Page 88 - Juvenile Practice is not Child's Play

MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE

THE FOLLOWING IS WORK PRODUCT OF THEUNDERSIGNED ATTORNEY AND IS INTENDED FOR
DISCLOSURE TO THE TRIAL COURT ONLY

TO THE HONORABLE JUDGE OF SAID COURT

Now comes Defendant, F.L. in the above entitled and numbered case, by and through the undersigned
counsel, and to proceed ex-parte, in camera, and on a sealed record with regard to applications for expert fees, and
moves this Court pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article I,
Sections 3, 3a, 10, 13 and 19 of the Texas Constitution, and Article 26.05(d) of the Texas Code of Criminal Procedure,

to appoint a DNA expert to assist in the evaluation preparation, and presentation of a defense, and for good cause
shows the following:
Need for Expert Assistance: DNA Expert

Without DNA expert assistance, counsel will not have assistance in evaluating the most crucial of evidence
allegedly linking Defendant to the alleged crime. Such assistance is crucial to the Defense.
Legal Basis for Expert Assistance

The United States Supreme Court held that an indigent Defendant has a constitutional right to the assistance of
a competent, independent expert. See Ake v. Oklahoma, 470 U.S. 68 (1985). The purpose of this holding is to ensure

that indigent expert Defendants are given the same due process as wealthier Defendants, including, and perhaps
especially, the right to the effective assistance of counsel. Id.
Appointing an expert whose purpose is to assist the court and whose findings are made public necessarily
renders such an expert incapable of an an undivided loyalty to the Defendant Appointing any expert other than one

whose findings are privileged and whose efforts and advice are rendered exclusively in the Defendant’s best interests,
is not an expert rendering assistance to F.L. or the defense, and therefore the due process requirements of Ake are not
met. See Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995).

When an indigent accused makes a clear showing to the trial judge that the identification of the accused will be
a significant factor at a critical stage of trial, the judge has a clear duty upon request to appoint an expert to assist.
Application for Fees

1. The services of a DNA expert is necessary to enable F.L. to prepare effectively for trial, present favorable
evidence and to cross-examine the state’s witnesses. The evidence which will be the subject of expert opinion
is critical to a determination of F.L.’s identity as the accused
2. If F.L. is not provided with expert assistance, F.L. will be deprived of due process, due course, and equal

protection of the laws, the effective assistance of counsel, the right to confront witnesses, the right to a fair
and impartial trial, the right to present evidence on behalf of the defense, and the right to explain or deny