STATE OF CONNECTICUT v. LISHAN WANG
(SC 19178)
Supreme Court of Connecticut
Argued October 31, 2013—officially released June 17, 2014
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
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Opinion
ROGERS, C. J. The primary issue to be resolved in this reservation is whether an indigent defendant who has waived the right to counsel and represents himself in a criminal prosecution is constitutionally entitled to expert or investigative services at public expense that are reasonably necessary to formulate and present a defense. The defendant, Lishan Wang, is charged with, inter alia, murder in violation of
“1. Is an indigent defendant who qualifies for public defender assistance, but who has waived the right to counsel and represents himself with the assistance of standby counsel, constitutionally entitled to public defender or other public funds to secure the assistance of an investigator and/or experts whose services are reasonably necessary to formulate and present a defense?
“2. If the answer to question one (1) above is in the affirmative, does the trial court retain the discretion to grant or deny authorization for public expenditure for any such expert witness [or investigator] fee[s] based upon the trial court‘s threshold determination [that such services are reasonably necessary to formulate and present a defense]?3
“3. If the answer to question one (1) above is in the affirmative, should public funds come from the [s]tate of Connecticut‘s Office of the [Chief] Public Defender? “4. If the answer to question three (3) above is in the negative, should public funds come from the Connecticut Judicial Branch?”4
(Footnotes added.)
We answer the first reserved question in the affirmative, the second reserved question in the negative, and the third reserved question in the affirmative. Because we answer the third reserved question in the affirmative, we do not answer the fourth reserved question.
The stipulation of the parties accompanying the reserved questions recites the following factual and procedural history.5 “The defendant is charged with, among other charges, murder in violation of . . .
“On or about April 27, 2010, the defendant was found to be indigent and was appointed public defender repre-
sentation in New Haven . . . . On May 11, 2011, the defendant filed a motion seeking to represent himself in the criminal proceedings. . . . On December 14, 2011, the court, Fasano, J., granted the defendant‘s motion for self-representation. At this hearing, after a formal canvas by the court, the defendant waived his right to appointed counsel and has since represented himself pro se with the assistance of ‘standby’ counsel from the Office of the [Chief] Public Defender. . . .
“The defendant has requested that the trial court, Clifford, J., order funding so that he may retain various experts and an investigator.6 . . . The defendant claims
Following the trial court‘s reservation of the four questions presented in this matter for the consideration and advice of this court, the Office of the Chief Court Administrator (chief court administrator) and the Public Defender Services Commission (commission) sought permission to appear as amicus curiae in this matter. This court granted permission to both parties to appear and argue as amici curiae.
I
We must first determine whether this court has jurisdiction to decide the reserved questions of law, and if so, whether the questions presented are appropriately answered by way of a reservation.
Notwithstanding this court‘s jurisdiction, we must determine whether we should answer the reserved questions in accordance with the standards articulated in
opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.” The parties’ joint stipulation and representations at oral argument before this court persuade us that the reserved questions at bar meet the settled criteria under our rules of practice.
II
We now turn to the first question in this reservation. Whether an indigent self-represented defendant is constitutionally entitled to expert or investigative services at public expense that are reasonably necessary to formulate and present a defense is a question of first impression for this court. The defendant claims that he has a due process right to access the basic tools of an adequate defense, including the reasonably necessary assistance of investigators and experts. The defendant further asserts that his due process right to a fair opportunity to present his defense pursuant to the fourteenth amendment to the federal constitution does not depend upon the nature of his legal representation pursuant to the sixth amendment to the federal constitution. Thus, while the defendant acknowledges that had he not waived his right to counsel and elected to represent himself, he would have had access to the full panoply of resources attendant to public defender representation,11 he argues
sent himself, in order to vindicate his right to access the basic tools of an adequate defense.
The state has not taken a position on the reserved questions other than to clarify its institutional interest in assuring the integrity of the defendant‘s criminal trial. The state agrees with the defendant, however, that the due process principle of fundamental fairness requires that an indigent defendant be afforded a fair opportunity to present his defense. For the reasons that follow, we conclude that an indigent self-represented criminal defendant has a fourteenth amendment due process right to publically funded expert or investigative services, to the extent that such services are reasonably necessary to formulate and to present an adequate defense to pending criminal charges.
Our conclusion is informed by certain general principles. The United States Supreme Court “has long recognized that when a [s]tate brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the [f]ourteenth [a]mendment‘s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).
Elaborating upon this principle, the Supreme Court has explained: “[A] criminal trial is fundamentally unfair if the [s]tate proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the [c]ourt has not held that a [s]tate must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600 [612, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) (declining to extend right to counsel to discretionary state appeals or petitions for certiorari)], it has often reaffirmed that fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system . . . . To implement this principle, we have focused on identifying the basic tools of an adequate defense or appeal . . . and we have required that such tools be provided to those defendants who cannot afford to pay for them.” (Citations omitted; internal quotation marks omitted.) Ake v. Oklahoma, supra, 470 U.S. 77; see, e.g., Britt v. North Carolina, 404 U.S. 226, 297, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971) (access to mistrial transcript or its equivalent when necessary for effective defense or appeal); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (assistance of counsel on first direct appeal as of right); Gideon v.
Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (assistance of counsel at trial); Burns v. Ohio, 360 U.S. 252, 257-58, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959) (waiver of filing fee for notice of appeal of conviction); Griffin v. Illinois, 351 U.S. 12, 19-20, 76 S. Ct. 585, 100 L. Ed. 891 (1956) (access to trial transcript
In Ake v. Oklahoma, supra, 470 U.S. 77, the Supreme Court examined whether, and under what circumstances, a state is required to provide an indigent defendant with access to a psychiatric expert to assist in preparing his defense. After the defendant in Ake pleaded not guilty by reason of insanity to murder charges, the defendant‘s counsel12 sought and was denied a court-appointed psychiatrist, or funding to hire a psychiatrist, to examine the defendant with respect to his mental condition at the time of the offense. Id., 72. Relying on the due process balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the Supreme Court in Ake considered three factors in evaluating the defendant‘s claim that he was entitled to expert assistance: “The first is the private interest that will be affected by the action of the [s]tate. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Ake v. Oklahoma, supra, 77.
The court in Ake first identified “[t]he private interest in the accuracy of a criminal proceeding that places an individual‘s life or liberty at risk” as “almost uniquely compelling,” “obvious,” and “weigh[ing] heavily” in the analysis. Id., 78. Next, the court identified the state‘s interest in financial economy, observing that the state‘s monetary considerations were insubstantial “in light of the compelling interest of both the [s]tate and the individual in accurate dispositions.” Id., 79. Last, the court recognized that “without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a [s]tate‘s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Id., 82.13
tee of fundamental fairness; id., 87 n.13; under which a state must ensure that an indigent defendant has “access to the raw materials integral to the building of an effective defense.” Id., 77. Indeed, “[b]ecause [the Supreme Court] conclude[d] that the [d]ue [p]rocess [c]lause guaranteed to [the petitioner] the assistance he requested and was denied, [the court] ha[d] no occasion to consider the applicability of the [e]qual [p]rotection [c]lause, or the [s]ixth [a]mendment, in this context.” Id., 87 n.13.
We recognize that Ake left many questions unresolved regarding the scope of the due process right to expert assistance at public expense. As courts have grappled with defining the contours of this right, the most prevalent issue to arise has been whether Ake is limited to the assistance of psychiatric experts in capital cases. The majority of jurisdictions to consider this issue have concluded that Ake extends to noncapital cases14 and to nonpsychiatric experts.15 As a preliminary
Turning to the more nuanced question implicated in the present case, Ake did not expressly address whether a self-represented indigent defendant is constitutionally entitled to expert or investigative assistance that is reasonably necessary to assure the defendant a fair opportunity to present his defense. Ake made it abundantly clear, however, that the right to access the basic tools of an adequate defense is inherent under the fourteenth amendment due process clause. Id., 76, 87 n.13. For that reason, the sixth amendment right to counsel played no part in the Ake decision. Id., 86 n.13. On the basis of the reasoning in Ake, therefore, an indigent defendant‘s right to access the tools of an adequate defense should not depend on whether he is self-represented or represented by appointed counsel.
Nonetheless, the chief court administrator as amicus curiae maintains that an indigent defendant who waives his right to counsel is not constitutionally entitled to the basic tools of an adequate defense at
to access the tools of an adequate defense.
To the extent that the chief court administrator acknowledges a separate due process right, it submits that it is permissible under Ake to require an indigent defendant to forgo his right of self-representation, and to accept public defender representation, in order to access ancillary tools of defense. We disagree. We recognize that “[t]he right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them.”17 (Internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 418, 978 A.2d 64 (2009). Whereas the right of self-representation directly conflicts with the right to counsel pursuant to the sixth amendment, no such conflict exists between the right of self-representation and the right to access the basic tools of an adequate defense pursuant to the fourteenth amendment. Indeed, “an indigent defendant . . . is entitled both to the constitutional right to counsel and the constitutional right to be provided with the basic tools of an adequate defense.”18 (Emphasis added.) State v. Brown, 139 N.M. 466, 472, 134 P.3d 753 (2006); id., 473-74 (holding that constitutional considerations, along with state statutes providing for indigent criminal defense, mandate that indigent defendant represented by pro bono counsel be afforded same access to expert witness funding as indigent defendants represented by public defender). These two rights can be enjoyed simultaneously; one is not a substitute for the other. Because the right to self-representation and the right to expert assistance are not mutually exclusive and vindicate different interests, “we find it intolerable that one constitutional right should have to be surrendered in order to assert another.” Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); id. (holding that defendant‘s testimony at suppression hearing
In the absence of any legal basis for requiring an indigent defendant to accept public defender representation to access ancillary tools of defense, the only justification offered for this requirement is administra-
tive convenience.20 To this end,
First and foremost, the private interest at stake in the present case is exceptionally compelling: the imperative to obtain the resources necessary to present a meaningful defense in order to ensure the accuracy of the criminal proceeding. Without a doubt, Ake instructs us that when a defendant‘s life or liberty hangs in the balance, “[t]he interest of the individual in the outcome of the [s]tate‘s effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis.” Id., 78. The self-represented defendant in the present case, no less than the defendant in Ake who was represented by an attorney, has a vital interest in the safeguards that will afford him “an adequate opportunity to present [his] claims fairly within the adversary system . . . .” (Citation omitted; internal quotation marks omitted.) Id., 77.
Second, we must consider the state‘s countervailing interests in this case. On this score, the chief court administrator has asserted that administrative convenience justifies the requirement that an indigent defendant accept public defender representation in order to access the resources necessary to his defense.21 Even
Last, we must consider the probable value of providing the defendant access to expert or investigative services that are reasonably necessary to an adequate defense and the risk of error if such services are denied. Because the defendant in this case has raised the possibility of a mental disease or defect affirmative defense, the parallels to Ake are striking. In Ake, the Supreme Court observed that when a defendant‘s sanity is at issue, “the assistance of a psychiatrist may well be crucial to the defendant‘s ability to marshal his defense. In this role, psychiatrists gather facts . . . analyze the information gathered and from it draw plausible conclusions about the defendant‘s mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant‘s mental condition might have affected his behavior at the time in question.” Id., 80. As the court did in Ake, we likewise con-
clude that “without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the [mental disease or defect] defense is viable, to present testimony, and to assist in preparing the cross-examination of a [s]tate‘s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Id., 82. Issues of similar importance could arise in a case that turns on forensic evidence, as well as in other circumstances in which expert testimony is necessary to rebut the state‘s experts or to assert a defense.
In view of our preliminary determination that Ake is not limited to psychiatric experts in capital cases so long as the requested service is reasonably necessary to the defense, we additionally observe that the standard of reasonable necessity itself ensures that, on balance, the tools deemed integral to an adequate defense will enhance the potential accuracy of the criminal proceeding and reduce the risk of an erroneous deprivation of a defendant‘s liberty.22 “Pursuant to the third of these [balancing] factors, due process does not require the provision of expert [or investigative] assistance relevant to an issue that is not likely to be significant at trial. Nor does due process require that an indigent defendant be provided all the assistance that a wealthier counterpart might buy. Rather, he or she is entitled only to the basic and integral tools necessary to ensure a fair trial.” State v. Mason, 82 Ohio St. 3d 144, 149, 694 N.E.2d 932 (1998). Thus, the state is not obligated to “duplicate the legal arsenal that may be privately retained by a criminal defendant . . . but only to assure the indigent defendant an
Finally, we note that the probable value of expert or investigative assistance to the fair adjudication of the criminal proceedings in this case is not diminished by the fact that the defendant is self-represented, and is not represented by an attorney. To the contrary, we believe that expert or investigative assistance may well be more valuable to a self-represented defendant who presumably will experience greater difficulty in formulating and presenting his defense. In any event, we are left with the firm conviction that the Ake analysis does not change simply because a defendant invokes his right to represent himself.
Balancing the foregoing factors, we conclude that an indigent self-represented criminal defendant must be provided with expert or investigative assistance that is reasonably necessary to his defense. Without access to the resources necessary to the integrity of a fair trial, the due process right of fundamental fairness is hollow for self-represented defendants. Accordingly, we hold that due process, as guaranteed under the fourteenth amendment to the United States constitution, requires the state to provide an indigent self-represented crimi-
nal defendant with expert or investigative assistance when he makes a threshold showing that such assistance is reasonably necessary for the preparation and presentation of his defense.
III
We now turn to the third and fourth reserved questions. We address these questions next because their resolution necessarily affects our conclusion regarding the second reserved question. The third and fourth reserved questions, in essence, ask this court to decide whether public funds for the reasonably necessary ancillary defense costs23 of an indigent self-represented defendant should come from the Office of the Chief Public Defender or from the Judicial Branch. Neither the defendant nor the state has taken a position on this issue. The amici curiae in this case, however, have strongly opposing views on how ancillary defense costs for indigent self-represented defendants should be funded. We address each of these arguments in turn.
The commission urges this court to answer the third reserved question in the negative. The commission contends that it is not statutorily authorized to pay for the reasonably necessary expert and investigative fees of self-represented defendants. In the commission‘s view, the statutes governing public defender services,
By contrast, the chief court administrator contends that the commission is statutorily authorized to provide funding for ancillary defense costs for indigent self-represented defendants, and, therefore, that the court should answer the third reserved question in the affirmative. Contrary to the commission‘s position, the
through the appointment of standby counsel.28 Finally, the chief court administrator argues that funding should come from the commission because, unlike the Judicial Branch, the commission has been appropriated funding for the criminal defense of indigent individuals,29 and it has the administrative mechanisms in place to ascertain which services are needed and to procure them when necessary. We agree that the commission is statutorily authorized to fund the reasonably necessary ancillary defense costs of indigent self-represented criminal defendants, and, therefore, we answer the third reserved question in the affirmative.
Whether the public defender statutes,
We begin our analysis by examining the text of the relevant statutes.
persons accused of crime.” Furthermore, the court in Gipson observed that “the primary purpose of [No. 74-317, § 7, of the 1974 Public Acts (P.A. 74-317), which was codified at
In fulfillment of this statutory mandate, the services provided by the commission to indigent defendants include both legal representation and ancillary tools of defense. See
Because the commission is required to provide the services necessary to protect the rights of indigent defendants, the statutes governing public defender services expressly include necessary ancillary defense costs within the commission‘s budget.
costs of defense,” that are “incurred by . . . those serving pursuant to the provisions of this chapter” must be paid from the commission‘s budget upon its approval. Significantly, the statutes do not limit the provision of defense costs to indigent defendants who have accepted public defender representation. For the reasons that follow, we conclude that the qualification of “those serving pursuant to the provisions of this chapter” in
A trial court may appoint standby counsel to assist a self-represented defendant, even over the objection of the defendant. See Faretta v. California, 422 U.S. 806, 835 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (“a [s]tate may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant‘s self-representation is necessary“); accord
See
In sum, the trial court is authorized to appoint standby counsel, and the commission is authorized to fund reasonably necessary ancillary defense costs incurred by standby counsel who, thusly appointed, is serving pursuant to the provisions of the chapter of the General Statutes governing public defender services. Standby counsel, upon request by the indigent self-represented defendant, may seek approval from the commission to incur “[r]easonable expenses” for “necessary . . . costs of defense” that “shall be paid from the budget of the commission upon approval of the commission.”
IV
Finally, we return to the second reserved question, which asks whether the trial court retains discretion to authorize public funding for ancillary defense costs for self-represented defendants based upon its threshold determination that such costs are reasonably necessary to an adequate defense. Because we conclude that
the statutes governing public defender services,
As a preliminary matter, both the state and the defendant suggest that, in accordance with the prevailing practice in most jurisdictions,34 the trial court should
Our conclusion is informed by the relevant statutory language.
2008) c. 4, p. 4-1. The level of approval required depends on the estimated cost and type of service requested. See footnote 35 of this opinion. An indigent self-represented defendant may navigate the commission‘s existing administrative procedures through standby counsel.
As we explained previously in this opinion, the commission is authorized to fund reasonably necessary defense expenses incurred by “those serving pursuant to the provisions of this chapter“;
To summarize our holding in this case, we conclude that an indigent self-represented defendant has a fourteenth amendment due process right to be provided public funds to obtain expert or investigative assistance, provided that he makes a threshold showing that
such assistance is reasonably necessary for the preparation and presentation of an adequate defense. The due process principle of fundamental fairness requires that a state afford an indigent self-represented defendant a fair opportunity to present his defense by assuring him access to the basic tools of an adequate defense. Accordingly, we answer the first reserved question in the affirmative.
Next, we conclude that the trial court does not retain discretion to authorize public expenditures for expert or investigative services for indigent self-represented defendants. Instead, the statutes governing public defender services require the commission to authorize public expenditures, to be paid from the commission‘s budget, for expert or investigative services for indigent self-represented defendants when the commission determines, as a threshold matter, that such services are reasonably necessary to the defense. Therefore, we answer the second reserved question in the negative.
Finally, we conclude that the commission is statutorily authorized to provide funding for reasonably necessary expert or investigative services for indigent self-represented defendants. Accordingly, we answer the third reserved question in the affirmative. Because we answer the third reserved question in the affirmative, we do not answer the fourth reserved question.
The first reserved question is answered “Yes.” The second reserved question is answered “No.” The third reserved question is answered “Yes.” The case is remanded to the trial court with direction to proceed in accordance with this opinion.
No costs shall be taxed in this court to either party.
In this opinion the other justices concurred.
184, 989 A.2d 1048 (2010) (reformulating certified question to conform to issue actually presented and decided in appeal); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191, 884 A.2d 981 (2005) (same); Gianetti v. Norwalk Hospital, 211 Conn. 51, 57, 557 A.2d 1249 (1989) (reframing questions in reservation that parties had framed too broadly).
those serving pursuant to the provisions of that chapter of the statutes from the budget of the commission upon its approval. See
In predominant part, the cases evaluating an indigent defendant‘s right to access the basic tools of an adequate defense involve a defendant‘s request for expert witnesses. Courts, however, have applied the same due process analysis when evaluating a defendant‘s request for other ancillary defense services, including an investigator to assist in preparing a defense. See State v. Martin, 146 Idaho 357, 363, 195 P.3d 716 (App. 2008) (defendant failed to demonstrate that laboratory tests were necessary to defense); State v. Lovelace, 140 Idaho 53, 65-66, 90 P.3d 278 (2003) (“[a] defendant‘s request for expert or investigative services should be reviewed in light of all circumstances and be measured against the standard of ‘fundamental fairness’ embodied in the due process clause” [emphasis added]), aff‘d on rehearing, 140 Idaho 73, 75, 90 P.3d 298 (2004); State v. Hickey, 317 N.C. 457, 469, 346 S.E.2d 646 (1986) (defendant failed to demonstrate particularized need for investigator); Castro v. State, 844 P.2d 159, 175 (Okla. Crim. App. 1992) (defendant failed to demonstrate that investigator was necessary to adequate defense); Dowdy v. Commonwealth, 278 Va. 577, 594-95, 686 S.E.2d 710 (2009) (defendant failed to demonstrate particularized need for investigator); but see DeFries v. State, 597 So. 2d 742, 745-46 (Ala. Crim. App. 1992) (evaluating self-represented defendant‘s request for investigator under sixth amendment and concluding that defendant waived benefit of investigative assistance with waiver of appointed counsel); Commonwealth v. Bardo, 551 Pa. 140, 149, 709 A.2d 871 (“[Ake v. Oklahoma, supra, 470 U.S. 68] concerns court-appointed psychiatrists, not investigators, and it has no application to [the issue of whether due process requires the appointment of an investigator]“), cert. denied, 525 U.S. 936, 119 S. Ct. 350, 142 L. Ed. 2d 289 (1998); cf. English v. Missildine, 311 N.W.2d 292, 293-94 (Iowa 1981) (“[f]or indigents the right to effective counsel includes the right to public payment for reasonably necessary investigative services“).
from requiring them to choose between counsel of their choice and ancillary services provided by the [Office of the Public Defender].“), cert. denied, 549 U.S. 813, 127 S. Ct. 59, 166 L. Ed. 2d 22 (2006).
We disagree with the reasoning applied in those cases, however, and further distinguish them factually from the present case. For instance, in Moore v. State, supra, 390 Md. 372-75, the Maryland Court of Appeals addressed the issue of whether an indigent criminal defendant who has retained private counsel using his limited personal funds, but who is unable to afford the assistance of a DNA expert, is constitutionally entitled to public funding for expert assistance. The court concluded that requiring an indigent defendant to accept public defender representation in order to access expert assistance is a “procedural requirement” that does not violate an indigent defendant‘s constitutional rights. Id., 378. The court in Moore reasoned that such a “procedural requirement” is permissible under Ake because “[the United States] Supreme Court contemplated in Ake that [s]tates could place restrictions on indigent defendants’ access to state-funded expert services.” Id., 374, citing Ake v. Oklahoma, supra, 470 U.S. 83.
First, we do not agree with the interpretation of Ake by the court in Moore. We acknowledge that the Supreme Court in Ake stated in dicta 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“; Ake v. Oklahoma, supra, 470 U.S. 83; and it left “to the [s]tates the decision on how to implement this right.” Id. We interpret Ake to reasonably limit the right to expert assistance, however, not to permit a state to impose a choice between two constitutional rights that are not mutually exclusive.
Additionally, the facts in the present case are distinguishable from Moore because the defendant in that case had hired his own counsel, which implicates the principle that a defendant does not have a constitutional right to counsel of his or her choice. See Moore v. State, supra, 390 Md. 378 (“the [c]onstitution does not bar . . . requiring [indigent defendants] to choose between counsel of their choice and ancillary services provided by the [Office of the Public Defender]“). By contrast, in the present case we are confronted with the limited question of whether it is permissible under Ake to require an indigent defendant to forgo his constitutional right of self-representation pursuant to the sixth amendment in order to access the basic tools of an adequate defense pursuant to the fourteenth amendment. For the reasons stated herein, we conclude that Ake does not permit such a requirement.
right of self-representation, this court need not encourage it.
We are well aware of the institutional challenges that self-represented litigants present to our judicial system. Notwithstanding these challenges, we must not abandon for the sake of convenience our long-standing dedication to safeguarding the rights of the accused. In addition to the due process right to a fair opportunity to present a defense pursuant to the fourteenth amendment, the present case implicates the inviolable right of self-representation pursuant to the sixth amendment. Respecting the right of self-representation is by no means the least difficult path, but it is the path we must choose because it honors the “respect for the individual which is the lifeblood of the law.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 427-28, 680 A.2d 147 (1996), aff‘d after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000).
were to submit a funding request to the commission, the information contained in the request would be subject to public disclosure because the statute prohibiting the disclosure of confidential communications between a public defender and a represented person,
commission must provide funding for reasonably necessary ancillary defense costs of indigent self-represented defendants.
Additionally, our conclusion that the commission, and not the Judicial Branch, is authorized to fund reasonably necessary defense costs for indigent self-represented defendants is consistent with the legislature‘s intent to create separation between the public defender system and the Judicial Branch. See Gipson v. Commissioner of Correction, supra, 257 Conn. 648 (“the primary purpose of P.A. 74-317 was the creation of a public defender services commission to administer the public defender system in lieu of the judges of the Superior Court, who previously had been responsible for that function“).
While the legislature could ultimately decide to provide for an alternative source of funding for the expenses at issue in the present case, we conclude that, under the existing legislation, the commission is presently authorized to fund the reasonably necessary ancillary defense costs of indigent self-represented defendants.
Supreme Court held that the office of the public defender, rather than the trial court, must authorize public funds for indigent defendants who are represented by private counsel pursuant to statutory language vesting discretion in that office to determine what are the ” ‘necessary services and facilities of representation’ . . . .” The court in In re Cannady determined that “the [l]egislature intended a unitary, centralized system through which all necessary expenses of representation of an indigent defendant would be paid by the [Office of the Public Defender] regardless of whether that defendant is represented by the [Office of the Public Defender].” Id., 497-98. The court opined that “[i]n order to maintain a unitary, centralized [p]ublic [d]efender [s]ystem . . . the [Office of the Public Defender] must maintain as much control over services provided to defendants represented by outside counsel as it does over services it provides to its own clients. The [Public Defender Act] itself supports that conclusion . . . [because it] gives the [office of the public defender] discretionary authority to determine what services and facilities shall be provided to an indigent defendant . . . . Thus, the [Office of the Public Defender] should have the right to determine what expenditures are necessary and how much money should be spent when outside counsel applies for services at the [Office of the Public Defender‘s] expense.” Id., 493.
We acknowledge that the statutes at issue in the present case are not identical to the statutes that were at issue in In re Cannady. Nevertheless, it is clear that the statutes governing public defender services vest authority in the commission to determine whether defense costs are reasonably necessary prior to expenditure from the commission‘s budget. Moreover, we see no reason why the approval mechanism should change simply because the indigent defendant is represented by himself and not by counsel. Indeed, each indigent defendant‘s request for ancillary defense costs should be subject to the same review process irrespective of his representation status. See State v. Brown, supra, 139 N.M. 474 (“Once indigence is conclusively established, each defendant should utilize the same procedures to apply for funding for expert services from the [public defender department]. Each application should be subject to identical review with funds distributed in some objective way, regardless of whether the defendant is represented by pro bono counsel, contract counsel, or the [public defender] [d]epartment, and should be subject to the standard fee schedule promulgated by the [public defender] [d]epartment. Treating similarly situated indigent defendants the same under the law will promote the fair administration of justice and ensure that constitutional and statutory obligations are satisfied.” [Internal quotation marks omitted.]).
the commission estimates of appropriations necessary for the maintenance and operation of public defender services, and make recommendations with respect thereto; and with the approval of the commission, and after such modification as the commission directs, submit the budget requests to the Governor” [emphasis added]);
The commission‘s pervasive authority to direct necessary expenditures from its budget, as well as to influence allocations that are made to its budget, persuades us that the commission, rather than the Judicial Branch, should make the threshold determination of whether ancillary defense costs are reasonably necessary to an indigent self-represented litigant‘s defense.
Notes
“(f) The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .”
On April 16, 2012, the defendant filed a motion in the trial court seeking a court order “appointing a psychiatrist and an investigator for the defendant herein, to examine said [d]efendant‘s past history of mental illness and to report their findings to the defendant only.” In this motion, the defendant extensively documented his alleged mental health issues and stated that his “mental status should be examined clinically in order to determine whether the defendant should be considered as ‘insane.’ Before a diagnosis or evaluation is made, it is inconclusive whether the defendant will or will not consider ‘insanity’ or ‘[extreme] emotional distress’ as part of the defense.”
“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
“(c) Murder is punishable as a class A felony . . . .”
We note that changes, not relevant to this appeal, were made to subsection (c) in 2012. See
In State v. Clemons, supra, 168 Conn. 401-402, the defendant had appealed from his conviction of, inter alia, possession of heroin with intent to sell on the ground that the trial court abused its discretion in denying his motion for authorization to expend funds for an independent toxicological examination. Counsel for the defendant and the state stipulated that the defendant was indigent and unable to pay the cost of an independent examination. Id.
On appeal, this court opined that ” [w]here the state has access to expert testimony and plans to utilize such testimony, the state should provide an indigent defendant access to an independent expert upon a showing of reasonable necessity by the defendant for such an expert. It is not, however, the defendant‘s status as an indigent alone that requires this but rather a showing by an indigent defendant that such expert testimony is material and necessary to provide an adequate defense. . . . This court encourages the necessary expenditure of state funds to provide indigents with an adequate means of presenting reasonable defenses.” Id., 403-404.
We likewise agree that “[t]here is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.” Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987). Accordingly, we agree that the right articulated in Ake is not limited to the assistance of psychiatric experts in capital cases.
To the contrary, reason would suggest that decoupling the rights would be less expensive for the state. See English v. Missildine, 311 N.W.2d 292, 294 (Iowa 1981) (rejecting dubious wisdom of “furnish[ing] both counsel and investigative services in cases where the indigent needs and requests public payment for only investigative services” because doing so “would impose an unreasonable and unnecessary additional burden on the public treasury“); State v. Handson, 166 Vt. 85, 89, 689 A.2d 1081 (1996) (“The [claim by the Office of the Defender General (public defender)] that [its] budget is not sufficient to accommodate [the cost of services for pro se indigent defendants] is somewhat perplexing. Payment for the services that permit a defendant to exercise the right to appear pro se is not an extra expense imposed on the [public defender], but a substitute for the expense of representation by counsel.“). Furthermore, the state‘s financial obligations in this regard will, as a practical matter, be constrained by the threshold showing of reasonable necessity that a self-represented defendant must demonstrate to the commission. See part III of this opinion.
In a similar vein, the commission maintains that paying for reasonably necessary ancillary defense costs for self-represented defendants from the commission‘s budget would result in a deficit of funding appropriated for the legal defense of indigent clients represented by the Office of the Chief Public Defender. Under
“(3) The resources and personnel of the Division of Public Defender Services should not be used to perform services at the request of a pro se defendant. Such services, which are generally considered part of full representation, include investigation, legal research and writing, social work services, obtaining expert witnesses, clerical services, or issuance and service of subpoenas.” (Emphasis omitted.) Id.
Additionally, the commission contends that if a self-represented litigant
As we understand its argument, the chief court administrator posits that public defenders appointed as standby counsel for indigent self-represented defendants who qualify for public defender representation; see
Insofar as the state alluded to
To the extent that the commission argues that it has adopted a policy, pursuant to
Not only do we see no bar to the trial court‘s appointment of standby counsel as a means for an indigent self-represented defendant to access funding from the commission‘s budget upon approval of the commission, but providing access through standby counsel would alleviate the commission‘s concern that self-represented litigants might be unable to navigate the existing procedures to procure authorization and payment for defense costs. See footnote 26 of this opinion. The commission‘s concerns regarding confidentiality would also be alleviated because standby counsel‘s communications with the commission, or other appropriate entity to whom the commission has designated authority to approve defense costs; see id.; would be confidential pursuant to
Similarly, federal courts retain discretion to oversee the provision of expert or investigative assistance to indigent criminal defendants under the Criminal Justice Act,
It appears that this nearly uniform practice stems, at least in part, from a trial court‘s competence to ensure adequate access to competent professionals and to serve as a gatekeeper of public funds. See, e.g., Ex parte Moody, 684 So. 2d 114, 121 (Ala. 1996) (noting that “the trial court . . . can adequately protect taxpayers from unwise expenditures of money while at the same time protecting the constitutional rights of indigent defendants“); Scott v. State, 593 N.E.2d 198, 201 (Ind. 1992) (noting that “trial courts . . . are in the position of both ensuring that defendants receive fair trials and preventing limited resources from being used unnecessarily“).
In most of these jurisdictions, however, it does not appear that the court was faced with the same question before us today regarding whether the trial court or the commission should determine whether an indigent defendant is entitled to public funds for ancillary defense costs. In a case that did examine this precise issue, In re Cannady, supra, 126 N.J. 494-95, the New Jersey
To the extent that the commission argues that standby counsel will be subjected to habeas corpus claims of ineffective assistance of counsel; see footnote 27 of this opinion and accompanying text; we are not persuaded. “Absent a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective.” United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997); see id. (“[p]erhaps in a case where standby counsel held that title in name only and, in fact, acted as the defendant‘s lawyer throughout the proceedings, we would consider a claim of ineffective assistance of standby counsel“); see also State v. Oliphant, 47 Conn. App. 271, 281, 702 A.2d 1206 (1997) (“Once a defendant has properly embarked on the path of self-representation, his constitutional right to counsel ceases. . . . [A] defendant‘s claim that he was denied the effective assistance of counsel is without merit because after deciding to proceed pro se, he [has] no constitutional right to the effective assistance of counsel in any capacity.” [Citation omitted.]), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).
In McKaskle v. Wiggins, supra, 465 U.S. 183, the Supreme Court examined the role of standby counsel. There, the court reiterated that the limited participation of standby counsel to handle routine procedural matters—even over the objection of the defendant—does not impinge upon the defendant‘s fundamental right to present his own defense. “Faretta rights are . . . not infringed when standby counsel assists the pro se defendant in overcoming routine procedural . . . obstacles to the completion of some specific task . . . that the defendant has clearly shown he wishes to complete. Nor are they infringed when counsel merely helps to ensure the defendant‘s compliance with basic rules of courtroom protocol and procedure. In neither case is there any significant interference with the defendant‘s actual control over the presentation of his defense.” Id.
Assessed in light of the limited role of standby counsel envisioned in the present case, that is, to facilitate the self-represented defendant‘s compliance with the commission‘s existing administrative mechanisms for obtaining funding for ancillary defense costs, we do not perceive any appreciable risk that standby counsel will “[hold] that title in name only and, in fact, [act] as the defendant‘s lawyer . . . .” United States v. Schmidt, supra, 105 F.3d 90. Rather, such assistance by standby counsel readily falls into the category of “assist[ing] the pro se defendant in overcoming routine procedural . . . obstacles to the completion of some specific task . . . that the defendant has clearly shown that he wishes to complete.” McKaskle v. Wiggins, supra, 465 U.S. 183. In other words, standby counsel‘s advisory role in helping the defendant to navigate the commission‘s procedures does not supplant the defendant‘s fundamental right to represent himself, and, therefore, does not amount to legal representation. See State v. Gethers, 197 Conn. 369, 385, 497 A.2d 408 (1985) (“there is no federal constitutional right to hybrid representation“). We therefore reject the commission‘s argument that standby counsel will be subjected to habeas corpus claims of ineffective assistance of counsel.