2005
United
States v. Kreutzer,
61 M.J. 293 (the right to the expert assistance of a mitigation
specialist in a
capital case is determined on a case-by-case basis).
(when
an accused subject to the death sentence
requests a mitigation specialist, trial courts should give such
requests
careful consideration in view of relevant capital litigation precedent
and any
denial of such a request should be supported with written findings of
fact and
conclusions of law; because there is no professional death penalty bar
in the
military services, it is likely that a mitigation specialist may be the
most
experienced member of the defense team in capital litigation).
(where a request for the
expert
assistance of a mitigation specialist is erroneously denied, that
ruling
implicates the right to present a defense, compulsory process, and due
process
conferred by the Constitution, the right to obtain witnesses and
evidence
conferred by Article 46, UCMJ, and the right to the assistance of
necessary
experts conferred by RCM 703(d)).
(the erroneous denial in
capital cases of
an accused’s request for the expert assistance of a mitigation
specialist to
aid in the preparation of the case, is a denial of due process, and as
an error
of constitutional magnitude, it must be tested for prejudice under the
standard
of harmless beyond a reasonable doubt).
(although capital cases do not
confer a per
se right to a mitigation specialist, on a case-by-case basis
servicemembers
confronted with a capital prosecution are entitled to mitigation
specialists
where their services would be necessary to the defense team; the UCMJ
and the
RCM assure that the defense counsel has the resources, including expert
assistance, to prepare and present the defense; while the services of a
mitigation specialist are commonly used in sentencing, in the
appropriate case
this expert assistance may be necessary to the defense on findings as
well).
2002
United
States v. Pomarleau, 57 MJ 351 (as a matter of
military
due process, servicemembers are entitled to investigative or other
expert
assistance when necessary for an adequate defense, without regard to
indigency
upon a showing that the requested assistance is relevant and necessary
to the
defense case, and the Government cannot or will not provide an adequate
substitute).
(an accused is entitled to expert assistance at the Government’s
expense in
order to have a meaningful opportunity to present his or her evidence
and
challenge the Government’s scientific proof, its reliability, and its
interpretation when a proper showing of necessity and relevance is
made).
1999
United
States v. Short, 50 MJ 370 (under RCM 703(d), an accused
is
authorized expert assistance at Government expense when the Government
cannot
provide an adequate substitute and the defense makes a showing of
necessity;
the defense must show: (1) why expert assistance is needed, (2)
what
expert assistance would accomplish for the accused, and (3) why the
defense
counsel is unable to gather and present the evidence that the expert
assistant
would be able to develop).
(defense counsel’s showing of necessity for appointment of expert
assistant
in urinalysis case was inadequate where: (1) counsel did not show
this
was not “the usual case”; (2) counsel was inexperienced in urinalysis
cases and
could get assistance from more experienced counsel; (3) defense counsel
declined to talk to an expert who was made available even though that
expert
was scheduled to testify at trial; and (4) defense counsel did not
renew
request for assistance after having a week to seek guidance form more
experienced counsel and talk to proffered expert).
(an accused has the right to investigative assistance at the expense
of the
government where he can meet a three-step test for determining
necessity:
(1) why the expert or investigator is needed; (2) what the
investigative or
expert assistance would accomplish for the accused; and, (3) why the
defense
counsel is unable to gather and present the evidence that the expert or
investigative assistant would be able to develop).
(military judge did not abuse his discretion in denying further
expert
assistance where: (1) defense request went beyond request for
necessary
investigative assistance; (2) the defense request essentially argued
that prior
assistance was not helpful to the defense; and, (3) the request failed
to
provide concrete explanation of need for further assistance).
United
States v. Ford, 51 MJ 445 (defense is authorized the
employment
of experts at government expense where the testimony would be “relevant
and
necessary,” if the government cannot or will not provide an adequate
substitute; the test for necessity has three prongs: (1) why is
the
expert assistance needed; (2) what would the expert assistance
accomplish for
the accused; and (3) why is the defense counsel unable to gather and
present
the evidence that the expert assistant would be able to develop).