IN THE CIRCUIT COURT OF_________ COUNTY, ____________
NAME OF PLAINTIFF )
)
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V. ) NO.
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NAME OF DEFENDANT )
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)
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 demon strate
that such ex parte proceedings are essential to protect confi den tial attor ney-client commu nica -
tions and attor ney work-product material which must be disclosed to make a showing of need for
the re quested assistance. Disclo sure of this infor ma tion would violate ________________ rights
to present a de fense, to the effective assis tance of counsel, to compul sory process to secure wit -
nesses, to con front the evidence against him, to due process, to equal protection of the laws, to
freedom from cruel and unusu al pun ishment, and against compulso ry self - incrimina tion.
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. Without
even waiting for the State to respond, the Supreme Court entered the following order:
DISPOSITION: Johnston's Petition for Permis sion 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 counsel was summoned to the
grand jury when the prosecu tion was presenting its case for
indictment. They were not invited to hear the testimony,
cross - examine any of the witnesses or make any state ments to
assist the grand jurors in their delib erations. To this day, the
proceedings before the grand jury remain a secret.
5. Nor has __________________ or his counsel been asked to
help the prose cution determine which inves tigators to use or what
experts to employ in the prosecution of the case against her.
Similarly, an applica tion for an arrest or search warrant is usually
pres ented to a judicial officer ex parte without notifi cation to the
accused or his counsel. Certain interests of the criminal jus tice
system are served by these ex parte proceedings involv ing the
prosecu tion function.
6. Where the prosecution may partake of ex parte proceed ings
without making disclosures to the defense, it is not just the logic of
an aphorism which compels the conclu sion 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 pro ceed ings
relat ing to the defense function are equally essential to protect a
number of important constitutional rights of an indigent ac cused as
well as other vital interests of the criminal justice system. In this
motion and memorandum, __________________ will review the
circum stances, principles and precedents, which re quire ex parte
appli cations and pro ceed ings.
II. EX PARTE PROCEEDINGS ARE INDISPENSABLE TO THE PROPER
FUNC TIONING OF THE ADVERSARY SYSTEM AND TO PROTECT THE
RIGHTS OF THE ACCUSED.
8. It is now well established that when a state brings its judi -
cial 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
con stitutional right to the services of an inde pendent 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 [an
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 explic itly
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 as sistance of a psychiatrist is readily
appar ent . . . . [The State must [then], at a mini mum, assure the
defendant access to a compe tent psychia trist who will conduct an
appro priate examina tion and assist in evalua tion, preparation, and
presentation of the de fense.
Id . at 82 - 83 (emphasis added).
9. Every court, which has considered the issue, has deter -
mined that such hearings should be held on an ex parte basis. See ,
e.g. , Johnston v. State , __________ 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) (in tention of Ake majority that hearings be
held ex parte is "mani fest"); 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) (find ings of Ake expert privi -
leged to defendant). Other juris dictions 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 prejudi cial to the
defense and thus requires ex parte consider ation. We then discuss
the various constitutional guarantees that would be violated by
such dis closure.
(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
recog nition 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 funda mentally
unfair. The truth finding function of the adversary process would
also be lost if the prosecution were allowed simply to overwhelm
the impover ished 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 in digent defendant with out making
certain that he has access to the raw materials inte gral 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 de fense, 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 de fense services at state expense only upon a thres hold
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. __________ , 472 U.S. 320, 323 n.1, 105 S. Ct. 2633,
86 L. Ed. 2d 231 (1985) (defendant must support request for
investi gator and fingerprint and ballistics experts with some thing
more than general statement of need). In order to demonstrate his
entitlement to an expert or investigative assis tance, the defendant
must reveal to the court the theory of the defense, the results of
any investi gation and witness consulta tion 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,
corre spondence, reports, or memoranda to the extent that they
contain the opin ions, theories or conclu sions 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
discus sions which precede the development of the defense strategy
than __________________ should have a voice in what police
officers inves ti gate 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 recog -
nized 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 con cerned, 'stand on an equality before the bar of justice in
every American court.'" Id. at 17. In analyzing whether the
prosecution may attend ____________________ applications of
funds, it must be borne in mind that were ____________________
financially inde pendent he would obtain inves ti gative and other
services without informing the prosecu tion of whose assis tance he
was seeking or why. Penal izing the impover ished defendants by
requiring them to announce privileged infor mation and their trial
strategy, as a prerequi site to inves tigat ing and presenting a defense
would obviously con stitute invidious dis crimination. 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., con -
curring); 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 "[the 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 summon ing a given witness, so
an impe cu nious defen dant should be able to summon his wit nesses
without explana tion 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 exposes 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 re quire ment included in
Criminal Justice Act "in order to protect the accused from pre -
mature 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 prema ture 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. Meri wether ,
486 F.2d 498 (5th Cir. 1973), cert. denied , 417 U.S. 948 (1974):
When an indigent defendant's case is sub jected to pre - trial scrutiny
by the prose cu tor, 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 hear ing on his need for investi -
gative aid, observing that "the mani fest purpose of re quiring 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 prosecu tion); United States v. Sutton , 464
F.2d 552, 553 (5th Cir. 1972).
(c) The denial of an ex parte hearing on an applica -
tion 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 recip rocal
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 examina tion 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 conclu sions of
the prosecuting . . . attorney or members of legal staff." Id. at (b)
(1) . It would be just such a disclosure that would be re quired of
the defense, absent permission to proceed ex parte on applications
for funds.
20. It is impor tant 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 assis tance
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 "[dis -
semin ation 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 govern ment attorneys to attend hearing on application for
penologist, pathologist, bloodtests and subpoenas at which
defendants were required to disclose their theory of self - defense in
support of their applica tions); 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 capi tal prosecution. To require ______________ to dis close
the nature of his defense, the names of persons with whom he
seeks to consult, and the purposes for which he seeks such assis -
tance 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 inter pret their
answers, and generally "__________l" his defense. Id. , 470 U.S.
at 80. To provide effective assistance an attorney must ade quately
investigate and prepare his or her client's case. Goodwin v.
Balkcom , 684 F.2d 794, 805 (11th Cir. 1982) (at heart of effec tive
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 rele vant to client’s case
will not be prepared at trial). Where investiga tive 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 investi gative assistance when
neces sary to defense constitutes ineffec tive performance).
23. _______________________ counsel will not be prepared
to rebut the State's evidence without meaningful consultation with
ex perts for the defense. Nor can counsel appropriately investi gate
aspects of their client's case without the type of assis tance 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, pre senting, and
explaining relevant facts:
[The defense] expert fills a different role. He supplies expert
services "necessary to an adequate defense," which em braces pre -
trial and trial assistance to the defense as well as availability to
testify. His con clu 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 assis tance from the
[defendant's] representative . . . the fact finder loses the substantial
benefit of potentially proba tive informa tion").
24. The expert ap pointed pursuant to Ake is expected to "assist
the defense by aiding defense counsel in the cross - exam ination and
rebuttal of the state's . . . experts," and thereby protect his Sixth
Amend ment 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 in clude those necessary for cross-
examination of government wit nesses as well as presenta tion of
defense expertise). Thus, "[j]ust as an indigent defendant has a
right to ap pointed counsel to serve him as a loyal advocate he has a
simi lar right under properly proven circumstances to investiga tive
aid that will serve him unfettered by an inescapable con flict of
inter est." United States v. Marshall , 423 F.2d 1315, 1319 (10th
Cir. 1970) (error to deny ex parte hearing on need for investiga tive
assistance, and appointment of F.B.I. agent cannot suffice to
satisfy request).
25. The failure to allow ex parte applications for assis tance
would inevitably deprive ______________________ of the bene fit
of effec tive coun sel such as a non-indigent defendant might expect
to receive. Counsel will be forced either to forgo an applica tion
for assis tance in order to keep attorney - cli ent communica tions,
work-product and trial strategy confidential or make the needed re -
quest, breach his duty of confidentiality and premature ly 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 enti -
tled to certain investi gators or expert witnesses or in determin ing
who should provide that assistance.
(e) Applications for defense expenses must be ex
parte to pro tect ___________________'s right to
freedom from self-in crim ina tion.
26. Ex parte proceedings on the need for defense assistance are
necessary to protect ___________________'s right to freedom
from self - incrim ina tion. The privilege against self - incrimi nation
is secured only when a criminal defen dant has the right "to remain
silent unless he chooses to speak in the unfettered exercise of his
own will, and to suffer no penal ty ... 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 attor ney
is compelled to disclose confidential facts in order to obtain
financial assistance, the defendant surely cannot be said to have
exercised his own will. Nor can the failure to justify the request
for aid be deemed anything but a penalty for si lence.
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 assis tance
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 con comitant 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 consti tutional 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 motions for the "raw materials integral" to his
defense must be considered ex parte .
(f) The involvement of the Executive Arm--the
Dis trict At torney--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 legis lature . . . [and] the whole of the executive
power has been vested in a separate and distinct [exec utive]
department of our government. . . ." Alexan der 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 usurp ed
even in part by another branch of govern ment even where there is
"a laudable purpose" for doing so. Glenn v. Her ring , 415 So.2d
695, 696 (Miss. 1982) (legisla ture 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 __________ 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 applications for the
funds neces sary for his 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 _________, _____.
____________________
____________________
