Appendix VI Motion to Compel Appointment of Expert Assistance in Member Selection and Trial Judge's Order Granting the Appointment
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UNITED STATES ARMY TRIAL JUDICIARY THIRD JUDICIAL CIRCUIT
UNITED STATES
V.
NIDAL M. HASAN Major, U.S. Army Headquarters and Headquarters Troop 21 St Cavalry Brigade Fort Hood, Texas 76544
Motion to Compel Expert Assistance Dr. Jeffrey T. Frederick
20 October 2011
MAJ Nidal M. Hasan, by and through counsel, moves the Court to compel the appointment of Dr. Jeffrey T. Frederick to the defense team as an expert panel selection consultant with funding in the amount of $40,000, IAW Article 46, Uniform Code of Military Justice (UCMJ); Rule for Courts-Martial (RCM) 703; United States v. Ford, 51 M.J. 445 (CAAF 1999) and United States v. Toledo, 25 M.J. 270 (CMA 1987) and based on the facts, enclosures and arguments set forth below.
The Defense, as movant, has the burden to show by a preponderance of the evidence that the accused is entitled to the relief sought. RCM 905(c)(1).
On 12 November 2009, MAJ Hasan was charged with 13 specifications of premeditated murder (Article 118, UCMJ) for allegedly shooting multiple individuals at the Fort Hood Soldier Readiness Center on 5 November 2009. On 2 December 2009, MAJ Hasan was charged with 32 specifications of attempted murder (Article 80, UCMJ) arising from the same incident. On 6 July 2011, the Convening Authority referred the charges to a General Court-Martial authorized to impose a capital sentence. Major Hasan was arraigned on 20 July 2011, and trial is docketed for 5 March 2012. On 8 August 2011, the Defense submitted a request for the employment of Dr. Frederick as an expert consultant to the convening authority. The Staff Judge Advocate recommended denial of the requests and it was so denied by the convening authority on 17 August 2011. See Enclosure 1.
The defense requests that Dr. Jeffrey Frederick be produced and present at the motions hearing should the Court find the enclosed affidavit insufficient to determine the fall nature of Dr. Frederick's qualifications, experience, education, or expected assistance to the Defense team.
1. Request to the Convening Authority for the Appointment of Dr. Frederick, SJA Recommendation, and the Convening Authority's Denial, dated 17 August 2011.
2. American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1051, Guideline 10.10.2 - Voir Dire and Jury Selection.
3. Memorandum dated 29 September 2009, Request for Appointment of a Confidential Expert Panel Member Consultant, United States v. SGT Joseph Bozicevich, GCM, 3rd Infantry Division & Fort Stewart
4. Declaration of Kevin McNally Regarding Jury Consultants, Kevin M. McNally, Project Director, Federal Death Penalty Resource Counsel Project & Capital Resource Counsel
5. Many Military Death Sentences in U.S. Military Overturned, Marisa Taylor, McClatchey Newspapers, 28 August 2011; Military Capital Cases Deserve Better Defense, Critics Say, Marisa Taylor, McClatchey Newspapers, 28 August 2011; The Military and the Death Penalty, New York Times Editorial, 1 September 2011
Article 46, Uniform Code of Military Justice
Rule for Courts-Martial 703
Military Rule of Evidence 502
Bolling v. Share, 347 U.S. 497 (1954)
Ake v. Oklahoma, 470 U.S. 68 (1985)
Witherspoon v. Illinois, 391 U.S. 510 (1968)
Wainwright v. Witt, 469 U.S. 412 (1985)
Morgan v. Illinois, 504 U.S. 719 (1992)
Batson v. Kentucky, 476 U.S. 79 (1986)
Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454 (1907)
United States v. Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005)
United States v. Ford, 51 M.J. 445 (CAAF 1999)
United States v. Toledo, 25 M.J. 270 (CMA 1987)
United States v. Murphy, 50 M.J. 4 (CAAF 1998)
United States v. Robinson, 39 M.J. 88 (CMA 1994)
United States v. Warner, 62 M.J. 114 (CAAF 2005)
United States v. Gunkle, 55 M.J. 26 (CAAF 2001)
United States v. SGT Joseph Bozicevich, GCM, 3rd Infantry Division & Fort Stewart
Death is different. In United States v. Murphy, a capital case, the Court of Appeals for the Armed Forces stated:
One continuous theme is found throughout the death-penalty cases handed down by the Supreme Court over the last 30 years. That theme is reliability of result. Thus, the sine qua non of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); and Lockhart v. Fretwell; Strickland v. Washington; and Ake v. Oklahoma, all supra, is that the Supreme Court has insisted there be a proper functioning of the adversarial system. A fair reading of these cases demonstrates that, in order for the adversarial system to work properly, the key ingredients are competent counsel; full and fair opportunity to present exculpatory evidence; individualized sentencing procedures; fair opportunity to obtain the services of experts; and fair and impartial judges and juries.
50 M.J. 4, 14-15 (CAAF 1998), Emphasis added
The United States Constitution entitles a service member accused of a crime to expert assistance when necessary for an adequate defense. See United States v. Robinson, 39 M.J. 88, 89 (CMA 1994) citing e.g, Britt v. North Carolina, 404 U.S. 226, 227 (1971) (holding that the Equal Protection Clause requires that states provide indigent prisoners with the basic tools of an adequate defense); Boiling v. Share, 347 U.S. 497, 499 (1954) (holding that protections provided by the Equal Protection Clause apply to the United States through the Due Process Clause of the Fifth Amendment); Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (holding that the Fourteenth Amendment's due process guarantee of fundamental fairness requires that a criminal defendant must have a fair opportunity to present his defense). This right to expert assistance "extends from the investigative stage through the appellate process." Id. at 89.
Article 46, UCMJ, and R.C.M. 703 require that the Defense and the Government have an "equal opportunity to obtain witnesses and other evidence." This requirement applies to expert consultants as well as expert witnesses. United States v. Warner, 62 M.J. 114, 125 (CAAF 2005).
An accused is entitled to an expert's assistance before trial to aid in the preparation of his defense upon a demonstration of necessity. United States v. Gunkle, 55 M.J. 26, 31 (CAAF 2001) (citing United States v. Carries, 22 M.J. 288, 291 (C.M.A. 1986). Under military law, the accused must show that a reasonable probability exists "both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial." Id. The CAAF applies a three-pronged test to determine whether expert assistance is "necessary": First, why the expert assistance is needed; Second, what the expert assistance would accomplish for the accused, and; Third, why the defense counsel is unable to gather and present the evidence that the expert assistant would be able to develop. United States v. Ford, 51 M.J. 445, 455 (CAAF 1999) (citing United States v. Gonzalez, 39 M.J. 459, 461, cert, denied, 513 U.S. 965, 130 L. Ed. 2d 342, 115 S. Ct. 429 (1994)).
By analogy, in federal appellate review, courts consider it an abuse of discretion to deny a request for a necessary expert where (1) "reasonably competent counsel would have required the assistance of the requested expert for a paying client," and (2) the defendant "was prejudiced by the lack of expert assistance." United States v. Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005).
In Ring v. Arizonia, 536 U.S. 584 (2002), the Supreme Court found a constitutional right to a jury trial in a capital case. Despite the Court's fairly recent recognition of a right to a jury for sentencing in a capital case, it has long emphasized the importance of selecting qualified jurors for a capital case, requiring an intensive inquiry into potential juror's moral and personal beliefs regarding the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968). The Court later expounded on the intricacies of constitutional jury selection in a capital case in Wainwright v. Witt, 469 U.S. 412 (1985) and Morgan v. Illinois, 504 U.S. 719 (1992). The complexities of Batson v. Kentucky, 476 U.S. 79 (1986) and its progeny, prohibiting the exercise of peremptory challenges on the basis of race, ethnicity and gender, are layered on the constitutional requirements of Witherspoon, Witt and Morgan. Finally, in this case, the difficulty is compounded by the long-recognized negative impact that extensive pre-trial publicity has on the jury function. Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 462 (1907). For these reasons, the American Bar Association recommends that defense counsel in a capital case seek expert assistance in the jury selection process.
Jury selection is important and complex in any criminal case. In capital cases, it is all the more critical. Counsel should devote substantial time to determining the makeup of the venire, preparing a case-specific set of voir dire questions, planning a strategy for voir dire, and choosing a jury most favorable to the theories of mitigation that will be presented. Given the intricacy of the process and the sheer amount of data to be managed, counsel should consider obtaining the assistance of an expert jury consultant.
American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1051, Commentary to Guideline 10.10.2. See Enclosure 2.
A. First Prong: Why Expert Assistance is Needed?
It is firmly rooted that as "a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death...
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