concurring. I concur with the majority in its well-reasoned opinion; however, I would feel remiss if I did not comment upon the present cap of $1,000 for attorney’s fees for appointed counsel in capital cases, Ark. Code Ann. § 16-92-108(b)(2) (1987), and the Supreme Court’s mandate in Ake v. Oklahoma, 470 U.S. 68 (1985), which provides, in essence, that a defendant is also entitled to professional assistance if any issue as to his mentality arises in the penal phases of his trial.
Appointed counsel fee cap
It is unfortunate that the manner in which § 16-92-108(b) reaches our court does not permit us to rule on its constitutionality.
As mentioned, several states have recently struck down similar fee cap statutes on various constitutional grounds. The majority has cited, at length, portions of opinions from the Alaska, Kansas, and Florida Supreme Courts. Their findings are sound and have merit.
The $1,000 attorney’s fee paid to Mr. Allen as appointed counsel in this capital case is a mere pittance. Granted, our state and counties can ill afford to recompense attorneys for their professional time while serving on an appointment on an hour per hour basis, or with fees comparable to those received by attorneys in the private sector who have a criminal/trial practice. Flowever, appointed attorneys should receive much more than token payment for their services.
Under our system of justice, the state and counties fully fund all aspects of the criminal trial; prosecution, trial court, court personnel, jurors, everything except counsel for indigent defendants. When a party is indigent, we provide an incomplete public defender system which renders services in limited areas. Otherwise, the courts call upon attorneys who make their living through their services to perform, and perform well, with little or no compensation, and quite often, to advance expense funds out of their pockets for preparation and trial without any reimbursement. This is necessary so that the defendant can have his day in court.
Under these present arrangements, it is obvious that our judicial system is not complete, and will not be, until funds are provided to reasonably compensate the attorneys who are required to represent truly indigent defendants. This could be accomplished by the creation of a state-wide public defender system for both trial and appellate work. Hopefully, the General Assembly of Arkansas will readdress this issue expeditiously; otherwise, the burden and responsibility will soon fall upon the courts to erase this blotch on our system.
Funds for independent psychiatric evaluation
Another matter of “funding” is also before us. It arose during the course of trial when Coulter’s appointed counsel petitioned the trial court for funds to pay for expert evaluation and testimony about appellant’s mental condition as it related to mitigating circumstances. Counsel was merely discharging his duty of effective assistance by attempting to comply with the Supreme Court’s mandate in Ake v. Oklahoma, 470 U.S. 68 (1985), to provide professional assistance to the appellant as the issue of his mentality was to be an issue during the penalty phase of his trial.
Upon the trial court’s failure to fund psychiatric evaluation and testimony, counsel hired a clinical psychologist. As noted in the majority opinion, a $1,000 fee was paid personally by defense counsel to the psychologist, thereby providing the defendant his entitlement under Ake, but at the expense of counsel rather than the state. This was not right.
In sentencing under a capital murder charge, our General Assembly has specified procedures and standards pursuant to which a sentencing body must conform in making a determination as to whether or not a sentence of death is to be imposed. Under Ark. Code Ann. § 5-4-603 (1987 and Supp. 1989), a jury must unanimously return written findings that the aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist. Ark. Code Ann. § 5-4-605 (1987) provides that mitigating circumstances shall include, but are not limited to, the following: (1) that capital murder was committed while the defendant was under extreme mental or emotional disturbance; (2) that capital murder was committed while the defendant was acting under unusual pressures or influence of the domination of another person. Obviously these two examples of mitigating circumstances should be presented through competent psychiatric evaluation and testimony. Ake, supra, requires as much.
We should not compel counsel to fund a necessary ingredient to trial when a defendant is indigent. The state should either provide the resources for examination through its mental health services, or simply provide funds for counsel to obtain these services. It would be very simple for the General Assembly to expand the responsibilities of the Arkansas State Hospital, when evaluating a defendant, to require that the evaluation also include evaluation as to mitigating circumstances as prescribed by Ark. Code Ann. § 5-2-305 (1987 and Supp. 1989). This could be done, in the first instance, if the defendant is committed to the Arkansas State Hospital for a general evaluation, see generally section 5-2-305(d)(l)-(5), or if there has been no previous evaluation, then after the conclusion of the first phase of the bifurcated trial.
If the state does not care to utilize its own resources, then, the responsibility falls on the court to order adequate funding to satisfy the Ake requirements.
In sum, appointed defense counsel should no longer be required to assume the burden of defending an indigent for little, if any, compensation or be called upon to fund the necessary elements of his indigent defendant’s trial out of his own pocket.