In a much anticipated decision, the Connecticut Supreme Court has ruled that indigent criminal defendants who are representing themselves in court have a constitutional right to receive taxpayer dollars to pay for their expert witnesses or investigators.
The high court also said in the unanimous ruling that the public funds for the experts should come from the state Office of the Chief Public Defender, which had opposed paying the costs.
Officials said it was too early to tell how many future cases this could impact since most indigent defendants, especially accused of serious crimes, do not choose to represent themselves.
“I don’t think there will be a huge flood of them,” said Max Simmons, a defense lawyer appointed to handle this case before the state Supreme Court. “I don’t think that this decision is going to suddenly inspire a bunch of defendants looking at trial for murder to say, ‘I can do this myself.’ It’s a huge task for someone without a lawyer to take.”
Chief Public Defender Susan Storey said her office would need additional funds as a result of the June 9th ruling.
“I expect that our agency will be financially impacted by this decision, and I will alert the Appropriations Committee of the Connecticut General Assembly as well as the Office of Policy and Management, which is the governor’s budget office, that we will require increased funding for this purpose,” said Storey. “Our agency has never factored in the responsibility for expert expenses for pro se criminal defendants in prior budget requests.”
Storey said it “remains to be seen” what the ultimate costs of this will be for her office, which hasn’t had to pay for the witnesses of pro se indigent defendants since her agency was created in 1975. She noted that the question of which state agency the public funds should come from has been raised many times throughout the years.
“We took the position that pro se indigent criminal defendants should have access to experts and investigative services at public expense to present an adequate defense. We did not feel that they should have to choose between their constitutional right to self-representation and their constitutional right to a fair trial,” Storey explained. “Historically however, it has been the Judicial Department that has paid for these pro se litigant expert expenses. Our agency’s position has always been that our enabling statute did not give us the statutory authority to expend public funds for the defense of pro se indigent criminal defendants who we did not represent.”
Prior to the justices’s decision, both the Public Defender’s Office and the Judicial Branch said in court documents that they did not have adequate funding to take on the responsibility of paying for indigent pro se’s expert witnesses.
The issue came up in the case of Lishan Wang, a former doctor charged with killing a Yale University physician, Vajinder Toor in 2010. Wang, 48, had a history of confrontations with Toor at Kingsbrook Jewish Medical Center in New York, where Toor once supervised Wang.
Police said Wang went to Toor’s home with handguns, 1,000 rounds of ammunition and documents on two other people involved in his job dismissal. A Branford officer who pulled Wang over near Interstate 95 after the shooting said he believes he may have prevented other killings.
Wang, a Chinese citizen who was unemployed and living in Georgia before the shooting, was later deemed indigent by the court and eligible for public defender services. Wang, however, chose to represent himself in court.
In doing so, he wanted to hire expert witnesses to help his defense. Since expert witnesses do not come cheap, a debate ensued over who should have to foot the bill for the witnesses.
At that point, both the state and Wang asked the trial court to file a “reservation” with the Connecticut Supreme Court, which is a request for advice in answering certain questions of law. The Supreme Court heard oral arguments on Oct. 31, 2013.
Chief Justice Chase Rogers, in the state Supreme Court’s 29-page ruling, said the Public Defenders Services Commission and not trial judges should ultimately decide if an indigent pro se defendant requires experts to help their case.
“Requiring the trial court to determine whether certain experts or investigators are reasonably necessary to the defense could potentially call the trial court’s role as a neutral arbiter into question,” wrote Rogers.
Further, to facilitate access to the public money, the trial court shall appoint standby counsel, who, at the request of the indigent defendant, may seek funding from the commission.
“The commission is not required to approve every request made by standby counsel on behalf of indigent self-represented defendants, but only those costs constitutionally mandated,” wrote Rogers.
Storey said her agency will have a form made available for her public defenders to fill out detailing the expense, such as who the expert is, the cost and why the expert is necessary for the defendant’s case.
If it’s a particularly unusual or costly case, then whether or not to allow the expenditure may go to the full board of the Public Defenders Services Commission, which meets monthly, said Storey.
Simmons, of the Law Offices of Polan and Simmons in New Haven, was appointed to represent Wang for this appeal. Simmons said it was unusual for a public defender’s office to be in complete control of the funding decisions for expert witnesses and investigators of indigent pro se defendants.
“The court acknowledged that every other jurisdiction puts that question in the hands of the trial court judge regardless of who pays for it,” said Simmons.
Most states’ public defender offices are a subset of the Judicial Branch whereas in Connecticut it’s an independent entity with oversight from the Public Defenders Services Commission.
Simmons said the justices noted in their opinion that this right of funding for expert witnesses and investigators for indigent pro se defendants applies to defendants in all criminal cases, no matter how minor or severe the offense.
“My instinct on it is that the instance of defendants representing themselves in the part B matters will be much greater than the really serious crimes,” said Simmons.
Simmons said one issue that appears up in the air at this point is what happens if an indigent pro se defendant’s request for expert witness funding is turned down.
“The concern of the framework the court laid out is that it’s not immediately apparent how a defendant would go about appealing a denial of a request of an expert witness,” said Simmons. “I think it’s inevitable a pro se defendant at some point will be denied a request for an expert witness and that has to be appealable frankly.”
Storey said there does not appear to be a means for an appeal but opined that a defendant could probably then tell the trial judge they were denied by the public defenders for funding and then try to ask the court to order payment.•