D.N.

: FST CR 08-0162750 T
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STATE OF CONNECTICUT : SUPERIOR COURT
:
: J.D. STAMFORD/NWK
vs. :
: AT STAMFORD
:
CARLOS DOE : JUNE 5, 2008
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EX PARTE MOTION FOR EXPERT INVESTIGATOR FEES

Pursuant to C.G.S. §§ 54-144 & 54-147, the 5th, 6th and 14th

Amendments to the U.S. Constitution, and Article I, §§ 8 & 20 of

the Connecticut Constitution, the defendant Carlos Doe, through

counsel, respectfully requests that the Court provide funding

for the services of an expert private investigator in this case.

I. THE DEFENDANT IS INDIGENT.

The defendant in this matter is indigent as set forth in

the Affidavit of Indigency Criminal, Form JD-AP-48, attached

hereto as Exhibit A. Moreover, undersigned counsel has, to

date, received as attorney’s fees for his representation of the

defendant a total sum of $600.00, which monies were collected

not from the defendant but, rather, from members of his family

who “passed the proverbial hat” in his native Colombia.

 II. THE DEFENSE HAS AN EXPERT INVESTIGATOR WHO WILL ACCEPT
PUBLIC DEFENDER RATES.

The defendant has procured the commitment of Private

Investigator John McNicholas, who is well known and well

regarded in the Stamford/Norwalk and Fairfield Judicial

Districts as a private investigator in the Special Public

Defender system, to work on behalf of the defendant in this case

at the same rate currently paid in Special Public Defender cases

- $35.00/hour.

The defendant requests that Court allow hereunder for such

expenditures not to exceed a maximum of $5,000.00, including

costs, without further order of the court, as it is currently

anticipated that such should be sufficient to cover the entire

case in light of the relatively small hourly rate. 1

III. FEDERAL AND STATE LAW REQUIRE THE PROVISION OF

NECESSARY TOOLS TO INDIGENT DEFENDANT.

A. The U.S. Constitution Requires The Provision Of

Expert Services To Indigent Defendants Who Need
Them.

It has long been established under federal constitutional

law that an indigent defendant is entitled to the provision of

resources necessary to an adequate defense. “There can be no

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The defendant is, in essence, saving the State of Connecticut
the substantial resources of an attorney by not seeking the
appointment of a special public defender, in which instance the
State would be paying for the investigator, at these same
requested rates, PLUS the added cost of the attorney’s fees.
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equal justice where the kind of trial a man gets depends on the

amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19,

76 S.Ct. 585 (1956) For that reason, the State is required to

provide indigent defendant’s with the “basic tools of an

adequate defense.” Britt v. North Carolina, 404 U.S. 226, 227,

92 S.Ct. 431 (1971)

The seminal U.S. Supreme Court case on point is Ake v.

Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985). In Ake, the

Supreme Court reaffirmed that “[t]his Court has long recognized

that when a State brings its judicial power to bear on an

indigent defendant in a criminal proceeding, it must take steps

to assure that the defendant has a fair opportunity to present

his defense.” Id. at 76. The Court pointed out that this

principle is grounded largely on the 14th Amendment’s guarantee

of due process and equal protection, since “justice cannot be

equal where, simply as a result of his poverty, a defendant is

denied the opportunity to participate meaningfully in a judicial

proceeding in which his liberty is at stake.” Id.

Accordingly, the Court in Ake established that an indigent

defendant, who makes a showing that the services of an expert

are necessary for an adequate defense, is constitutionally

entitled to the funds for such expert. Id.

Though Ake involved the services of an expert trial

witness, the Court’s rationale is equally applicable to the

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services of an investigator. See e.g., Caldwell v. Mississippi,

472 U.S. 320, note 1, 105 S.Ct. 2633 (1985)(upholding the

refusal to appoint an investigator under Ake but only because

the “petitioner offered little more than undeveloped assertions

that the requested assistance would be beneficial”); See also,

U.S. v. DeCoster, 624 F.2d 196, 210 (D.C. App. 1979)(“[I]n

general effective assistance of counsel embraces [an allowance

for funds to obtain necessary investigative services, depending]

on the facts and circumstances of a particular case.”); Mason v.

Arizona, 504 F.2d 1345, 1351 (9th Cir. 1975)(“The principles

steadfastly announced in the Supreme Court decisions reviewed

above require us to hold that the effective assistance of

counsel guarantee of the Due Process Clause requires, when

necessary, the allowance of investigative expenses or

appointment of investigative assistance for indigent defendants

in order to insure effective preparation of their defense by

their attorneys.”); State v. Brown, 907 So.2d 1, 39 (La.

2005)(“This court has noted that ‘the right to a private

investigator may in many cases be an adjunct to the right to

counsel.”)(citing, State v. Madison, 345 So.2d 485, 490 (La.

1977)

B. Connecticut Law Also Provides That The State Must

Protect Indigent Defendants.

Likewise, the State of Connecticut has been at the

forefront in providing necessary resources to indigent people

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who have been accused of a crime. “Connecticut has been in the

vanguard of the jurisdictions which have adopted measures to

assure to indigents in criminal cases the full protection of

their legal rights regardless of their inability to pay for such

protection.” Cooper v. Matzkin, 160 Conn. 334, 339, 278 A.2d

811 (1970) “It is the duty of the state to provide adequate

means to assure that no indigent accused lacks full opportunity

for his defense…” Id. at 340 In fact, Connecticut was “the

first state [in the country] to adopt the public defender

system.” State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132

(1967)

“[A]n accused who lacks funds is assured of representation

by experienced counsel, who, subject to the court’s approval,

are able to incur whatever expense is necessary for the proper

protection of the rights of the accused, not only in the trial

court but also on appeal.” Id. at 636 (citation omitted)

Notwithstanding the aforesaid, under both federal and state

law the provision of such expert assistance does require “a

showing by an indigent defendant that such expert [assistance]

is material and necessary to provide an adequate defense.”

State v. Clemons, 168 Conn. 395, 403, 363 A.2d 33 (1975)

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 IV. THE SERVICES OF THE INVESTIGATOR ARE ABSOLUTELY
NECESSARY TO PROVIDE ADEQUATE AND EFFECTIVE ASSISTANCE
OF COUNSEL IN THIS CASE.

The within Conspiracy to Commit Murder prosecution was the

culmination of a two (2) year investigation by the Greenwich

Police Department that also involved the assistance of, inter

alia, the Connecticut State Police, the Federal Bureau of

Investigation (FBI), the Drug Enforcement Agency (DEA), the

Department of the Treasury, Immigration and Customs Enforcement

(ICE), and various other federal and state law enforcement

agencies.

At the time of his murder the victim in this case, a man

who had defrauded a large number of individuals and corporate

entities out of millions and millions of dollars, was weeks away

from being incarcerated for a significant period of time on

federal and state criminal charges. Those criminal

investigations themselves each took several years to develop and

they contain information that would point to any number of

people who, having been swindled by the decedent, would want to

see him dead. The victim was also smack in the middle of a

heated divorce which adversely impacted his wife and members of

her family, all of whom also would not likely mourn his passing.

In addition, at this early stage of the proceedings the

defense has already received hours of video-taped interviews and

almost 2,000 pages of discovery materials, which include police

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reports, forensic analyses, and records of approximately 100

witnesses who were interviewed and questioned by law enforcement

officials.

Moreover, many of the critical witnesses in the case are

located out-of-state in Massachusetts.

The defendant’s investigator, John McNicholas, is a retired

New York Police Department Detective who will specifically be

needed to, inter alia: (a) track down and conduct interviews

with many, if not all, of the aforesaid 100 or so known

witnesses; (b) seek out and interview witnesses who were missed

by law enforcement; (c) seek out and interview witnesses who

will help to establish the defendant’s alibi; (d) pore over the

files of the aforesaid state and federal investigations of the

victim, as well as the divorce file, to establish the existence

of what may be a number of 3rd parties who may well have

committed the instant murder; (e) review and analyze the entire

file of this case in order to scrutinize for the defense the

quality of the entire police investigation; and (f) subpoena all

necessary witnesses for trial.

The investigator’s work will be compounded still further by

ancillary and necessary efforts to exonerate the co-defendant in

this case, since his guilt or innocence is intertwined with that

of this defendant.

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 Accordingly, the defendant avers that he cannot achieve a

meaningful defense of this extremely complex case without the

services of a private investigator.

V. PROCEEDING EX PARTE IS NECESSARY AND PROPER.

Finally, the defendant submits that the consideration of

this motion ex parte is appropriate: (a) to shield defense

strategy from the state; (b) because the state simply has no

legitimate interest upon which it needs to be heard in the

Court’s determination of the defendant’s indigence/need for the

requested funds; and (c) because the Supreme Court has provided

as much. See, Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct.

1087 (1985)(the provision of expert expenses is required “when

the defendant is able to make an ex parte showing…”); See also

McGregor v. State, 733 P.2d 416 (OK App. 1987)(“The intention of

the majority of the Ake Court that such hearings be held ex

parte is manifest.”); compare, State v. Phipps, 331 N.C. 427,

449 418 S.E.2d 178 (1992)(“Though such a hearing may in fact be

the better practice…[w]e conclude that the decision to grant an

ex parte hearing is within the trial court’s discretion.”)

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 VI. THERE IS A COMPARABLE FEDERAL STATUTE THAT PROVIDES
FOR EX PARTE APPLICATIONS FOR NECESSARY INVESTIGATOR
FEES.

Notably, there is a federal statutory provision that allows

for exactly the relief sought hereunder - both payment of

investigator expenses by indigent defendants in criminal matters

and permission to do so by way of an ex parte application.

“Counsel for a person who is financially unable to obtain

investigative, expert, or other services necessary for adequate

representation may request them in an ex parte application. Upon

finding… that the services are necessary and that the person is

financially unable to obtain them, the court… shall authorize

counsel to obtain the services.” 18 U.S.C. §3006A(e)(1) 2

VII. CONCLUSION

For the foregoing reasons, the defendant respectfully

submits that the within request is reasonable and necessary and,

therefore, should be granted.

Respectfully submitted,
THE DEFENDANT

By:_____________________
Lindy R. Urso
Attorney at Law
29 Fifth Street
Stamford, CT 06905
Juris Number - 412345
(203) 325-4487
(203) 325-9478 (fax)

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Congress presumably enacted what was Constitutionally required.
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 ORDER (UNDER SEAL)

Upon the EX PARTE application of the defendant, Carlos Doe,

for an Order authorizing the appointment of an investigator:

IT IS HEREBY ORDERED, that:

1. JOHN MCNICHOLAS, a private investigator, be

appointed to assist in the representation of
Carlos Doe;

2. JOHN MCNICHOLAS may bill the state at a rate of

Thirty-Five ($35.00) Dollars an hour;

3. JOHN MCNICHOLAS may not exceed Five Thousand

($5,000) Dollars, including costs, without
further authorization of the Court;

4. The costs shall be paid in the manner provided

under C.G.S. §§ 54-144 and 54-147.

SO ORDERED,

________________ __________________________________
DATE HON. RICHARD F. COMERFORD, JR.

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