An Adversary System, If You Can Keep It

Her name is Asuncion Avila-Villa.  Her five-week old son, Israel Santos, was murdered.  His body was discovered in a trash can.  She is charged with aggravated murder and death specifications for killing the boy.  She's also been charged with gross abuse of a corpse, tampering with evidence, and unlawful sexual conduct with a minor (the alleged father of the boy).  (See here, for instance.)

She is scheduled to go on trial in September.  The grand jury appended death specifications to the aggravated murder charge, so her life is at stake.

It shouldn't need saying, but Avila-Villa is indigent.

Of course, nearly (not quite, but nearly) all of those who face capital charges are indigent.  They get appointed counsel for trial and appeal (and except in Alabama, apparently, for at least one collateral attack on their convictions).  And they get, after a fashion, funding for necessary investigation and expert assistance.

For the most part, and to the surprise of nobody who really pays attention to these things, the funding for counsel - and for investigators and experts - is generally inadequate.  And it's a struggle.

Those represented by public defender agencies are at the mercy of the agencies' budgets - which are commonly determined in large part by state legislatures that are not particularly enthusiastic about providing money to help those the government wants to incarcerate or kill.  Those represented by appointed counsel are commonly at the mercy of a judge - who may run for election and doesn't get any great public support by paying out taxpayer cash to those who are trying to help those the government would incarcerate or kill.

When the money comes, it's a struggle.

You have to explain to the judge exactly why you need this investigator or expert.  You have to explain to the judge precisely what you expert the person to do, how much it will cost, and why it's necessary to your defense.

Across the aisle (metaphorically, anyhow) sits the prosecutor.  As I said the other day, the prosecutor has an office staffed with assistants.  The prosecutor has the police, the local crime lab, the state crime lab, the FBI crime lab, a comparatively unlimited budget for experts and outré testing and evaluation.  We have what the court in the spirit of fair play (and constant concern for the public's dissatisfaction with paying us out of its tax dollars) is willing to allot.  It's rarely fair, and pretty much never even.

But here's the thing:  We have a constitutional right to present a defense which includes the right to that which is necessary to put on a defense.  It's in the Sixth Amendment and in Section 10, Article I of the Ohio Constitution.

OK, that's the set-up.  Sorry it was so long.

Now, here's the thing, and it brings us back to Asuncion Avila-Villa.  Her lawyers know they need the assistance of an expert forensic psychiatrist.  They need someone who can examine her and explain to the jury just - well, it depends on what the expert learns.  But that's the defense case.

Let me repeat that, and you'll see why in a few paragraphs.  That's the defense case.

OK, one more time: The defense case.

You know, when the state says it wants to check your client's DNA, it doesn't ask you which lab you'd like it to use for the testing.  When it's looking for an expert on gangs (it's planning to use one in Avila-Villa's case), it doesn't ask who you'd recommend.  When it's trying to decide on the charges to bring, it doesn't ask whether you'd prefer a felony or a misdemeanor.

We have what's known as an "adversary system" which means the two sides face off against each other.  It doesn't mean that the state gets to choose the defense strategy - or the defense lawyers (though the state seems to have managed the latter in a Georgia capital case).  And it sure doesn't mean that the prosecutor can tell the judge which experts you ca and cannot hire.

And yet.

Janice Morse reports for the Cincinnati Enquirer.

Defense lawyers had lined up a nationally known expert to testify for a Butler County woman facing a possible death sentence if convicted of killing her infant.

But now they will have to find someone less expensive following a judge's ruling clamping down on funds Monday in Common Pleas Court.
After prosecutors objected to the additional expenses in the case of Asuncion Avila-Villa, 26, Judge Andrew Nastoff refused to grant funds beyond the $12,500 he already approved.

Defense lawyers have already spent some of that money - they won't say how much - on travel expenses to research their client's history in her home state of California and for an initial consultation with a local psychologist.
Nastoff's ruling leaves Avila-Villa's lawyers searching for a different, lesser known expert than Dr. Phillip J. Resnick of Cleveland.
Resnick has played a role in many high-profile court cases across the nation. He served as a prosecution consultant in the case of serial killer Jeffrey Dahmer and in the Oklahoma City bombing cases but worked for the defense in South Carolina's Susan Smith child murders case and in the drowning of five children by Andrea Yates in Texas. He is considered an expert in infanticide, the slaying of infants.

Let me be very clear and precise here.  No snarkiness.  No hyperbole for the sake of making a point.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.