7ASR3d114

Series: 7ASR3d | Year: () | 7ASR3d114
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AMERICAN

SAMOA GOVERNMENT, Plaintiff

 

v.

 

SIITU

SANERIVI, aka LUAPENE, Defendant

__________________________________

 

AMERICAN

SAMOA GOVERNMENT, Plaintiff

 

v.

 

WEI

KI FANG, Defendant

 

High

Court of American Samoa

Trial

Division

 

CR

No. 06-03

CR

No. 07-03

 

June

10, 2003


 

 

[1]

The effective assistance of counsel requires a State or Territory to take steps

to assure that the defendant has a fair opportunity to present his defense, and

a court must assure that the basic tools of an adequate defense are provided to

defendants who cannot afford to pay for them.

 

[2]

Interviewing witnesses is an essential ingredient to an attorney effectively

representing a defendant in a criminal case, and one basic tool of an adequate

defense is funds to pay the necessary and essential expenses of interviewing

the material witnesses.

 

[3]

Before a court approves funding for services for an indigent, such a defendant

generally must show why the requested services are necessary to an adequate

defense, and what the defendant expects to find by using the services. 

 

[4]

A court’s determination of what is necessary to an adequate defense should not

be overly rigid, as long as a reasonable attorney would engage such services for

a client having the independent financial means to pay for them.

 

Before

KRUSE, Chief Justice, and SAGAPOLUTELE, Associate Judge.

 

Counsel:          For Plaintiff, Marcellus T.

Uiagalelei, Asst. Attorney General

 For Defendants,

Sharron I. Rancourt, Asst. Public Defender

 

ORDER

GRANTING MOTION FOR PUBLIC FUNDS

TO

INVESTIGATE WITNESSES

 

Defendants

bring this motion for funding to interview witnesses in (Independent)

Samoa.  Defendants have been declared

indigent and have been appointed public counsel.  Their motion, therefore, falls under the

ambit of Am. Samoa Rev. Const.

art. 1 § 6, which provides every defendant with the right to have the effective

assistance of counsel.  See generally

Suisala v. Moaali`itele, 6 A.S.R.2d 15 (1987) (incorporating Federal effective

assistance of counsel standard); A.S.C.A. §§ 46.0502 and 46.1001.

[1] The effective assistance of

counsel requires a State or Territory to “take steps to assure that the

defendant has a fair opportunity to present his defense.”  Ake v. Oklahoma, 470 U.S. 68, 76

(1985).

 

[M]ere access to the courthouse doors does not by itself

assure a proper functioning of the adversary process, and . . . a criminal

trial is fundamentally unfair if the State proceeds against an indigent

defendant without making certain that he has access to the raw material

integral to the building of an effective defense.

 

Id.

at 77.  In order to comply with this

minimal due process requirement, we must assure that the “‘basic tools of an

adequate defense’ [are] provided to those defendants who cannot afford to pay

for them.”  Id. (quoting Britt

v. North Carolina, 404 U.S. 226, 227 (1971)).

 

[2]

One basic tool of an adequate defense “is funds to pay the necessary and

essential expenses of interviewing the material witnesses.”  United States v. Germany, 32 F.R.D.

421, 423 (1963) (interviewing witnesses is “an essential ingredient to an

attorney effectively representing a defendant in a criminal case”); United

States v. Prods. Mktg., 281 F. Supp. 348, 352 (D. Del. 1968).  It would be fundamentally unfair for a

defendant to forego this basic tool of trial preparation on account of wealth

(or lack of).  Therefore, we agree with

defendants that Article 1 § 6 of the Territorial Constitution guarantees them

this right.

One impediment, however, is that funding for these expenditures is

limited.  This is especially problematic

in American Samoa, where an overwhelming majority of defendants rely on public

counsel.  We do not have a funding scheme

like they have, for example, at the federal level under the Criminal Justice

Act of 1964, 18 U.S.C. 3006A, and administered through local court rules and

orders.  See, e.g., Criminal

Justice Act Plan, Eastern District of California; Order 2, Criminal Justice

Act Plan of the United States District Court for the Northern District of

California Pursuant to the Criminal Justice Act of 1964, as amended.

 

[3-4]

Therefore, we cannot grant these motions outright.  Generally, before approving funding, we must

require a defendant to show “why the requested services are ‘necessary’ to an

adequate defense and what the defendant expect[s] to find by using the

services.”  United States v. Gonzalez,

150 F.3d 1246, 1251 n.4 (10th Cir. 1998) (articulating standard under the

Criminal Justice Act); United States v. Sanchez, 912 F.2d 18, 22 (2d

Cir. 1990).  A determination of what is

“necessary” should not be overly rigid as long as “a reasonable attorney would

engage such services for a client having the independent financial means to pay

for them.”  United States v. Hartfield,

513 F.2d 254, 257 (9th Cir. 1975) (quoting United States v. Bass, 477

F.2d 723, 725 (9th Cir. 1973)).  Based on

the affidavit submitted by counsel and the evidence from the hearing, we find

that the defendants have presently met this burden.[1]  Among other things, the Attorney General has

access to a number of potential witnesses who are currently in Samoa.  The Public Defender’s request is reasonable.

 

We

grant their motion for funding.[2]

It is so ordered.

 



[1]  Additionally, these sort of

motions could be considered ex parte, so as not to cause the defendant

to reveal his defense.  See Am.

Samoa Gov’t v. Petaia, CR No. 39-99, Order Granting Motions for Public

Funds to Hire Expert Witness (Trial Div. March 2, 2000); United States v.

Greschner, 802 F.2d 373, 379-80 (10th Cir. 1986).  Though the present motion was heard in open

court in an adversarial forum, there was no prejudice to the defendants as they

did not reveal anything of strategic importance.

[2]  Though it is not entirely clear

from where these funds will come, it is apparent that the Public Defender’s

office does not have adequate resources for conducting investigations

off-island or for other reasonably necessary trial expenses such as expert

witnesses.  See Petaia, supra,

note 1.  The Public Defender’s office

receives only $249,500 a year or roughly less than 0.1% of ASG’s total

budget.  See P.L. 27-25 (2002).  Far be it for us to suggest to the Fono how

best to appropriate this type of funding. 

Various options are available, such as mimicking the federal system or

giving the Public Defender’s office more money in their annual budget.  But, one way or another, this funding must be

made available as it is necessary to comply with the Constitution’s guarantee

of representation.