Effective Use of a Private Investigator

3:15 p.m.-4:15 p.m.

Presented byMatthew SeaseKemp & Sease

104 SW 4th St. Suite ADes Moines, IA 50309

Terry KloosterFinality Investigations

PO Box 383Solon, Iowa 5233

Friday, April 29, 2016

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Matthew G. Sease

Kemp & Sease

104 SW 4th St. Suite A

Des Moines, IA 50309

State v. Williams, 207 N.W.2d 98 (1973)Number of investigators to be hiredProbable cost or rate of payArea to be investigatedPoint out with specificity the reasons such services are necessary

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ChargesBurg. 1st

Burg. 3rd

Domestic Abuse 2nd

Arraigned

Application for Depositions

Application for Private Investigator

Outlined Indigency

Unable to afford investigator

“In order to effectively and properly prepare the defense herein, it is necessary for the Defendant to be provided with funds for professional investigator.”

Provided the estimated costs

Provided the name of the investigator and CV

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State resistedApplication does not specify what defense is to be investigatedPrivate Investigator “is not an expert that could give an expert opinion on any matter involved in this case nor any defense for that matter

Defense Attorney request ex parte hearing regarding the application

Objected to presence of county attorney regarding necessity of P.I.Disclosing the information would impede on trial strategyViolation of due process rightsViolation of effective assistance of counsel

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Defense Counsel Refused to provide specifics regarding the use of the investigator Simply stated that the investigator would be interviewing witnesses Was willing to provide the information ex parte

County Attorney Information presented by Defense Counsel was insufficient under

Williams No authority to be heard ex parte “…my fear is this investigator’s job is going to be to dig up more dirt on

[the victim] and present that to her during the deposition to the point where she’s not going to be wanting to cooperate in this prosecution.”

Denied the motion to be heard ex parte

Agreed to suspend the proceedings

Defense Counsel filed an application for interlocutory appeal

Granted by Supreme Court

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Can Iowa Code § 815.7(1), (5) be interepreted to allow ex parte hearings?

Is there a Constitutional Right to be heard ex parte?

Majority support a constitutional right or statutorial to ex parte hearings

Other states allow ex parte hearings in limited circumstances

3 states determine no right to ex parte hearing

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18 U.S.C. § 3006A(e)(1) Counsel for a person who is financially unable to obtain

investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

1. An attorney who has not entered into a contract authorized under section 13B.4 and who is appointed by the court to represent any person pursuant to section 814.11 or 815.10 shall be entitled to reasonable compensation and expenses.

….

5. The expenses shall include any sums as are necessary for investigations in the interest of justice…

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Declined to rule on the Constitutional Issue

Declined to follow the Federal Courts

Created a new procedure for ex parte hearing requests under Article 5 § 4 The supreme court shall have appellate jurisdiction only in cases in chancery,

and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals throughout the state.

“Trial courts should use this protocol in those rare circumstances when the State objects to the appointment of a private investigator for an indigent defendant.”

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Defense Counsel DutiesFile atimely, application for investigatorState the nameAn estimate of the costs“…if possible, a general description of what services the investigator will provide.”

County Attorney/State DutiesMust be given opportunity to resistGenerally may only object if the application “will prejudice the

administration of justice.”Done to delay the proceedings Untimely filed

“The State should not impede the right of an indigent defendant to fully investigate the case or develop a valid defense.”

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Trial Court Duties If State Resists- County Attorney has right to be present If the application “may have some merit but does not contain

adequate information” Ex parte hearing may be held with Defense CounselMust be reported Transcript must be sealed Any order that would disclose defense strategy or work product

must be sealed Separate order granting or denying the application

Applicability to experts other than P.I.Constitutional IssuesEffective Assistance of CounselDue ProcessEqual Protection