Professional Documents
Culture Documents
2d 517
6 A.L.R.Fed. 1001
court granted the motion for a bill of particulars and ordered the defendant
be sent to the Medical Center for Federal Prisoners at Springfield,
Missouri, to undergo a complete mental examination. The court denied
the motion for appointment of an investigator pending determination of
the appellant's mental capacity to stand trial.
Following his return from Springfield where he had been found capable to
assist counsel in his defense, Christian appeared before the trial court and,
on September 26, 1967, entered a plea of not guilty. Counsel made a
second request for the authorization of an investigator and the motion was
granted at that time. Appellant urges this court to set aside his conviction
and sentence on the sole ground that the trial court erred in denying the
July 20 motion for authorization of an investigator to assist appointed
counsel.
The purpose of the Criminal Justice Act of 1964, as proclaimed in its
preamble is 'To promote the cause of criminal justice by providing for the
representation of defendants who are financially unable to obtain an
adequate defense in criminal cases in the courts of the United States.' In
support of the proposed legislation Attorney General Kennedy
emphasized that 'justice is not done when poverty prevents a person from
securing effective legal representation for his defense against a criminal
prosecution which places his personal liberty, or even his life, in jeopardy.
This legislation is designed to bring the scales of justice into balance in
such cases.'3
Where the defendant satisfactorily establishes the need for subsection (e)
services the district court has a duty to authorize such services for the proper
preparation of defendant's case.7 This duty can only be discharged by the
authorization of subsection (e) services at such a time and under such
circumstances which insure the giving of effective aid in the preparation and
trial of a case and obviate the likelihood of prejudice from delay which could
prevent a fair trial.8 Cf. Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct.
55, 77 L.Ed. 158 (1932).
Where, as here, the charges are relatively uncomplicated and the delay is not
unduly extended,9 prejudice will not be presumed. If prejudice has in fact
occurred, the appellant must so establish by clear and convincing evidence.
Appellant made no allegation that witnesses became unavailable or evidence
lost. His assertion that the prompt authorization for the employment of an
investigator was necessary for the location and preservation of evidence is
'subjective rationalization and doesn't probe a fact.'10 The trial court's decision
to delay authorization of investigative assistance until the mental examination
had been completed does not, in the absence of a showing of prejudice,
constitute reversible error.
Affirmed.
18 U.S.C. 3006A(b)
18 U.S.C. 3006A(e)
Some of the problems which may arise when counsel attempts to act as his own
investigator are described in People v. Kennedy, 20 N.Y.2d 912, 286 N.Y.S.2d
32, 233 N.E.2d 126 (1968) and Fish v. Commonwealth, Va., 160 S.E.2d 576
(1968)
Under circumstances far different than those in the instant case, the late
authorization of subsection (e) services, like the late appointment of counsel,
may be inherently prejudicial to a defendant's rights in the absence of a strong
showing by the government that no prejudice actually occurred. Cf. United
States ex rel. Mathis v. Rundle, 394 F.2d 748 (3rd Cir. 1968)
The delay in authorization was slightly over two months and occasioned by
appellant's mental examination at Springfield
10