SAMOA GOVERNMENT, Plaintiff
SANERIVI, aka LUAPENE, Defendant
SAMOA GOVERNMENT, Plaintiff
KI FANG, Defendant
Court of American Samoa
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.
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.
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.
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.
KRUSE, Chief Justice, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Marcellus T.
Uiagalelei, Asst. Attorney General
Sharron I. Rancourt, Asst. Public Defender
GRANTING MOTION FOR PUBLIC FUNDS
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.
 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
[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.
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)).
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
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.
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. 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.
grant their motion for funding.
It is so ordered.
 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.
 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