IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI STATE OF MISSISSIPPIVS. CAUSE NUMBER DEFENDANT MOTION FOR PERMISSION TO PROCEEDEX PARTE ON APPLICATIONS FOR FUNDS COMES NOW, , by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, §§ 5, 12,
13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to
proceed ex parte on his/her applications for funds. In support of his/her motion, , states as
follows:1. submits this motion and memorandum to demonstrate that such ex parte
proceedings are essential to protect confidential attorney-client commu nications and attorney
work-product material which must be disclosed to make a showing of need for the requested
assistance. Disclosure of this infor mation would violate rights to present a defense, to the
effective assistance of counsel, to compulsory process to secure witnesses, to confront the
evidence against him/her , to due process, to equal protection of the laws, to freedom from cruel
and unusual punishment, and against compulsory self-incrimination. 2. It is possible to argue that extended discussion of this issue is not merited, since the
Supreme Court of Mississippi has explicitly ordered that such ex parte hearings should be held.
In Chester Johnston v. State of Mississippi , No. 90-N-0271 (May 23, 1990), the Supreme Court
faced an interlocutory appeal from Sunflower County where the indigent capital accused asserted
his right to present his motions for funds on an ex parte basis. Without even waiting for the State
to respond, the Supreme Court entered the following order:DISPOSITION: Johnston's Petition for Permission to Appeal Denied Except to the Limited
Extent that the Circuit Court is Directed to Hear the Defendant's Motion Concerning Funds for
Expert/Investigative Assistance Ex Parte.(emphasis in original).3.Nevertheless, in case the State argues that this is not one of the rare occasions where the
accused's constitutional right to a fair trial overrides the general prohibition against ex parte
proceedings, discusses the constitutional rationale underlying such hearings in the pages
below:I. SINCE THE PROSECUTION IS ALLOWED TO ENGAGE IN EX PARTE
MATTERS, THE DEFENSE SHOULD BE ALLOWED THE SAME RIGHT:
WHAT IS SAUCE FOR THE PROVERBIAL GOOSE MUST ALSO BE
SAUCE FOR THE PROVERBIAL GANDER.4.Certain parts of the criminal process are carried out ex parte. For example, has not
been consulted by the District Attorney to assist in the decision as to which Assistant District
Attorneys should be involved in this case. Neither nor his/her counsel was summoned to
the grand jury when the prosecution was presenting its case for indictment. They were not
invited to hear the testimony, cross-examine any of the witnesses or make any statements to
assist the grand jurors in their deliberations. To this day, the proceedings before the grand jury
remain a secret. 5. Nor has or his/her counsel been asked to help the prosecution determine which
investigators to use or what experts to employ in the prosecution of the case against him/her.
Similarly, an application for an arrest or search warrant is usually presented to a judicial officer
ex parte without notification to the accused or his/her counsel. Certain interests of the criminal
justice system are served by these ex parte proceedings involving the prosecution function. 6.Where the prosecution may partake of ex parte proceedings without making disclosures
to the defense, it is not just the logic of an aphorism which compels the conclusion that the de -
fense may do the same: "the Due Process Clause . . . forbids enforcement of . . . rules unless
reciprocal rights are given to criminal defendants." Wardius v. Oregon, 412 U.S. 470, 472, 93 S.
Ct. 2208, 37 L. Ed. 2d 82 (1973).
7. Indeed, it is now well established that ex parte proceedings relating to the defense
function are equally essential to protect a number of important constitutional rights of an indigent
accused as well as other vital interests of the criminal justice system. In this motion and
memorandum, will review the circumstances, principles and precedents which require ex
parte applications and proceedings.II. EX PARTE PROCEEDINGS ARE INDISPENSABLE TO THE PROPER
FUNCTIONING OF THE ADVERSARY SYSTEM AND TO PROTECT THE
RIGHTS OF THE ACCUSED.8.It is now well established that when a state brings its judicial power to bear on an
indigent defendant in a criminal case "it must take steps to assure that the defendant has a fair
opportunity to present his defense." Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482,
485-86 (1986) (quoting Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985)).
In Ake, the United States Supreme Court held that where the assistance of an expert is needed to
prepare to present a defense, an indigent defendant has a constitutional right to the services of an
independent expert at state expense:
[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.470 U.S. at 86 -87. Ake involved the denial of an independent psychiatrist in a capital case which
presented issues of insanity and future dangerousness. In analyzing under what circumstances
expert assistance is constitutionally required, the Court explicitly held that a showing of need
was to be made ex parte:
When the defendant is able to make an ex parte threshold showing
to the trial court that his sanity is likely to be a significant factor in
his defense, the need for the assistance of a psychiatrist is readily
apparent . . . . [T]he State must [then], at a minimum, assure the
defendant access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, preparation, and
presentation of the defense.Id. at 82-83 (emphasis added). 9.Every court which has considered the issue has determined that such hearings should be
held on an ex parte basis. See, e.g., Johnston v. State, Mississippi Supreme Court Order, No. 90-
M-0271 (May 23, 199O); McGregor v. State, 733 P.2d 416, 416-17 (Okl. Cr. 1987), conviction
rev'd after remand, 754 P.2d 1216, 1217 (Okla. Cr. 1988) (intention of Ake majority that
hearings be held ex parte is "manifest"); Brooks v. State, 385 S.E.2d 81, 82-84 (Ga. 1989);
People v. Loyer, 169 Mich. App. 105, 425 N.W.2d 714, 721-22 (1989); State v. Hickey, 346
S.E.2d 646, 654 (N.C. 1986) (dicta); State v. Poulsen, 45 Wash. App. 706, 726 P. 2d 10361038
(1986) (dicta); Wall v. State, 289 Ark. 570, 715 S.W.2d 208, 209 (1986) (dicta ); People v.
Thornton, 80 Mich. App. 746, 265 N.W.2d 35, 38-39 (1978) (dicta); Lindsey v. State , 330
S.E.2d 563, 566 (Ga. 1985) (findings of Ake expert privileged to defendant). Other jurisdictions
have preserved the constitutional rights of the accused through a statute which expressly allows
ex parte appli cations to the trial judge. See, e.g. Minn. Stat. § 611.21 (1982); Nev. Rev. Stat. §
7.135 (1983); N.Y. County Law § 722-C (McKinney Supp. 1984-85); Kan. Stat. Ann. § 22-4508
(Supp. 1981) ; Tenn. Code Ann. § 40-14-207 (1988); Cal. Pen. Code § 987.9 (1983) (allowing
an ex parte hearing before a different judge than the trial judge to preserve the accused's right).
No reported decision of any appellate court has held that the constitution does not require such ex
parte hearings.
10. In the following sections, we first demonstrate that because of the showing which a
defendant is required to make to secure specific expert assistance, and because of the nature of
the services sought, disclosure to the prosecution would be prejudicial to the defense and thus
requires ex parte consideration. We then discuss the various constitutional guarantees that would
be violated by such disclosure.
(a) The nature and scope of the request requires that the application be made ex
parte.11. The Supreme Court's decision in Ake was based on its recognition that to deny an
indigent accused basic, critical expert assistance while the State may utilize the services of
virtually any expert of its choosing would render a criminal trial fundamentally unfair. The truth
finding function of the adversary process would also be lost if the prosecution were allowed
simply to overwhelm the impoverished defendant with the wealth of its resources:
We recognized long ago that mere access to the courthouse doors
does not by itself assure a proper functioning of the adversary
process, and that a criminal trial is fundamentally unfair if the State
proceeds against an indigent defendant without making certain that
he has access to the raw materials integral to the building of an
effective defense. . . . [This Court] has often reaffirmed that funda-
mental fairness entitles indigent defendants to "an adequate
opportunity to present their claims fairly within the adversary
system."470 U.S. at 77 (quoting Ross v. Moffitt , 417 U.S. 600, 612, 94 S. Ct. 2437, 41 L. Ed. 2d 341
(1974)). Due process and fundamen tal fairness thus forbid the State from "legitimately
assert[ing] an interest in maintenance of a strategic advantage over the defense, if the result of
that advantage is to cast a pall on the accuracy of the verdict obtained." Ake, 470 U.S. at 79.12.However, Ake provides that an indigent defendant is entitled to defense services at state
expense only upon a threshold showing that such assistance is required to deal with a significant
factor in the defense of the case. Ake, 470 U.S. at 86-87. See also Caldwell v. Mississippi, 472
U.S. 320, 323 n.1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (defendant must support request for
investigator and fingerprint and ballistics experts with some thing more than general statement of
need). In order to demonstrate his/her entitlement to an expert or investigative assistance, the
defendant must reveal to the court the theory of the defense, the results of any investigation and
witness consultation that has already taken place and other work product, and the information
that is anticipated from the services sought. Moore v. Kemp , 809 F.2d 702, 710-12 (11th Cir.
1987) (en banc); Messer v. Kemp , 831 F.2d 946 (11th Cir. 1987) (en banc). Obviously, of
necessity, this showing must require disclosure of information obtained in attorney -client
interviews.
13. Such discovery is expressly forbidden by Rule 4.06, which provides that the trial court
may not order disclosure of "re cords, correspondence, reports, or memoranda to the extent that
they contain the opinions, theories or conclusions of the . . . defense attorney or members of legal
staff." Miss. Unif. Crim. R. Cir. Ct. § 4.06 (b) (1). Even without the clear rule that we already
have, adversary, the District Attorney, should have no more right to disclosure of the
intimate attorney-client discussions which precede the development of the defense strategy than
should have a voice in what police officers investigate his case or how the prosecution
plans to develop its case.
(b)The Equal Protection Clause forbids requiring indigent defendants to
disclose his defense to secure the expert assistance which would be readily
available to a defendant of means without any disclosures.14.The United States Supreme Court has long since recognized that "[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, 19, 76 S. Ct. 585, 100 L. Ed. 891 (1956). To the contrary, "all people
charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of
justice in every American court.'" Id. at 17. In analyzing whether the prosecution may attend
LLL applications of funds, it must be borne in mind that were financially independent
hExecutor(Trix) would obtain investigative and other services without informing the prosecution
of whose assistance he/she was seeking or why. Penalizing the impoverished defendants by
requiring them to announce privileged information and their trial strategy as a prerequisite to
investigating and presenting a defense would obviously constitute invidious discrimination. See
United States v. Tate, 419 F.2d 131, 132 (6th Cir. 1969); United States v. Theriault, 440 F.2d
713, 716 (5th Cir. 1973) (Wisdom, J., concurring); State v. Hamilton, 448 So.2d 1007, 1008-09
(Fla. 1984).
15. In Blazo v. Superior Court, 315 N.E.2d 857 (Mass. 1974), the court held that "[t]he
reason ex parte applica tion is allowed is that, just as a defendant able to foot the costs need not
explain to anyone his reasons for summoning a given witness, so an impecunious defendant
should be able to summon his witnesses without explanation that will reach the adversary." Id.
at 860 n.8. This, as the court held in People v. Loyer, 169 Mich. App. 105, 425 N.W.2d 714
(1989):
potentially expos[es] defendant's defense to prosecutorial review
when a monied defendant's defense would remain inviolate. * * *
When such an advantage is to be reaped by the pros ecution only
when the defendant is poor and therefore cannot afford to pay the .
. . fees of his witnesses, it seems undeniable to us that such a
defendant is not the recipient of equal justice under law.Id. at 722.16. In federal prosecutions, a defendant is protected by express statutory provisions in the
Criminal Justice Act which require that an indigent's request for expert assistance be considered
ex parte. See 18 U.S.C. 3006A (e); Fed. R. Crim. P. 17 (b). See also H.R.Rep. No. 864, 88th
Cong., 2d Sess (1963) reprinted in 2 U.S.Code Cong. & Ad. News 2990 (1964) (Criminal Justice
Act's ex parte procedure "prevents the possibility that an open hearing may cause a defen dant to
reveal his defense"); S.Rep. No. 346, 88th Cong., 1st Sess. 3 (1963) (ex parte requirement
included in Criminal Justice Act "in order to protect the accused from premature disclosure of his
case."). Judicial interpretations of the ex parte requirement have made clear that its function is to
protect the accused from having to make premature disclosure of confidential information to the
State, the kind of disclosure which would not have to be made by a defendant of means.
17. As the Fifth Circuit held in United States v. Meriwether, 486 F.2d 498 (5th Cir. 1973),
cert. denied , 417 U.S. 948 (1974):
When an indigent defendant's case is subjected to pre-trial scrutiny
by the prose cutor, while the monied defendant is able to proceed
without such scrutiny, serious equal protection questions are
raised.See also United States v. Holden , 393 F.2d 276 (1st Cir. 1968). In Marshall v. United States,
423 F.2d 1315 (10th Cir. 1970), the court overturned a conviction when the accused was subject
to an adversarial rather than ex parte hearing on his need for investi gative aid, observing that
"the manifest purpose of requiring that the inquiry be ex parte is to insure that the defen dant will
not have to make a premature disclosure of his case." Id. at 1318; see also Williams v. United
States, 310 A.2d 244 (D.C. App. 1973) (purpose of ex parte hearing is to ensure that defendant
need not make premature disclosure of case in order to obtain access to expert services);
Gaither v. United States, 391 A.2d 1364, 1367 n.4 (D.C. App. 1978) (eligibility and need for
defense service must be deter mined in ex parte proceeding to afford accused opportunity to
present request without prematurely disclosing merits of defense to prosecution); United States
v. Sutton, 464 F.2d 552, 553 (5th Cir. 1972).
(c) The denial of an ex parte hearing on an application for funds would force an
indigent defendant to disclose matters without reciprocal disclosure by the
prosecution, in violation of the Due Process Clause.18. It is one thing to require the defense to submit reciprocal discovery pursuant to Rule 4.06.
Such rules are reciprocal and, therefore, constitutional. Williams v. Florida, 399 U.S. 78, 90 S.
Ct. 1893, 26 L. Ed. 2d 446 (1970). However, "the Due Process Clause . . . forbids enforcement
of [discovery] rules unless reciprocal rights are given to criminal defen dants." Wardius v.
Oregon, 412 U.S. 470, 472, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973).
19. What are the limits of the prosecution's discovery obligation? The prosecution is bound
by Rule 4.06 to disclose the names and addresses of all witnesses in chief who will be called at
trial, as well as a copy of crime lab reports on the examination of physical evidence. Miss. Unif.
Crim. R. Cir. Ct. § 4.06 (a) (1), (4). However, the trial court is expressly forbidden from order-
ing disclosure of "records, correspondence, reports, or memoranda to the extent that they contain
the opinions, theories or conclusions of the prosecuting . . . attorney or members of legal staff."
Id. at (b)(1). It would be just such a disclosure that would be required of the defense, absent
permission to proceed ex parte on applications for funds.
20. It is important to note that the application for funds will come in the early stages of the
development of the proposed defense. The right identified in Ake is to funds for "the assistance
of a competent [expert] in preparing the defense." Lindsey v. State , 330 S.E.2d 563, 566 (Ga.
1985) (emphasis supplied). The expert's "services embrace pretrial and trial assistance to the
defense, as well as potential testimony." United States v. Bass, 477 F.2d 723, 725-26 (9th Cir.
1973). In order to show why such assistance in preparation will be necessary, the defense will be
asked to disclose more than the results of whatever expert testing is done: The defense must
show how such testing fits into the plan of defense. As stated by the United States Court of
Appeals for the Fifth Circuit, proceeding must be held ex parte because "[d]issemination of
information critical to the defense permits the govern ment to enjoy unauthorized discovery
which is forbidden under our concept of criminal procedure . . . ." United States v. Edwards , 488
F.2d 1154, 1162 (5th Cir. 1974); see also United States v. Greschner , 802 F.2d 373, 379-80
(10th Cir. 1986), cert. denied , 480 U.S. 908 (1987) (although waived by defense, court of
appeals notes on its own motion that it was error for trial court to allow government attorneys to
attend hearing on application for penologist, pathologist, blood tests and subpoenas at which
defendants were required to disclose their theory of self-defense in support of their applications);
United States v. Meriwether, 486 F.2d 498, 506 (5th Cir. 1973) (intent of ex parte provision is to
shield theory of defense from prosecutor's scrutiny).
21. The same considerations apply with even greater force to this capital prosecution. To
require to disclose the nature of his/her defense, the names of persons with whom he/she
seeks to consult, and the purposes for which he/she seeks such assistance would compromise
his/her right to present a defense and to prepare his/her case in confidence with counsel.(d) Applications for defense expenses must be made on an ex parte basis to
protect the Accused's right to counsel.22. As the Supreme Court observed in Ake, the appointment of an expert may be necessary
to help the accused gather facts, advise counsel on how to question opposing witnesses and inter-
pret their answers, and generally "marshall" his defense. Id., 470 U.S. at 80. To provide
effective assistance an attorney must adequately investigate and prepare his or her client's case.
Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982) (at heart of effective representation is
independent duty to investigate and prepare); see also McQueen v. Swenson, 498 F.2d 207, 217
(8th Cir. 1974) (attorney who does not seek out all facts relevant to client's case will not be
prepared at trial). Where investigative and other services are necessary to the preparation and
presentation of an adequate defense, the denial of access to those services may also deprive a
defendant of the minimally effective assistance of counsel guaranteed by the Sixth and
Fourteenth Amendments. Blake v. Kemp, 758 F.2d 523, 531 (11th Cir. 1985); Pedrero v. Wain-
wright, 590 F.2d 1383, 1396 (5th Cir. 1979); United States v. Fessel, 531 F.2d 1275 (5th Cir.
1976); see also Mason v. Arizona , 504 F.2d 1345, 1352 (9th Cir. 1974), cert. denied , 420 U.S.
936 (1975) (failure to provide investigative assistance when necessary to defense constitutes
ineffective performance).
23. counsel will not be prepared to rebut the State's evidence without meaningful
consultation with experts for the defense. Nor can counsel appropriately investigate aspects of
their client's case without the type of assistance that any attorney would obtain for a financially
able defendant. Such assistance is essential for proper functioning of the adversary system, in
which it is rarely justifiable that one party have exclusive access to the means of understanding,
presenting, and explaining relevant facts: [The defense] expert fills a different role. He supplies expert
services "necessary to an adequate defense," which embraces pre-
trial and trial assistance to the defense as well as availability to
testify. His conclu sions need not be reported to either the court or
the prosecution.United States v. Theriault, 440 F.2d 713, 715 (5th Cir. 1971), cert. denied, 411 U.S. 984 (1973);
see also United States v. Bass 477 F.2d 723, 725-26 (9th Cir. 1973) (expert may be partisan
witness whose services include pretrial and trial assistance to the defense); Ford v. Wainwright,
477 U.S. 399, 414, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) ("without any adversarial assistance
from the [defendant's] representative . . . the factfinder loses the substantial benefit of potentially
probative information").
24.The expert appointed pursuant to Ake is expected to "assist the defense by aiding defense
counsel in the cross-examination and rebuttal of the state's . . . experts," and thereby protect his
Sixth Amendment right to confront the evidence against him. Lindsey v. State , 330 S.E.2d 563,
567 (Ga. 1985); see also United States v. Fessel, 781 F.2d 826, 834 (10th Cir. 1986) (services
of expert appointed in ex parte proceeding include those necessary for cross-examination of
government witnesses as well as presentation of defense expertise). Thus, "[j]ust as an indigent
defendant has a right to appointed counsel to serve him as a loyal advocate he has a similar right
under properly proven circumstances to investigative aid that will serve him unfettered by an
inescapable conflict of interest." United States v. Marshall, 423 F.2d 1315, 1319 (10th Cir.
1970) (error to deny ex parte hearing on need for investigative assistance, and appointment of
F.B.I. agent cannot suffice to satisfy request).
25.The failure to allow ex parte applications for assistance would inevitably deprive
of the benefit of effective counsel such as a non-indigent defendant might expect to receive.
Counsel will be forced either to forgo an application for assis tance in order to keep
attorney-client communications, work-product and trial strategy confidential or make the needed
request, breach his/her duty of confidentiality and prematurely reveal matters no competent
attorney would disclose prior to trial. See State v. Hamilton, 448 So.2d 1007, 1008-09 (Fla.
1984) (basis for request for expert founded on communications between lawyer and client;
inquiry into basis would violate attorney -client privi lege). An ex parte procedure obviates the
need for such an untenable choice. In contrast, it would be error for this Court to give the State a
voice in deciding whether was entitled to certain investigators or expert witnesses or in
determining who should provide that assistance.(e) Applications for defense expenses must be ex parte to protect 's right to
freedom from selfincrimination.26. Ex parte proceedings on the need for defense assistance are necessary to protect 's
right to freedom from self-incrim ination. The privilege against self-incrimination is secured only
when a criminal defendant has the right "to remain silent unless he chooses to speak in the
unfettered exercise of his own will, and to suffer no penalty ... for such silence." Estelle v.
Smith, 451 U.S. 454, 468, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) (quoting Malloy v. Hogan,
378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)). If or his/her attorney is
compelled to disclose confidential facts in order to obtain financial assistance, the defendant
surely cannot be said to have exercised his/her own will. Nor can the failure to justify the
request for aid be deemed anything but a penalty for silence.
27.This was made abundantly clear in Marshall v. United States, 423 F.2d 1315 (10th Cir.
1970). The defendant in that case was compelled to justify his need for investigative assistance
before the prosecuting attorney. As a result, the State was able to locate a witness of whom it
had previously been unaware who then testified against the defendant. In reversing the
conviction, the court emphasized:
Certainly the movant cannot be said to "waive" disclosure of his
case and his concomitant rights against self-incrimination and to
due process by [requesting services] . . . [That request cannot] be
used . . . as a means of frustrating the fifth amend ment right pro-
hibiting self-incrimination.Id. at 1318 -19. cannot be called on to sacrifice one set of constitutional rights in order to receive
the benefit of another. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); see also State v. Armstead,
152 Ga. App. 56, 262 S.E.2d 233 (1979). His/Her motions for the "raw materials integral" to his/her
defense must be considered ex parte. (f) The involvement of the Executive Arm--the District Attorney--in decisions which are
fundamentally Judicial in nature violates the Separation of Powers doctrine.28.The authority of the judiciary cannot not be curtailed by any other branch, just as "the whole of
the legislative power has been vested in the legislature . . . [and] the whole of the executive power has
been vested in a separate and distinct [executive] department of our government. . . ." Alexander v.
State by and through Allain, 441 So.2d 1329, 1339 (Miss. 1983); accord Dye v. State ex rel. Hale, 507
So.2d 332, 342-43 (Miss. 1987). One facet of the doctrine of Separation of Powers is that there may be
no confusion of power and authority between the branches of the government. As a member of the
judicial branch, a judge may not mix and match au thority as a deputy sheriff--a member of the Executive
branch. Vaughn v. State , 160 Ga. App. 283, 284, 287 S.E.2d 277, 288 (1981). A judge may not discuss
"strategy" with a prosecutor--another member of the Executive branch. State v. Guhl, 140 Ga. App. 23,
230 S.E.2d 22 (1976); see also Thomason v. State , 148 Ga. App. 513, 251 S.E.2d 598 (1978);
McAllister v. State, 157 Ga. App. 158, 276 S.E.2d 669, 671 (1981). Indeed, the authority of the
judiciary may not be usurped even in part by another branch of government even where there is "a
laudable purpose" for doing so. Glenn v. Her ring, 415 So.2d 695, 696 (Miss. 1982) (legislature cannot
tell trial judges to render an opinion within six months).
29. As Ake makes clear, it is one of the court's functions to deter mine whether funds will be allowed
for expert assistance in a capital case. The granting of funds is an obvious attribute of the judicial
authority, for it "is the duty of this Court to assure such financing so its agen cies can discharge the 'juris-
diction and lawful powers as are necessary to conduct a proper and speedy disposition of any complaint'.
. . ." In the Matter of the Mississippi State Bar , 361 So.2d 503, 506 (Miss. 1978).
For the reasons stated herein, is entitled to proceed ex parte, with a sealed record, in his/her
applications for the funds necessary for his/her defense.
Respectfully submitted,______________________________ Attorney for Defendant
CERTIFICATE I, , do hereby certify that I have on this day delivered, by hand, a true and correct copy of the
foregoing Motion to This day of , 20 . _______________________________
