Quality defense in the '90's requires substan-tial resources often including defense experts. In many cases experts are as important as counsel.

When an indigent is represented by retained counsel and the case demands an expert, investigator, or other resource who has the responsibility to pay for those resources?

Two different approaches are evident: either the state pays under a state statute or case holding or the indigent defendant has to turn the money up. The competing values involved in these two approaches include the client's desires, the state's fisc, and effective assistance of counsel.

The Defendant Pays. Highly committed advocates believe it is essential to discourage the harmful practice of marginal attorneys taking significant cases for small retainers and then providing minimal or inadequate representation. They argue that these unacceptable situations will be deterred by refusing to give the indigent defendant represented by a retained attorney any state funds for experts, investigators or other necessary resources. Those indigent defendants and those borderline attorneys should be left to fend for themselves, the argument goes, and they will soon realize that continuing this practice is problematic. Proponents of this approach believe the long range consequence is that the practice of doing this will stop if no resources are provided. The problem will be cured with the defender system having those cases from the start with the state funding the attorney and the resources under an indigent defense system. The state's interest is met because the indigent receives competent representation from public defenders with adequate resources at the trial, reducing or eliminating the need for protracted post-trial litigation.

The State Pays. On the other side of this di-lemma are highly committed advocates who are convinced that clients have the right to choose to be represented by the attorney they prefer, if the client can somehow turn up the retainer from family or friends, even if the attorney is objectively marginal or inadequate. The argument continues that it is in the state's interest to encourage this retained representation because it saves money since the cost for the attorney representing the indigent is not paid for by the state. The state pays only the cost of experts, investigators and resources, which it would have to do anyway if the client were represented by a public defender. Even though the state pays some money for resources, it saves money overall by not paying for the attorney. The public defender office is less burdened. The client has the attorney of his choice.

Both sides have significant advantages and both arguments have negative consequences. An indigent represented by passable retained counsel of choice who is paid a wholly inadequate amount of money who does not receive state funds for resources will in all probability receive ineffective representation. The public defender system will likely inherit the case on appeal and post-conviction...hardly an overall cost-saving to the public defender system. "Few attorneys can provide the requisite competent and zealous advocacy for indigent criminal defendants on a regular, recurring basis or in complex or lengthy criminal cases unless they are fairly compensated. The reason is obvious. A lawyer is no different from any other service provider. Over the long haul, an attorney can provide only the services that he or she has the time to perform. A lawyer's very limited time is purchased with money that covers overhead and provides a living. Adequate compensation is essential to provide adequate representation." Monahan and Aprile, Pro Bono Service in Criminal Cases is Neither Mandatory Nor Ethical," ABA Criminal Justice, Vol. 5, No. 3 (Fall 1990) at 35, 38; see also, Monahan and Clark, Coping with Excessive Workload, Chapter 23 in ABA Ethical Problems Facing the Criminal Defense Lawyer (1995).

On the other hand, many private attorneys will, despite the inadequate pay, do effective work which will provide indigents with competent representation. Other counsel will receive a fee in an amount that will allow them to represent the client competently if costs are provided for by the state. See, Michael Salnick, "Effective Counsel for the (Almost) Indigent: Making the State Coffer Up," The Champion, Vol. 13, No. 6 (July 1989) at 6 (This article provides practical litigation strategies for the "motion to declare defendant indigent for costs."). The probability of competent representation is likely to substantially increase if those retained counsel could access funds for defense experts, defense investigators and defense resources when representing an indigent. There is no way to prevent indigent clients from hiring counsel for an inadequate fee so it is in the state's interest to provide resources in order to increase the chance that the representation is competent and will not spawn end-less collateral challenge. If the state pays for resources, it will also encourage more defendants who can pay for counsel themselves or find others to pay for counsel to access retained counsel and free up state resources for defender services. The two approaches each have substantial rationales to support them; however, the majority view is that the state pays. State payment for experts and resources allows clients to have the attorney they prefer and meets the public policy need to conserve state funds.

The American Bar Association Standards for Criminal Justice, Providing Defense Services (3d ed. 1992) provide that resources should be supplied by the state not only for defender cases but also for indigents represented by retained counsel. Standard 5-1.4 states: "...In addition, supporting services necessary for providing quality legal representation should be available to the clients of retained counsel who are financially unable to afford necessary supporting services."

The Commentary to the Standard explains: "Inability to afford counsel necessarily means that a defendant is unable to afford essential supporting services, such as investigative assistance and expert witnesses. The converse does not follow, however. Just because a defendant is able to afford retained counsel does not mean that sufficient finances are available for essential services. This standard, like the Criminal Justice Act provisions noted above, authorizes supporting services to be made available to the clients of retained counsel who are unable to afford the required assistance. This means that the defense services program should include sufficient funding in its budget for such contingencies, and defense services funded through the courts should do likewise."

The Criminal Justice Act provision cited by the ABA, 18 U.S.C. §3006A(e)(1), authorizes "services other than counsel" if the court finds "that the services are necessary and that the person is financially unable to obtain them...." The CJA Guidelines, §3.01A, directs the court to "inquire into the fee arrangement" in ruling on a request by a defendant represented by retained counsel. 1996 U.S. App. Lexis (4th Cir. October 29, 1996).

A review of cases from ten jurisdictions over the last decade and a half indicate clear national thought on this issue in line with this national ABA Standard. Courts across the na-tion which have decided this issue balance the equities and risks with a preference for providing state funding of experts, investigators and other necessary resources to the indigent being represented by retained counsel.

In Arnold v. Higa, 600 P.2d 1383 (Hawaii 1979) the murder defendant was initially ap-pointed counsel. Subsequently his parents employed counsel for him after the "previous counsel had exhausted the maximum allowable attorney's fee from the state." Id. at 1384. The Hawaii Supreme Court held that it was error to preclude the indigent defendant from eligibility for state funds to hire an investigator simply because he was represented by retained counsel. The statute did not limit funds for resources to only cases where counsel was appointed, and an indigent has the right to "effective assistance of counsel and to a fair and impartial trial." Id. at 1385.

The Court also held that a challenge to the failure of the trial judge to consider whether funds were necessary was an appropriate issue for a writ of prohibition. An appeal would not be an adequate remedy since the investigator was being sought to contact out of state wit-nesses. If the defendant is "forced to wait for a reversal on appeal to obtain an investigator, these witnesses will be increasingly difficult to locate and their statements will be considerably less accurate and helpful to a just conclusion of this case." Id.

In Anderson v. Justice Court, 100 Cal. Rptr. 274 (Cal.Ct.App. 1979) the indigent capital defendant had retained counsel who was being paid by friends and family. The Court reasoned that the "statute itself does not limit application to cases where counsel has been appointed but to 'the indigent defendant.'" Id. at 277. "It follows that the test of indigency for the purpose of funding investigators and experts is financial means to secure these services." Id.

In English v. Missildine, 311 N.W.2d 292 (Iowa 1981) the indigent defendant was charged with third degree theft. His mother paid private counsel $800 and her son, the defendant, paid counsel $100. The private counsel sought public money for a handwriting analyst and deposition expenses.

The Iowa Rule of Criminal Procedure "does not distinguish between indigents who are represented by court-appointed and private counsel." Id. at 293. The Sixth Amendment right to effective assistance of counsel includes the right to "public payment for reasonably necessary investigative services." Id. at 293-94. "The Constitution does not limit the right to defendants represented by appointed or assigned counsel. The determinative question is the defendant's indigency." Id. at 294. "It would be strange if the Constitution required the government to furnish both counsel and investigative services in cases where the indigent needs and requests public payment for only investigative services." Id.

In State v. Manning, 560 A.2d 693 (N.J. Super. 1989), cert. denied 569 A.2d 1351 (N.J. 1989) the Court looked to the statute on ancillary resources and found that it "nowhere conditions these services on the defendant first receiving legal services from the public defender." Id. at 698. The Court also considered "the increasingly over-crowded docket and insufficient resources, both monetary and personnel, of the office of the public defender limit the number of cases that office can handle effectively." Id. at 699. The court held that being represented by private counsel, whether pro bono or paid by a third party, does not deny the indigent access to state-funded ancillary resources. "Permitting the cost of legal services to be borne by a charitable attorney or a third party would relieve the State of the legal costs and use of personnel involved in such defenses." Id.

In Ex Parte Sanders, 612 So.2d 1199 (Ala. 1993) the defendant, who was charged with robbery and kidnapping, was declared indigent and was appointed counsel. Two weeks later his family retained counsel for him and the appointed counsel withdrew. The trial judge denied the request for state funds to hire a ballistics expert since the defendant was represented by retained counsel. The Alabama Supreme Court held that the indigency of the defendant was the criteria under the statute for the eligibility of state funds for expert help, and money from third parties did not affect a defendant's indigency. "If the assets of friends and relatives who are not legally responsible for the defendant are not included in deter-mining a defendant's indigency, then the fact that a friend or relative pays for an indigent defendant's counsel should not be considered in determining whether the defendant is entitled to funds for expert assistance. The simple fact that the defendant's family, with no legal duty to do so, retained counsel for the defendant, does not bar the defendant from obtaining funds for expert assistance when the defendant shows that the expert assistance is necessary." Id. at 1201. See also Dubose v. State, 662 So.2d 1156 (Ala.Crim.App. 1995) where the court authorized funds for a DNA expert for the indigent defendant who used his family's money to hire counsel.

In Spain v. District Court of Tulsa Co., 882 P.2d 79 (Okla.Crim.App. 1994) the indigent defendant's parents mortgaged their house and retained counsel, paying $15,000 with $10,000-$40,000 additional obligation. The parents were unwilling to pay for funds for resources since they were not sure they would be able to pay all they were due to the attorneys. The defense attorneys ordered a transcript of the preliminary hearing at a cost of $800 and asked for reimbursement from the court since the defendant was indigent. The court refused since they were retained counsel. The attorneys then sought a writ of mandamus. The appellate court granted the writ determining that the defendant's indigency was the determiner of whether the government was obligated to pro-vide costs and services. The "fact that Spain's parents were willing and able to retain counsel on his behalf has no bearing on Spain's status as an indigent, given his parents' unwilling-ness to provide any further financial assistance." Id. at 81.

In State v. Wilkes, 455 S.E.2d 575 (W. Va. 1995) the indigent murder defendant's family paid for counsel from a bank loan and donations from their church. The trial court denied the request for funds for experts since the defendant was represented by private counsel. The Court concluded that "financial assistance provided by a third party which enables an indigent criminal defendant to have the benefit of private counsel is not relevant to the defendant's right to have expert assistance provided at public expense. A criminal defendant who qualifies as an indigent person is entitled to receive publicly funded expert assistance deemed essential to conducting an effective defense." Id. at 578. "The petitioner's family members have no obligation to finance the petitioner's defense, and any funds they provide have no effect on his status or being personally indigent." Id. at 577.

In Miller v. Smith, 99 F.3d 120 (4th Cir. 1996) the defendant chose the services of pro bono representation rather than representation by the Maryland public defender office on his appeal of his felony conviction. The state court determined that the defendant must "apply to the public defender and be represented by, or refused representation, by that office before he can receive a free transcript." Maryland v. Miller, 651 A.2d 845, 849 (Md. 1994). The Fourth Circuit found this to violate due process and equal protection guarantees and granted the habeas.

The holdings in the cases from the above eight jurisdictions contrast with holdings from Delaware and Kentucky, although the continued viability of the Delaware and Kentucky holdings are suspect.

In Bailey v. State, 438 A.2d 877 (Del. 1981) the Delaware Supreme Court held that there was no statutory authority to provide funds for an investigator to an indigent who managed through the resources of others to retain counsel. Significantly, the Court stated it was "aware that this result has its illogical aspect: thus an indigent defendant who relieves the public of the burden of representing him cannot secure investigator assistance which he can get (under the Public Defender Act) if he places the entire burden on the public." Id. at 878.

The Court went on to observe that its decision "may appear to be in conflict" with Pendry v. State, 367 A.2d 624 (Del. 1976) which held that an indigent is entitled to have the state pay for an appellate transcript even if represented by retained counsel paid for by the indigent's parents because the obligation to provide a transcript to an indigent was imposed on the state by the federal constitution. Id. at 879-80. But the Delaware Supreme Court determined Pen-dry was consistent with Bailey's holding since the federal constitution did not require funds for an investigator.

However, things have changed since Bailey was decided in 1981. In 1985 the Unites States Supreme Court held that fourteenth amendment due process required funds for experts for indigent defendants needing a mental health expert in an insanity case to insure meaningful access to justice. Ake v. Oklahoma, 470 U.S. 68 (1985). Bailey's holding is problematic in light of the subsequent constitutional holding in Ake.

Kentucky's approach is currently contrary to the predominant national thinking and is ripe for reconsideration. In Morton v. Common-wealth, 817 S.W.2d 218 (Ky. 1991), the state sought the death penalty for Barrington L. Morton's killing of a drug dealer and her 5 year old son. Mr. Morton "retained" an attor-ney to represent him against this capital prosecution for $100, and asked the trial court to declare him indigent under KRS 31.110 so he would be able to obtain funds for expert assistance at the expense of the state. The Kentucky Supreme Court viewed these facts to implicate three aspects of the right to counsel.

The trial judge determined Mr. Morton was indigent but refused to permit him to keep his chosen counsel if he wanted to access public funds for experts. According to the Kentucky Supreme Court's decision, an indigent defen-dant who had retained counsel for $100 was not constitutionally entitled to have that attorney continue to represent him pro bono since "...the constitutional right to counsel does not embrace a right to be represented by a particular attorney." Id. at 220.

Secondly, the Court held that an indigent who had paid counsel $100 was not able to access expert services under KRS Chapter 31 even though that counsel was willing to continue the pro bono representation. Id.

Thirdly, the Court decided that a judge could order funds for experts under KRS Chapter 31 for an indigent who is represented in "an unusual" case by a "truly pro bono" counsel. Id. at 220-21.

These three rulings were propelled by the Court's finding that KRS Chapter 31 required two facts to access either public counsel or public funds for ancillary services: 1) the defendant had to be "without the independent means to obtain counsel" and 2) there had to be the "inability to obtain necessary services." Id. at 220.

Perhaps the most compelling reason for the decision in Morton was that the Court feared a ruling otherwise would mean that most people would pay their attorneys all their money and then seek funds for non-attorney costs from the state. This would substantially increase the state's financial burden: "to do otherwise would invite defendants to impoverish themselves by payments to attorneys and have the Commonwealth pay all other costs." Id. at 221.

While there is no doubt that criminal defen-dants do in some numbers impoverish them-selves to criminal defense attorneys, the much larger reality in Kentucky seems to be that attorneys agree to represent accused persons for less money than is necessary to provide competent representation. In fact, many attor-neys donate the rest of the time to provide adequate representation. In other cases the client is provided something less than adequate representation. As a consequence of Morton, there likely will be more cases where the state is responsible for both costs: the cost of the attorney, and the cost of the ancillary services. A different ruling likely would have saved the state substantial public defense attorney fees. Clients are seldom going to risk trial with retained counsel if that means they must forfeit access to funds for experts, investigation and other services despite their real indigence.

In Morton, the Court has eliminated one risk to the state financial obligations and increased another larger risk to state financial respon-sibilities. If Morton is primarily motivated by what is cheaper to the state fisc, Morton is ripe for modification or even overruling when the costs caused by it become apparent in future litigation.

A disturbing aspect of the Court's rationale is its decision to view $100 as a real retainer for an attorney to represent an indigent charged with capital murder of an adult and child. While the court's recognition of the sanctity of the retained attorney-client relationship is impressive, it is disconcerting to see $100 viewed as a real fee. The sum of $100 does not purchase the time necessary for competent representation in a DUI case in this Commonwealth, much less for the most time consuming and complicated litigation known to the Commonwealth's criminal justice system.

Three short months later the unusual case appeared and the Kentucky Supreme Court determined that a trial judge acted properly in authorizing $14,564.72 for expert and invest-igator costs where the indigent murder defen-dant was represented by two pro bono attor-neys. Kenton-Gallatin-Boone Public Defender, Inc. v. Stephens, 819 S.W.2d 37 (Ky. 1991). Relying on Morton the Court said: "Nothing in the statute prohibits a trial judge from approving the payment of expenses incurred by an attorney in the defense of an indigent, regardless of whether the attorney is 'truly' pro bono or an appointed public defender." Stephens, supra at 38.

In Commonwealth v. Lavit, 882 S.W.2d 678 (Ky. 1994) an attorney was retained by the mother of the capital defendant for $1,000. Before trial, the private attorney successfully asked the trial judge to allow the defendant to proceed in forma pauperis and to appoint his current counsel and another attorney as his public defenders for purposes of the rest of the case. At the end of the case, the appointed counsel asked for $8,854 for their fee and expenses. The trial judge authorized $2,500. The Kentucky Supreme Court ordered the full fee paid since this was a case of "special circumstances" due to the nature of the case, the time involved and the complexity of the issues. Significantly, the Attorney General argued under Morton, supra, that the attorneys should receive no more than their $1,000 retainer. The Court rejected this argument on procedural grounds, "However, this argument was not raised at any time below, and there-fore, cannot now be considered in this Court."

Lavitt, supra at 680. Lavitt's authorization of the fee may have implicitly overruled Morton. At a minimum, it altered Morton to authorize payment under KRS Chapter 31 when there is retained counsel in situations where there is no objection raised by the prosecutor.

Just results through fair process is the goal of our criminal justice system. Quality repre-sentation is the criminal defense attorney's duty in this effort to achieve just results. In these times quality is defined by the customer. Prospering enterprises honor the desires of their customers ...their clients.

Recognition of that value would lead state courts to allow clients to choose retained counsel and have access to state funds for experts, investigators and resources when the defendant cannot afford those costs. This would minimize the chances that such representation will be ineffective without those resources and provide some relief to underfunded defender offices, fostering long term public policy interests which have been identified by Margolin and Wagner in The Indigent Criminal Defendant and Defense Services: A Search for Constitutional Standards, 24 Hastings L.J. 647, 652 (1978) as: "(1) establishment of the defendant's innocence; (2) equality of access to justice as between the poor and the rich; (3) equality of access to justice as between the indigent defendant and the prosecutor; (4) access to that which is fundamental for a 'fair trial'; (5) access to that which assures an 'adequate defense'; (6) access to that which 'assists counsel'; and (7) access to that which assures 'effective defense.'"
 
 

American Bar Association, Standards for Criminal Justice, Providing Defense Services (3d ed. 1992), Standard 5-1.4

Arnold v. Higa, 600 P.2d 1383 (Hawaii 1979) (Investigator)

Anderson v. Justice Court, 100 Cal. Rptr. 274 (Cal.Ct.App. 1979)

English v. Missildine, 311 N.W.2d 292 (Iowa 1981) (Handwriting analyst & deposition expenses)

State v. Manning, 560 A.2d 693 (N.J. Super. 1989), cert. denied, 569 A.2d 1351 (N.J. 1989)

Ex Parte Sanders, 612 So.2d 1199 (Ala. 1993) (Ballistics expert)

Dubose v. State, 662 So.2d 1156 (Ala.Crim. App. 1995)

Spain v. District Court of Tulsa Co., 882 P.2d 79 (Okla.Crim.App. 1994) (Transcript of preliminary hearing)

State v. Wilkes, 455 S.E.2d 575 (W. Va. 1995)

Miller v. Smith, 99 F.3d 120 (4th Cir. 1996)

Maryland v. Miller, 651 A.2d 845, 849 (Md. 1994)

Bailey v. State, 438 A.2d 877 (Del. 1981) (Investigator)

Morton v. Commonwealth, 817 S.W.2d 218 (Ky. 1991)

Kenton-Gallatin-Boone Public Defender, Inc. v. Stephens, 819 S.W.2d 37 (Ky. 1991) (Experts & investigators)

Commonwealth v. Lavitt, 882 S.W.2d 678 (Ky. 1994) (Attorney fees)