Sixth Circuit Upholds Denial of Expert Funding for Clemency

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relied on the 1996 examination and stated that the reliance was erroneous because the 1996 evaluation was incomplete, outdated and unreliable.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not agree and found that Fautenberry had failed to provide evidence showing that the 1996 evaluation was incomplete, outdated and unreliable; failed to present evidence to show that the requested evaluation would not be duplicative of information already available to the Ohio Adult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.

Victim's Family Urges Clemency for Jeffrey Hill

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Oral Argument Transcript in Harbison v. Bell

SCOTUS heard oral argument yesterday in the case of Harbison v. Bell, 07-8521. This case, on cert from the Sixth Circuit, presented the question of whether federally appointed attorneys may represent a client in subsequent clemency proceedings in state court. Needless to say, this case will have great impact on our work.