2014 (September Term)
United States v. Akbar, 74 M.J. 364 (mitigation specialists in military justice capital cases are of special importance; without a professional death penalty bar in the military services, these specialists are likely the most experienced members of the defense team in capital litigation; the mitigation specialists’ role is to coordinate an investigation of the accused’s life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary material for them to review; the specialists are considered an indispensable member of the defense team throughout all capital proceedings; as a result, mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where counsel have little training or experience in capital litigation).
(although it may be advantageous to have a mitigation specialist actively participate at a capital trial, it is not required).
2009 (September Term)
United States v. Anderson, 68 M.J. 378 (servicemembers
are entitled to government-provided expert assistance if such
assistance is
necessary to their defense; the government must provide the expert if
the
accused establishes that a reasonable probability exists that (1) an
expert
would be of assistance to the defense, and (2) that denial of expert
assistance
would result in a fundamentally unfair trial; to establish the first
prong, the
accused must show (1) why the expert assistance is needed, (2) what the
expert
assistance would accomplish for the accused, and (3) why the defense
counsel
were unable to gather and present the evidence that the expert
assistance would
be able to develop; when the defense requests a nonmilitary expert, the
defense
must provide an estimated cost of employment and illustrate why a
military
expert would be an inadequate substitute; while the military judge is
not
required to provide the particular expert requested, if the defense
shows that
expert assistance is necessary, an adequate substitute must be
provided).
(the decision to deny
appellant’s request for the expert assistance of a
civilian forensic psychologist was not an abuse of discretion in a
prosecution
for attempting to give intelligence to the enemy; there was no reason
beyond a
childhood diagnosis of attention deficit disorder and the convening of
an RCM
706 board to suggest that appellant might lack the mental capacity to
form the specific
intent required, and there was no assertion, after appellant’s
subsequent
request for a government-appointed expert in clinical psychology was
granted,
that such expert was inadequate).
2005
United
States v. Kreutzer, 61 M.J. 293 (the right to the expert assistance
of a
mitigation specialist in a capital case is determined on a case-by-case
basis).
(when
an accused
subject to the death sentence requests a mitigation specialist, trial
courts
should give such requests careful consideration in view of relevant
capital
litigation precedent and any denial of such a request should be
supported with
written findings of fact and conclusions of law; because there is no
professional death penalty bar in the military services, it is likely
that a
mitigation specialist may be the most experienced member of the defense
team in
capital litigation).
(where
a request
for the expert assistance of a mitigation specialist is erroneously
denied,
that ruling implicates the right to present a defense, compulsory
process, and
due process conferred by the Constitution, the right to obtain
witnesses and
evidence conferred by Article 46, UCMJ, and the right to the assistance
of
necessary experts conferred by RCM 703(d)).
(the
erroneous denial
in capital cases of an accused’s request for the expert assistance of a
mitigation specialist to aid in the preparation of the case, is a
denial of due
process, and as an error of constitutional magnitude, it must be tested
for
prejudice under the standard of harmless beyond a reasonable doubt).
(although
capital cases do not confer a per se right to a mitigation specialist,
on a
case-by-case basis servicemembers confronted with a capital prosecution
are
entitled to mitigation specialists where their services would be
necessary to
the defense team; the UCMJ and the RCM assure that the defense counsel
has the
resources, including expert assistance, to prepare and present the
defense;
while the services of a mitigation specialist are commonly used in
sentencing,
in the appropriate case this expert assistance may be necessary to the
defense
on findings as well).
2001
United
States v. Gunkle, 55 MJ 26 (an accused
is
entitled to expert assistance provided by the government if he can
demonstrate
necessity; to demonstrate necessity, an accused must demonstrate
something more
than a mere possibility of assistance from a requested expert – an
accused must
show the trial court that there exists a reasonable probability both
that an
expert would be of assistance to the defense and that the denial of
expert
assistance would result in a fundamentally unfair trial).
(there is a three-part test for determining the necessity for expert
assistance provided by the government: (1) why is the expert needed;
(2) what
would the expert accomplish for the defense; and (3) why is the defense
counsel
unable to gather and present the evidence that the expert assistance
would be
able to develop).
(any error in military judge’s denial of a defense request for
pretrial
expert assistance was rendered moot because appellant received the
expert
assistance he sought, albeit at his own expense).
United
States v. McAllister, 55 MJ 270 (in
support of
a request for expert assistance, an accused must demonstrate the
necessity for
such assistance).
(an accused is not entitled to a specific expert of his own
choosing, but is
entitled only to competent assistance).
(a military judge's decision on a request for expert assistance is
reviewed
for abuse of discretion).
(with the rapid growth of forensic science techniques, it has become
increasingly apparent that complex cases require more than general
practitioners as experts).
(military judge abused her discretion in denying defense request to
substitute one expert witness for a purportedly more qualified expert
where:
(1) prosecution's own expert testified that in the short time between
the DNA
testing of the evidence in this case and appellant's trial, tests for
two
additional genetic systems were implemented at her laboratory; (2)
there were
no DNA testing laboratories in Hawaii, the trial situs; (3) the expert
initially hired by the defense lacked expertise in forensic testing and
informed the defense that appellant needed an expert in forensic PCR
testing;
(4) the substitution of experts to the defense team would not have
incurred any
increased cost to the government; (5) the government did not assert
that any
resultant 6 to 8 week delay would prejudice the government's case, and
there
was no indication that the prosecution would have been prejudiced; (6)
DNA
evidence was the linchpin of the prosecution case, but may have been
incomplete
in that evidence was not subjected to two additional genetic systems
tests that
were developed after the government's evidence was first developed; (7)
it was
clear from the record that the defense needed expert assistance in the
technical aspects of PCR testing, and not just generalized expertise in
genetic
medical diagnosis; (8) the military judge did not fully appreciate the
complexities or importance of the DNA evidence and the rapidly
advancing
technology in DNA testing; (9) the defense request was timely; (10)
there was
no evidence of bad faith or witness shopping; and (11) the military
judge
focused on taking the defense counsel to task for requesting an initial
expert
who was either unable or unwilling to provide what the defense actually
needed,
rather than focusing on whether the initial expert was able or willing
to
provide the needed expert assistance).
United
States v. Dimberio, 56 MJ 20 (the Equal Protection
Clause,
Due Process Clause, and the Manual for Courts-Martial each provide that
the
servicemember- accused is entitled to expert assistance when necessary
for an
adequate defense).
1999
United
States v. Short, 50 MJ 370 (under RCM 703(d), an accused
is
authorized expert assistance at Government expense when the Government
cannot
provide an adequate substitute and the defense makes a showing of
necessity;
the defense must show: (1) why expert assistance is needed, (2)
what
expert assistance would accomplish for the accused, and (3) why the
defense
counsel is unable to gather and present the evidence that the expert
assistant
would be able to develop).
(defense counsel’s showing of necessity for appointment of expert
assistant
in urinalysis case was inadequate where: (1) counsel did not show
this
was not “the usual case”; (2) counsel was inexperienced in urinalysis
cases and
could get assistance from more experienced counsel; (3) defense counsel
declined to talk to an expert who was made available even though that
expert
was scheduled to testify at trial; and (4) defense counsel did not
renew
request for assistance after having a week to seek guidance form more
experienced counsel and talk to proffered expert).
United
States v. Gray, 51 MJ 1 (appellant was not provided
inadequate
psychiatric assistance where: (1) he was provided two qualified
psychiatric experts of his own choosing prior to trial; (2) the defense
experts
provided appellant with favorable testimony, although not perhaps to
the degree
he desired; and, (3) any alleged deficiencies were obviated by the
additional
testing ordered in this case which produced substantially the same
results).
(an accused has the right to investigative assistance at the expense
of the
government where he can meet a three-step test for determining
necessity:
(1) why the expert or investigator is needed; (2) what the
investigative or
expert assistance would accomplish for the accused; and, (3) why the
defense
counsel is unable to gather and present the evidence that the expert or
investigative assistant would be able to develop).
(military judge did not abuse his discretion in denying further
expert
assistance where: (1) defense request went beyond request for
necessary
investigative assistance; (2) the defense request essentially argued
that prior
assistance was not helpful to the defense; and, (3) the request failed
to
provide concrete explanation of need for further assistance).
(Court
of Military Review (now
Court of
Criminal Appeals) decision denying funding for additional appellate
expert
mental health assistance was not an abuse of discretion where that
court had
sufficient basis in the record for considering the mental-state issues
before
it and concluded that additional defense psychiatric expenditures were
not
reasonably necessary).
(appellant was not denied equal protection by Judge Advocate
General’s
decision to establish and adhere to procedures to request funding for
additional appellate expert mental health assistance where: (1)
death-penalty inmates who submit requests for expert assistance after
the new policy
became effective were not considered a suspect class; (2) the
procedures
established were not unreasonable; and, (3) prior funding to other
death-penalty inmates did not create any fundamental constitutional
right for
capital defendants to initially request the Judge Advocate General to
provide
such funding).
United
States v. Ford, 51 MJ 445 (defense is authorized the
employment
of experts at government expense where the testimony would be “relevant
and
necessary,” if the government cannot or will not provide an adequate
substitute; the test for necessity has three prongs: (1) why is
the expert
assistance needed; (2) what would the expert assistance accomplish for
the
accused; and (3) why is the defense counsel unable to gather and
present the
evidence that the expert assistant would be able to develop).
(military judge did not abuse his discretion in denying defense
request for
expert where: (1) government made a forensic chemist and an
explosives
expert available; (2) defense conceded at trial that the expert
proffered by
the government was an expert; (3) the record did not show any efforts
on the
part of the defense to determine if an expert existed who could
contradict the
government expert; and (4) the record did not show any independent
research by
the defense or any specific basis for questioning the government
expert).