Supreme Court of the United States

No. ______======

In The Supreme Court of the United States

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ROBERT ALLEN DANENBERG,

Petitioner, v.

THE STATE OF GEORGIA,

Respondent.

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On Petition For A Writ Of Certiorari To The Supreme Court Of Georgia

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PETITION FOR A WRIT OF CERTIORARI

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JOHN C. BELL, JR. BELL & BRIGHAM Post Office Box 1547 Augusta, Georgia 30903-1547 (706) 722-2014 [email protected]

Counsel for Petitioner

======COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i

QUESTION PRESENTED

What restraints are imposed by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution upon the methodology for selection, preparation and testimonial presentation of experts who are deemed to be the “court’s witness,” in general and in the context of a state statute that requires the trial court to call an expert deemed to be the “court’s witness” in criminal trials in which an insanity defense has been raised? ii

PARTIES TO THE PROCEEDING

The Petitioner is Robert A. Danenberg. The Re- spondent is the State of Georgia. iii

TABLE OF CONTENTS Page Question Presented ...... i Parties to the Proceeding ...... ii Table of Contents ...... iii Table of Authorities ...... vi Orders and Opinions Below ...... 1 Jurisdictional Statement ...... 1 Statutory Provisions and Federal Rule Involved ...... 2 Statement of the Case ...... 2 Statement of Facts ...... 2 Proceedings Below ...... 5 Reasons for Granting the Writ ...... 7 I. The Issue ...... 7 II. The Dilemma Created by Selection and Designation of a Witness as “The Court’s Expert Witness” ...... 7 III. Efforts to Delineate Procedural Fairness ... 9 IV. Georgia Law ...... 12 V. An Historical Review of the Search for Truth Through Deference to Court’s Ex- perts ...... 13 VI. The Search for Truth in an Imperfect World ...... 16 VII. Unfettered Use of “Courts’ Experts” Of- fends Due Process ...... 21

TABLE OF CONTENTS – Continued Page VIII. The Writ of Certiorari Should be Granted .... 22 Conclusion ...... 24

APPENDIX: Opinion of the Supreme Court of Georgia affirming the order of the Superior Court of Jones County and the judgment of conviction, reported as Danenberg v. State, 291 Ga. 439, 729 S.E.2d 315 (2012) ...... App. 1 Order of the Superior Court of Jones County, Georgia, denying the motion for new trial ...... App. 13 Order of the Supreme Court of Georgia denying the Defendant’s Motion for Reconsideration ... App. 14 Excerpts from the Brief of Appellant ...... App. 15 Excerpts from the Reply Brief of Appellant ...... App. 20 Excerpts from the Defendant’s amended motion for new trial ...... App. 23 Excerpts from Volume 4 of the criminal trial ...... App. 25 Excerpts from Volume 2 of the competency trial ... App. 33 Georgia Code Ann. § 17-7-130 ...... App. 38 Rule 706, Federal Rules of Evidence ...... App. 39 Fifth Amendment to the United States Consti- tution ...... App. 41 Fourteenth Amendment to the United States Constitution, Section 1 ...... App. 41 v

TABLE OF CONTENTS – Continued Page A UNIFORM ACT EMPOWERING THE COURT TO APPOINT EXPERT WITNESSES IN CIVIL AND CRIMINAL PROCEEDINGS, PRO- VIDING FOR CONFERENCES AND JOINT REPORTS OF EXPERT WITNESSES, AND THE COMPENSATION OF EXPERT WIT- NESSES ...... App. 42

TABLE OF AUTHORITIES Page

UNITED STATES SUPREME COURT CASES Ake v. Oklahoma, 240 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ...... 21 Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ...... 22 Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961) ...... 14 Caperton v. Massey Coal Co. Inc., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) ...... 22 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ...... 13 General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 138 L.Ed.2d 508 (1997) ...... 13, 14 In re Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920) ...... 14 Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948) ...... 14 Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ...... 22 Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) ...... 22

OTHER FEDERAL CASES Bradley v. Milliken, 620 F.2d 1143 (6th Cir. 1980) ...... 10 Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996) ...... 9 vii

TABLE OF AUTHORITIES – Continued Page G.K. Las Vegas Limited Partnership v. Simon Property Group, Inc., 671 F.Supp.2d 1203 (D. Nev. 2009) ...... 10 Grothusen v. National R.R. Passenger Corp., 603 F.Supp. 486 (E.D. Pa. 1984) ...... 11 In re: Kensington Int’l Ltd., 368 F.3d 289 (3d Cir. 2004) ...... 9 Kian v. Mirro Aluminum Co., 88 F.R.D. 351 (E.D. Mich. 1980) ...... 7, 8 Liddell v. Board of Education, 667 F.2d 643 (8th Cir. 1981) ...... 10 Scott v. Spanjer Bros. Inc., 298 F.2d 928 (2d Cir. 1962) ...... 10 SRI International v. Matsushita Elec. Corp., 775 F.2d 1107 (Fed. Cir. 1985) ...... 8 United States v. Craven, 239 F.3d 91 (1st Cir. 2001) ...... 9 United States v. Flores, 2012 WL 2479602 (6th Cir.) ...... 11 United States v. Green, 544 F.2d 138 (3d Cir. 1976) ...... 10 United States v. Karnes, 531 F.2d 214 (4th Cir. 1976) ...... 10, 11 Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006) ...... 9

viii

TABLE OF AUTHORITIES – Continued Page

STATE CASES Brannen v. State, 275 Ga. 70, 561 S.E.2d 414 (2002) ...... 13 Danenberg v. State, 291 Ga. 439, 729 S.E.2d 315 (2012) ...... 1, 6, 12 Howerton v. Danenberg, 279 Ga. 861, 621 S.E.2d 738 (2005) ...... 6 Lamar v. State, 278 Ga. 150, 598 S.E.2d 488 (2004) ...... 12 Tolbert v. State, 260 Ga. 527, 397 S.E.2d 439 (1990) ...... 13

FEDERAL STATUTES 28 U.S.C. § 1257(a) ...... 1

STATE STATUTES Georgia Code Annotated § 17-7-130.1 ..... 2, 3, 4, 12, 13

MISCELLANEOUS Fifth Amendment to the United States Consti- tution ...... 2 Fourteenth Amendment to the United States Constitution, Section 1 ...... 2 Accepting Daubert’s Invitation: Defining a Role for Court-Appointed Experts in Assessing Sci- entific Validity, 43 Emory L.J. 995 (1994) ...... 8 ix

TABLE OF AUTHORITIES – Continued Page Court-Appointed Expert Witness: Scientific Pos- itivism Meets Bias and Deference, 77 Oregon L.Rev. 59 (1998) ...... 8, 18, 19, 20 Historical and Practical Considerations Re- garding Expert Testimony, 15 Harvard L.Rev. 40 (1901) ...... 14, 15, 17 Rule 706, Federal Rules of Evidence ...... 2, 12, 16 Some Observations Upon the Opinion Rule and Expert Testimony, 23 Texas L.Rev. 109 (1945) ...... 16 Supreme Court Rule 13 ...... 1 Wright & Gold, Federal Practice & Procedure § 6305...... 10 1

ORDERS AND OPINIONS BELOW Order overruling Defendant’s objection to Dr. Jacoby testifying as the “Court’s Expert.” App. 26-27. Order of the Superior Court of Jones County, Georgia, denying the motion for new trial. App. 13. Opinion of the Supreme Court of Georgia affirming the order of the Superior Court of Jones County and the judgment of conviction, reported as Danenberg v. State, 291 Ga. 439, 729 S.E.2d 315 (2012). App. 1- 12. Order of the Supreme Court of Georgia denying the Defendant’s Motion for Reconsideration. App. 14.

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JURISDICTIONAL STATEMENT Petitioner seeks review of a decision of the Su- preme Court of Georgia issued June 25, 2012. The motion for reconsideration was denied July 26, 2012. Jurisdiction is founded upon 28 U.S.C. § 1257(a) and Supreme Court Rule 13. This petition raises issues as to the constitutionality of state law as applied under the facts of this case.

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STATUTORY PROVISIONS AND FEDERAL RULE INVOLVED Statutes and the rule involved in this case are set out in the appendix and include: Georgia Code Ann. § 17-7-130.1 Rule 706, Federal Rules of Evidence Fifth Amendment to the United States Con- stitution Fourteenth Amendment to the United States Constitution, Section 1

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STATEMENT OF THE CASE Statement of Facts In November 1988, Robert Danenberg was a young lawyer working in Atlanta. He and his wife, Dale, had separated. She had taken their infant son, Perry, to stay with her friend Debra Lamb in Jones County. On November 13, 1988, Robert Danenberg trav- eled to the Lamb residence at the invitation of his wife. He had been taking Medrol, a metabolic steroid prescribed by his physician following a car accident. Criminal trial transcript (hereinafter “T-”) 591-595. Mr. Danenberg’s behavior upon arrival at the Lamb home was both bizarre and tragic. T-27-28,33,35- 37. It is undisputed that he shot and killed Debra Lamb while Ms. Lamb held Mr. Danenberg’s son, 3

Perry, and with Mrs. Lamb’s three-year-old son, Jonathan, and five-year-old son, Trey, in the home. T- 45-46. In the trial conducted in 2008, the asserted defense was insanity flowing from Mr. Danenberg’s long- term psychiatric illness and as exacerbated by the corticosteroids that he had been prescribed shortly before the homicide. T-15-20. The defense further asserted that Mr. Danenberg was not competent to stand trial. Competency trial transcript (hereinafter “CT-”) 6-10. Georgia law requires that the trial court select a psychiatrist or psychologist to be the “court’s expert” whenever a defendant enters a plea of insanity. The code provides: § 17-7-130.1 Evidence of sanity or insanity; appointment of medical witnesses At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant’s sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical 4

witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness. Ga. Code Ann. § 17-7-130.1. Dr. Katherine Jacoby is a psychiatrist employed by Georgia’s Central State Hospital who is often called upon by Georgia courts to evaluate the mental competence of persons charged with crimes. T-970- 971; App. 27-29. She had previously evaluated Mr. Danenberg in 2006. T-972. She was appointed as the Court’s witness at the suggestion of the Assistant District Attorney: MR. BUSHWAY: . . . So the Court has one, and the State’s entitled to one under Georgia law, interestingly enough. I assume you’re going to appoint someone from Central State Hospital, who I’m going to assume is going to be Dr. Jacoby, who’s already evaluated him, I think, at least twice. Transcript of hearing on pretrial motions (hereinafter “MT-”) 5/15/08-35-36. MR. BUSHWAY: . . . All right. We have taken the liberty on the Court’s behalf to speak to Dr. Jacoby since she had already evaluated him, and she has set aside time on 9:30 at 9:30 on Monday morning to evaluate Mr. Danenberg. MT-5/18/08-37. 5

Defense counsel objected to her testimony on the grounds that it is a denial of constitutional due process for a witness “who then becomes the prosecution witness in effect” to be labeled the “Court’s Witness,” thereby impugning the neutrality of the court, and that this action further violated the separation of powers, with the court calling a witness as its witness who then testifies for the prosecution. T- 968-969; App. 26-27. The trial court overruled the objection. T-969; App. 27. This was enumerated as a ground for new trial, record cite (hereinafter “R-”) 833-834, and enumerated as error on appeal. App. 15- 21, 23-24. The criminal trial began November 13, 2008, with the jury receiving the case on November 20th. During deliberations, the jury requested and received a recharge on “guilty but mentally ill.” T-1082. The jury returned a verdict of guilty of murder, and Mr. Danenberg was sentenced to life in prison. T-1088- 1089.

Proceedings Below In 1988, Appellant Robert Danenberg was indicted in Jones County for the murder of Debra Lamb, the friend of his estranged wife. R-6-8. A plea of guilty was entered, with Mr. Danenberg receiving a life sentence. R-175. Subsequent habeas corpus proceedings resulted in the grant of the writ by the Superior Court of Richmond County, Georgia, that set aside the plea of guilty and the judgment of conviction. The 6 grant of the writ was affirmed on appeal. Howerton v. Danenberg, 279 Ga. 861, 621 S.E.2d 738 (2005). The case was set for retrial in 2006, but was continued because Mr. Danenberg was found to be mentally incompetent to stand trial. R-241; T-988. A subsequent trial scheduled for May 2008, was continued because of the failure of Georgia’s Central State Hospital to produce all of Mr. Danenberg’s psychiatric records of treatment and evaluations since 1988. R-491-509; MT-5/21/08-127-134. The case went to trial on November 10, 2008, on the issue of the competency of Mr. Danenberg to stand trial. The jury found him to be competent by verdict rendered November 12, 2008. CT-485; R-819- 820. The criminal trial for murder began November 13, 2008, and concluded on November 20, 2008, with a verdict of guilty. T-1088-1089; R-821. A motion for new trial was filed on behalf of Mr. Danenberg on December 11, 2008, and subsequently amended. R-824- 826; R-829-840. An evidentiary hearing was held Sep- tember 21, 2010. The motion was denied on April 14, 2011. R-867. Defendant appealed to the Supreme Court of Georgia. His conviction was affirmed. Danenberg v. State, 291 Ga. 439, 729 S.E.2d 315 (2012). The petition for rehearing was denied July 26, 2012. App. 14.

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REASONS FOR GRANTING THE WRIT I. The Issue The record in this case presents a unique opportunity for this Court to enunciate meaningful due process restraints upon the presentation to a jury of an expert witness who carries the title, “The Court’s Witness,” especially in the context of criminal trials in which the mental competency of the accused is at issue. The presentation of the testimony of a psychiatrist at the conclusion of a criminal trial who is iden- tified by the trial judge as “the court’s witness,” with the prosecutor questioning him on cross-examination with leading questions impacts upon the constitutional presumption of innocence, the right to trial by jury, the constitutional right to an impartial trial judge and constitutional due process notions of fairness.

II. The Dilemma Created By Selection and Designation of a Witness as “The Court’s Expert Witness” The ramifications in a jury trial of the jury receiving testimony from a witness who has been denominated “the court’s witness” was accurately described by the court in Kian v. Mirro Aluminum Co., 88 F.R.D. 351 (E.D. Mich. 1980): The presence of a court-sponsored witness, who would most certainly create a strong, if 8

not overwhelming, impression of “impartiality” and “objectivity,” could potentially trans- form a trial by jury into a trial by witness. Under the circumstances of the present case, where the issues are within the grasp of the jury, appointment of an expert should and can be avoided. Id., p. 356. Accord, SRI International v. Matsushita Elec. Corp., 775 F.2d 1107, 1129, n.8 (Fed. Cir. 1985) (additional views of Markey, C.J.). Comments from trial judges reported in Cecil, Joe S., Accepting Daubert’s Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L.J. 995 (1994), reflect the discom- fort of trial judges who confront the prospect of enter- ing the adversarial fray in a jury trial by presenting the testimony of “the court’s expert.” Id., p. 1018. The author concluded: Our interviews revealed that juries and judges alike tend to decide cases consistent with the advice and testimony of court- appointed experts. Id., p. 1041. A similar conclusion was reached in Deason, Ellen E., Court-Appointed Expert Witness: Scientific Positivism Meets Bias and Deference, 77 Oregon L.Rev. 59, 128 (1998): Some judges have concluded that juries do defer to appointed experts, based on the observation that when a court-appointed expert 9

testifies the jury’s decision is more often than not consistent with the expert’s testimony. . . . Judges surveyed by the Federal Judicial Center also reported anecdotal observations of trials with court-appointed experts that led them to believe the juries were highly influenced by these experts.

III. Efforts to Delineate Procedural Fairness Federal trial and appellate courts have imposed procedural requirements on the selection, preparation and testimonial presentation of experts appointed by a court. E.g., Walton v. Johnson, 440 F.3d 160, 166 (4th Cir. 2006) (“The district court attempted to ob- tain an expert agreeable to both sides by having each side appoint a psychiatrist who in turn advised the court on suitable neutral candidates. These two psy- chiatrists ultimately recommended Dr. Mark Mills, a highly qualified forensic psychiatrist, and the district court adopted their recommendation.”); In re: Kensington Int’l Ltd., 368 F.3d 289 (3d Cir. 2004) (recusal of district judge ordered because court- appointed expert had conflicting interests known to the judge and because the district judge had had ex parte contact with the expert without prior consent of counsel); United States v. Craven, 239 F.3d 91, 102- 104 (1st Cir. 2001) (district judge ordered to with- draw and reassign case because of ex parte contact with court’s expert); Edgar v. K.L., 93 F.3d 256 (7th Cir. 1996) (district judge’s ex parte meeting with 10 court-appointed experts was grounds for disqualification of the judge); Liddell v. Board of Education, 667 F.2d 643, 653 (8th Cir. 1981) (district judge’s ex parte contact with court-appointed committee did not require disqualification because no prejudice resulted); Bradley v. Milliken, 620 F.2d 1143, 1156 (6th Cir. 1980) (reassignment to another judge ordered due to ex parte contact with a court-appointed committee); United States v. Green, 544 F.2d 138, 145 (3d Cir. 1976) (district judge’s ex parte contact with court- appointed psychiatrist did not require disqualification because the district judge fully disclosed the contacts on the record). Scott v. Spanjer Bros., Inc., 298 F.2d 928, 933 (2d Cir. 1962) (Hinks, J., dissenting) (The court affirmed trial court’s use of physician as a court’s witness. Judge Hinks dissented because there were no safeguards followed by the trial court to en- sure impartiality.); G.K. Las Vegas Limited Partner- ship v. Simon Property Group, Inc., 671 F.Supp.2d 1203, 1215 (D. Nev. 2009) (sanctions imposed upon defendant because of defense counsel’s ex parte contact with court-appointed expert). See Wright & Gold, Federal Practice & Procedure § 6305 (“[E]x parte communications between the judge and the expert or between party and the expert are discouraged.”). In United States v. Karnes, 531 F.2d 214 (4th Cir. 1976), the court held: A trial judge is not captive within the case as made by the parties. He has the authority, if not the duty, to call witnesses who possess

relevant information affecting the outcome of the issues when the parties decline to call them. But the due process clause requires that a court be impartial. This impartiality is destroyed when the court assumes the role of prosecutor and undertakes to produce evidence, essential to overcome the defendant’s presumption of innocence, which the government has declined to present. Further, in this case the jury was never told why the witnesses were called as court witnesses and the jury was not instructed that these witnesses were entitled to no greater credibility because they had been called by the court. The jury, thus, may well have afforded them greater credibility than if they had been called as government witnesses. The jury’s determination of credibility of witnesses may therefore have been unfairly, albeit uninten- tionally, influenced and the government’s case thereby strengthened. 531 F.2d at 216 (judgment of conviction reversed). Accord, United States v. Flores, 2012 WL 2479602 (6th Cir.) (“The court may not become a party’s advo- cate, however,” citing Karnes with approval). Courts are not in agreement as to whether the jury should be informed that the expert is “the court’s expert,” nor is there agreement as to whether the jury should be instructed not to give the testimony of the court’s witness greater weight than the testimony of other witnesses. E.g., Karnes, supra; Grothusen v.

National R.R. Passenger Corp., 603 F.Supp. 486, 490 (E.D. Pa. 1984). The right of cross-examination afforded all parties is puzzling, particularly given the absence of direct testimony from the court’s expert, as was the case in the Danenberg trial. App. 28-32, 34-37. Rule 706(b)(4), Fed.R.Evid.; Ga. Code Ann. § 17-7-130.1, copies at App. 38, 39-40. Why should a party whose position is bolstered by the testimony of the court’s expert be given even further advantage by being empowered to ask leading questions of the non-adversarial witness?1 Does not such a procedure have the effect of favoring the prosecution in a manner that can be likened to a thumb on the scales of justice?

IV. Georgia Law In Lamar v. State, 278 Ga. 150, 598 S.E.2d 488 (2004), the Georgia Supreme Court rejected a challenge to Ga. Code Ann. § 17-7-130.1, noting that, “the statute sets forth sufficient guidelines to avoid its arbitrary and discriminatory implementation . . . ” Id., 278 Ga. at 494. The Georgia Supreme Court has further held: A court-appointed medical expert cannot be classified as an agent of the state, but must

1 In the Danenberg trial, it is fair to conclude that the State would have called Dr. Jacoby, a state employee, as a state’s witness had she not been named as the court’s expert in response to the state’s suggestion that she be selected for that role. 13

be considered as an independent and impartial witness. Tolbert v. State, 260 Ga. 527, 528, 397 S.E.2d 439, 440 (1990). Accord, Brannen v. State, 275 Ga. 70, 79-80, 561 S.E.2d 414, 425 (2002) (trial court held hearing as to impartiality of court-appointed expert and made factual finding as to impartiality). Georgia’s Supreme Court has, however, been silent as to what steps a trial court must undertake to make this promise of independence and impartiality a reality. The Georgia statute lacks any provisions as to how the court’s expert is to be selected, how independence and neutrality are to be assured, how the expert is to be protected from undue ex parte influ- ence from the court, a party or anyone else, nor does the statute provide guidance as to how the expert’s testimony is to be presented without the testimony being given special weight because the witness bears the mantle of “The Court’s Expert.” See Ga. Code Ann. § 17-7-130.1, copy at App. 38.

V. An Historical Review of the Search for Truth Through Deference to Court’s Ex- perts This Court has long sanctioned the calling of witnesses by a trial court and the appointment of an expert as the court’s witness. General Elec. Co. v. Joiner, 522 U.S. 136, 150, 118 S.Ct. 512, 521, 138 L.Ed.2d 508 (1997) (Breyer, J., concurring); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 14

595, 113 S.Ct. 2786, 2798, 125 L.Ed.2d 469 (1993); Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 427, 5 L.Ed.2d 428 (1961) (interests of justice required trial court to call key witness not called by the government); Johnson v. United States, 333 U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468 (1948) (Frankfurter, J., dissenting); In re Peterson, 253 U.S. 300, 310, 40 S.Ct. 543, 546, 64 L.Ed. 919 (1920) (district court’s appointment of auditor did not infringe upon Seventh Amendment right to trial by jury). The opinions of this Court in the above decisions do not address issues as to the methodology to be followed in the appointment of a court’s expert witness, the preparation of the expert, communications with the expert, or the presentation of the testimony of the expert to a jury, though Justice Breyer’s concurring opinion in Joiner does suggest consultation with learned organizations to assist the trial court in the quest for an independent, well-qualified court’s expert. Joiner, supra, 522 U.S. at 149, 118 S.Ct. at 521. The modern consideration of the use of experts selected by courts rather than by adversaries in hopes that the chosen experts will impart scientific truth to jurors, untainted by bias, can be traced to an article authored by the young Learned Hand prior to his ascent to the bench. Hand, Learned, Historical and Practical Considerations Regarding Expert Testi- mony, 15 Harvard L.Rev. 40 (1901). 15

Mr. Hand traced the roots of the reliance upon expertise to decide common law disputes to ancient times at the inception of trial by jury, when jurors were selected because they had relevant knowledge about the matter in dispute. Id., pp. 40-45. The young Learned Hand expressed great cyni- cism as to experts hired by a party, noting: Enough has been said elsewhere as to the natural bias of one called in such matters to represent a single side and liberally paid to defend it. Human nature is too weak for that; I can only appeal to my learned breth- ren of the long robe to answer candidly how often they look impartially at the law of a case they have become thoroughly interested in, and what kind of experts they think they would make, as to foreign law, in their own cases. Id., p. 53. Mr. Hand proposed that expert testimony should come from what we would today label “courts’ experts”: It is obvious that my path has led to a board of experts or a single expert, not called by either side, who shall advise the jury of the general propositions applicable to the case which lie within his province. Id., p. 56. The concept of expert witnesses appearing as court’s witnesses led to the promulgation in 1937 of 16

“A Uniform Act Empowering the Court to Appoint Expert Witnesses in Civil and Criminal Proceedings, Providing for Conferences and Joint Reports of Ex- pert Witnesses, and the Compensation of Expert Wit- nesses” by the National Conference of Commissioners on Uniform State Laws. App. 42-46. The use of court’s witnesses to present unbiased scientific testimony was promoted by Professor McCormick, who praised the wisdom of the model Uniform Act. McCormick, Charles T., Some Observa- tions Upon the Opinion Rule and Expert Testimony, 23 Texas L.Rev. 109, 131-136 (1945). Evidence Rule 706, adopted in 1975, is in many ways modeled after the Uniform Act, though the Uni- form Act sets forth more provisions that address procedural fairness than does the federal rule.

VI. The Search for Truth in an Imperfect World The fundamental problem with a court’s expert witness giving testimony to a jury while emblazoned with the court’s imprimatur akin to a royal warrant is that it presumes that there is scientific certainty and that a conscientious judge can search for and find those experts who are not only unbiased, but who are also right. We lawyers and judges can alike empa- thize with the search of Diogenes for the honest man. However, we may all be more akin to well-meaning journalists who profess and believe in their own lack of bias, but who can witness the same events as other 17 journalists of good will and report such different accounts of those same events. So it is with experts, and no more so than in the interplay between that field of medicine known as psychiatry and the ac- countability at law of the mentally ill. The potential unreliability of accepted scientific truth is illustrated by Judge Hand’s reference to the early reliance upon scientific testimony in an English trial: In the Witches’ case, in 1665, Dr. Brown, of Norwich, was desired to state his opinion of the accused persons, and he was clearly of opinion that they were witches, and he elab- orated his opinion by a scientific explanation of the fits to which they were subject. 15 Harvard L.Rev., p. 46. It was the testimony of the “reliable astrono- mers” of his day that lead to Galileo Galilei’s conviction by the Roman Inquisition, with the remainder of his life being spent under house arrest. Professor Deason, the author of the above-cited article in the Oregon Law Review, though a propo- nent of wise use of courts’ expert witnesses, noted: One hallmark of the original concept of the court-appointed expert was an untroubled faith that the expert’s testimony would represent the impartial, definitive truth. From today’s perspective, however, enough accepted scientific conclusions have been abandoned, modified, or transcended in the last century 18

to make the notion of scientific certainty seem a bit quaint. 77 Oregon L.Rev., supra, p. 99. Professor Deason sets forth a series of proposals that, in his opinion, would serve to minimize the potential for bias and undue deference that may result from presentation of the testimony of a court’s expert witness to a jury: In order to satisfy a minimum expectation of neutrality, an appointed expert should be nonpartisan, i.e., she should have no personal or professional ties to either party or their experts. I suggest looking to the standards that govern federal judges as a guide. A federal judge is obligated to disqualify himself from participating in any proceeding if he previously served as a lawyer in the matter or if, as a government employee, he expressed an opinion concerning the merits of the case. He is also obligated to disqualify himself if he practiced law with a lawyer who was at the time working on the matter. More generally, he is to disqualify himself in “any proceeding in which his impartiality might reasonably be questioned.” A similar standard of neutrality should be applied in selecting court-appointed expert witnesses. With regard to partisan ties, neutrality is most certainly threatened if a court-appointed expert witness has served as a party expert, either by testifying or consulting, in the case. Judges should also hesitate before selecting 19

an expert who has previously worked for a party, as that relationship would raise questions about impartiality in many circumstances. Finally, a candidate’s contacts with party experts should also be scrutinized; judges should avoid appointing anyone having a close working relationship, either cur- rent or past, with any party expert. Financial interests, like ties to a party, are relatively straightforward to identify. Under the standards applicable to a judge, an expert should not be appointed if she has a financial interest in the outcome of the case, however small. 77 Oregon L.Rev., pp. 143-144. If neutrality in the strictest sense is an un- obtainable goal, as implied by the view that science exists in a social and personal context, then what standard should be applied in selecting an expert? One response is to as- sert that since perfect neutrality is unattain- able, it is enough for a court to concern itself only with nonpartisanship and find an expert who has no connections with the parties. Id., p. 146. Another approach to identifying experts would be to utilize organizations like The Academy of Experts, based in London, Eng- land. Id., p. 148. 20

Whatever role in the appointment process eventually develops for non-judicial institu- tions, the process of selecting an expert could also be improved by changing the rules to require the judge to consult with the parties. Judges obviously must retain the power to appoint an expert witness without party approval in order to prevent a party from block- ing the appointment. Id., p. 148. Second, whether a party, the judge, or a third entity is the source of a nomination, the rule should require that all the parties have the opportunity to scrutinize and comment on the proposed appointee. Id., p. 150. Expert appointments would also be strengthened by setting limits on communications with the appointed expert. Two categories of communications raise concerns. First, communications between the judge and the expert can encourage or facilitate deference to the expert. Second, communications between the expert and the parties or other experts have the potential to lead or bias the expert. For the first category of communications, I propose that courts apply the principles expressed in Canon 3 of the Code of Conduct for United States Judges to their exchanges with appointed experts. Id., p. 151. 21

VII. Unfettered Use of “Courts’ Experts” Of- fends Due Process The enunciation by this Court of due process parameters for the selection, preparation and presentation of testimony of court’s experts, particularly in the context of a criminal case in which the accounta- bility at law of a mentally ill defendant is an issue, is a natural corollary to the due process guarantee of a psychiatrist to assist an indigent defendant enunciated in Ake v. Oklahoma, 240 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Indeed, the unfettered presentation of the testimony of a state-employee psychiatrist who is anointed with the mantra, “court’s expert,” effectively saps much of the protection afforded by Ake. The defense gets a witness, and the state gets a super witness. The words of Justice Stevens are instructive on this petition for writ of certiorari as to this direct appeal of Mr. Danenberg’s conviction: The Fourteenth Amendment prohibits the deprivation of liberty “without due process of law”; that guarantee is the source of the federal right to challenge state criminal convic- tions that result from fundamentally unfair trial proceedings. Neither the term “due process,” nor the concept of fundamental unfair- ness itself, is susceptible of precise and categorical definition, and no single test can guarantee that a judge will grant or deny habeas relief when faced with a similar set of facts. Every allegation of due process denied depends on the specific process provided, and 22

it is familiar learning that all “claims of constitutional error are not fungible.” Brecht v. Abrahamson, 507 U.S. 619, 639, 113 S.Ct. 1710, 1723, 123 L.Ed.2d 353 (1993) (Stevens, J., concurring). The impartiality of a court is a fundamental element of due process. Even the appearance of bias is condemned as a matter of constitutional law. E.g., Caperton v. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (“A fair trial in a fair tribunal is a basic requirement of due process.”); Ward v. Village of Monroeville, 409 U.S. 57, 59, 93 S.Ct. 80, 82, 34 L.Ed.2d 267 (1972) (applying constitutional guarantee of impartiality of a court); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

VIII. The Writ of Certiorari Should be Granted As noted above, the record in this case presents a unique set of facts upon which to adjudicate what due process restraints should be imposed upon the selection, preparation and presentation of the testimony of an expert witness presented to the jury as the court’s expert, for, in the trial of Mr. Danenberg, there was no evidence of any restraint upon the process: 1. The expert was selected at the State’s suggestion. 2. Defense counsel was not invited to participate in the selection process. 23

3. The expert was a state employee. 4. The expert had previously examined and rendered opinions as to the mental sta- tus of the accused. 5. Counsel for the State and for the defendant had ex parte contacts with the expert. 6. The trial court made no on-the-record assessment of the independence or neutrality of the expert. 7. The trial court exercised no discretion as to whether a court’s expert was needed. The Georgia statute provides no discretion. 8. The trial court imposed no restrictions upon the expert, nor was the expert given any guidance from the trial court as to her role. 9. The jury was told that Dr. Jacoby was the court’s expert witness, but was not cautioned to give her testimony no greater weight than the testimony of other witnesses. 10. No direct testimony was elicited from Dr. Jacoby. Her testimony was presented by the assistant district attorney as cross- examination, with free use of leading questions addressed to a witness with known allegiance to the prosecution.

------ ------24

CONCLUSION There is a clear need for this Court to enunciate meaningful due process restraints upon the selection, preparation and method of presentation of the testimony of a court’s expert witness to a jury, particularly in a criminal trial where mental competency is at issue. Unfettered selection, preparation and presentation of the testimony of an expert, especially an expert with known ties to the state who is denominated as the court’s expert, undermines the presumption of innocence, the prosecution’s burden of proof, the right to an impartial trial judge, impacts upon the right to trial by jury and offends notions of fundamental fairness guaranteed by the Fifth and Fourteenth Amendments of the United States Consti- tution. The writ of certiorari should be granted. Respectfully submitted,

JOHN C. BELL, JR. BELL & BRIGHAM Post Office Box 1547 Augusta, Georgia 30903-1547 (706) 722-2014 [email protected] Counsel for Petitioner App. 1

In the Supreme Court of Georgia Decided: June 25, 2012 S12A0524. DANENBERG v. THE STATE BENHAM, Justice. In 2008, a Jones County jury found appellant Robert Danenberg guilty of malice murder arising out of the 1988 fatal shooting of Deborah Penland Lamb.1

1 Mrs. Lamb was killed on November 13, 1988, and appellant was arrested shortly thereafter. In 1989, after the State filed notice of intent to seek the death penalty, appellant pled guilty to charges of malice murder and aggravated assault and was sentenced to life imprisonment and a term of years. Appel- lant’s petition for a writ of habeas corpus was granted in 2005 when the habeas court found appellant’s trial counsel had provided ineffective assistance in failing to investigate possible side effects of medication Danenberg had been taking at the time of the crimes, and for operating under a conflict of interest when, at the time of the plea, trial counsel was also representing the district attorney in an unrelated matter concerning his exercise of peremptory challenges. This Court affirmed the grant of relief due to the conflict of interest. Howerton v. Danenberg, 279 Ga. 861 (621 SE2d 738) (2005). Appellant’s 2006 re-trial was continued when he was found to be mentally incompetent to stand trial. In November 2008, a special jury found Danenberg competent to stand trial, and his criminal trial took place November 13-14, 17-20, 2008. He was found guilty of malice murder, and his sentence of life imprisonment was filed on November 20, 2008. A motion for new trial, timely filed on December 11, 2008, was amended February 1, 2010, was the subject of a hearing in September 2010, and was denied April 14, 2011. A notice of appeal was filed timely on May 10, 2011, and the appeal was docketed to the January 2012 term of court in this Court. Oral argument was heard March 6, 2012. App. 2

He now appeals, asserting that several rulings made by the trial court constitute reversible error. 1. The State presented evidence that appellant was estranged from his wife in 1988 and that she took their infant child with her to Jones County to stay with friends, Carey and Deborah Penland Lamb. Appellant drove his mother’s red Suzuki Samurai to the Jones County home of the Lambs in November 1988 to visit his child. While there, he shot Deborah Lamb multiple times in front of her three- and five- year-old sons while she was sitting in a chair and holding Danenberg’s infant son. The medical examin- er who performed the autopsy testified that Mrs. Lamb died as a result of the gunshot wounds to her head, with a gunshot wound to her chest a secondary cause of death. A person identifying himself as Bob Danenberg called for emergency help and told responding personnel that he had shot the victim. Wipings of appellant’s hands tested positive for gunshot residue. The evidence was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of the malice murder of Deborah Lamb. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Appellant contends the trial court wrongfully denied him his constitutional right to represent himself at trial. See Faretta v. California, 422 U.S. 806 (95 SC 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I. Sec. I, Par. XII. The pre-trial unequivocal declaration of a defendant that he wishes to represent himself must be followed by a hearing at App. 3

which it is determined that the defendant knowingly and intelligently waives “the traditional benefits associated with the right to counsel.” Faretta v. California, supra, 422 U.S. at 835-836; Thaxton v. State, 260 Ga. 141 (2) (390 SE2d 841) (1990). After excusing prospective jurors for lunch on November 13, 2008, the first day of voir dire in appellant’s trial, the trial court placed on the record its receipt of a communication from appellant in which the trial court was made aware of appellant’s desire to dismiss his counsel. In the handwritten note addressed to the trial judge, appellant informed the court that defense counsel were presenting an insanity defense against appellant’s “direct order” and that appellant “wish[ed] to dismiss them and be given a little time to hire other lawyers or utilize a public defender or proceed pro se.” In a postscript, appellant notified the court that he would request “a little time and some subpoenas” if he proceeded pro se. The trial court noted that the note was dated as having been written at 10:00 a.m. that morning, one hour after jury selection had commenced. The trial court denied appellant’s motion, stating that a defendant must make an unequivocal assertion of his right to self- representation prior to trial. Inasmuch as appellant’s handwritten note sought to dismiss trial counsel and replace them with retained counsel, a public defender, or himself, appellant’s communication was not an unequivocal assertion of his right to represent himself. See id. See also Crutchfield v. State, 269 Ga. App. 69 (2) (603 SE2d 462) (2004); Hayes v. State, 203 Ga. App. 4

App. 143 (2) (416 SE2d 347) (1992); Lynott v. State, 198 Ga. App. 688 (2) (402 SE2d 747) (1991). Appellant was not wrongfully denied his constitutional right to represent himself. 3. Appellant contends the trial court erred when it allowed the State to play for the jury videotapes of the 1988 interviews conducted by the Jones County sheriff ’s investigator of the victim’s young children, ages three and five, two days after the victim was killed. Grown men at the time of appellant’s 2008 trial, the victim’s two sons testified. Mrs. Lamb’s younger son remembered nothing but Mr. Danenberg walking into and then exiting the house. The older son recalled that “Dale,” who was Mr. Danenberg’s estranged wife, and her infant son were living with the Lambs; that his mother was sitting in a chair while she bottle-fed the infant and talked on the phone; that his mother requested he look out the window and report what he saw; that he told her Dale was being chased around a vehicle; that Mr. Danenberg came into the house and pointed a pistol at his mother, said something, and fired the gun; and that he and his young brother found a place to hide under the couch cushions in the living room and then hid under the baby’s crib in a bedroom, where they were found by Dale and removed from the scene. The older son’s testimony was interspersed with his statement that he could not recall certain details. Defense counsel did not cross-examine either of the victim’s sons. Citing Manning v. State, 273 Ga. 744 (545 SE2d 914) (2001), the trial court admitted the App. 5

videotapes after a foundation was laid through the testimony of the Jones County sheriff ’s investigator who conducted the 1988 interviews. The trial court did not err. “A party may introduce a prior consistent statement of a forgetful witness where the witness testifies at trial and is subject to cross-examination.” Id., at 745. See also Williams v. State, 291 Ga. App. 279 (2) (661 SE2d 658) (2008) (forgetful witness’s earlier statement to police admitted through the testimony of the officer who took the statement). 4. Appellant contends the trial court abused its discretion when it allowed a pharmacologist to be called as an expert witness for the State despite the fact that the State purportedly had violated OCGA § 17-16-4, the reciprocal discovery statute, by failing to list the pharmacologist as an expert witness and failing to provide defense counsel with a summary of the expert’s oral report. See OCGA § 17-16-4(a)(4). The trial court recessed in order for defense counsel to interview the expert witness, after which defense counsel, the assistant district attorneys, and the trial court discussed the matter outside the presence of the jury. Appellant’s trial counsel agreed to the trial court’s suggestion that the State’s witness be treated as a rebuttal witness testifying out of order.2 Trial

2 In agreeing to the trial court’s suggestion, defense counsel observed that the defense would learn the content of the rebuttal testimony prior to the defense presenting the testimony of its expert, a point the trial court described as being to the defense’s advantage. App. 6

counsel’s affirmative withdrawal of the objection previously made returns the situation to one in which no objection was made (see Dyer v. State, 23 Ga. App. 770, 771 (505 SE2d 71) (1998)) and the failure to object at trial constitutes a waiver of appellant’s ability to raise the issue on appeal. See Powers v. State, Ga. App. (1a) (2012 WL 762898) (Case No. A11A1814, decided 3/12/12) (issue was waived when appellant withdrew his objection). 5. Appellant contends the trial court denied him his constitutional and statutory right to testify in his own defense (see Mobley v. State, 264 Ga. 854 (2) (452 SE2d 500) (1995)) when the trial court declined to reopen the evidence and allow appellant to testify. After the defense had rested and the trial court’s expert witness had testified, counsel for both parties agreed that the evidence was closed. At that point, one of appellant’s attorneys announced that appellant just had informed counsel that he wished to testify.3 “[T]he right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right” (Rock v. Arkansas, 483 U.S. 44, 53, n.10 (107 SC 2704, 97 LE2d 37) (1987)), but that right is not without limitation, as “restrictions of a defendant’s right to testify may not be arbitrary or

3 After the State had rested, appellant stated his interest in making a statement of apology and remorse to the victim’s family that did not subject him to cross-examination. The trial court denied his request. App. 7

disproportionate to the purposes they are designed to serve.” Id., at 55-56. “A requirement that a defendant exercise his right to testify prior to the close of evidence is not arbitrary or disproportionate to the purposes it is designed to serve.” Smith v. State, 306 Ga. App. 693 (2) (703 SE2d 329) (2010). Whether to reopen the evidence falls within the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal absent an abuse of discretion. Hurt v. State, 239 Ga. 665 (8) (238 SE2d 542) (1977). The failure to include in the record a proffer of the testimony for which a party seeks to have the evidence re-opened precludes the reviewing court from ascertaining whether harm resulted from the decision not to re-open the evidence. See Burnette v. State, 291 Ga. App. 504 (3) (662 SE2d 272) (2008); Tweedell v. State, 218 Ga. App. 518 (2) (462 SE2d 181) (1995) (defendant wished to testify); Oswell v. State, 208 Ga. App. 883 (2) (432 SE2d 586) (1993) (defendant wished to testify). We see no abuse of discretion in the decision of the trial court not to reopen the evidence to permit appellant to testify. 6. Appellant contends the trial court abused its discretion when it denied the request for continuance made by defense counsel on the opening day of trial. Counsel’s request was based on: the State’s production, 35 days before trial commenced, of over 11,000 App. 8

pages of appellant’s medical records,4 including a CD containing over 570 phone calls from appellant to counsel, family, and third parties that allegedly required evaluation since the recorded conversations might contain privileged material and additional evidence of appellant’s incompetency; the continuous production of new documents into the week of trial; the State’s filing of additional witness lists in both the competency trial and the criminal trial, adding fifteen witnesses;5 and the failure of the State to provide the raw data of psychological testing done at Central State Hospital, which the hospital was ordered to produce in an August 2008 order issued by the trial court. “All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. . . .” OCGA § 17-8-22. Since a motion for continuance is addressed to the sound discretion of the trial court, the trial court’s

4 The State turned over the documents to appellant’s attorneys on the same day the State received the documents from Central State Hospital. 5 Two of the fifteen “new” witnesses testified at trial, and the two witnesses were retired scientists who, as employees of the Georgia State Crime Lab, had done tests (lifting fingerprints from a Colt. 45 and testing handwipings for gunshot residue) on material submitted to them. No fingerprints with value for comparison purposes were found, and the handwipings tested positive for gunshot residue. The defense did not cross-examine either witness. App. 9 refusal to grant a continuance will not be disturbed on appeal absent a clear abuse of discretion. Black- shear v. State, 285 Ga. 619 (2) (680 SE2d 850) (2009). There appearing to be no abuse of discretion on the part of the trial court, appellant’s enumeration of error is without merit. 7. Appellant contends the trial court erred when it permitted the State to present “similar transaction” testimony from two witnesses who were not listed on the notice of intent to present such evidence (see Uniform Superior Court Rule 31.3) and were not part of the pre-trial hearing on the issue of similar transaction evidence. We conclude that trial court’s failure to strike the testimony, summarized below, was not an abuse of discretion as the incidents to which the witnesses testified did not qualify as “similar transactions” since they were not sufficiently similar to or connected with the fatal shooting of the victim “so that the proof of the former tends to prove the latter.” See Reed v. State, Case No. S 12A0443, Ga. (3) (2012 WL 1392925, decided 4/24/12). a. The first witness was an attorney who employed appellant in the mid-to-late 1980s. He testified that he had terminated appellant’s services after appellant had told him he had carried a loaded gun into a local courthouse and a courthouse employee had reported to the witness that appellant had “badg- ered” a witness who was leaving the courtroom after appellant had lost the case. The witness also testified that appellant had told him he had been “thrown out” of a local weight-lifting gym and had suggested to App. 10

another attorney in the office that he take steroids. After the defense declined to cross-examine the witness, counsel and the trial court engaged in a bench conference at which defense counsel described the witness’s testimony as similar transaction evidence not raised in the pre-trial notice and sought an instruction to the jury that they disregard it. b. The second witness was a man employed as an assistant to appellant’s mother in her real estate business from June 1988-2000, who testified that he saw appellant in the office several times a week and described him as having a temper. The witness stated that, shortly after the victim was killed in 1988, he was instructed by his employer to remove appellant’s personal items from the office’s basement apartment and discard the items in a trash receptacle in another residential complex in which appellant’s mother had an interest. The witness testified that appellant’s mother owned a red Suzuki Samurai that was equipped with a cellular telephone in 1988, that appellant’s mother had described appellant as very bright and as having a temper and that, in talking with the witness about the murder charge against appellant, she had told the witness she did not think her son was guilty because “they had pushed him too hard” by trying to keep his son from him and the victim “deserved it or got what she deserved.”6

6 The witness was permitted to testify to the contents of his employer’s out-of-court statements after it was ascertained that (Continued on following page) App. 11

8. When, as in this case, a defendant files notice of an insanity defense, OCGA § 17-7-130.1 requires a trial court to appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at trial after presentation of evidence by the State and the defense. Both the prosecution and the defense are entitled to cross-examine the court- appointed witness at trial and to introduce evidence in rebuttal of the testimony of the witness. Id. The court-appointed medical expert is “an independent and impartial witness” who “cannot be classified as an agent of the state. . . .” Tolbert v. State, 260 Ga. 527 (2b) (397 SE2d 439) (1990). Dr. Katherine Jacoby, a psychiatrist employed by Central State Hospital, served as the court-appointed witness, and was introduced to the jury by the trial judge as the court’s witness who was being called to testify by the judge and would be subjected to cross-examination by attorneys for the State and the defendant. Appellant contends in conclusory fashion that the statutory procedure violates due process and the separation of executive and judicial powers because the appointed expert was an employee of the executive branch at Central State Hospital, was appointed at the suggestion of the assistant district attorney and testified, when cross-examined by the State, “as though she were another prosecution witness. . . .” The record shows that a week after defense counsel the witness was under subpoena and was going to be called as a witness by either the State or the defense. App. 12 filed notice of intent to raise the issue of insanity, the trial court held a hearing at which pre-trial motions, appellant’s notice of insanity defense, and appellant’s competency to stand trial were discussed. At the hearing, the assistant district attorney stated his assumptions that the trial court would appoint an expert from Central State Hospital and that the appointee would be Dr. Jacoby, who previously had evaluated appellant’s mental competency to stand trial, and informed the trial court that Dr. Jacoby had set aside time for the evaluation. However, the order issued by the trial court did not appoint Dr. Jacoby; rather, the order directed the Department of Human Resources to conduct an evaluation of appellant and provide the court with a report of diagnosis, progno- sis, and its finding with respect to appellant’s degree of criminal responsibility or mental competency at the time the victim was killed. That the expert’s opinion – that appellant was not insane when he shot the victim – supported the position of the State did not make the expert a witness for the prosecution. See Brannan v. State, 275 Ga. 70 (11) (561 SE2d 414) (2002). We do not see the violations of due process and separation of powers to which appellant alludes. Judgment affirmed. Carley, C.J., Hunstein, P.J., Hines, Melton, and Nahmias, JJ., and Judge Stephen S. Goss concur. Thompson, J., disqualified.

App. 13

IN THE SUPERIOR COURT FOR JONES COUNTY STATE OF GEORGIA STATE OF GEORGIA * CASE # 9647 V. * MURDER * AGGRAVATED ROBERT ALLEN DANENBERG * ASSAULT * KIDNAPPING

ORDER DENYING MOTION FOR NEW TRIAL The above-named Defendant having petitioned this Court for Motion for New Trial in the above- captioned case, and This Court having held a hearing on said application, for Motion for New Trial, and having heard evidence and argument on said application, IT IS HEREBY THE ORDER OF THIS COURT that Motion for New Trial is DENIED in this case. SO ORDERED this 14th day of April, 2011. /s/ William A. Prior Jr. JUDGE WILLIAM A. PRIOR, JR. JUDGE OF SUPERIOR COURT OCMULGEE JUDICIAL CIRCUIT

FILED IN OFFICE, SUPERIOR COURT OF JONES COUNTY 4-14-11 11:45 AM DATE TIME G. Vaughn Deputy CLERK

App. 14

[SEAL] SUPREME COURT OF GEORGIA Case No. S12A0524 Atlanta July 26, 2012 The Honorable Supreme Court met pursuant to adjournment. The following order was passed. ROBERT ALLEN DANENBERG v. THE STATE Upon consideration of the Motion for Reconsider- ation filed in this case, it is ordered that it be hereby denied. Hunstein, C.J., Benham, Hines, Melton, Nahmias, JJ., Senior Appellate Court Justice George H. Carley and Judge Stephen S. Goss concur. Thomp- son, P.J., disqualified. Blackwell, J., not participating. SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta I certify that the above is a true ex- tract from the Minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. Tia C. Milton, Chief Deputy Clerk

App. 15

IN THE SUPREME COURT OF GEORGIA CASE NUMBER S12A0524

ROBERT ALLEN DANENBERG Defendant/Appellant v. THE STATE OF GEORGIA Appellee

BRIEF OF APPELLANT

John C. Bell, Jr. Robert Cullen Georgia State Bar Georgia State Bar No. 048600 No.200338 Bell & Brigham PO Box 467444 P.O. Box 1547 Atlanta, GA 31146 Augusta, GA 30903-1547 (404) 377-9894 (706) 722-2014 Counsel for Defendant/Appellant * * * VII. The Trial Court Erred in Selecting Dr. Katherine Jacoby, an Employee of Central State Hospital Suggested by the State as the “Court’s Witness” and in Presenting her Testimony as the Court’s Neutral Witness [Enumerations of Error 7 and 9] Dr. Katherine Jacoby is a psychiatrist employed by Central State Hospital who is often called upon by App. 16 the State to evaluate the mental competence of persons charged with crimes. T-970-971. She had previously evaluated Mr. Danenberg in 2006. T-972. She was appointed as the Court’s witness at the suggestion of the Assistant District Attorney. MR. BUSHWAY: . . . So the Court has one, and the State’s entitled to one under Georgia law, interestingly enough. I assume you’re going to appoint someone from Central State Hospital, who I’m going to assume is going to be Dr. Jacoby, who’s already evaluated him, I think, at least twice. MT-5/15/08-35-36. MR. BUSHWAY: . . . All right. We have taken the liberty on the Court’s behalf to speak to Dr. Jacoby since she had already evaluated him, and she has set aside time on 9:30 at 9:30 on Monday morning to evaluate Mr. Danenberg. MT-5/18/08-37. Counsel objected to her testimony on the grounds that it is a denial of constitutional due process for a witness “who then becomes the prosecution witness in effect” to be labeled the “Court’s Witness,” thereby impugning the neutrality of the court, and that this action further violated the separation of powers, with the court calling a witness as its witness who then testifies for the prosecution. T-968-969. The court overruled the objection. T-969. This was enumerated as a ground for new trial. R-833-834. App. 17

O.C.G.A. § 17-7-130.1 provides: § 17-7-130.1. Evidence of sanity or insanity; appointment of medical witnesses At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant’s sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness. The concept of a court’s witness is of a neutral witness who assists in assessing the credibility of competing views. A court-appointed medical expert cannot be classified as an agent of the state, but must be considered as an independent and impartial witness. Tolbert v. State, 260 Ga. 527, 528 (1990). Accord, Brannen v. State, 275 Ga. 70, 79-80 (2002) (trial court App. 18

held hearing as to impartiality of court-appointed expert and made factual finding as to impartiality). Rule 706, Fed.R.Evid. provides for court-appointed experts. There is growing body of case law regarding proper procedural safeguards, including input from all parties in the selection process and supervision of contacts with the expert. Wright & Gold, Federal Practice and Procedure § 6305 (“[E]x parte communications between the judge and the expert or between party and the expert are discouraged.”) The record is devoid of any assessment by the court of Dr. Jacoby’s independence, and indeed she testified as though she was another prosecution witness, but with the examination labeled as cross- examination by the State. T-970-994. Why should the State be given the role of selecting and preparing a key witness that comes to court labeled as the “Court’s Witness?” It reeks of the Royal Warrants granted to friends of the Crown by our former rulers in England. The statute and the procedure followed by the trial court should be deemed abridgments of the due process rights of Mr. Danenberg under the Constitutions of the State of Georgia and the United States, and an infringement of the constitutional separation of powers and the purported neutrality of our judges. It was error to present Dr. Jacoby as the Court’s Witness and to deny the motion for new trial on this ground. The judgment should be reversed.

App. 19

CONCLUSION The judgment of conviction should be reversed and the case remanded. Respectfully submitted, BELL & BRIGHAM s/ John C. Bell, Jr. John C. Bell, Jr. Georgia State Bar No. 048600 P. O. Box 1547 Augusta, GA 30903-1547 (706) 722-2014

App. 20

IN THE SUPREME COURT OF GEORGIA CASE NUMBER S12A0524

ROBERT ALLEN DANENBERG Defendant/Appellant v. THE STATE OF GEORGIA Appellee

REPLY BRIEF OF APPELLANT

John C. Bell, Jr. Robert Cullen Georgia State Bar Georgia State Bar No. 048600 No.200338 Bell & Brigham PO Box 467444 P.O. Box 1547 Atlanta, GA 31146 Augusta, GA 30903-1547 (404) 377-9894 (706) 722-2014 Counsel for Defendant/Appellant * * * VII. The “Court’s Witness” was a State Employee Chosen by the State and not an “Independent and Impartial Witness.” The State argues for form over substance when it asserts that Dr. Jacoby was not a prosecution witness because the State had called Dr. Davis as a witness. Brief of Appellee, p. 42. App. 21

The statute that provides for the court to present an “independent and impartial witness” should not be rendered as nothing more than a thumb on the scales of justice in aid of the prosecution, as was the case below. Is there any doubt that the State knew the opinions that state-employee Dr. Jacoby would render before the State selected Dr. Jacoby to be the “court’s witness”? The impartiality of a court is a fundamental element of due process. Even the appearance of bias is condemned as a matter of constitutional law. E.g., Caperton v. Massey, 556 U.S. 868 (2009) (“A fair trial in a fair tribunal is a basic requirement of due process.”); Ward v. Village of Monroeville, 409 U.S. 57, 59 (1972) (applying constitutional guarantee of impartiality of a court); Tumey v. Ohio, 273 U.S. 437 (1927). The concept of a “court’s witness” is at best problematic in an adversary system that cherishes an unbiased judiciary. If we are to have “courts’ witnesses” with the added testimonial weight that neces- sarily flows from that imprimatur, then this Court should impose firm requirements that such a witness be both independent and impartial. Tolbert v. State, 260 Ga. 527, 528 (1990). This case presents a clear record of how not to select an independent and impartial court’s witness. The judgment should be reversed.

App. 22

CONCLUSION The judgment, conviction and sentence should be reversed. Respectfully submitted, s/ John C. Bell, Jr. John C. Bell, Jr. Georgia State Bar No. 048600 Bell & Brigham PO Box 1547 Augusta, GA 30903-1547 (706) 722-2014 Robert Cullen Georgia State Bar No. 200338 P.O. Box 467444 Atlanta, GA 31146 (404) 377-9894 COUNSEL FOR DEFENDANT/APPELLANT

App. 23

IN THE SUPERIOR COURT FOR THE COUNTY OF JONES STATE OF GEORGIA

THE STATE, ) CASE NUMBER v. ) 9647 ROBERT ALLEN DANENBERG, )

DEFENDANT’S AMENDED MOTION FOR NEW TRIAL * * * 16. The Court erred in selecting and presenting as the Court’s expert the testimony of Katherine Jacoby as the Court’s expert pursuant to O.C.G.A. § 17-7-130.1, as Dr. Jacoby is an employee of the executive branch of State of Georgia and the State of Georgia is the prosecutor in this case. Such a witness is obviously contrary to the purpose of O.C.G.A. § 17-7-130.1 to present an unbiased neutral expert with no ties to either the prosecution or the defense. The subsequent cross- examination by leading questions of this State employee by the State’s Assistant District Attor- ney further exacerbated the unfairly biased application of the statute. Such application of the statute is clearly prejudicial to the due process rights of the Defendant under the Constitution of the United States and the Constitution of the State of Georgia. The submission of testimony of a “Court’s witness” who advocates for the State’s position and against the Defense’s assertions impugns the neutrality of the Court, unfairly

App. 24 denying the Defendant’s right to due process under the Constitutions of the United States of America and the State of Georgia. The statute is in conflict with the rule in Georgia that a trial judge should not comment on the evidence or ex- press the Court’s opinion of the factual merits of the evidence.

App. 25

IN THE SUPERIOR COURT FOR THE COUNTY OF JONES STATE OF GEORGIA THE STATE V. ROBERT ALLEN DANENBERG CASE NUMBER 9647 MURDER AGGRAVATED ASSAULT VOLUME FOUR OF FIVE (CRIMINAL TRIAL)

HEARD BEFORE HONORABLE WILLIAM A. PRIOR, JR., CHIEF JUDGE AND A JURY – – – – NOVEMBER 13,14,17,18,19,20 2008

Appearances: For the State: MR. GREGORY L. BUSHWAY MS. KEAGAN GOODRICH Asst. District Attorneys Ocmulgee Judicial Circuit Gray, GA 31032 For the Defendant: MR. FRANKLIN J. HOGUE Attorney at law P. O. Box 1795 Macon, GA 31202 MR. ROBERT W. CULLEN Attorney at law 1401 Peachtree St., Ste. 500 Atlanta, GA 30309 App. 26

REPORTED BY: JEANNETTE V. CATHEY Official Court Reporter Ocmulgee Judicial Circuit P. O. Box 745 Madison, GA 30650 [968] MR. HOGUE: Are you ready? THE COURT: Uh-huh (affirmative response). MR. HOGUE: Your Honor, under 17-7- 130.1, the statute does appear to say that the Court shall appoint at least one psychiatrist or licensed psychologist to examine the Defendant and to testify at trial. So I know we’re about to do that. That witness will give an opinion that incriminates the De- fendant, and my objection to it will – will be in the nature of a challenge to the constitutionality of the statute. And my grounds will be due process, that it does impune the neutrality of the Court by allowing – THE COURT: I knew you were going to say that. MR. HOGUE: – allowing the Court to call a witness that then becomes a prosecution witness in effect, though I know the Court’s intention is not to do that. It’s the appearance of that. And there may even be a separation of powers issue here that I’ll just raise for the record between the judicial and the executive branch since the judicial branch would now be calling a witness that will be helping the [969] executive branch in prosecuting the – App. 27

THE COURT: That’s a unique – I liked your argument until you got there, but anyway – MR. HOGUE: Well, that’s my last one. But the other one is the – my main one is it impunes the neutrality of the Court with respect to the jury’s view of the case. THE COURT: I understand your argument, and I’m going to – I believe that the code section requires me to call her, so I’m going to call her. Bring the jury in, please, ma’am. (Whereupon, the jury enters the courtroom at 4:38 P.M.) THE COURT: The record will reflect all jurors and alternates are present. Be seated, ladies and gentlemen. Defendant and counsel are present. Call your next witness, Mr. Hogue. MR. HOGUE: Your Honor, the Defense rests. THE COURT: Ladies and gentlemen, both the Plaintiff and the Defense has rested. [970] I assume you have no rebuttal witnesses, Mr. Bushway? MR. BUSHWAY: That is correct, Your Honor. App. 28

THE COURT: The evidence is now closed, other than the fact that I’m calling one witness as the Court’s witness and will allow both attorneys to cross examine that witness. I call Katherine Jacoby. Come forward, Ms. Jacoby. Have a seat in this witness chair. Mr. Bushway, swear and cross examine.

KATHERINE JACOBY Witness being first duly sworn Testified on CROSS EXAMINATION BY MR. BUSHWAY: Q Dr. Jacoby, would you please tell the ladies and gentlemen of the jury your name? A Katherine Jacoby, J-a-c-o-b-y. Q And Katherine is spelled with? A A “K” and it’s e-r-i-n-e. Q Dr. Jacoby, where do you work? A At Central State Hospital in Milledgeville. Q And what do you do there? [971] A I have a couple of things that I do there. Mainly, I am the attending psychiatrist on an in- patient unit of men. I have thirty men on that unit. About half are not guilty by reason of insanity, and App. 29 the other half are incompetent to stand trial. The other part of my job is I do some evaluations for the court, both criminal responsibility and competency to stand trial. * * * Q And after you finished that residency in 2005 at the University of South Carolina, what did you do next? A I went straight to Central State Hospital to begin work there. Q And you’ve been working there since? A Yes, I have. Q Still working there? A Yes. MR. BUSHWAY: I was trying to get a [972] stipulation for this, Your Honor. I think Dr. Jacoby is qualified to be an expert in psychiatric medicine. MR. HOGUE: Well, I think she’s been called as the Court’s expert, so I presume that’s a finding the Court’s already made. THE COURT: I find she is qualified as an expert and may testify as a psychiatrist. BY MR. BUSHWAY: Q Dr. Jacoby, are you familiar with Robert Allen Danenberg? App. 30

A Yes, I am. Q How do you know the Defendant, Robert Allen Danenberg? A I was assigned to do a competency to stand trial evaluation on him back in May of 2006. I’ve done several evaluations since then as well. Q And you were directed to do that by? A The Court. Q How many times have you interviewed the Defendant? A About four times over the last two and a half years. * * * [992] Q And what did you determine? A At that point, he had been in Central State Hospital. He had been stabilized on medications, and I – my – my opinion at that time was that he was competent to stand trial. Q That’s October, 2006? A Correct. Q And then the next time is when? A The next time is May of this year. Q And that’s the one we discussed. A Correct. App. 31

Q And then following that interview, you determined in May, he’s competent to stand trial, and we talked about the criminal responsibility. Have you spoken to Robert Allen Danenberg since May, 2008? A Yes. I spoke to him on November 5th, 2008, and actually we spoke briefly here in one of the intermissions in court today. * * * CROSS EXAMINATION BY MR. HOGUE: Q Dr. Jacoby, Mr. Bushway just asked you if you were an employee of the State. You’re an employee of the Georgia Department of Human Resources? A Yes. Q Okay. And that’s a division of the executive branch of the State government, as far as you know? A It’s a branch of – of some part of the State government. I don’t know if it’s executive branch. Q I mean, the Governor would have something to do with appointing the Commissioner of that? A Yes. Q Okay. So it would be under the executive branch, you would presume. A I – if you’re saying so, yeah. App. 32

Q Okay. And do you realize that the District Attorney’s Office and all District Attorneys in the State are also under the executive branch, they’re the ones who prosecute people for violating the laws passed by the Legislative branch? This is basic civic stuff, but do you agree with all that? A If you say so, I agree with that. I don’t – * * * [997] Q I couldn’t call you up and say, “Dr. Jacoby, could I hire you to work on a case for me as a Defense lawyer?” I couldn’t do that, could I? A Well, I – that would be – I can’t take cases like that because that would be competing with the State, which is the job I’m already doing, so I – I don’t get paid for – I don’t get hired by – Q So the – A – I – I do – all my examinations are for Court Order. Q Sure. So the answer is no? A Correct.

App. 33

IN THE SUPERIOR COURT FOR THE COUNTY OF JONES STATE OF GEORGIA THE STATE V. ROBERT ALLEN DANENBERG CASE NUMBER 9647 MURDER AGGRAVATED ASSAULT SPECIAL PLEA OF MENTAL INCOMPETENCY TO STAND TRIAL VOLUME TWO OF THREE (COMPETENCY TRIAL)

HEARD BEFORE HONORABLE WILLIAM A. PRIOR, JR., CHIEF JUDGE AND A JURY – – – – NOVEMBER 10,11,12, 2008

Appearances: For the Plaintiff: MR. FRANKLIN J. HOGUE (Defendant in Attorney at law criminal proceeding) P. O. Box 1795 Macon, GA 31202 MR. ROBERT W. CULLEN Attorney at law 1401 Peachtree St., Ste. 500 Atlanta, GA 30309

App. 34

For the Defendant: MR. GREGORY L. BUSHWAY (The State in MS. KEAGAN GOODRICH criminal proceeding) Asst. District Attorneys Ocmulgee Judicial Circuit Gray, GA 31032 REPORTED BY: JEANNETTE V. CATHEY Official Court Reporter Ocmulgee Judicial Circuit P. O. Box 745 Madison, GA 30650 * * * [342] (Whereupon, court is reconvened at 8:30 A.M. on Wednesday, November 12, 2008.) THE COURT: The record will reflect all jurors and alternates are present in the courtroom. Parties and counsel are present. Call your next witness, Mr. Bushway. MR. BUSHWAY: Your Honor, at this time, the State rests. THE COURT: Ladies and gentlemen, I’m going to call the next witness as the Court’s witness. I will allow each side to cross examine this witness. It is stipulated by counsel that she is an expert and may testify as an expert in the field of forensic psychiatry. The Court calls Dr. Katherine Jacoby. Dr. Jacoby, come up and have a seat, please. App. 35

Mr. Hogue, would you swear the witness and cross examine? MR. HOGUE: Yes, I will, Your Honor.

KATHERINE JACOBY Witness being first duly sworn Testified on CROSS EXAMINATION BY MR. HOGUE: Q Now, this is a bit unusual. You’re the Court’s witness, and I’m in the position of cross examining you, right? A Yes. Q All right. And we know each other, we’ve talked before, correct? A That’s correct. Q And, in fact, you’ve been involved in this case off and on for a few years, at least, right? A About two and a half. * * * [362] Q We never talked the first time, in November of ’06, or the second time you would have seen him. Are you aware of this – let me put a point to it like this – that on the occasion when you wrote your report for Judge Wingfield that we just read in App. 36

May of ’06, that there was no competency trial, and both sides agreed and got a Court Order to have him sent to you because everybody agreed he was not competent, and that was your finding? You were aware of that? A Yes. Q Okay. And that on the other occasions, it’s been a disagreement, and he’s been sent to you for a finding of competency, and I relayed to you that, in my view, he is incompetent, the State’s relayed an opposite view, and your finding has been that he’s competent. Is that a fair characterization of at least the positions of the folks involved? A I don’t think that the prosecution ever had an opinion that that’s what – that they had their own expert that you saw yesterday, Dr. Davis, and then they asked me to go see him this last time, and asked my opinion as to whether they – that I thought that he was competent at that time, so they knew whether to go through with calling all the witness – witnesses for the second part of the – [363] the proceedings that will come after this if he is found competent. I don’t think they had an opinion. Q You say “they” asked you to go see him. The State did? A They called and they said that he had been – I got a Court Order from the Judge every time, but I got a call from Ms. Goodrich last week that there was some question that Mr. Danenberg might have tried App. 37 to commit suicide. And with the trial coming up, I had planned to see him anyway before the proceedings because competency can go up and down. You don’t – you can’t say six months ago that somebody is competent for a trial date six months later. You have to evaluate them before that. So I had planned to see him anyway, and they – when they told me that this possibly had – he had a suicide attempt, then that’s when I went and saw him after the Judge issued the Court Order for me to do so. Q But you were fully aware in your conversations with Ms. Goodrich that the State took the position this time, as they have on other times when you’ve found him to be competent, that they contest our motion and want a jury to find him to be competent? You understand that’s what we’re doing here, right? A It’s an adversarial – Q Right.

App. 38

Georgia Code Annotated § 17-7-130.1 Evidence of sanity or insanity; appointment of medical witnesses At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant’s sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.

App. 39

FEDERAL RULES OF EVIDENCE, RULE 706. COURT-APPOINTED EXPERT WITNESSES (a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act. (b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert. (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows: (1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and App. 40

(2) in any other civil case, by the parties in the proportion and at the time that the court directs – and the compensation is then charged like other costs. (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert. (e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.

App. 41

United States Constitution, Article V – Trial and Punishment, Compensation for Takings No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

United States Constitution, Article XIV, § 1. Citizenship rights. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

App. 42

A UNIFORM ACT EMPOWERING THE COURT TO APPOINT EXPERT WITNESSES IN CIVIL AND CRIMINAL PROCEEDINGS, PROVIDING FOR CONFERENCES AND JOINT REPORTS OF EXPERT WITNESSES, AND THE COMPENSA- TION OF EXPERT WITNESSES. (Be it enacted, etc.) Section 1. (Court Empowered to Appoint Expert Witnesses.) Whenever, in a civil or criminal proceeding, issues arise upon which the court deems expert evidence is desirable, the court, on its own motion, or on the request of either the state or the defendant in a criminal proceeding, or of any party in a civil proceeding, may appoint one or more experts, not exceeding three on each issue, to testify at the trial. Section 2. (Notice When Called by Court.) The appointment of expert witnesses by the court shall be made only after reasonable notice to the parties to the proceeding of the names and addresses of the experts proposed for appointment Section 3. (Notice When Called by Parties.) Un- less otherwise authorized by the court, no party shall call a witness, who has not been appointed by the court, to give expert testimony unless that party has given the court and the adverse party to the proceeding reasonable notice of the name and address of the expert to be called. Section 4. (Agreement on Expert Witnesses by Parties.) Before appointing expert witnesses, the court may seek to bring the parties to an agreement App. 43 as to the experts desired, and, if the parties agree, the experts so selected shall be appointed. Section 5. (Inspection and Examination of Subject Matter by Experts.) Expert witnesses appointed by the court shall, at the request of the court or of any party, make such inspection and examination of the person or subject matter committed to them as they deem necessary for the full understanding thereof and such further reasonable inspection and examination as any party may request. Reasonable notice shall be given to each party of the proposed inspection and examination of persons, things, and places, and each party shall be permitted to be represented at such inspection and examination. Experts called by the court or by the parties in the proceeding shall be permitted access to the persons, things, or places under investigation for the purpose of inspection and examination. Section 6. (Report by Experts and Filing Thereof.) The court may require each expert it has appointed to prepare a written report under oath upon the subject he has inspected and examined. This report shall be placed on file with the clerk of the court at such time as may be fixed by the court and be open to inspection by any party. By order of the court, or on the request of any party, the report shall be read, subject to all lawful objections as to the admissibility of the report or any part thereof, by the witness at the trial.

App. 44

Section 7. (Conference and Joint Report by Expert Witnesses.) The court may permit or require a conference before the trial on the part of some or all of the expert witnesses, whether summoned by the court or the parties or both; and two or more of them may unite in a report which may be introduced at the trial by any party or by order of the court, subject to all lawful objections as to the admissibility of the report or any part thereof. Section 8. (Expert Witnesses Called to Testify by Court or Parties.) At the trial the court or any party may call any expert witness appointed by the court The fact that he has been appointed by the court shall be made known to the jury, and he shall be subject to cross-examination by any party on his qualifications and the subject of his testimony. Any party to the proceeding may also call other expert witnesses, subject to the provision of Section 3, but the court may impose reasonable limitations upon the number of witnesses so called. Section 9. (Examination of Experts.) (1) An expert witness may be asked to state his inferences, whether these inferences are based on the witness’ personal observation, or on evidence introduced at the trial and seen or heard by the witness, or on his technical knowledge of the subject, without first specifying hypothetically in the question the data on which these inferences are based. App. 45

(2) An expert witness may be required, on direct or cross-examination, to specify the data on which his inferences are based. Section 10. (Compensation of Expert Witnesses.) The compensation of expert witnesses appointed by the court shall be fixed by the court at a reasonable amount. In criminal proceedings it shall be paid by the (county) under the order of the court, as a part of the costs of the action. In civil proceedings the compensation of experts appointed by the court shall, after it has been fixed by the court, be paid in equal parts by the opposing litigants to the clerk of the court at such time as the court shall prescribe, and thereafter assessed as costs of the suit. The fee of an expert witness called by a party but not appointed by the court shall be paid by the party by whom he was called, and the amount of such fee shall be disclosed if requested upon cross-examination. The receipt by any witness appointed by the court of any compensation other than that fixed by the court, and the payment of, or the offer or promise by any person to pay such other compensation shall be unlawful. Section 11. (Uniformity of Interpretation.) This act shall be so interpreted and construed as to effec- tuate its general purpose to make uniform the law of those states which enact it. Section 12. (Severability.) If any provisions of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can App. 46 be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. Section 13. (Short Title.) This act may be cited as the Uniform Expert Testimony Act. Section 14. (Repeal.) All acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed. Section 15. (Time of Taking Effect.) This act shall take effect. . . . National Conference of Commissioners on Uniform State Laws