Page 253 - Ad Hoc Report June 2018
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 about the battle to get funding for resources for investigation and experts, and that is a huge deterrent to people coming in. Because people under- stand that without those resources they cannot do their job.981
Finally, § 3599(f ), which provides for payment upon a finding that “investiga- tive, expert, or other services are reasonably necessary for the representation of the defendant” also provides that “no ex parte proceeding, communication, or request may be considered” for purposes of making such a finding “unless a proper showing is made concerning the need for confidentiality.” In theory, this should not impose
a great burden on counsel. In practice, some courts have read this as a near cate- gorical proscription of ex parte requests for expert and other services. As a result, habeas counsel in some districts and circuits are forced to litigate for the funding
for any third-party services while the one-year statute of limitations is running. This unnecessarily takes time away from a defendant’s ability to have issues adequately investigated and mount a defense.
This is a particular problem in Texas, which rarely allows ex parte requests and where the state often mounts opposition to funding requests in § 2254 habeas proceedings. The problem is compounded by inevitable delays in seeking circuit approval of expert costs. While requests for resources are necessary in all cases, those requests in Texas have,
become the subject of adversarial opposition by the Respondent in Texas cases. Although case budgeting and requests for ancillary services...are adminis- trative in nature, the process has become enmeshed in adversarial litigation, and therefore more inefficient and much more costly than necessary....The delays associated with this process as a whole too often means that, even if the requested services are eventually authorized, they arrive too late for counsel to make effective use of the services before the statute of limitations expires.982
Insufficient Training
As the United States Supreme Court explained in McFarland v. Scott, 512 U.S. 849 (1994), the statutory right to habeas counsel “reflects a determination that quality legal representation is necessary in capital habeas corpus proceedings in light of the seri- ousness of the possible penalty and . . . the unique and complex nature of the litigation.”
During this Committee’s hearing in Santa Fe, a panel attorney testified that
he had never had any training to take a habeas case. He recalled that, upon being appointed to one, “I thought I was going to pass out because I had never handled one. And so, what I did is I reached out to some colleagues in Austin who had done death penalty cases and got some guidance from them and tried to figure out how I
981 Id.
982 RichardBurr,TexasRegionalHabeasandAssistanceProject,PublicHearing—Birmingham,Ala.,
Panel 3, Writ. Test., at 6–7.
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 209
 States unless approved by the Conference itself.

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