Pro Bono Attorneys May Soon Be Able To Avoid Disclosing Expert Witnesses To Prosecutor

Mar 7, 2018

Credit Nick Evans

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’ 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’s strategy, but not the other way around.

“The current procedure requires, or at least doesn’t 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,” 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.

“The state is not telling me which experts they’re talking to right now. They may be preparing for Ms. Andrews’ re-sentencing as we speak, and I’m certainly not getting notice of the experts they’re consulting with,” 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’s what Ufferman’s fighting for.

“Just 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,” Ufferman said.

Assistant Attorney General Charmaine Millsaps doesn’t 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 “certifies” that the request would give away the defense’s strategy.

“We don’t do ex parte hearings unless you have a reason,” Millsaps said. “And all I’m 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.”

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’s 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.

“There’s nothing about this preceding that requires your presence, it’s the state’s financial interests that we’re talking about,” Lawson told Millsaps. “JAC can be there to represent, and it’s 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.”

For Ufferman, it’s about keeping a level playing field – what he calls “people protection.” He’s 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’s office or an attorney of her choice, she would not be running into this problem.

“If Ms. Andrews was not indigent, and had all the resources in the world, she’d 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,” 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.