A Tallahassee defense lawyer finds it absurd that he has to disclose which experts he might call on in his case to the prosecutor. Current legal procedure forces attorneys working pro bono cases to do so.
UDreka Andrews was 18 years old when she was handed a life sentence for her role in the murder of a 24-year-old man. In 2007, Andrews was found guilty of having lured the man to an apartment to be robbed. He was ultimately shot to death by her then-boyfriend, Danny Brown.
But Andrews鈥� legal odyssey has seen her recently seek re-sentencing. She qualifies as indigent in the eyes of the law, and is represented for free by attorney Michael Ufferman. He heads the Florida Association of Criminal Defense Lawyers, and on Wednesday presented Supreme Court justices with what he feels is a troubling quandary. Under current rules, prosecutors can get access to the defense鈥檚 strategy, but not the other way around.
鈥淭he current procedure requires, or at least doesn鈥檛 prohibit, the state from being served, the prosecutor from being served with my request to have a particular expert appointed to, as you say, investigate a possible theory,鈥� Ufferman said.
Experts are called on by criminal defense lawyers to speak to specific details of the case. Ufferman said the state not having to play by the same rules puts his client at a strategic disadvantage.
鈥淭he state is not telling me which experts they鈥檙e talking to right now. They may be preparing for Ms. Andrews鈥� re-sentencing as we speak, and I鈥檓 certainly not getting notice of the experts they鈥檙e consulting with,鈥� Ufferman told justices.
A proposed rule would allow lawyers representing clients on a pro bono basis to avoid disclosing what experts they use to the state. That鈥檚 what Ufferman鈥檚 fighting for.
鈥淛ust disclosing the name of the expert and the area of expertise could reveal a defense strategy that the state would not otherwise be entitled to find out about,鈥� Ufferman said.
Assistant Attorney General Charmaine Millsaps doesn鈥檛 think defense lawyers like Ufferman should be able to get one-one-one time with a judge without the prosecutor there. Unless, she said, the judge 鈥渃ertifies鈥� that the request would give away the defense鈥檚 strategy.
鈥淲e don鈥檛 do ex parte hearings unless you have a reason,鈥� Millsaps said. 鈥淎nd all I鈥檓 saying is all he has to do is certify that there is a reason, convince the judge that the prosecutor should stay out of the room, and then the prosecutor stays out of the room.鈥�
But Millsaps may be fighting an uphill battle. There is a state agency other than the prosecutor that is allowed to be present at such meetings. It鈥檚 called the Justice Administrative Commission, and it oversees financial matters for private attorneys representing indigent clients. Justice Alan Lawson said he is comfortable with only the JAC representing the state.
鈥淭here鈥檚 nothing about this preceding that requires your presence, it鈥檚 the state鈥檚 financial interests that we鈥檙e talking about,鈥� Lawson told Millsaps. 鈥淛AC can be there to represent, and it鈥檚 about whether or not to have an expert. You have no say in whether they should be able to have an expert in preliminary matters.鈥�
For Ufferman, it鈥檚 about keeping a level playing field 鈥� what he calls 鈥減eople protection.鈥� He鈥檚 telling justices indigent clients should not have to suffer legal disadvantages simply for their lack of money. Ufferman said if Andrews was represented by the public defender鈥檚 office or an attorney of her choice, she would not be running into this problem.
鈥淚f Ms. Andrews was not indigent, and had all the resources in the world, she鈥檇 be able to go out and consult with whatever expert she would want to consult with right now, and would never be disclosing that to the state,鈥� Ufferman said.
To Ufferman, a blanket rule is the only way to treat a pro bono case and an individual with their own resources the same.
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