John Fautenberry is scheduled for execution by the State of Ohio on July 14, 2009. Today in Fautenberry v. Bagley, the Sixth Circuit affirmed the district court’s order denying expert funding under 18 U.S.C. § 3599(f) for a neuropsychologist to provide assistance with clemency.
Fautenberry filed a motion with the district court requesting funds to hire a neuropsychologist to assist in the preparation of his clemency petition. In support of this motion, Fautenberry submitted various exhibits to illustrate the head injuries he suffered as a child. Specifically, Fautenberry submitted an affidavit and a fifteen (15) page report of the neuropsychologist who evaluated Fautenberry in 1996 as well as the neuropsychologist’s resume.
The district court considered Fautenberry’s request in light of §3599(f) and concluded, based on his motion and supporting exhibits, that the service requested was not “reasonably necessary” because Fautenberry had provided no reasons to explain why it would be necessary.
On appeal Fautenberry argued that the district court improperly relied on the 1996 examination and stated that the reliance was erroneous because the 1996 evaluation was incomplete, outdated and unreliable.
However, the Sixth Circuit did not agree and found that Fautenberry had failed to provide evidence showing that the 1996 evaluation was incomplete, outdated and unreliable; failed to present evidence to show that the requested evaluation would not be duplicative of information already available to the Ohio Adult Parole Authority and/or the Governor of the State of Ohio; and, failed to state that he was requesting an updated evaluation. For these reasons the Circuit Court concluded that the district court had not abused its discretion in denying Fautenberry’s request for fees pursuant to §3599(f).
Judge Moore concurred in the judgment but noted that “[e]ven without evidence of specific changes, which in any event, could be discovered only through a current evaluation, it is obvious that Fautenberry’s mental state would have changed in the past thirteen years he has spent on death row.” However Judge Moore went on to state that this argument was not presented to the district court and, accordingly, the district court did not abuse its discretion.
Also in Fautenberry’s appeal to the Sixth Circuit was a request for a stay of execution to permit him to obtain the neuropsychological examination and present the results to the Governor. The request for stay was denied as moot.
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2 comments:
Like many of 'losses,'the Fautenberry decision is still significant for the habeas community. First, the decision clearly supports the right of habeas counsel not just to litigate clemency, (which Harbison clearly established), but to seek (and be entitled to) funding for experts in the process.
Arguably, if we can ask for experts, we can ask for investigators, etc. etc. How about videographers as well?
While the Fautenberry decision referenced Woodard, Woodard clearly establishes the separation between any judicial response to clemency (which is minimal) and the executive function of clemency itself. Simply put, Clemency is a function of the executive branch, and is a concern for which the judiciary has little involvement, only the most minimal of due process concerns.
But what that suggests, and what can be read into Fautenberry, is that there are no significant statutory / habeas rule hurdles to making a clemency request for expert funding.
Unlike seeking funding under AEDPA / habeas standards, developing a clemency strategy should not be conscribed or confined by judicial review beyond our being able to show that there is a clemency strategy that the lawyer wants to pursue and warrants an expert's assistance. Moore's conurrence suggests the straight forwardness of the argument.
The judiciary should not be in the business of deciding what is or is not a viable clemency straegy.
The other significant aspect of Fautenberry is that it legitimizes the ex parte approach to seeking funds and doing an ex parte appeal upon the denial of funds.
Clemency strategies are like work product and legitimately ex parte strategies.
So, there is now another layer of litigation to be developed: the right to clemency funds and the right to appeal the denial.
It is now worth reviewing all the clemency decisions (and the CHU for the ND of Ohio) has begun this process, to begin to categorize what issues the Parole Board has noted as significant. By identifying these concerns we can gain insight to issues to pursue in clemency.
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