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IN THE COURT OF COMMON PLEAS ~":""LAKE COUNTY, OHIO i .. ::' CRIMINAL DMSION

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CASE NO. 11 CR 000321 JUDGE RICHARD L. COLLINS, JR.

JOSEPH L. THOMAS, Defendant.

Motion No.5

MOTION FOR APPROPRIATION

OF FUNDS FOR EXPERT ASSISTANCE

Now comes the defendant, Joseph L. Thomas, by and through undersigned counsel, and respectfully moves this Court for an order authorizing defense expenditures to enable the defendant to hire James Eisenberg, Ph.D., 391 West Washington Street, Painesville, Ohio 44077, Phone: (216) 831-2500, a clinical neuropsychologist. These funds are necessary to protect the

defendant's rights to due process, equal protection, effective assistance of counsel and to be free of cruel and unusual punislunent as guaranteed by both the State and Federal constitutions. Dr. Eisenberg requests a billing rate of $240.00 (Two Hundred Forty Dollars) per hour with a cap of$7,500.00 (Seven Thousand, Five Thousand Dollars). Additional funding may be

necessary ifhis testimony is necessary in trial. He agrees not to bill over this amount unless or until additional fees are approved by this Court.

In addition, Dr. Eisenberg is a certified as a forensic psychologist.

The importance of this

classification has been noted by the Ohio Supreme Court. In State v. Filiaggi (1999), 86 Ohio St.3d 230, which emanated from this county, the Ohio Supreme Court found that the state's mental health experts were to be given greater credibility in the mental health field because they were classified as a "forensic expert," as opposed to the defendant's were not. Wherefore, it is respectfully requested that this court appoint Dr. Eisenberg at the The denial of the request will result in a violation of the Fifth, Sixth, to the United States Constitution. mental health experts, who

requested rate of funding.

Eighth and Fourteenth Amendments

CL/CA--CHARLES F. GRIESHAMMER, #0022693 Asst. Lake County Public Defender 125 E. Erie Street Painesville, OH 44077 (440) 350-3200 ATIORNEYS FOR DEFENDANT JAMES L. THOMAS

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CERTIFICATE

OF SERVICE

A copy of the foregoing Motion was served upon Charles F. Cichocki, Assistant Prosecutor, Lake County Prosecutor, 105 Main Street, Painesville, OR 44077, by regular U.S. mail this__ day of January, 2011.

D ID. CHARLESF. Attorneys for

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MEMORANDUM
Right to Experts

IN SUPPORT

The Sixth and Fourteenth Amendments to the United States Constitution guarantee the Accused the right to the assistance of counsel as do Sections 10 and 16, Article I of the Ohio Constitution. The United States Supreme Court has recognized that this right to counsel is a

right to effective aid of counsel. Powell v. Alabama (1932), 287 U.S. 45; Gideon v. Wainwright (1963),373 U.S. 335. Further, the Sixth Amendment assures the defendant the right to com-

pulsory process, which includes the "right to present the defendant's version of the facts." Washingtonv. Texas(l967),388U.S.14, 19. InMatlockv.Rose{C.A.6, 1984),731 F.2d 1236

the Court found that "in order to render to indigents effective counsel, the State may be required to supply experts at its expense." Strickland instructed that "[p]revailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4- 8.6 (2d ed. 1980) ('The Defense Function'), are guides to determining what is reasonable, but they are only guides." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. ABA Standard 4-1.2(c) states that "[s]ince the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused." ABA Standards for Criminal Justice Prosecution Function and Defense Function 120

(3d ed.1993). Guideline 4.1 (B) requires the following. B. The Legal Representation Plan should provide for counsel to receive the assistance of all expert, investigative, and other ancillary professional services reasonably necessary or appropriate to provide high quality legal representation at every stage of the proceedings. The Plan should specifically ensure provision of

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such services to private attorneys whose clients are financially unable to afford them. 1. Counsel should have the right to have such services provided by persons independent of the government. Counsel should have the right to protect the confidentiality of communications with the persons providing such services to the same extent as would counsel paying such persons from private funds.

2.

Without the appointment of an independent pathologist, there is no ability of the defense to have privileged communications with its expert. Anything discussed or questions asked by

defense counsel when interviewing the coroner or any other scientific witness would not be privileged and my be freely discussed with the prosecution.

Ohio Statutory Requirements

Independent grounds under Ohio law also demonstrate the need for appointment of experts for the Accused. Section 10, Article I of the Ohio Constitution gives the indigent right to the appointment of experts. This right is again expressed

defendant a State constitutional in R.C. 2929.024.

This section requires that:

If the court determines that the defendant is indigent and that investigation services, experts or other services are reasonably necessary for the proper representation of a defendant charged with aggravated murder at trial or at the sentencing hearing, the court shall authorize the defendant's counsel to obtain the necessary services for the defendant, and shall order** payment of the fees and expenses for the necessary services. (Emphasis added.) The Ohio Supreme Court in State v. Jenkins (1984), 15 Ohio St. 3d 164, cited two important factors to be considered where the defense seeks expert assistance under the statute: (1) the value of the expert assistance to the defendant's proper representation at either the guilt or sentencing phases of an aggravated murder trial, and;

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(2)

the availability of alternative devices that would fulfill the same functions as the expert assistance sought.

It is the professional judgment of defense counsel that this information is necessary in order to adequately represent the defendant, and that these steps would most certainly be undertaken in the court of representation case. For these reasons, the defense requests authorization for expenditures not to exceed Seven Thousand Five Hundred Dollars ($7,500.00) for Dr. Eisenberg at a rate of Two Hundred and Forty Dollars ($240.00) per hour. Therefore, it is also requested that he be permitted to petition this court for additional fees should it become necessary during the pendency of this investigation. Respectfully submitted, provided to a similarly situated client in a retained counsel

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