I have a defense attorney in a capital case, death penalty waiver, who I believe is asking for appointment of experts not allowed by Ake v. Okla. For example, I have come to learn that a "mitigation expert" may have been appointed. Mitigation has no relevance to this trial since the death penalty has been waived. Has anyone challenged an ex parte hearing and order prior to trial on these grounds? How did you do it? File a motion to reveal any ex parte orders that don't qualify under Ake? The same judge would be ruling on this motion who heard the secret motion in the first place. Am I just screwed? While I understand the theory behind Ake, I also believe that blanket granting of such secret motions violates the spirit if not the letter of the requirement that trials be open to the public. Isn't this a good way for a judge to shield himself from public scrutiny?

I dealt with a similar situation on a sexual assault case. The defense wanted some type of doctor to serve as an expert witness. The judge refused to grant the motion ex parte, instead instructing the defense to set it for a hearing. The defense vehemently objected to this process, arguing that I could not know anything about what was going on. At the hearing, I did not pry into any details of what the defense wanted to do. I instead went over the law very carefully, arguing that while of course Ake v. Oklahoma is relevant, it is only applicable in certain circumstances. I stressed the importance of the preliminary showing that the expert assistance is necessary to address a significant issue at trial in which I would present expert testimony, while noting how unusual it was for me not to even be involved with the defense�s presentation of what makes this showing, and then committed myself to only certain expert testimony (short of a radical surprise). I talked about the defendant�s burden to show a "compelling need" for the assistance of an expert and that the subject of the expert's testimony is likely to be a "significant factor at trial." I quoted a few Texas cases, including Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App.1996) for its statement that the defense must offer more than �undeveloped assertions that the requested assistance would be beneficial,� and provided the court with a very short brief.

Your situation is obviously different, but perhaps you could file a motion that requests discussion of how these issues affect your case and then set that motion for a hearing. At that hearing you could at least explain the limited circumstances of the law and your desire simply to assist the court by making clear the circumstances in which your expert will testify (to the extent you can tie yourself down here).

Also, at my hearing, I argued that the defense should be required to file a motion that gives me notice that this is going on, while not telling me any facts, so that I could have the opportunity to protect my interests. We ended up settling the case, and I still have no idea whether an expert was actually appointed.

Merely because the experts are appointed and county funds wasted by the court does not mean the testimony will be admissible (though I suppose the court might be more inclined to get something useful from its expenditures once made). Furthermore, I don't think the identity of testifying experts would be protected against disclosure if a proper motion is filed under 39.14(b). Why be too concerned about keeping the court from wasting funds (even if the motion is improper)?

By the way, if anyone needs a list of cases dealing with non-psychiatrist expert witness requests under Ake, here is the one I compiled a while back:

polygraph examiner- Jackson, 992 S.W.2d 469

jury consultant- Busby, 990 S.W.2d 263 and Moore, 935 S.W.2d 124

future dangerousness- Griffith, 983 S.W.2d 282 and Harper, 930 S.W.2d 625

interpreter (to show fake translation of prior statement)- Hernandez, 978 S.W.2d 137

breath test- Elmore, 968 S.W.2d 462

special issue- Matchett, 941 S.W.2d 922 and Cantu, 939 S.W.2d 627

DNA- Norton, 930 S.W.2d 101 and Davis, 905 S.W.2d 655

investigator- Roberts, 923 S.W.2d 141

cause of death (doctor)- Rodriguez, 906 S.W.2d 70

forensic pathologist- Rey, 897 S.W.2d 333

deterrence- Wunneburger, 844 S.W.2d 864

intoxication symptoms- Moore, 836 S.W.2d 255 and Ventura, 801 S.W.2d 225

effect of parole- Stoker, 788 S.W.2d 1

community sentiment pollster- Wyle, 777 S.W.2d 709

drug analyst (chemist)- Mann, 754 S.W.2d 371

interracial misidentification- Dewberry, 743 S.W.2d 260 and Deason, 84 S.W.3d 793

With the proliferation of experts, I am sure this list has probably grown. Maybe the judge will get a motion which says: "I'll take one of those, and one of those, and one of those ...."

I know that I can find out the name of any testifying expert, Martin. It probably will be about 30 days prior to trial. That's not my point. What bothers me is this trend toward judges entertaining secret motions from one side of the case which do not fall under Ake. I don't think that Ake should be used as an excuse to shield the appointment and cost of an expert from public scrutiny. Further, some judges are even going so far as to order that a jailed inmate has a right to a secret meeting with such experts when they are in jail. I know judges who have ordered police departments not to reveal information to the prosecutor about visitors and meetings in the jail, or to hide the fact that an inmate has been escorted by jail staff to a meeting at some expert's office.

The basis for an attack on these motions is that the defendant offers "little more than undeveloped assertions that the requested assistance would be beneficial" (Caldwell, 105 S.Ct. at 2637) and that the expert is not absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of a viable defense. I agree that the State ought to have the ability to contest these issues, but if the judge feels compelled to proceed without assistance, at least he presumably knows the applicable legal standard. I suppose once the expense is paid the public and the prosecution has some means of holding the court accountable. It is hard to understand the secrecy measures you describe. The cases seem to suggest to me only that the work product of the expert is protected, not that the nature of the defense sought to be proved is sacrosanct. It is a difficult problem.

Yes, and I think you have just hit the nail on the head as to where the problem lies. Akin was based on protection of work product and the primary concern of the case was the disclosure of trial strategy. I would argue that the identity of the expert and how much he or she is being paid has nothing to do with that concern (although I can already hear the defense bar argument that in some cases identifying the expert's name does identify the strategy because that expert is so closely tied to a particular strategy, e.g. claims of false confession, etc.).In Texas, as you have pointed out, the identity of the expert must be revealed anyway if the expert is going to testify. I just don't think Ake was intended to cloak everything the defense does in secrecy. Maybe I will file a motion in this case entitled "Motion to Reveal the Secret Ex Parte Motions Not Required by Ake" as a shot over the bow and see how the judge responds. I think I can at least argue that I know a mitigation expert has been appointed in a case where that is not an issue.