Supreme Court Says State Must Pay For Expert Witnesses

In a unanimous decision, the Connecticut Supreme Court today ruled that an indigent defendant who chooses to represent himself has a constitutional right to public funding for expert witnesses at trial and that the public defender’s office must provide the funding once ​“standby counsel” has been appointed. 

The state Supreme Court’s decision, a unique occurrence on its docket, came about in the case of Dr. Lishan Wang, who faces a murder charge in Connecticut Superior Court in New Haven. Although Dr. Wang, who is representing himself in the case, has a stand-by public defender assigned by the court, the public defender’s office has refused to pay his costs for trial because Dr. Wang rejected their representation. Now that office will be required to pay his expert witness and investigator costs as long as the requests are ​“reasonably necessary” to present a criminal defense. 

Dr. Wang, 48, is charged with the murder of Dr. Vanjinder Toor, a former colleague at the Kingsbrook Jewish Medical Center in New York. At the time he was shot to death outside his Branford condo on April 26, 2010, Dr. Toor was 34, a father and a post-doctoral fellow at Yale. His then-pregnant wife witnessed the shooting. She was shot at too, but not hit. Dr. Wang has alleged Dr. Toor and other Kingsbrook doctors and officials caused his firing in 2008 that ended his medical career. The preponderance of motions he has filed in court center on Kingsbrook, his former employer. In one motion filed recently he called them ​“terrorists.” 

At issue in the case before the Supreme Court was a primary question: Which arm of state government should pay expert witness fees for Dr. Wang and for other defendants in the state’s court system who elect to represent themselves?

In a 30-page decision written by Chief Justice Chase T. Rogers and released Monday morning, the high court outlines the process and the policy for the state’s courts when delegating costs for those defendants who chose to represent themselves. At the outset, the high court decision upholds the right of an indigent defendant to represent himself or herself and says public funding, specifically ​“reasonably necessary” public funding, is necessary to achieve that end. ​“Without access to the resources necessary to the integrity of a fair trial, the due process right of fundamental fairness is hollow for self-represented defendants,” the court pointed out. 

The court’s decision, which comes roughly six months after oral arguments were held before the state’s highest court, applies to the Dr. Wang case directly but will also chart the course state courts will take for other indigent defendants who reject the legal services of the state public defender’s office.

Both the judiciary, which in the past has absorbed some costs of self-representing defendants, and the public defender’s office were reluctant during the oral arguments to assume responsibility for an indigent defendant who insists on representing himself. Dr. Wang rejected the services of the public defender’s office, which maintains it should not have to fund his case since it no longer oversees or directs its strategy. While the office has supplied a stand-by public defender his murder case, the lawyer has made only limited decisions in the case so far. Now, it appears the stand-by attorney will have greater say in helping to evaluate issues concerning experts and investigators and their funding.

The decision is a precedent-setting decision affecting the rights of indigent defendants in every courthouse in Connecticut. Dr. Wang’s case, now in its fourth year, has yet to go to trial. Now the machinery exists for it to get underway at some point. Since Dr. Wang has discussed his mental illness issues in various documents, and there has been discussion in court of whether he will raise a defense of mental disease or defect, Justice Rogers noted the need for such an expert.

Major Court Players Argue Issue

The hearing late last year before the state’s top judges drew the major players in the state’s court system to the Supreme Court in Hartford.

There were eight attorneys in all. They represented the the chief state’s attorney’s office, the state public defender’s office, the court administrator’s office (an agency whose leader is appointed by Justice Rogers,) and attorney Max Simmons, who was assigned to represent Dr. Wang, who is indigent. Wang has said at various times that he needs a number of experts for his murder trial. Today’s decision provides language with which to evaluate his requests.

Typically the state’s highest court does not entertain questions of law before a case is completed. This case is the exception because it raises a series of extraordinary questions that, left unanswered, would have caused the case to be appealed twice. That’s because the defendant would argue at the end of his first trial that he was unable to call key witnesses in his defense.

To avoid this double trial issue, Senior Assistant State Attorney Eugene R. Calistro, Jr., Dr. Wang and Superior Court Judge Patrick Clifford asked the high court for guidance. Calistro was pleased with the court’s decision.

“After more than four years, this decision will now allow this case to proceed closer to trial. The Connecticut Supreme Court has ruled that the Public Defender’s Office must pay for experts that are considered ​‘reasonable and necessary’ for Dr. Wang’s defense. As to what is reasonable and necessary, that is a decision that the Public Defender’s Office will have to make.”

Dr. Wang Says Yes To One Attorney

For the purposes of the high court hearing, Dr. Wang allowed Superior Court Judge Clifford to appoint Simmons, of the law offices of New Haven Attorney Diane Polan, to represent him. In his brief to the high court, Simmons argued that Dr. Wang is constitutionally entitled to represent himself and as an indigent defendant is entitled to public funds.

Connecticut, Simmons told the court, has to decide which of two sets of jurisdictional approaches the state wants to take. That may well mean revising current statutes.

“There are those states that restrict access to investigators and expert witness to indigent defendants represented in some fashion by the public defender’s system only and then there are those states that see the rights of indigents to expect assistance as independent from public defenders.

“Nearly three decades of nationwide jurisprudence on this matter has already yielded formulations that underlie the positions taken by these two camps across almost two dozen states,” the brief states.

While there are two camps, he said the ​“sheer enormity of the body of court decisions concur with the right of indigent defendants to publicly funded experts assistance.” The high court has now agreed. 

Judges Pose Questions

The judges posed a number of questions.

Justice Rogers asked at the hearing why it wouldn’t make sense, given the problems a judge might face regarding issues of confidentiality and court involvement in the case, that the defense should check first with the stand-by public defender. ​“When the defendant says I want an expert, why not go through the stand-by and then decide when the overall public defender’s group meets if he is entitled to one and who should appoint the expert? Isn’t the public defender better equipped to do that?” she asked.

Her question became part of the court’s decision. Ultimately the court ruled that funding would be part of the stand-by public defender process and would not involve the court or the judiciary overall.

“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,” the court’s opinion states. That is why, Justice Rogers wrote, the court answered ​“No” to the question of whether the trial court or the judiciary should retain discretion over funding. ​“Our negative answer to the second question avoids this potential conflict,” she wrote.

The court’s conclusion is not what the public defender’s commission wanted but it now has the authority to cite a Supreme Court decision when it seeks additional funds from the legislature for this new role. 

At the hearing Martin Zeldes, who argued the case on behalf of the public defender’s office, said the stand-by counsel should not have that duty. He cited State v. Hernandez, a case decided ​“by this very court.” He said it ​“limits the role of stand-by counsel.” He added that it has gotten to the point where a stand-by has no capacity. The court decided that case in 2000.

If the stand-by were to seek advice from the public defender’s group that meets monthly on expert witnesses, he argued, that would take the public defender’s office into the realm of representing a pro se defendant.

“The instant you go to next level, you make us a representative, and that runs contrary to the rules in the prior judicial opinion,” Zeldes said.

Judge Rogers asked: ​“Where are those rules, what can they and can’t they do?”

The justices examined these questions over the last six months and analyzed the state statues that oversee the Public Defenders Services Commission. The legislature established the commission, the opinion notes, to separate the public defender’s office from the judicial branch. 

At one point during the hearing, Judge Carmen Espinosa asked Simmons, ​“Why not ask the defendant to withdraw self-representation so that he might benefit from the public defender’s services?” Other states have taken similar positions. Indeed, this was the position that the court’s own administrator took in presenting his case to the court he represents.

Simmons replied to the the judge’s question: ​“You don’t waive that right at any stage. You should not be required to surrender that right.”

The high court today agreed with Simmons and not with its own court administrator. 

It said: ​“Simply put, we can conceive of no reason … why an indigent defendant should be compelled to forfeit his due process right to access basic tools of an adequate defense merely because he chooses the unrelated right to represent himself.” In rejecting the court administrator’s argument that Dr. Wang should be represented by the public defender’s office, the court ruled that it would not place the due process right of ​“fundamental fairness out of reach to indigent self-represented defendants when no legal or logical necessity justifies it.”

Dr. Wang’s next court date is July 1. 
 
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