GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS JASON BLOCH AND WITH ME IS ASSISTANT COUNTY ATTORNEY THOMAS TUCKER RONZETTI. THE ISSUE IS WHICH GOVERNMENTAL ENTITY IS RESPONSIBLE FOR THE PAYMENT OF A COST OF COMPETENCY EVALUATION OF A DEATH ROW IN MATE FOR A COLLATERAL PROCEEDING. IS THE COUNTY OR THE STATUTORY GOVERNMENT ENTITY THAT IS RESPONSIBLE FOR THAT, THE CAPITAL COLLATERAL COUNSEL? WE SUBMIT THAT THAT CLEARLY HAS BEEN DECIDED BY THIS COURT THROUGH THE LOVE MAN TRIL JI. STARTING -- THROUGH THE LOVE MAN TRILOGY. -- THROUGH THE HOF FMA N TRILOGY.

THIS COURT --

IN ALL FAIRNESS, WE DID NOT DEAL WITH THE ISSUE OF A COURT-APPOINTED EXPERT. WE HAVE NOT DEALT WITH THAT ISSUE YET. ISN'T THAT CORRECT?

THAT'S CORRECT. WELL --

WE HAVE DEALT WITH COURT REPORTERS, TRANSCRIPTS, BUT WE HAVE NOT DEALT WITH AN ISSUE WHETHER IT IS GOING TO BE THE COUNTY OR THE STATE THAT COMES, HAS THE RESPONSIBILITY TO PAY FOR AN INDIGENT, AN EXAMINATION OF AN INDIGENT BY A COURT-APPOINTED EXPERT.

WELL, LET ME RESPOND, ACTUALLY, IN TWO WAYS. ACTUALLY IT WASN'T UNTIL PORTER THAT THIS COURT SAID, EVEN WITH TRANSCRIPTS, THAT IT IS, ALSO, CCRC'S RESPONSIBILITY. INHOFE MAN AND IN WILLIAMS -- IN HOFFMAN AND IN WILLIAMS, THE QUESTIONS REALLY WERE THE EXPENSES OF COUNSEL, AND I BELIEVE IN HOFFMAN, THE CCRC COUNSEL CAME IN AND SAID WE CAN'T PROCEED WITH OUR EXPERT WITNESSES BECAUSE WE DON'T HAVE THE FUNDS. IN WILLIAMS IT WAS VOLUNTEER COUNSEL AND THE COST WERE THE EXPERTS. I REALIZE THE TYPE OF EXPERTS WEREN'T NECESSARILY EXPERTS USED IN A COMPETENCY PROCEEDING, BUT THE LANGUAGE USED BY THE COURT, IN ALL THE CASES, WAS QUITE BROAD. IN FACT, THE LANGUAGES, ALL NECESSARY COSTS AND EXPENSES, AND THE DISTINCTION BROUGHT OUT BY CCRC THAT IT IS --

UNDER THE GENERAL SCHEME AND THE BREAKDOWN BETWEEN THE STATE AND THE COUNTY, WHAT IS THE SCHEME FOR THE PAYMENT, WHERE THERE IS NECESSITATED, AN EXAMINATION OF AN IN COMPETENT? "BAKER ACT" OR IN A DIRECT CRIMINAL PROCEEDING.

IN A COMPETENCY PROCEEDING, WE RESPOND THAT IT COULD COME WITHIN THE STATUTES. WE RESPONDED IN OUR BRIEF AND IT WAS REALLY NOT ARGUED BY CCRC AS TO 9.115, BUT THAT STATUTE IS VERY EXPLICIT, AND IT ONLY APPLIES TO DEFENDANTS IN CRIMINAL CASES, AND IT IS INTERESTING TO NOTE THAT THE RIGHT TO HAVE A COMPETENCY EVALUATION IN A COLLATERAL PROCEEDING DID NOT EXIST, UNTIL THIS COURT'S DECISION IN CARTER, WHICH WAS IN 1997. THE STATUTE IT IS A, AGAIN, THAT I JUST TALKED ABOUT -- THE STATUTE, AGAIN, THAT I JUST TALKED ABOUT, WAS PASSED INITIALLY, BACK IN 1982, SO WE SUGGEST IT WAS INAPPROPRIATE TO SAY THAT THE LEGISLATURE, BACK THEN, COULD HAVE ANTICIPATED THAT THE COUNTIES WERE RESPONSIBLE FOR COMPETENCY EVALUATIONS IN COLLATERAL PROCEEDINGS, IN DEATH PENALTY COLLATERAL PROCEEDINGS, WHEN SUCH A CREATURE DID NOT EVEN EXIST, UNTIL THIS COURT --

IS THAT A COMPLETELY ACCURATE STATEMENT? THAT IS I AM CONCERNED ABOUT THE ISSUE OF IF, INDEED, THERE IS A RIGHT FOR AN IN COMPETENT PERSON NOT TO BE EXECUTEED, YOU WOULD CONCEDE THERE IS THAT RIGHT, WOULD YOU NOT?

YES, YOUR HONOR. I THINK IT IS A SLIGHTLY DIFFERENT ISSUE.

I REALIZE IT IS A SLIGHTLY DIFFERENT ISSUE, BUT IT SEEMS TO ME THAT ONE PART OF ANY ANALYSIS THAT GOES INTO THE RIGHT OF SOMEBODY THAT IS INCOMPETENT NOT TO BE EXECUTED, WOULD BE A COURT, THEN, SAYING, WELL, I, ALSO, MUST REPRESENT THE STATE, IN A SENSE, TO BE SURE THAT THERE IS A CREDIBLE OR A VALID DETERMINATION ABOUT YOUR COMPETENCY TO BE EXECUTED, AND THEREFORE, FOR INSTANCE, I MIGHT SUA SPONTE ON MY OWN, WHERE THE ISSUE HAS BEEN RAISED, APPOINT EXPERTS TO DETERMINE WHETHER OR NOT YOU ARE COMPETENT. WHAT WOULD BE THE SITUATION, IF THE COURT, HAVING HAD THE ISSUE RAISED AND, FOR INSTANCE, THE LAWYER COMES IN AND SAYS, DURING MY INTERVIEW WITH MY CLIENT, POSTCONVICTION PURPOSES, THAT IS ALL HE DID WAS BABBLE ON IN RUSSIAN, AND STAND ON HIS HEAD. WHATEVER. SOMETHING, YOU KNOW, LIKE THAT, AND HE SAYS, JUDGE, ALL I CAN TELL BY MY OWN OBSERVATIONS, AND I AM BRINGING IT BEFORE THE COURT IN GOOD FAITH, IS THAT HE IS NOT COMPETENT. THEREFORE THE COURT, THEN, ON ITS OWN INITIATIVE, SAYS, WELL, I AM GOING TO P -- TO APPOINT AN EXPERT TO EXAMINE THE DEFENDANT. WHO WOULD BE RESPONSIBLE FOR THE COST, IN THAT SITUATION?

IN A DEATH PENALTY SITUATION, COLLATERAL --

IN POSTCONVICTION, YOU KNOW, WHERE THEY HAVE GONE IN FOR THEIR FIRST INTERVIEW, AND THEY SEE THIS CONDUCT, AND THEY REPORT IT TO THE COURT, BUT THEY DON'T IS ASK FOR THE -- THEY DON'T ASK FOR THE APPOINTMENT OF AN EXPERT, AND THE COURT, ON ITS OWN, APPOINTS THE EXPERT.

THE RESULT, I SUBMIT, YOUR HONOR, WOULD BE THE SAME, AND THE REASON WHY IS BECAUSE THE PURPOSE OF THE REPRESENTATION IS TO PROTECT THE PARTY'S RIGHT, AND IT WOULD BE INCUMBENT UPON THE CCRC OR COUNSEL TO ASK FOR THAT EVALUATION. IF, FOR WHATEVER REASON IT DIDN'T, AND THE COURT DID THAT ON ITS OWN, IT IS THE SAME RIGHT THAT IS BEING PRESERVED, AND THE EXAMPLE YOUR HONOR GAVE, IT WAS NOT TO BE EXECUTED, IF YOU WERE INCOMPETENT. IT IS A SLIGHTLY DIFFERENT SCENARIO HERE, WHERE IT IS THE RIGHT TO BE COMPETENT TO ASSIST IN THE COLLATERAL ATTACK, BUT EITHER WAY, IT IS CCRC'S RESPONSIBILITY TO PROTECT THOSE INTERESTS.

WAS TRE EVER AN ARGUMENT MADE THAT THE -- IF YOU HAD THE STATE SAYING IT IS EVERYONE'S DUTY, IF SOMEONE IS NOT COMPETENT, TO BRING THAT TO THE COURT'S ATTENTION, THAT CERTAINLY IF THE STATE WANTED THEIR OWN EXPERT TO EXAMINE THE DEFENDANT, THROUGH, I GUESS, IS THAT FUNDED, THEN, THROUGH THE STATE ATTORNEY'S BUDGET? I MEAN, IN OTHER WORDS, IT IS NOT ALL -- IF THE STATE GETS AN EXPERT ON COMPETENCY, WHO PAYS FOR THAT?

WELL, IF IT WAS AN EXPERT HIRED BY THE STATE TO CONSULT WITH THE STATE, AS A CONSULTING EXPERT WITNESS, THEN THERE IS AN ARGUMENT, AND THIS MAY BE ONE OF THE EXAMPLES THAT CCRTALKS ABOUT IN THEIR BRIEF, WHERE THEY ARE NOT OBLIGATED FOR THAT TYPE.

WHO IS?

IT WOULD PROBABLY BE IN THAT CIRCUMSTANCE, THE COUNTY OR THE STATE, AND IT IS NOT CLEAR.

BUT THE STATE, THROUGH THE STATE ATTORNEYS BUDGET?

RIGHT.

SO WHY IS IT, IF THAT MAKES SENSE, IF IT IS EITHER THE STATE ASKING FOR IT, IT IS EITHER THE STATE ATTORNEY OR THE COUNTY, CERTAINLY IF THE CCRC HAS THEIR OWN EXPERTS, I AM SURE UNDER OUR CASE LAW, THEY WOULD BE PAYING FOR THAT, BUT WHEN IT COMES TO THE NEUTRAL EXPERT, WHO IS BEING THE COURT-APPOINTED, WHY WOULD WE SAY, AGAIN, BECAUSE WE ARE DEALING, OBVIOUSLY, WITH SCARS RESOURCES -- WITH SCARES RESOURCES, COULDN'T THE -- WITH SCARCE RESOURCES, THE ARGUMENT COULD BE MADE HERE THAT IT GOES TO THE STATE ATTORNEY'S BUDGET. WHY IS IT THAT IT GETS TAGED FOR THE CCRC'S BUDGET?

THE REASON WHY IS THE ENTIRE ISSUE GOES TO THE MEANINGFUL REPRESENTATION OF COUNSEL. WHEN THIS COURT DECIDED CARTER, BASICALLY THE RATIONALE OF CARTER WAS YOU CAN'T HAVE MEANINGFUL REPRESENTATION OF COUNSEL. YOU CAN'T EVEN HAVE A MEANINGFUL 3.850 PROCEEDING, UNLESS YOU HAVE A COMPETENT PARTY THERE TO ASSIST COUNSEL, AND THAT WAS THE AUTHORITY THAT THIS COURT GAVE FOR HAVING SUCH EVALUATIONS. NOW, WHETHER IT IS THE COURT WHO REQUESTS THE COMPETENCY EVALUATION OR WHETHER IT IS THE CCRC OR ANYBODY ELSE, IT IS EVERYONE'S CONCERN THAT THE PROCEEDINGS PROCEED FAIRLY AND THAT THEY ARE ADEQUATE AND MEANINGFUL. THIS COURT, IN WILLIAMS, SAID THAT, WHEN YOU HAVE VOLUNTEER COUNSEL, VOLUNTEER COUNSEL IS DOING WHAT CCRC IS OBLIGATED TO DO, SO CCRC IS GOING TO FUND THE EXPENSES OF VOLUNTEER COUNSEL. IT IS CCRC'S RESPONSIBILITY. SOMEONE ELSE IS DOING IT. WE ARE NOT GOING TO HOLD THE COUNTIES RESPONSIBLE. WE ARE GOING TO HOLD CCRC RESPONSIBLE. WE, ALSO, POINTED OUT A LINE OF CASES WHICH ARE UNANIMOUS WITH THE DISTRICT COURTS, STARTING WITH, CAPPING WITH THE CONN CASE AND THAT IS IN THE DEPENDENCY CONTEXT, AND THE ISSUE IN ALL OF THOSE CASES WERE, WHEN YOU HAVE A MENTAL HEALTH EXPERT ASSISTING THE DEPENDENCY PROCEEDINGS, H.R.S. IS RESPONSIBLE FOR THAT EXPENSE, EVEN IF THAT EXPERT WAS NOT APPOINTED BY HRS OR NOW CHILDREN AND FAMILIES, AT THE TIME H.R.S.. EVEN IF THE TERMINATION OF PARENTAL RIGHTS PROCEEDINGS WERE NOT BROUGHT BY H.R.S., AND THE REASONING IN ALL OF THE DISTRICT COURTS WAS H.R.S. IS STATUTORILY OBLIGATED TO PROTECT THE INTERESTS OF CHILDREN. IF, FOR WHATEVER REASON, EITHER MISFEASANCE, NONFEASANCE OR NO REASON, SOMEONE ELSE HAS UNDERTAKEN THAT BURDEN, AND THE GUARDIAN HAS ASKED FOR AN EXPERT OR THE COURT HAS ASKED FOR AN EXPERT, H.R.S. HAS THAT RESPONSIBILITY FOR PAYING FOR THE EXPENSE, BECAUSE IT IS THEIR RESPONSIBILITY TO CARRY OUT THAT TASK, SO EVEN IF THE COURT DECIDES WE NEED TO HAVE A COMPETENCY EVALUATION, THAT IS STILL A COST THAT IS BORNE BY CCRC. THERE IS A DISTINCTION BETWEEN WHAT RIGHT IS BEING PROTECTED AND WHAT GOVERNMENTAL ENTITY FUNDS THAT EXPENSE.

HOW ABOUT IF COLLATERAL COUNSEL WOULD APPROACH THE COURT AND SAY WE NEED TO HAVE AN INTERPRETER FOR THESE PROCEEDINGS. IT WOULD BE AT THE REQUEST OF CCRC. WHO WOULD BE RESPONSIBLE FOR THE INTERPRETER?

IF THE CCRC WAS MAKING THE REQUEST, AND IF THE REQUEST WAS FOR THE BENEFIT OF THE DEATH-ROW INMATE, CCRC WOULD BEAR THAT RESPONSIBILITY.

SO YOU WOULD, THEN, DRAW ANALOGY, THEN, AN INTERPRETER TO BE CONSISTENT. THAT IS THE SAME AS A TRANSCRIPT OR WHATEVER COST IS INVOLVED IN THE ENTIRE PROCEEDING, THEN, AND YOU WOULD FOLLOW, THEN, JUST STATUTORY CONSTRUCTION THAT CHAPTER 43 SAYS THE COUNTY PAYS, UNLESS IT IS OTHERWISE PROVIDED BY STATUTE, AND THEREFORE EVERYTHING FALLS UNDER CHAPTER 27, THAT IS RELATED IN ANY WAY, TO THIS, IS ESSENTIALLY WHAT YOU WOULD HAVE TO BE ARGUING.

EVERYTHING THAT IS RELATED TO THE REPRESENTATION OF THE CLIENT.

BUT, DID CCRC, THEN, HAVE THE ABILITY TO TALK TO THE EXPERT, TO SAY I WANT, YOU KNOW, THIS IS HOW MUCH WE ARE GOING TO SPEND. WE ARE NOT GOING TO SPEND ANYMORE? DO THEY HAVE THE RIGHT TO, SOMEHOW, CONTROL HOW MUCH THE SCOPE OF THAT EXAMINATION? I MEAN, THERE IS CONCERNS. NORMALLY, WHEN YOU ARE TALKING ABOUT A COURT-APPOINTED EXPERT, IT IS, HOW DOES THE CCR CROSS-EXAMINATION ABOUT WHO IS ACTUALLY, YOU KNOW, PAYING THE PERSON'S BILL? THERE IS SOMETHING ABOUT THIS ONE, VERSUS, YOU KNOW, VOLUNTARY -- VOLUNTEER COUNSEL WHO IS HAPPENING ASSIST CCRC IN CARRYING OUT HIS DUTIES, VERSUS THIS INDEPENDENT OBLIGATION OF THE COURT AND THE SYSTEM, TO MAKE SURE THAT INCOMPETENT DEFENDANTS, AND, AGAIN, YOU SAY WE ARE TALK ABOUT CCRC POSTCONVICTION, BUT I CAN'T SEE HOW THE DISTINCTION IS GOING TO BE ANY DIFFERENT, WHEN WE GET TO THE ISSUE OF COMPETENCY TO BE EXECUTED. I DON'T KNOW WHAT HAPPENED IN THE PROVENZANO CASE. DO WE KNOW WHERE THAT MONEY CAME FROM?

JUSTICE, I MUST CONFESS --

JUST THINKING ABOUT, SO WHAT ABOUT THAT ARGUMENT? I MEAN, HOW DOES CCRC CONTROL ITS COMESS? THEY HAVE GOT ONE OF THEIR, SAY, ONE OF THEIR DEFENDANTS IS INCOMPETENT. THEY ARE PAYING FOR THEIR OWN EXPERTS, AND NOW ARE THEY GOING TO PAY FOR THE STATE'S AND THE COURT'S?

I THINK THERE IS A COUPLE OF ISSUES ADDRESSED IN YOUR QUESTION. THE FIRST IS HOW IS CCRC GIVEN THE ABILITY TO CONTROL THE COSTS WHICH MAY NOT HAVE THE ABILITY TO HAVE ANY DECISION, ALTHOUGH THE RECORD IN THIS CASE INDICATES THEY RECOMMENDED THIS DOCTOR, AND THE SECOND ISSUE, YOUR HONOR, I BELIEVE, IS WHY, SINCE IT IS A COURT INTEREST, WHY CCRC SETTLED THE EXPENSE, AND I GUESS I WOULD ADDRESS THE SECOND ONE FIRST, AND THAT IS TO REMEMBER THAT DEFAULT IS NOT THAT THE COUNTIES ARE RESPONSIBLE FOR ALL EXPENSES. IN 1998, AND, AGAIN, THIS WAS AFTER HOFFMAN AND PORTER AND WILLIAMS, CHIEF JUSTICE WELLS WROTE THE OPINION FOR THE COURT IN MILLIGAN, WHICH SAYS UNLESS THE LEGISLATURE HAS SPECIFICALLY SO STATED, COUNTIES ARE NOT RESPONSIBLE FOR ANY OF THESE EXPENSES, SO WHATEVER CONCERNS CCRC MAY HAVE ABOUT NOT BEING ABLE TO CONTROL THESE EXPENSES, THE QUESTION, REALLY, IS NOT WHAT IS THE CONCERN WITH THEM. THE QUESTION IS HOW DOES THE COUNTY GET SADDLED WITH THE BILL AND WE SUBMIT THAT THERE IS NO LEGAL AUTHORITY FOR THE COUNTY TO BE SADDLED. THERE IS THE ONE STATUTE, DEALING WITH REGULAR TRIAL CONTEXT IN CRIMINAL CASES, AND THIS COURT MADE THAT DISTINCTION IN THE LOVE MAN TRILOGY. THIS IS A COLLATERAL PROCEEDING. ADDRESSING THE PART OF YOUR QUESTION, YOUR HONOR, AND THAT IS WHETHER IT IS A COURT INTEREST. IF YOU TAKE A STEP BACK, ALL OF WHAT IS GOING ON IS A COURT INTEREST. WHETHER A DEFENDANT HAS AN ATTORNEY IS A DECISION BY THE COURT, SAYING THEY HAVE A CONSTITUTIONAL RIGHT TO BE REPRESENTED. AND THE COURTS ARE GOING TO IMPOSE THAT RIGHT. BY EXTENSION, IN CARTER, THIS COURT SAID A COLLATERAL DEFENDANT OR PETITIONER HAS A RIGHT TO HAVE A COMPETENCY PROCEEDING. THAT IS A SEPARATE QUESTION, FROM WHICH GOVERNMENTAL --

BUT THAT, REALLY, DOES DISTINGUISH CAPITAL POSTCONVICTION RELIEF, IS THAT THE US SUPREME COURT NOR HAS THIS COURT EVER RECOGNIZED A CONSTITUTIONAL RIGHT TO POSTCONVICTION COUNSEL. WHAT THERE IS, IS THAT THERE IS A STATUTORY SET UP, IN WHICH POSTCONVICTION COUNSEL IS PROVIDED, AND THE COST FOR POSTCONVICTION COUNSEL, IN WHAT THEY ARE DOING, WITHIN THAT REPRESENTATION AND THE PAYMENT OF COSTS, IS TAKEN CARE OF, WITHIN THAT STATUTE, AND THAT WAS THE FRAMEWORK OVER WHICH WE BUILT HOFFMAN AND PORTER IN THOSE CASES. BUT I AM CONCERNED THAT HERE WE HAVE GOT A DIFFERENT SITUATION, WHICH IS HARD TO CONTROL, FROM THE STANDPOINT OF WHO IS GOING TO PAY WHAT COSTS IN WHAT COUNTY WITHOUT IT BEING ALL USED UP IN ONE COUNTY, FOR THOSE COSTS. AND SO IT IS A TOUCHY PROBLEM. YOU ARE IN YOUR REBUTTAL TIME, I AM AFRAID, BUT GO AHEAD AND RESPOND.

BRIEFLY TO ADDRESS THAT AND TO FINISH WITH JUSTICE PARIENTE'S QUESTION. IT IS TRUE THERE IS NO CONSTITUTIONAL RIGHT TO COLLATERAL RELIEF, BUT TO THE EXTENT THAT IT IS SET UP IN THE STATUTE, I THINK THE COURTS HAVE HELD THAT YOU HAVE GOT TO ADMINISTER THAT WITH DUE PROCESS AND IN CARTER THIS COURT RECOGNIZED THAT THERE ARE DUE PROCESS CONCERNS WITH HAVING A COMPETENCY EVALUATION, PERHAPS THE SAME CONCERNS YOU HAVE BEFORE YOU EXECUTE SOMEONE WHO IS INCOMPETENT. THE QUESTION IS WHICH GOVERNMENTAL ENTITY PAYS. AND AS FAR AS CONTROLLING CCRC'S COSTS, IN, I BELIEVE IT WAS HOFFMAN, THIS COURT RECOGNIZED THAT CCRC MIGHT NOT HAVE THE BUDGET AND RECOMMENDED THE LEGISLATURE ALLOCATE ADDITIONAL FUNDS AND IN WILLIAMS, RECOGNIZED THAT THERE MAY BE COSTS THAT CCRC CAN'T CONTROL, AND ADOPTED THE GUIDELINES FROM JUDGE SHAFER, FROM THE SIXTH CIRCUIT, SO THAT ISSUE, IN AND OF ITSELF, HAS NEVER STOPPED THIS COURT FROM SAYING CCRC IS RESPONSIBLE. THE POLL STAR IS THE DEFAULT IS MILLIGAN SAID COUNTIES ARE NOT RESPONSIBLE, UNLESS THERE IS A SPECIFIC AUTHORITY SAYING WHY THEY ARE, AND WE SUBMIT THERE IS NO AUTHORITY IN THIS CASE.

THANK YOU. MR. ENNIS.

THANK YOU, YOUR HONOR.

MR. HENNIS, HOW ABOUT ADDRESSING THAT LAST ISSUE FIRST AND THAT IS WHERE IS THE STATUTORY BASIS THAT PUTS THE ONUS OF PAYING THESE COSTS ON THE COUNTY?

WELL, YOUR HONOR, I DON'T THINK THERE IS ANY STATUTORY BASIS, AND I THINK THAT THE BRIEFS INDICATED BASICALLY THAT BOTH SIDES AGREED ABOUT THAT, AND I THINK THAT THAT WAS, ALSO, TRUE, IN THE ARGUMENT BEFORE JUDGE PLATSER, BACK IN THE TRIAL COURT, BEFORE SHE ENTERED HER ORDER, ASKING THAT THE COUNTY PAY FOR ROOUT LADNER'S -- FOR RUTH LADNER'S BILLS. THE MILLIGAN CASE, WHICH OPENING COUNSEL HAS MENTIONED, I THINK -- WHICH OPPOSING COUNSEL HAS MENTIONED, I THINK YOU HAVE TO REALIZE THAT, ALTHOUGH THE COUNTIES, THE RULE SAYS, AREN'T RESPONSIBLE, WITHOUT A SPECIFIC MANDATE, YOU HAVE TO LOOK AT THE CASES THAT WE CITED IN OUR BRIEF PARKER V STATE, PARTICULARLY WHERE THE NOTION IS THAT, IF THERE IS AN INTENT OF THE LEGISLATURE OR IF THERE IS A SPECIFIC STATUTE, AND YOU TRY TO PLUG IN SOMETHING LIKE PAYMENT FOR COMPETENCY EVALUATION IN HIS POSTCONVICTION, ABOUT WHICH THERE IS NOT REALLY ANY CASE LAW ABOUT PAYMENT, YOU HAVE TO SEE IF THERE IS A LOGICAL RESULT, FROM READING THAT STATUTE, AND OUR VIEW IS THAT THERE IS NO LOGICAL RESULT, LOOKING AT THE, AT CHAPTER 27 OR AT THE LEGISLATURE'S INTENT TO THIS SITUATION. AND THAT WAS THE PROBLEM, REALLY JUDGE PLATSER WAS FACED WITH. IF YOU LOOK AT THE ORDER THAT SHE SIGNED, APPOINTING THE EXPERTS, IT IS ACTUALLY A DADE COUNTY FORM ORDER, THAT IS USED IN TRIAL, FOR APPOINTMENT OF COMPETENCY EXPERTS, AND IT IS BASED ON THE RULES FOR APPOINTING TRIAL EXPERTS, AND IT ASKS THAT THE EXPERT PROVIDE THE REPORT, A WRITTEN REPORT IN TRIPLICATE, ALONG WITH AN INVOICE FOR SERVICES, AND TO SEND THAT TO THE CLERK. WELL, IN THIS SITUATION, FOR WHATEVER REASON, MS. LADNER DIDN'T SEND THE BILL TO THE CLARK. SHE SENT IT TO US, AND SO WE FILED THE BILL, ALONG WITH THE MOTION FOR PAYMENT. NOW, ONE OF THE THINGS THAT IS NOT MENTIONED IN ANY OF THE BRIEFS ANYWHERE, IS THAT THERE WAS ANOTHER EXPERT THAT SHE APPOINTED IN THAT ORDER, WHICH APPEARS IN THE RECORD AT PAGE 25 MS. ANSLY, AND MS. ANSLY'S BILL IS, ALSO, IN THE RECORD. WE NEVER RECEIVED IT, BUT IT IS ATTACHED TO THE BILL THAT SHE APPARENTLY FILED WITH THE CLERK. THAT IS AT RECORD 41. IT IS FOR $1125. WE NEVER RECEIVED THAT BILL. WE NEVER FILED IT, ASKING FOR IT TO BE PAID. I DON'T KNOW WHO PAID MS. AINSLEY. BUT I ASSUME SOMEBODY DID.

IS IT MS. AINSLEY, WHO, WHAT TYPE OF EXPERT WAS SHE?

IN THIS CASE, BOTH EXPERTS WERE NEUROPSYCHOLOGISTS.

I AM SAYING WAS SHE A COURT EXPERT OR ONE OF YOURS?

THEY WERE BOTH COURT EXPERTS, YOUR HONOR. WHAT HAPPENED, IF YOU REVIEW THE RECORD, WHAT HAPPENED IS THAT, INITIALLY, WE ASKED FOR THE APPOINTMENT OF A NEUROPSYCHOLOGIST NAMED DR. HYMAN EISENSTEIN. THE STATE, IN A HEARING BEFORE JUDGE PLATSER, OBJECTED, AND JUDGE PLATSER SAID YOU TWO NEED TO GET TOGETHER AND DECIDE WHO, OF THE EXPERTS ON THE LIST, DO YOU RECOMMEND APPOINTING, AND IF YOU CAN'T DECIDE, THEN I AM GOING TO COME BACK AND CHOOSE FROM THE LIST, SO WE CAME BACK AND MADE A RECOMMENDATION AND THE STATE MADE A RECOMMENDATION, AND THE JUDGE AGREED.

WHAT IS OF CONCERN TO ME IS PUTTING A COURT, THIS COURT, IN A POSTURE IN WHICH IT IS GOING TO, WITHOUT ANY STATUTORY AUTHORITY, ORDER THERE TO BE PAID, PUBLIC FUNDS, OUT OF THE COUNTY TREASURY, FOR SOME TYPE OF WHATEVER IT IS. YOU KNOW, I JUST HAVE A HARD TIME WITH THE CONCEPT THAT A COURT, WITHOUT ANY AUTHORITY, OTHER THAN SOME KIND OF INHERENT AUTHORITY, CAN REQUIRE THE COUNTY TO MAKE AN EXPENDITURE OF FUNDS, AND WAS THIS MATTER PRESENTED TO THIS SESSION OF THE LEGISLATURE? DO YOU KNOW?

I AM ALMOST CERTAIN IT WASN'T PRESENTED TO THIS SESSION OF THE LEGISLATURE, YOUR HONOR. I THINK THE RULE OF CRIMINAL PROCEDURE, 3.851-D, WHICH WAS PROMULGATED BY THIS COURT, BACK IN JANUARY OR, ACTUALLY, CAME INTO EFFECT IN JANUARY OF THIS YEAR, REFERS BACK TO THE TRIAL RULE AT THE END, AND I THINK THAT THE -- IT IS A SITUATION WHERE A REASONABLE INTERPRETATION OF THE RULE OF CRIMINAL PROCEDURE, YOU KNOW, MAY BE IN CONFLICT WITH THE PLAIN LANGUAGE OF THE AUTHORITY THAT IS REFERRED TO IN MILLIGAN, BUT THESE EXPERTS THAT WERE APPOINTED, THEY WERE COURT EXPERTS, AND OUR POSITION, OBVIOUSLY, IS THAT THEY SHOULD BE PAID FOR BY THE COURT, AND THAT WAS, ALSO, JUDGE PLATSER'S OPINION. IN FACT, THE STATE, AT THE HEARING, ABOUT THE APPOINTMENT, CLEARLY ASSUMED THAT THE COUNTY WAS GOING TO PAY. AT 109 IN THE RECORD, YOU CAN LOOK AT IT FOR YOURSELF, THE COUNTY WAS GOING TO PAY IT, AND IN FACT THEY SPECIFICALLY OBJECTED TO OUR RECOMMENDATION OF THE NEUROPSYCHOLOGIST DR. LADNER, BECAUSE THEY ASSUMED THERE WAS GOING TO BE TROUBLE WITH THE COUNTY PAYING FOR TWO NEUROPSYCHOLOGISTS IN THIS SITUATION.

ARE THERE ANY COSTS ASSOCIATED WITH POSTCONVICTION PROCEEDINGS RIGHT NOW, THAT YOU THINK IT IS WHERE IT IS TO ASSIST THE COURT, IN ITS RESPONSIBILITY, THAT THE COUNTY IS PAYING? IN OTHER WORDS TRYING TO THINK OF ANY ANALOGIES. BECAUSE YOU AGREE, IF IT IS YOUR EXPERT, SOMEONE YOU WANT TO CONSULT WITH AND THEN OFFER, THAT CCRC WOULD HAVE THAT RESPONSIBILITY.

YEAH. YOUR HONOR, WE HAVE A SUBSTANTIAL BUDGET THAT IS AIMED SPECIFICALLY WITH US RETAINING OUR OWN EXPERTS, PRECISELY SO WE DON'T HAVE TO GO TO THE COURT FOR APPOINTMENT OF EXPERTS IN ANY SITUATION. THE ONLY SITUATION THAT I CAN THINK OF, IN WHICH WE WOULD SEEK THE COURT TO APPOINT AN EXPERT, IS PRECISELY THIS SITUATION, THE EVALUATION --

BUT WHAT ABOUT COSTS? IN OTHER WORDS THEIR ARGUMENT, AGAIN, IS THAT THEY ARE NOT RESPONSIBLE FOR THE POSTCONVICTION PROCESS. THAT IS THE COUNTY. WHAT OTHER -- OBVIOUSLY YOU HAVE GOT THE JUDGE IS THERE. THE CLERK IS THERE. JUSTICE LEWIS WAS ASKING ABOUT A TRANSLATOR. WHERE -- WHAT IS YOUR POSITION, AS TO IF A TRANSLATOR IS NEEDED?

WELL, I CAN ONLY SPEAK FROM MY EXPERIENCE, YOUR HONOR. I HAVE RECENTLY, IN THE PAST YEAR, DONE AN EVIDENTIARY HEARING IN DADE COUNTY WITH A SPANISH-SPEAKING CLIENT. THERE WAS AN INTERPRETER IN THE COURTROOM FOR THE ENTIRE EVIDENTIARY HEARING, AND WE HAVE NEVER BEEN BILLED FOR IT.

YOU MIGHT NOT WANT TO BE TALKING ABOUT IT.

SO THAT CASE IS COMING, YOUR HONOR. BUT THERE IS SORT OF A LAUNDRY LIST, I GUESS, THAT APPEARED IN THE BRIEFS, AND I CAN SORT OF REITERATE THAT. I MEAN, THE TRANSPORTATION COSTS FROM UCI DOWN TO DADE COUNTY WEREN'T PAID BY US. THE INCARCERATION OF MR. JONES, THERE, IN THE DADE COUNTY JAIL, HE WAS THERE FOR A YEAR, BEFORE THE EVIDENTIARY HEARING, WHICH HAS TAKEN PLACE, SO THAT COST WAS NOT PAID BY US. THE MEDICAL COSTS WHICH HE HAD WHILE HE WAS IN THE JAIL, WHICH WERE, I THINK, FAIRLY SUBSTANTIAL, BECAUSE HE HAD SOME SERIOUS MENTAL PROBLEMS AND HE WAS TREATED THERE.

BUT ISN'T THE ARGUMENT, THROUGH THE STATE ATTORNEY AND BUDGET, THAT THE STATE SHOULD BE PAYING FOR THIS TYPE OF COST?

I THINK THE STATE ATTORNEYS OFFICE AND/OR THE COUNTY HAVE BEEN PAYING FOR THESE COSTS, COSTS LIKE THIS. IN FACT, IN PORTER, THE STATE ADMITTED, I THINK, IN ORAL ARGUMENT IN THEIR BRIEFS, THAT, UP UNTIL THE TIME OF THE DECISION, IN PORTER, THAT THE COURT REPORTERS HAD ROUTINELY BEEN PAID BY THE COUNTY, IN POSTCONVICTION, SO THAT WAS THEIR ADMISSION. ALL THESE CASES, TOO, COME OUT IN 1997. THE CASES THAT WE REFERRED TO, A NUMBER OF TIMES, AND, ALSO, THE CARTER OPINION, SO THAT YOUR HONORS' OPINION IN MILLIGAN, IN 1998, I GUESS IS RELEVANT, BECAUSE IT CAME AFTER THE PERIOD OF TIME OF THESE CASES, BUT NOTHING HAS HAPPENED, TO GET BACK TO YOUR QUESTION ORIGINALLY NOTHING HAS HAPPENED, LEGISLATIVELY, AS FAR AS PAYMENT FOR CARTER COMPETENCY EVALUATIONS, BECAUSE I THINK IN THE SCHEME OF THINGS, OBVIOUSLY THE TOTAL FINANCIAL COST IS GOING TO BE FAR LESS THAN THE COST OF ALL THE COURT REPORTING AND ALL THE CAPITAL CASES IN POSTCONVICTION, ESPECIALLY CONSIDERING THE MISHMASH OF DIFFERENT RULES AND REGULATIONS AROUND THE STATE. THE WHOLE PRO BONO ISSUE, WHICH IS BECOMING LESS AND LESS IMPORTANT, BECAUSE OF THE LOSS OF THE RESOURCE CENTER AND THE FACT THAT NO ONE IN THEIR RIGHT MIND IS TAKING THESE CASES PRO BONO ANYMORE, WITH THE REGISTRY IN EXISTENCE, AND, I GUESS, ALSO WITH THE LOVE MAN SITUATION -- IN THE LOVE MAN SITUATION, THERE HAVE -- IN THE HOFFMAN SITUATION THERE HAVE BEEN CHANGE IN HIS THE BUDGET FOR THIS PARTICULAR TIME, SO THAT THE CCRC DOESN'T RUN OUT OF MONEY AT THE END OF THE FISCAL YEAR, WHICH IS THE CASE INHOFE MAN.

WHERE DOES THE -- IN HOFFMAN.

WHERE DOES THE JONES CASE STAND? ANOTHER JONES CASE IS NOW IN THE PROCESS OF HAVING THE RECORD --.

THE JONES CASE IS NOW IN THE PROCESS OF HAVING THE RECORD PUT TOGETHER FOR A CASE OF APPEAL TO THIS COURT. JUDGE PLATSER, AFTER AN EVIDENTIARY HEARING, DENIED RELIEF TO MR. JONES.

OKAY.

I THINK ON THE MATTER OF WHO IS THE STAKE HOLDER IN THIS SITUATION, OBVIOUSLY, AS DEFENSE COUNSEL FOR MR. JONES, WE HAVE A STATE, IN FILING A 3.850 -- WE HAVE A STAKE, IN FILING A 3.850 ON HIM THAT IS BASED ON INTERACTING WITH THE CLIENT. NOW, CLEARLY, AS OPPOSING COUNSEL HAS NOTED, COURT AND THE STATE HAVE THAT SAME CONCERN, AND IF THE COURT OR THE STATE WANT TO RAISE THE ISSUE OF COMPETENCY FOR A CLIENT, TO PROCEED IN POSTCONVICTION, OF COURSE THEY ARE WELL WITHIN THEIR RIGHT TO DO SO, AND I THINK THAT SITUATION, PARTICULARLY, POINTS OUT THE PROBLEM OF HAVING A COURT COURT-APPOINTED EXPERT PAID FOR BY THE CCR, DOING THE EVALUATION. ONE OF THE REASONS I THINK THE RULE, BOTH THE NEW RULE OF CRIMINAL PROCEDURE, 3.851-D, AND THE OLD TRIAL RULE, POINTED OUT THE NEED FOR AT LEAST TWO BUT NOT MORE THAN THREE COMPETENCY EVALUATIONS, BUT I THINK IT WAS ANTICIPATED THAT THE TWO SIDES, THE STATE AND THE DEFENDANT, SHOULD HAVE SOME INPUT INTO WHO THE COMPETENCY EXPERTS MIGHT BE, BUT THE NEW RULE DOESN'T SAY THAT THE COURT --

IN A SITUATION IN WHICH THE DEFENDANT IS NOT INDIGENT, AND THE COURT WOULD APPOINT THAT TYPE OF EXPERT, WOULDN'T THAT BE A COST THAT THE DEFENDANT WOULD BEAR?

THAT IS A GOOD QUESTION, YOUR HONOR, AND I DON'T KNOW THE ANSWER TO THAT QUESTION.

IN THE CIVIL CONTEXT, IT CERTAINLY WOULD.

I DON'T OBJECT I DON'T KNOW, IN THE -- I DON'T KNOW, IN THE CRIMINAL CONTEXT, WHAT THE ANSWER TO THAT WOULD BE, YOUR HONOR. PARTICULARLY THE POINT THAT I WAS TRYING TO MAKE IS I THINK THE RULE, THOUGH, SAYS "MAY". THE JUDGE IS NOT REQUIRED TO TAKE THE RECOMMENDATIONS OF EITHER SIDE, IN MAKING THE APPOINTMENT, AND I THINK THAT IS VERY IMPORTANT. THE JUDGE, IF HE OR SHE FEELS LIKE, FOR SOME REASON, IT IS UP TO HIM TO APPOINT THOSE THREE EXPERTS OR TWO EXPERTS, THE JUDGE CAN DO THAT. AND IN THIS CASE, YOU KNOW, THE JUDGE LISTENED TO THE RECOMMENDATIONS OF THE TWO SIDES AND AGREED WITH THOSE AND DIDN'T CHOOSE TO PICK A THIRD EXPERT.

IF WE HAD CAME OUT WITH AN OPINION THAT SAID THAT, IF IT IS COURT-APPOINTED, THAT THE COUNTY  COUNTYS IS HAVE -- THAT THE COUNTIES HAVE TO PAY, THAT WOULD BE A TWO-WAY STREET, SO IF THE STATE WANTS TO GET AN EXAMINATION, IN ORDER TO GET THE COUNTY TO HAVE TO PAY FOR IT, THE STATE COULD GO IN AND GET AN ORDER OF THE COURT. THE COUNTY WOULD HAVE TO PAY FOR IT. CORRECT?

SURE. I THINK THAT IS RIGHT, YOUR HONOR, ALTHOUGH THE RULES, AS THEY EXIST NOW, DON'T ALLOW FOR COMPETENCY EVALUATION EXPERTS TO BE USED IN TRIAL, FOR PURPOSES LIKE INSANITY, WHICH HAPPENED IN ONE OF THE CASES DECIDEDED IN THE BRIEFS, UNLESS THE DEFENSE OPENS IT IS DOOR TO THAT.

ALL RIGHT. WELL, WE HAVE HAD A SITUATION RECENTLY, COME TO THIS COURT, IN WHICH THERE WAS A QUESTION RAISED BY THE STATE, SORT OF PROPHYLACTICLY, AS TO WHETHER THE DEFENDANT WAS COMPETENT, AND I AM, AGAIN, CONCERNED ABOUT HOW THIS WOULD WORK AND WHETHER EVERYBODY IS NOW, IF THE COUNTY HAS TO PAY FOR IT, IN ORDER TO RELIEVE THE BUDGETS OF THE STATES ATTORNEY AND THE CCR, THEY WOULD GO GET THE JUDGE TO ENTER AN ORDER, AND THEN IT WOULD ALL ABOUT HOISTED ON THE COUNTY. I DON'T KNOW HOW THAT WORKS.

I KNOW ONE OF THE THINGS THAT DID HAPPEN, IN THE LINE OF CASES THAT ENDED WITH PORTER, WAS THAT THERE WAS A CHARGE, BY THE COURT TO THE LEGISLATURE, OR TO THE CCR'S, TO GO TO THE LEGISLATURE, IN CONSIDERATION OF PORTER, TO ASK FOR ADDITIONAL FUNDS, AND THAT, IN FACT, DID HAPPEN, ALTHOUGH I THINK IT TOOK A CONSIDERABLE AMOUNT OF TIME, FROM THE 1997 DECISION, WHICH MAY HAVE BECOME FINAL IN EARLY 1998. I DON'T BELIEVE IT WAS UNTIL THE 2000, 2001 -- 2000-2001 FISCAL YEAR, THAT THE LEGISLATURE ACTUALLY APPROPRIATED MONEY TO COVER THE COST OF COURT REPORTERS AND EVIDENTIARY HEARINGS, VIS-A-VIS HOFFMAN, YOU KNOW, SPECIAL COSTS, BUT IT DID EVENTUALLY HAPPEN, SO I WOULD RECOMMEND THAT, IF THE COURT DOES, INDEED, FIND THAT IT IS OUR RESPONSIBILITY, THAT THERE BE A SIMILAR SORT OF CHARGE. A COUPLE OF OTHER THINGS, I GUESS. THE ANSWER BRIEF APPELLANT OR, RATHER, THE APPELLEE, OUR ANSWER BRIEF POINTS OUT THAT CHAPTER 27 AS READ BY THE COUNTY, IS SIMPLY TOO CONCRETE, AND THAT IT WE PAY FOR EVERY SINGLE COST INVOLVING POSTCONVICTION, IT IS A SORT OF SLIPPERY SLOPE THAT WE WILL NEVER GET OUT OF. WE MIGHT AS WELL BE CONSIDERED A COMPLETELY SEPARATE BRANCH OF THE JUSTICE SYSTEM THAT IS RESPONSIBLE FOR PAYING THE JUDGE TO TRANSPORTING THE INMATE, AND IF THAT HAPPENS, THERE IS GOING TO HAVE TO BE NOT JUST A SMALL INCREASE OUR BUDGET, BUT THERE IS GOING TO HAVE TO BE A TREMENDOUS INCREASE IN OUR BUDGET, AND THE STATE MENTIONS THAT IT IS IRONIC THAT WE REFER THAT THE COUNTY SHOULDN'T HAVE TO PAY, IN THIS JUDGE-APPOINTED EXPERT IN THIS SITUATION. WE DON'T THINK IT IS IRONIC. WE THINK THE ONLY TIME THAT THE COUNTY BECAME A PARTY THIS THIS SITUATION WAS, ONCE THE QUESTION -- A PARTY IN THIS SITUATION, WAS ONCE THE QUESTION OF PAYMENT CAME UP. WE DON'T HAVE A LIST OF EXPERTS IN MIAMI-DADE COUNTY. THAT IS SOMETHING THAT MIAMI-DADE COUNTY SET UP THEIR OWN CRITERIA FOR, SO THAT EVEN IF WE WERE ABLE TO POINT TO AN EXPERT THAT WE WOULD LIKE TO HAVE, THAT DIDN'T MEAN THAT THE JUDGE WAS REQUIRED TO APPOINT THAT EXPERT. WE DIDN'T ACTUALLY SELECT DR. LEITNER INITIALLY, AS I POINTED OUT. WE ASKED FOR ANOTHER EXPERT. THE STATE OBJECTED, AND WE WERE REQUIRED TO CHOOSE SOMEBODY ELSE AND EVEN THEN, THERE WAS STILL OBJECTION BY THE STATE INITIALLY BECAUSE OF THEIR CONCERN THAT THERE SHOULDN'T BE TWO NEUROPSYCHOLOGISTS, BECAUSE THEY THOUGHT IT WAS GOING TO COST TOO MUCH. THE STATE ASSUMED, LIKE I SAID, THAT THE COUNTY WOULD PAY, AND SOME OF THE OTHER THINGS THAT THE COUNTY PAYS FOR, JUST TO SUPPLEMENT THE LIST EARLIER, DEPOSITION COSTS FOR DEFENSE EXPERTS, WHEN WE ARE COMING UP TO EVIDENTIARY HEARING AND THEY WANT TO DEPOSE OUR EXPERTS OR, IN FACT, ANY OF OUR WITNESSES, ALL THOSE COSTS ARE TAKEN CARE OF BY THE STATE ATTORNEYS OFFICE AND/OR THE COUNTY. JUST LIKE THE STATE'S EXPERT WITNESSES ARE PAID BY THE COUNTY  COUNTY. SO --

WELL, YOU DON'T -- I MEAN, YOU WOULDN'T CARE IF THE STATE ATTORNEYS PAID FOR IT. THE PROBLEM IS THEY ARE NOT IN HERE AS A PARTY, SO, I MEAN, I WOULD IMAGINE THAT THE DEPOSITION TAKEN BY THE -- YOU ARE TALKING ABOUT THE DEPOSITIONS THAT THE STATE TAKES  TAKES? FOR USE?

UM-HUM.

SO YOU ARE SAYING AND/OR, BUT VERY LIKELY THAT IS COMING OUT OF THE STATE ATTORNEY'S BUDGET. SO DO WE KNOW --

THAT IS A GOOD QUESTION, YOUR HONOR. I BELIEVE THAT THE STATE DOES CHARGE THE COUNTY FOR SOME OF THEIR EXPERT EXPENSES. THAT CERTAINLY HAPPENED IN SOME OF MY OTHER DADE COUNTY CASES, INVOLVING DR. AINSLEY, AS A MATTER OF FACT. BUT BE THAT AS IT MAY, THAT IS NOT IN THE RECORD. SO THAT IS JUST MY OWN, PERSONAL EXPERIENCE.

WHAT I AM HEARING NOW AND BASED ON WHAT JUSTICE WELLS IS SAYING IS THAT WE ARE, REALLY, HERE ON WHETHER THERE IS ANY STATUTORY AUTHORIZATION FOR THE COUNTY TO PAY IN POSTCONVICTION, AND SO IT IS NOT A POLICY. I MEAN, WE ARE NOT HERE TO TRY TO SEE, TO SET THE BUDGET FOR EVERYBODY, AND I CAN SEE YOUR ARGUMENT ABOUT THIS IS A BURDEN THAT YOU SHOULDN'T BEAR, BUT I, ALSO, SEE THE COUNTY'S ARGUMENT THAT, WHY SHOULD THEY GET CHARGED WITH IT, AND MAYBE WITH ARTICLE V, ALL OF THIS WILL END UP GOING AWAY, BUT FOR RIGHT NOW IT DOESN'T HELP US TO KNOW, WELL, IT COULD BE THE STATE. IT COULD BE THE COUNTY, BECAUSE IF IT IS THE STATE, THEN THAT MAKES THE COUNTY HAPPY, AND IT DOESN'T MAKE YOU UNHAPPY, AS LONG AS IT IS NOT OUT OF YOUR BUDGET, SO I AM JUST GOING BACK TO THIS. WHERE IS, IN THIS CASE, WHAT IS, WHAT DO WE LOOK FOR, TO SAY THAT THE COUNTY HAS TO PAY? IS IT BECAUSE WE HAVE ALREADY RECOGNIZED THIS RIGHT AND THE INCIDENCE OF THIS RIGHT IS JUST INHERENT THAT THE COUNTY PAYS? OR WHERE AND HOW A WOULD YOU WRITE THAT OPINION?

I THINK, BECAUSE THE COURT HAS PROMULGATED A RULE OF CRIMINAL PROCEDURE, SPECIFICALLY AIMED AT INCORPORATING THE CARTER OPINION INTO THE RULES OF CRIMINAL PROCEDURE, AND THAT GENERALLY, THAT PROCEDURE TRACKS WHAT GOES ON IN THE TRIAL COURT, AND THE TRIAL COURTS ARE FAMILIAR WITH THAT PROCEDURE, AND THEY ARE FAMILIAR WITH THE PROCESS OF HAVING COURT-APPOINTED EXPERTS DO THOSE EVALUATIONS AND HAVING THE COUNTY BE RESPONSIBLE FOR THOSE COURT-APPOINTED EXPERTS, THAT THAT INCORPORATION OF THE RULE OF CRIMINAL PROCEDURE SHOULD BE READ, ALONG WITH THE SCOPE OF THE COUNTY'S RESPONSIBILITY IN CHAPTER 27 AND THE LOVE MAN LINE OF CASES, TO READ THAT THIS IS ONE OF THOSE EXCEPTIONS WHERE THE CCR'S AREN'T RESPONSIBLE, BECAUSE IT IS IMPORTANT TO MAINTAIN THE INDEPENDENCE OF THE EXPERTS. IT IS IMPORTANT TO MAINTAIN THE COURT'S OVERSIGHT OF COMPETENCY EVALUATION, BECAUSE EVERYBODY HAS ESSENTIALLY AN EQUAL INTEREST IN SEEING THAT CLIENTS ARE DETERMINED COMPETENT OR INCOMPETENT, AT THE FIRST POINT IN TIME IN POSTCONVICTION, WHERE IT APPEARS THAT THERE MIGHT BE A PROBLEM, BECAUSE WHAT IS GOING TO HAPPEN, IF THAT IS THE CASE, IS THAT IT OFFERS AN OPPORTUNITY TO DO THE COMPETENCY EVALUATION AND TRACK, PROBABLY, A LONG SIDE THOSE PARTS OF THE 3.850, THAT DON'T INVOLVE CLIENT COMMUNICATION, THOSE LEGAL ISSUES THAT THE COURT HAS TALKED ABOUT IN CARTER, THAT YOU CAN CARRY ON THROUGH 3.850, WITHOUT CLIENT INVOLVEMENT. NOW, IF YOU HAVE A CLIENT THAT IS PERMANENTLY INCOMPETENT, THERE IS A PROBLEM.

YOUR TIME IS UP. THANK YOU VERY MUCH.

THANK YOU, YOUR HONOR. THANK YOU, MEMBERS OF THE COURT.

COUNSEL HAS CANDIDLY CONCEDED THAT THERE, REALLY, IS NO STATUTORY AUTHORITY WHICH WOULD ALLOW OR PERMIT THE COUNTIES TO PAY FOR THE TYPE OF EXPENSE HERE. AND, AGAIN, I WOULD BRING THIS COURT'S ATTENTION BACK TO MILLIGAN, WHICH SAYS THAT YOU ABSOLUTELY MUST HAVE THAT STATUTORY AUTHORITY, AND THAT CASE WAS BASED ON A CONSTITUTIONAL PROVISION FOR COUNTY EXPENDITURES.

WHY COULD WE NOT FIND IT IN CHAPTER 43, BY THE INTERPRETATION OF THE CHAPTER 27 THE NECESSARY COSTS? THIS IS NOT ONE OF THOSE. WHY WOULD THAT REASONING FALL?

THE REASON WHY, YOUR HONOR, IS BECAUSE THE TYPE OF EXPENSE THAT IS RELEVANT HERE IS AN EXPENSE THAT GOES TO THE VERY CORE OF CCRC'S REPRESENTATION.

WHY DOES IT NOT GO TO THE VERY CORE OF THE JUDICIAL SYSTEM IN THIS ONE AREA?

YOU COULD ARGTHAT FOR ANY EXPENSE THAT CCRC WOULD EVER INCUR, BECAUSE IN ORDER TO EFFECTIVELY REPRESENT ITS CLIENT IT WOULD NEED TO HAVE A PRIVATE EXPERT THAT CONSULTS WITH IT, OR IT WOULD NEED TO HAVE TRANSCRIPTS OF HEARINGS, AND ALL OF THOSE THINGS ARE ESSENTIAL TO THE REPRESENTATION WHICH, ULTIMATELY, ALSO ARE ESSENTIAL TO THE OPERATION OF THE COURTS, WHOSE FUNCTION IS TO FAIRLY ADMINISTER JUSTICE WITH DUE PROCESS. THE ANALYSIS GETS A LITTLE MORE SPECIFIC, AND THAT IS WHERE HAS THE LEGISLATURE ALLOCATED FINANCIAL RESPONSIBILITY, AND THIS COURT HAS SAID, TIME AND TIME AGAIN, THAT, UNDER CHAPTER 27, NOT ONLY DOES THE SPECIFIC LANGUAGE SAY THAT ALL NECESSARY COSTS AND EXPENSES ARE TO BE BORNE BY CCRC, BUT THAT THERE IS A POLICY PREROGATIVE BEHIND THAT AS WELL, AND THIS COURT SAID THAT IN PORTER, AND THE COURT SAID THE PAYMENT OF ALL POSTCONVICTION COSTS OUT OF CCR'S BUDGET IS NOT ONLY STATUTORILY REQUIRED BUT IS NECESSARY TO CARRY OUT THE LEGISLATIVE INTENT EXPRESSED IN SECTION 27.7001.

BUT THE POLICY, NOW, THIS IS WHAT IS REALLY BOTHERING ME. THIS EXPERT IS SOMEBODY THAT THE COURT HAS TO RELY ON TO DECIDE WHETHER THIS PERSON IS COMPETENT OR NOT, AND WHY ISN'T THE PREVAILING OR THE SUPERSEDING POLICY THAT, IF THE COURT'S OVERSIGHT -- THAT IT IS THE COURT'S OVERSIGHT, AND IT IS THE INDEPENDENCE OF THAT EXPERT, AND THAT SOMEHOW THIS IDEA THAT YOU ARE GOING TO FOIST UPON A, ONE OF THE LITIGANTS, AN EXPENSE THAT THIS COURT HAS DEEMED NECESSARY TO PRESERVE THE INTEGRITY OF THAT PROCESS, DOESN'T SEEM TO FIT IN WITH WHAT WOULD BE THE COST OF THE POSTCONVICTION PROCESS AT CCR. I MEAN, ISN'T THAT A DIFFERENT POLICY THAN, SAY, WHETHER YOU ARE GOING TO PAY FOR A TRANSCRIPT? WE ARE TALKING ABOUT WHO PAYS FOR AN EXPERT REQUIRED TO DECIDE THIS, AND IT WOULD BE, TO ME, I DON'T SEE ANY DIFFERENCE, REALLY THAN IF IT WAS COMPETENCY TO BE EXECUTED, AND I DON'T SEE HOW CCRC, IF IT WAS THE INDEPENDENT EXPERT, COULD BE CHARGED WITH THAT EXPENSE.

YOUR HONOR, I GUESS THAT ANSWERED THIS WAY. ALL OF THOSE CONSIDERATIONS ARE VALID CONSIDERATIONS FOR THE COURT. COMPETENCY TO STAND TRIAL IS AN EQUALLY VALID CONSIDERATION FOR THE COURT TO CONSIDER. WHY IS THE COUNTY RESPONSIBLE FOR THAT EXPENSE? IF THERE WAS AN ISSUE THAT THE COURT RECOGNIZED, THIS DEFENDANT MAY NOT BE COMPETENT TO STAND TRIAL. THEREFORE THE COURT, ON ITS OWN, IS GOING TO APPOINT AN EXPERT. I DON'T THINK THAT ANYONE WOULD DISAGREE THEY COULD DO. THAT WHO WOULD BE RESPONSIBLE FOR THAT EXPENSE? THE COUNTY. WHY? BECAUSE THE LEGISLATURE HAS SAID UNDER THOSE CIRCUMSTANCES, THE COUNTY IS RESPONSIBLE, HE HAVE EASTBOUND THOUGH ULTIMATELY -- EVEN THOUGH ULTIMATELY IT IS A COURT ISSUE THAT IS BEING ASSERTED. IT IS A COURT INTEREST. THE ONLY DIFFERENCE HERE IS NOW IT IS IN A COLLATERAL CONTEXT. THE CCRC, THE COURT HAS SAID, IT -- I CAN SEE I AM OVER MY TIME -- TO ARGUE FOR THEIR INTERESTS AND WE DO THAT AS WELL.

THANK YOU, COUNSEL. THANK YOU FOR YOUR ASSISTANCE.