Motion for Permission to Proceed

Motion for Permission to Proceed Ex Parte on Applications for Funds

IN THE CIRCUIT COURT OF COUNTY,

V.

NAME OF DEFENDANT

Motion for Permission to Proceed

Ex 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 , Sections of the Constitution to proceed ex parte on his applications for funds. In support of his motion, , states as follows:

1. submits this motion and memorandum to demonstrate that such ex parte proceedings are essential to protect confidential attorney-client communications and attorney work-product material which must be disclosed to make a showing of need for the requested assistance. Disclosure of this information 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, 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 has explicitly ordered that such ex parte hearings should be held. In Chester Johnston v. State of , 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.

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.

5. Nor has or his counsel been asked to help the prosecution determine which investigators to use or what experts to employ in the prosecution of the case against her.

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 defense may do the same.

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.

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.

9. Every court, which has considered the issue, has determined that such hearings should be held on an ex parte basis.

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.

(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.

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.

13. Such discovery is expressly forbidden by Rule 4.06, which provides that the trial court may not order disclosure of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories or conclusions of the defense attorney or members of legal staff.

(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 there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.

15. In Blazo v. Superior Court, the court held that the reason ex parte application 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.

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.

17. As the Fifth Circuit held in United States v. Meriwether, when an indigent defendant's case is subjected to pre-trial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny, serious equal protection questions are raised.

(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.

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.

20. It is important to note that the application for funds will come in the early stages of the development of the proposed defense.

21. The same considerations apply with even greater force to this capital prosecution. To require to disclose the nature of his defense, the names of persons with whom he seeks to consult, and the purposes for which he seeks such assistance would compromise his right to present a defense and to prepare his 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 interpret their answers, and generally "assist" his defense.

23. counsel will not be prepared to rebut the State's evidence without meaningful consultation with experts for the defense.

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.

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.

(e) Applications for defense expenses must be ex parte to protect 's right to freedom from self-incrimination.

26. Ex parte proceedings on the need for defense assistance are necessary to protect 's right to freedom from self-incrimination.

27. This was made abundantly clear in Marshall v. United States. cannot be called on to sacrifice one set of constitutional rights in order to receive the benefit of another.

(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 be curtailed by any other branch. A judge may not discuss strategy with a prosecutor--another member of the Executive branch.

29. As Ake makes clear, it is one of the court's functions to determine whether funds will be allowed for expert assistance in a capital case.

For the reasons stated herein, is entitled to proceed ex parte, with a sealed record, in his applications for the funds necessary for his defense.

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 , .