Tuesday, September 7, 2010

Court Decision: White v KY (2010): Ake (indigent defense) Atkins-related decision

Just the other day I made an FYI iPost re: two recent policy papers addressing failures in the indigent criminal defense system.  This reminded me that the Kevin Foley, a regular contributor to the ICDP blog, had forwarded me a recent KY Supreme Court Atkins-related decision that relates to indigent defense rights.  In legal circles this is called an Ake issue, referring to the relevant SCOTUS decision.  In Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), SCOTUS held that the failure to provide an expert to an indigent defendant deprived him of a fair opportunity to present his defense and violated due  process.

The Karu White v KY (2010)  case case presents an interesting and important issue that is often seen in Atkins cases. An Ake issue concerns the state's obligation to provide expert assistance to an indigent  defendant. 

The trial court refused to provide White with funding for his own private expert (to determine his MR/ID status as per Atkins) and ruled that White could be assessed by a department of corrections psychologist.  White sued the trial judge in the KY Supreme Court in a writ of prohibition action, asking the Supreme Court to "prohibit" the trial judge from enforcing his order.  The KY Supreme Court said no, apparently concluding that White had not shown that a private expert is reasonably necessary for a full presentation of White's case.

But Ake involved an insanity defense situation, pre-conviction, as did one of the Kentucky cases cited by the court in White. It appears that some judges seem to think there is a lesser right involved if involved if the matter comes after the defendant has already been convicted. 

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