Appointed Counsel Vol. 12: Experts and Investigators

In this episode, host Joe Byrd explains a specific process that must occur before any proposed expert or investigator begins to work. A process that involves both the trial court and the Administrative Office of the Courts. Joe also gives tips for those claims to not only be approved by the authoritative bodies, but also how to get a claim moved through the process and paid more effectively. 

This episode is for attorneys. 

Transcript

00;00;01;06 - 00;00;16;16
Host
Welcome to Appointed Counsel podcast presented by Tennessee Court Talk. For those involved in indigent representation, I'm Joe Byrd, Lead Attorney for the Indigent Services Team at the Tennessee Administrative Office of the Court.

00;00;16;19 - 00;00;45;29
Host
Episode 12 Experts and Investigators. The Sixth Amendment of the United States Constitution in Article One, Section Nine of the Tennessee Constitution states that the accused in a criminal prosecution has a right to be heard and represented by an attorney. In the Seminole case of Gideon versus Wainwright. The US Supreme Court held that the Sixth Amendment requires the government to provide an attorney to persons facing criminal charges, but who cannot afford to hire an attorney.

00;00;46;01 - 00;01;15;20
Host
The Sixth Amendment is incorporated to the states through the 14th Amendment. In Ake versus Oklahoma, the US Supreme Court, applying a due process analysis, held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

00;01;15;23 - 00;01;51;08
Host
Now Ake has been expanded by many state courts to also encompass non psychiatric assistance and assistance to non-capital defendants, and whether ex-parte a hearing is required on an indegent’s motion for a court appointed expert. One important point must be made about experts, however, the Tennessee Supreme Court and State versus Barnett notes that the court in Ake emphasized, however, that an indigent defendant does not have a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.

00;01;51;11 - 00;02;21;25
Host
Now in Tennessee, section five of rule 13 provides that for certain specific kinds of cases, fees and expenses for some experts other than psychiatrist as well as investigators may be compensable for indigent criminal defendants. Section five A clarifies the cases and circumstances where payment for investigators or experts may be available. First, it states in the trial and direct appeal of criminal cases, if the defendant is entitled to appointed counsel by policy.

00;02;21;27 - 00;02;46;02
Host
This includes guilt and sentencing phases of the criminal trial. The rule continues in section five A to say in the trial and appeals a post-conviction proceedings in capital cases. Capital cases defined in section three as a case in which a defendant has been charged with First-Degree murder and a Notice of intent to seek the death penalty, has been filed and no order withdrawing that notice has been filed.

00;02;46;05 - 00;03;24;08
Host
The third kind of case is juvenile transfer proceedings. Section 5A2 specifically bars funding for experts and non-capital post-conviction proceedings. So if the case type is not listed in section five A, the AOC is not authorized to approve fees for an expert or an investigator in that case. Let's talk a little bit about the process. Since I know that I've narrowed down the kinds of cases I may have some of you no longer listening, because if you do dependency, neglect, and termination of parental rights cases, in essence, this isn't going to apply to you because it's mainly in the criminal realm.

00;03;24;16 - 00;03;47;29
Host
And those cases of the juvenile transfer proceedings that these experts are available. But it might help you if you ever get appointed to one of those cases. As things move forward, the most important part of the process that I can tell you is before you start, your expert or the investigator doing any work, make sure that you get prior approval.

00;03;48;01 - 00;04;14;27
Host
Section five lays out a specific process that must occur before any proposed expert or investigator begins work. It is a process that involves both the trial court and the AOC. The trial court approves the order, but the AOC must also approve the order following what that procedure is is important in order for you to have an expert to be paid when they complete their work.

00;04;14;29 - 00;04;34;29
Host
Let's talk about the trial court. What does the trial court do? Well, first of all, an order must be entered by the trial court granting the prior authorization. In section 5A1. The court's review of the request must make some substantive findings under the facts of the case to determine if there is a particularized need for a particular expert.

00;04;35;01 - 00;05;14;29
Host
Section five A1 provides that the trial court must also make an initial determination of the reasonableness of a proposed rate paid to an expert. However, the trial court is limited. The case of In Re Petition of Gant states that the reasonable compensation under the Tennessee Code Annotated 40 - 14 207 A1 has necessarily been determined by the Supreme Court pursuant to it, its authority, and that authority is based upon the responsibility of the Chief Justice and the Director of the Administrative Office of the Court to maintain uniformity as to rates paid to individuals and entities under section five.

00;05;15;02 - 00;05;42;26
Host
Now section five B contains threshold requirements of the motion. First of all, the location of the expert or investigator should be within a 150 mile radius of the court according to section five B1. Every effort must be made to locate an expert or investigator within that range. The motion must explain the efforts made. If it is not within that 150 mile radius, how certain things must be itemized in the motion for an expert under section five B2.

00;05;42;28 - 00;06;02;24
Host
The nature of the services. The identity and qualifications of the proposed expert. This can usually be shown just by submitting the CV with the motion that will go both to the trial court and to the AOC. Then it also must itemize the means, date, time and location at which services are to be provided, and then a statement of the itemized costs.

00;06;02;24 - 00;06;24;20
Host
The hourly rate, and the amount of any expected additional or incidental costs. Now, the elements in the motion for Investigative Services is set out in 5 B3. The motion must have a statement indicating that the person satisfies the licensure requirement of the rule, and the hourly rate and the amount of expected costs should also be included as well in the order.

00;06;24;22 - 00;06;51;21
Host
Now, the AOC does not make the finding a particularized need, nor does it review that it leaves it to the court. But the AOC will do a check list to make sure that all of these elements are followed in the motion in order, in compliance with rule 13. Section five B4 requires an ex parte hearing. The trial court in the hearing determines if the requested services are necessary to protect the defendant's constitutional rights.

00;06;51;23 - 00;07;16;06
Host
Under section five C1 to authorize payment, the court must find a particularized need for the requested services. The hourly rate charged is reasonable, and the hourly rate is comparable to rates charged for similarly services. Again, the AOC reviews the order, ensuring that these elements are in compliance. But the AOC has a fiscal responsibility when it's reviewing these orders and it's approving.

00;07;16;08 - 00;07;39;15
Host
The order must be submitted to the AOC for prior approval before either the expert or investigator can start. Take a look at section 5E4. The AOC will approve reasonable and necessary expenses that are in compliance with rule 13, section four. It's very important that if your order states reasonable and necessary expenses, that doesn't mean that they don't have to comply with section four.

00;07;39;18 - 00;08;05;04
Host
Please review section four so that you understand what the limitations of those expenses are. The order signed by the judge. The motion the CV, should be submitted to the AOC for prior approval by email. That's all it takes. You don't have to send a paper copy. You just send it to indigent team at tncourts.gov that's indigent team at tncourts.gov.

00;08;05;07 - 00;08;33;26
Host
If there are questions or concerns, staff from the AOC legal division will reach out generally by email. Sometimes we'll call if the order can be approved. The AOC approval will be added to the order near the judge's signature and emailed back to the originating email address. It's very important that whoever emails the order to the AOC monitors that email address to see either questions that we might have, or to see the order that is approved.

00;08;33;28 - 00;08;59;05
Host
Again, the approval will be stamped right near the judge's signature of the order. Some request will be approved with an initial incremental amount. So if the court approves $10,000, the AOC may only approve 5000. Now, that doesn't mean that the AOC won't approve the other 5000. It's simply a procedure in which it's sort of serving as a speed bump to make everybody conscious that these are taxpayer dollars.

00;08;59;09 - 00;09;23;17
Host
We want you to be cautious of how you're spending them. So what does the attorney do? You've only got approval up to 5000, and you're nearing the exhaustion of that 5000. But the courts approve the other 5000. You don't have to get another order. Just email us at indigent team at tncourts.gov. Explaining that the funds of the incremental approval have been exhausted and you need the rest approved.

00;09;23;20 - 00;09;42;09
Host
We will get right on stamping the approval order with the final release of the funds, and your expert or investigator can continue on with their work. So you secured your final approval. How the work of the expert and investigator goes on and as the case moves forward, they want to submit an invoice for payment. How does that procedure work?

00;09;42;12 - 00;10;10;26
Host
The approved invoice then should be submitted to the AOC and again use the same email address. Indigent team at tncourts.gov. If there are questions or concerns, audit staff will reach out generally by email. This is a manual process and the audit staff must create a claim in a cap. After the review. The manual process can take 45 to 60 days depending on the number of invoices received and being processed in a given period.

00;10;10;29 - 00;10;38;21
Host
At this present time of this podcast, we're at about the 45 day mark. That's our goal. We're trying to make 45 days, but sometimes we go a little bit longer. Finally, let me give you a few tips on orders for experts and investigators. First, if the requested expert is outside of the normal request, like a doctor or toxicologist or crime scene analyst, include an explanation of why this particular type of expert is necessary.

00;10;38;23 - 00;11;03;06
Host
The AOC is looking at cost, not the relation to and the need in the case. Second, if the expert's fee exceeds the normal rate approved or the expert is out of state beyond the 150 mile radius. Explain why this particular expert is required and those in state cannot provide those services. The AOC is looking to the issue of stewardship of funds in its approval.

00;11;03;09 - 00;11;33;27
Host
Third, if requesting additional funds for a previously approved expert or investigator, explain why the previously approved amount did not cover the cost, particularly if it is the third or fourth request for prior approval or what new has to be done. The AOC is looking for the proper management of the approved funds. Four, If a request cannot be approved by the AOC, it is because it does not comply with the plain language of rule 13 or decisions rendered by the Chief Justices in the past.

00;11;34;04 - 00;11;54;24
Host
It's a policy oriented decision. You have the right to request transmittal to the Chief Justice for review. Additional argumentation and filings is not permitted. Note the Chief Justice does not always agree with the AOC decision. So go ahead and ask for the transmittal to the chief. If you think that there's a good reason that it could be or should be approved.

00;11;54;27 - 00;12;22;07
Host
Five remember, the testimony or evidence garnered from the expert must be admissible according to section 5d6. Now, the AOC doesn't make that determination. It relies upon the trial court to determine the admissibility of an expert testimony. On the rare occasion when it's clear that the evidence is not going to be admissible like a polygraph, the AOC may catch that issue assuming that the court mistakenly approved it and will reach out to the attorney.

00;12;22;10 - 00;12;53;26
Host
Finally, if your request is for something not included in rule 13 or outside of typical experts approved, make your argument why your request should receive consideration regardless of those facts. If you anticipate that the AOC will have to deny it, write your arguments as if you're writing to the Chief Justice in the motion. If you follow these steps, I believe that you have a better chance of being successful on getting the funding for an expert, an investigator for those cases that allow it in section five of rule 13.

00;12;53;28 - 00;12;59;21
Host
For more information, check out the Indigent Representation web page at tncourts.gov.