrate the substantial limitations of the breath testing machine, and to rebut the prosecutor's evidence.

E. TRIAL BY ORDEAL WITHOUT FUNDS FOR HELP. Richard Smith robbed and raped the victim but he was insane at the time. The state has an expert who will testify the defendant is sane, despite his substantial history of schizophrenia, his documented need for anti-psychotic medication to control somatic delusions, a mental health report indicating possible brain damage and his official commitment to a mental institution. The defense has no psychiatrist, no psychologist, no neurologist and no social worker to investigate, evaluate and testify that the defendant was insane. The defense has no comparable expert to rebut the prosecution expert and no one to assist defense counsel to prepare to challenge and cross-examine the state's expert. If the defense continues to have its hands tied behind its back, this will be a trial by ordeal. See Binion v. Common-wealth, 891 S.W.2d 383 (Ky. 1995).

F. LEVEL PLAYING FIELD NEEDED FOR FAIRNESS. John did not kill Joan. He was not present when Joan was killed. The blood samples were contaminated and de-graded. DNA results are subject to false positives and have questionable validity when the samples are heavily contaminated. The state has had the blood samples tested by highly trained state experts with the sophisticated DNA testing. In order for there to be a level playing field the defense is entitled to inde-pendent testing of the samples and a defense DNA expert to evaluate, testify and rebut. See Husske v. Commonwealth, 448 S.E.2d 331 (Va. App. 1994).

6.     Counsel's Observations, Knowledge and Insights. To the extent legally and ethically appropriate, relate ex parte the observations or statements of your client, witnesses, state experts that you or your defense team know. For example, "My client has acted bizarrely in my presence. He makes statements which are hard to make sense of. He said that the University of Kentucky will not win another national championship until he is released. He believes I am working for the prosecution. He has hallucinated during my interviews with him, e.g., he hears the voice of his dead brother telling him not to cooperate with me."

7.     Legal Bases for Expert In This Case. Tell the judge the legal justification for the funds and for the resources in this case: a) others do not have a legal duty to provide funds, b) the standard is reasonably necessary, and c) the state and federal constitutional basis.

Legal Justification. Four examples follow:

Legal Standard. Most courts, statutes, and rules have followed the lead of the federal statute's standard of reasonably necessary.

That is also Kentucky's statutory, KRS 31.200, and caselaw standard. Young v. Commonwealth, 585 S.W.2d 378 (Ky. 1979). Ake's standard for when a defendant is entitled to the help of a psychiatrist is: "when the defendant's mental condition is seriously in question." Ake, supra at 82.

In explaining the reasonably necessary standard, the Massachusetts Supreme Court Commonwealth v. Lockley, 408 N.E.2d 834 (Mass. 1980) stated: "This standard is essentially one of the reasonableness, and looks to whether a defendant who was able to pay and was paying the expenses himself, would consider the document, service or object' sufficiently important that he would choose to obtain it in preparation for his trial. The test is not whether a particular item or service would be acquired by a defendant who had unlimited resources, nor is it whether the item might conceivably contribute some assistance to the defense or prosecution by the indigent person. On the other hand, it need not be shown that the addition of the particular item to the defense or prosecution would necessarily change the final outcome of the case. The test is whether the item is reasonably necessary to prevent the party from being subjected to a disadvantage in preparing or presenting his case adequately, in comparison with one who could afford to pay for the preparation which the case reasonably requires.

"In making this determination under that statute, the judge may look at such factors as the cost of the item requested, the uses to which it may be put at trial, and the potential value of the item to the litigant." Id. at 838.

Constitutionalize. Ask for this relief under every conceivable state and federal constitutional guarantee. These examples include the Kentucky constitutional sections, as examples of state provisions:

8.     Legal and Practical Reasons for Defense Resources. Delineate why independent defense expert help is critical. Investigation must be done by someone who acts at the direction of the defense attorney and whose work is totally confidential. The investigation is focused on marshalling the defense and rebutting the state's evidence. Expert testing and analysis must likewise be confidential and at the direction of the attorney. The defense is entitled to an expert who will help in cross-examining the state's expert, who will marshal the defense, and who will rebut the state's expert. There are at least two sides to any complex process. An expert is needed to tell the rest of the story.

Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995) held that a state expert is not sufficient to satisfy due process. A defense expert is required: "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." Id. at 386. As a practical matter, Ake, itself, requires that the expert be a defense expert by requiring an indigent be offered an expert who will marshal the defense, rebut the state's expert and assist in cross-examining the state's expert. Other caselaw recognizes the essential need for a defense expert.³

9.     Inadequacy or Unavailability of State Resources. Persuasively communicate to the court that state experts, themselves, acknowledge they are unable to perform as defense experts, and communicate what those state experts say. This will likely require some persuasive investigation with the state experts. Two Kentucky examples illustrate some approaches.

Forensic Psychiatric Facility. The Kentucky Correctional Psychiatric Center (KCPC) is the state's forensic mental health facility. Their employees are not able to help cross-examine the state's expert. They do not work at the direction of the defense attorney. They do not work to marshal the defense. Their work is for the court. It is not confidential. Under Kentucky statutes, their work is limited to "neutral" evaluations on incompetency and insanity. A February 24, 1994 letter from CHR Commissioner Angela M. Ford to public defender Steve Mirkin demonstrates these limitations:

Access to a neutral state expert even by subpoena is not constitutionally sufficient. "Before Ake, the ability to subpoena and question a neutral expert on whose examination both the state and the defense were relying may have satisfied due process. SeeUnited States ex rel. Smith v. Baldi, 344 U.S. 561, 568, 73 S.Ct. 391, 394-95, 97 L.Ed. 549 (1953) However, Ake expressly disavows the result in Smith and explains that the requirements of due process have fundamentally changed that decision.... 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, 1289-91 (8th Cir. 1994).

10.     Evidentiary Documentation. There are a variety of effective methods of producing persuasive evidence to document your representations to the court: scientific articles; letters or affidavits from your own expert (who may give you a free, short affidavit); from the operators of the state facilities (who do not want to work for the defense); other practicing attorneys (who experience these realities); calling these same persons to testify at an evidentiary hearing; subpoenaing the state experts who have tested the evidence in this case and asking them questions to prove their inability to perform as required for the defense, or the limits of the science.

Questions to the state's experts can occur at your ex parte hearing, a pretrial hearing or prior to the expert's testifying at trial. This may allow you to prove some favorable facts otherwise difficult or impossible to show. It can also provide your request with more persuasive clout since you are proving or corroborating your position through the prosecution's wit-nesses. The prosecution expert is likely to testify favorably in these areas since it is in the expert's self-interest to support the profession's purpose and necessity, and the expert's own special worth. Questions like the following are possible areas of inquiry:

Resources for an effective defense are at hand. Doing the obvious will return rich dividends to insure the expert resources necessary for fair process and reliable results for indigent accused and in which the courts and the public can have confidence. Not doing the obvious will be at the peril of your client.

Edward C. Monahan and James J. Clark, Ph.D.

¹See, e.g., Edward C. Monahan, Obtaining Funds for Experts in Indigent Cases, The Champion, Vol. 13, No. 7 (August 1989) at 10; Nancy Hollander & Lauren M. Baldwin, Expert Testimony in Criminal Trials, The Champion, Vol. 15, No. 10 (Dec. 1991) at 12; Paul C. Giannelli, The Constitutional Right to Defense Experts, Public Defender Report, Vol. 16, No. 3 (1993); Nancy Hollander & Barbara E. Berg-man, Every Trial Criminal Defense Resource Book (1995) §46:8.

²See, e.g., Ake, supra, Sommers v. Common-wealth, 843 S.W.2d 879 (Ky. 1992) (arson and pathology expert) and Hunter v. Commonwealth, 869 S.W.2d 719 (Ky. 1994) (meaningful access to justice).

³See, e.g., DeFreece v. State, 848 S.W.2d 150 (Tex. Cr.Ct. 1993), Lindsey v. State, 330 S.E.2d 563 (Ga. 1985); Halloway v. State, 361 S.E.2d 794 (Ga. 1987); Palmer v. Indiana, 486 N.E.2d 477 (Ind. 1985); State v.
Gambrell, 347 S.E.2d 390 (N.C. 1986); Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990); United States v. Sloan, 776 F.2d 926 (10th Cir. 1985); Cawley v. Stricklin, 929 F.2d 640 (11th Cir. 1991). But see Granviel v. Lynaugh, 581 F.2d 185 (5th Cir. 1981).

Caldwell v. Mississippi, 472 U.S. 320, 105, 1633, 2637 n.1, 86 L.Ed.2d 231 (1985)

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985)

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

Matter of Machuca, 451 N.Y.S.2d 338 (NY 1982)

United States v. Bryant, 311 F.Supp. 726 (D.C. 1970)

Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980)

Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995)

Husske v. Commonwealth, 448 S.E.2d 331 (Va.App. 1994)

Stinnett v. Commonwealth, 452 S.W.2d 613, 614 (Ky. 1970)

Tolson v. Lane, 569 S.W.2d 159, 161 (Ky. 1978)

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

Commonwealth v. Lockley, 408 N.E.2d 834 (Mass. 1980)

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

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

Lindsey v. State, 330 S.E.2d 563 (Ga. 1985)

Halloway v. State, 361 S.E.2d 794 (Ga. 1987)

Palmer v. Indiana, 486 N.E.2d 477 (Ind. 1985)

State v. Gambrell, 347 S.E.2d 390 (N.C. 1986)

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990)

United States v. Sloan, 776 F.2d 926 (10th Cir. 1985)

Cawley v. Stricklin, 929 F.2d 640 (11th Cir. 1991)

Granviel v. Lynaugh, 581 F.2d 185 (5th Cir. 1981)

United States ex rel Smith v. Baldi, 344 U.S. 561, 568, 73 S.Ct. 391, 394-95, 97 L.Ed. 549 (1953)

Starr v. Lockhart, 23 F.3d 1280, 1289-91 (8th Cir. 1994)