Page 251 - Ad Hoc Report June 2018
P. 251

 Barriers to Hiring Experts and Specialized Services
The greatest obstacle to fairness for habeas litigants, assuming they have been appointed qualified and capable attorneys, is the inability to obtain adequate resources to effectively mount a habeas defense. “Without sufficient expertise, or necessary investigative or expert help, even the best-intentioned attorneys will not be able to properly investigate, plead and establish constitutional or statutory vio- lations in the one post-conviction proceeding to which their clients are entitled.”974 The failure to provide resources for habeas work has severe consequences for peti- tioners whose appointed lawyers cannot adequately represent them without such resources.
As with many other aspects of the CJA, where a habeas petitioner’s case is being heard can determine whether they will receive the necessary resources. The Committee was informed that, “while some circuit courts extend deference to the district court’s judgment that the requested services are necessary, others routinely cut and/or deny the level of funding approved by the district court.”975 Attorneys
in some districts may receive no resources at all; the Committee was told that one district judge “has an announced practice of providing no funding for any investiga- tive, expert or other services provided for by Section 3599(f).”976 While some districts or circuits are particularly hostile to funding habeas work, the Committee heard complaints from across the country about lack of approved funding for experts. The Committee received written testimony that,
Among the requests that were denied was an application for the services of a forensic pathologist to examine the wounds present on the body of the deceased, which the Government successfully argued at trial proved the aggravating factor [that triggered the capital sentence] that the victim had been tortured by a stun gun before being killed. Habeas counsel was unable to challenge the Government’s version of the crime because of the court’s funding denial. After the § 2255 motion was denied without an evidentiary hearing, a forensic pathologist opined that the alleged “stun
974 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 2. Richard Burr, Texas Regional Habeas and Assistance Project, also explained: “In more than half of the capital federal habeas petitions filed in Texas, counsel raise only record- based issues. Only on rare occasions can record-based issues lead to relief in federal court. The reason is obvious: Numerous other courts have reviewed the same issues and found them wanting. The
rate of success is exponentially higher if the petition includes well-investigated-and-developed, non- record-based issues such as ineffective assistance of counsel for failing to investigate material facts, the concealment of facts by the prosecution that would have been helpful to the defense, and the demonstrable unreliability of scientific evidence presented by the prosecution. These are the kinds of issues that change the equities in a case...” Richard Burr, Texas Regional Habeas and Assistance Project, Public Hearing—Birmingham, Ala., Panel 3, Writ. Test., at 2.
975 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 15.
976 RichardBurr,TexasRegionalHabeasandAssistanceProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 5–6.
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T 207
 States unless approved by the Conference itself.

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