                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-KA-00038-SCT

JASON ISHAM a/k/a JASON C. ISHAM a/k/a
JASON CLARK ISHAM

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         01/16/2014
TRIAL JUDGE:                              HON. GERALD W. CHATHAM, SR.
TRIAL COURT ATTORNEYS:                    WILLIAM ROBERT BRUCE
                                          STACEY ALAN SPRIGGS
                                          STEVEN JUBERA
COURT FROM WHICH APPEALED:                DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: MOLLIE MARIE McMILLIN
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                        JOHN W. CHAMPION
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND REMANDED - 04/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Jason Isham was convicted in the Circuit Court of DeSoto County of one count of

felonious child abuse pursuant to Mississippi Code Section 97-5-39(2). His wife’s two-year-

old son, Tommy,1 was hospitalized in May, 2012, for a severe, traumatic brain injury, which


       1
     Because of the child’s minority, this Court will refer to him by the pseudonym,
Tommy.
caused severe swelling of the child’s brain, stroke, and permanent weakness on his right side.

Because Isham was alone with Tommy when this occurred, he was charged with felonious

child abuse of Tommy. At trial, expert medical witnesses for the State testified that Tommy’s

injuries resulted from severe blunt trauma. Isham, who was represented by a public defender

and a pro bono attorney, requested funds with which to hire his own expert to testify about

possible alternative causes for Tommy’s injuries. The trial court denied the request. On

appeal, Isham raises one issue: that the trial court erred when it refused him the funds

necessary to hire an expert in his defense. In light of this Court’s recent holding in Brown

v. State, 152 So. 3d 1146 (Miss. 2014), we reverse Isham’s conviction and remand the case

for a new trial in which the trial court must order public funds for such defense experts as are

necessary for the accused to prepare and present an adequate defense.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Jason Isham lived with his wife, Mary Beth, and her then-two-year-old son Tommy

in DeSoto County, Mississippi. On April 30, 2012, Mary Beth noticed that the back of the

child’s head was swollen and mushy, and that Tommy had a 103-degree temperature.

Although Tommy had spent the previous few days with his biological father, the child had

not exhibited any health problems when he returned to the residence of his mother and Isham.

Tommy was treated at LeBonheur Hospital in Memphis, Tennessee.

¶3.    Dr. Karen Lakin examined Tommy at LeBonheur and noticed “a lot of soft tissue

swelling all around his head, in the back of his ears a lot of bruising, . . . [a]nd probably the

most remarkable is the amount of swelling that he had and the amount of bruising that he had



                                               2
around his head.” Dr. Lakin diagnosed the child with soft-tissue swelling and significant

bruising to the scalp and forehead, concluding that these conditions could not have been

caused by a roller-skating accident the week before and “appeared to be from some type of

blunt force trauma, but the amount of bleeding was out of proportion to what we would see

with a trivial fall.” Dr. Lakin interpreted the child’s injuries to be a result of child abuse, and

she therefore reported Tommy’s condition to the Department of Human Services so that it

could investigate whether his injuries were the result of “nonaccidental trauma.”

¶4.    Tommy returned home from Le Bonheur Hospital with Mary Beth and Isham on May

3, 2012. From May 7 to May 9, Tommy stayed at his biological father’s home. The child was

fine throughout that visit. Then, on May 10, he returned to Mary Beth’s custody. On May 11,

2012, after being with his mother and Isham for a day, the child was very drowsy and

nauseated. He also reacted very negatively to sunlight.

¶5.    The next day, Mary Beth fed Tommy some cut-up bites of hot dog and laid him down

for a nap between 11:30 a.m. and 12:00 p.m. Mary Beth left the house to run an errand

around 12:30 p.m.; but before she had been gone more than ten minutes, she received a

frantic phone call from Isham informing her that Tommy was unresponsive and was having

trouble breathing. Mary Beth immediately returned home and attempted to perform CPR on

Tommy.

¶6.    An ambulance was called, and it transported Tommy to the emergency room at Baptist

DeSoto Hospital. There, he was treated by emergency room physician Dr. Rosa Gomez. The

child was blue from oxygen deprivation, and his body was very “spastic,” alternating



                                                3
between conditions of extreme rigidity and extreme flaccidity. His left pupil was blown,

meaning that it was large and nonreactive, indicating that the child had severe internal

bleeding within his skull. When Tommy arrived at the emergency room, no medical

professionals observed the presence of external injuries to his person.

¶7.    Because emergency room physicians suspected that Tommy had suffered a traumatic

brain injury, the child was then airlifted from Baptist DeSoto Hospital to LeBonheur Hospital

in Memphis, where he was treated by Dr. Stephanie Einhaus, a pediatric neurosurgeon. When

Tommy arrived at LeBonheur, a CAT scan revealed a blood clot on the right side of his brain

as well as a significant bruise, or contusion, on the left side of his brain. Dr. Einhaus

performed emergency surgery to relieve the swelling in his brain, which entailed removing

a window of bone from the skull to allow the brain room to swell. After the surgery, the

child experienced several other complications. His brain continued to swell despite Dr.

Einhaus’s efforts, which included draining fluid from the brain and placing Tommy in a

medically induced coma. Dr. Einhaus discovered that Tommy had suffered a stroke in the left

side of his brain, for which emergency surgery on the right side of the child’s brain was

necessary to prevent another stroke and further damage from swelling.

¶8.    The child survived the trauma and the surgeries; but he had to relearn to talk and has

permanent weakness on the right side of his body. Because Tommy had exhibited signs of

abuse on April 30, 2012, while he was in the care of Isham, because Tommy did not begin

to show injuries until he began living in Isham’s home, and because Tommy exhibited

serious head injuries consistent with abusive blunt-force trauma and shaking after being in



                                             4
Isham’s care, Jason Isham was charged with felonious child abuse pursuant to Mississippi

Code Section 97-5-39(2).

¶9.    Before trial, Isham designated two experts, Dr. Terry Moore and Dr. Joseph Wippold.

Isham stated that Dr. Moore, a professor of internal medicine and pediatrics and director of

pediatric rheumatology, diagnosed Tommy with Systemic Lupus Erythematosus and CNS

Vasculitis. Dr. Wippold, a neuroradiologist, opined that nonaccidental trauma was not the

cause of Tommy’s head injuries. On October 17, 2013, eleven days before trial was to begin,

Isham filed his Motion for State to Pay for Expert Fees and for Continuance if Necessary to

Secure Attendance or Testimony, requesting funds “to pay the expenses of obtaining the

presence at trial of his identified experts . . . or alternatively to pay the expenses of securing

deposition testimony to be presented at trial.” He stated that he was indigent and that the trial

court had appointed a public defender to represent him, and that he also was represented by

pro bono counsel. He explained that the testimony of Drs. Moore and Wippold would be

necessary for his defense.

¶10.   The trial court held a hearing on the motion for funds on October 22, 2013. Isham’s

counsel informed the court that Isham was indigent, as evidenced by the court’s having

appointed him a public defender. Isham’s counsel explained that, because the State had the

benefit of medical experts, it was only fair for Isham to be given the opportunity to consult

an expert and “to provide an explanation for the observations and the condition of the child

in this case.”




                                                5
¶11.   The trial court agreed that Isham probably should have an expert. “In a perfect world,

I suppose that the county should be required to provide the defense with—an indigent

defendant with experts. However, I don’t know that I have any authority to order that.” The

State contended that the proposed defense experts would be unavailable for trial on the date

for which it was set, and that a continuance would be necessary to guarantee their

appearance. The State also contended that Isham was not indigent because he had been

released on a $50,000 bond.

¶12.   Ultimately, the trial court denied Isham’s motion for expert funding. It analyzed the

three-factor test which the United States Supreme Court articulated in Ake v. Oklahoma, 470

U.S. 68, 77, 105 S. Ct. 1087, 1093, 84 L. Ed. 2d 53 (1985): (1) the private interest affected

by the action of the state; (2) the governmental interest affected if the safeguards are

provided; and (3) the probable value of the additional or substitute procedural safeguards that

are sought and the risk of an erroneous deprivation of the affected interest if those safeguards

are not provided. It then cited Brandon v. State, 109 So. 3d 128 (Miss. Ct. App. 2013), for

the proposition that expert funding is “conditioned upon a showing that such expenses are

needed to prepare and present an adequate defense.” The trial court concluded that the

defendant had not provided a concrete reason for requiring defense experts in the case “other

than counsel’s statement that they need an expert.” The trial court also found the motion to

be untimely, as it was filed eleven days before trial was scheduled to begin. The trial court

stated that it was going to permit liberal cross examination of the State’s witnesses, but that

it would deny Isham’s motion for expert funding.



                                               6
¶13.    Isham’s trial commenced on October 28, 2013. Isham proceeded with no experts in

his defense. The State’s case-in-chief included the testimony of three expert witnesses.

¶14.    First, Dr. Gomez, the physician who had treated Tommy in Baptist DeSoto Hospital’s

emergency room during his second hospitalization, was accepted as an expert in the field of

emergency medicine. Dr. Gomez testified that when the child arrived at the emergency room,

he was on the brink of death. He had turned blue from lack of oxygen, and he could not even

swallow on his own. She testified that she was concerned Tommy had a bleed inside his

head.

¶15.    Next, Dr. Einhaus, the physician who performed Tommy’s brain surgery, was

accepted as an expert in the field of pediatric neurosurgery. As for the contusion that doctors

had identified on the left side of the child’s brain, Einhaus testified that the only cause for

such an injury was “blunt force trauma period.” Under cross-examination, Einhaus reiterated

her conclusion that “the only thing that . . . could have caused [Tommy’s] pathology is blunt

force.” Einhaus further testified that the patient did not have a bleeding disorder that could

have explained his injury.

¶16.    Finally, Dr. Lakin, the physician who had reported Tommy’s injuries to the authorities

as abuse and treated him after surgery, was accepted as an expert in general pediatrics and

child-abuse pediatrics. Lakin testified that, in her opinion, the significant soft-tissue swelling

could not be explained by Tommy’s medical history. She stated that some of the redness and

contusions were considered “battle sign[s],” meaning signs of abuse. Although the child had

fallen approximately ten days earlier while he was roller skating, Lakin testified that there



                                                7
was no history of “significant trauma that would explain the extent of the bleeding and the

swelling that we saw.” Mary Beth’s family had a history of bleeding disorders, but Dr. Lakin

testified that the extent of the bleeding could not be explained by any type of bleeding illness

or disease. She concluded that Tommy’s condition “appeared to be from some type of blunt

force trauma, but the amount of bleeding was out of proportion to what we would see with

a trivial fall.”

¶17.    With regard to the child’s health after his brain surgery, Dr. Lakin testified that there

was no medical history of trauma that would explain his second set of injuries. She stated

that the injury could not have resulted from trivial trauma, but that Tommy suffered “a life

threatening injury that almost killed him.” She testified that Tommy’s injuries, a subdural

hemorrhage in the brain combined with bilateral retinal hemorrhages—caused when blood

vessels behind the retina rupture and hemorrhage—“were consistent with abusive head

trauma.” She went on to say that, although the subdural hemorrhaging is consistent with

blunt-force trauma, retinal hemorrhaging is more consistent with severe shaking.

¶18.    At the close of trial, Isham was convicted of felonious child abuse and sentenced to

thirty years in prison, followed by fifteen years of post-release supervision and a fine of

$10,000. Isham has timely appealed.

                                          ANALYSIS

¶19.    Isham raises one issue on appeal. He contends that the “trial court erred in refusing

to provide Isham funds to hire an expert witness with regard to the nature of and cause of

Tommy’s injuries.”



                                                8
¶20.   Although we review a trial court’s denial of expert assistance under an abuse-of-

discretion standard, “[w]e will not hesitate to reverse a trial court’s denial of expert

assistance to an indigent defendant when the lack of expert assistance denied the defendant

due process such that the trial was rendered fundamentally unfair.” Lowe v. State, 127 So.

3d 178, 181 (¶ 14) (Miss. 2013) (citing Fisher v. City of Eupora, 587 So. 2d 878, 883 (Miss.

1991)). Accordingly, this Court’s task is to determine whether the trial court’s refusal to

provide funds for expert assistance to Isham rendered his trial fundamentally unfair.

       1.     Whether the trial court’s denial of expert assistance rendered
              Isham’s trial fundamentally unfair.

¶21.   The United States Supreme Court “has long recognized that when a State brings its

judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps

to assure that the defendant has a fair opportunity to present his defense.” Ake, 470 U.S. at

70.

¶22.   In Ake v. Oklahoma, the United States Supreme Court addressed an indigent

defendant’s right to expert witnesses, concluding that the right at stake implicated a criminal

defendant’s access to justice:

       Meaningful access to justice has been the consistent theme of these cases. We
       recognized long ago that mere access to the courthouse doors does not by itself
       assure a proper functioning of the adversary process, and that a criminal trial
       is fundamentally unfair if the State proceeds against an indigent defendant
       without making certain that he has access to the raw materials integral to the
       building of an effective defense.

Id. at 76. The Court also wrote that “fundamental fairness entitles indigent defendants to ‘an

adequate opportunity to present their claims fairly within the adversary system’” and that



                                              9
courts implement this principle by identifying the tools of an adequate defense and providing

them to indigent defendants. Id. at 77.

¶23.   Similarly, in Lowe v. State, 127 So. 3d 178 (Miss. 2013), this Court examined a

criminal defendant’s right to a fair trial in the context of an indigent litigant’s request for

funds to hire an expert to assist in his defense. In Lowe, the defendant was convicted of five

counts of exploitation of a child with regard to images that he allegedly had downloaded onto

his laptop computer. Id. at 179 (¶ 1). Because the State’s entire case “relied solely on the

opinions of its expert witness to establish that the files existed on Lowe’s laptop,” Lowe

requested funds for an independent expert in computer forensics “to examine the computer’s

hard drive and to refute the State expert’s allegations . . . .” Id. at 183 (¶¶ 21-22). The trial

court denied the request.

¶24.   This Court reversed Lowe’s conviction and remanded for a new trial because the

denial of expert assistance rendered his trial fundamentally unfair. Id. at 184 (¶ 26). Citing

the United States Supreme Court’s decision in Ake, this Court recognized that the

defendant’s right to an expert to assist in his defense derived from the Fourteenth

Amendment’s guarantee of due process and that “justice cannot be equal where, simply as

a result of his poverty, a defendant is denied the opportunity to participate meaningfully in

a judicial proceeding in which his liberty is at stake.” Lowe, 127 So. 3d at 182 (¶ 16) (quoting

Ake, 470 U.S. at 76).

¶25.   For an indigent defendant to be entitled to public funds to retain an expert, the expert

must be a “basic tool of an adequate defense.” Id. (¶ 17). In order to establish whether an



                                               10
expert is a “basic tool for an adequate defense,” the Court must analyze (1) the private

interest that is affected by the action of the state; (2) the governmental interest that is affected

if the safeguard is provided; and (3) the probable value of the additional or substitute

procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected

interest if those safeguards are not provided. Id. (quoting Ake, 470 U.S. at 77).

¶26.   Under the first prong, the private interest involved is an individual’s interest in

accurate criminal proceedings, which is “uniquely compelling” and heavily weighs in the

individual’s favor. Id. (¶ 18).

¶27.   Next, we consider the second prong, which is the governmental interest that is

affected if the safeguard is provided. Under this prong, we consider the fact that the county

has a pecuniary interest at stake in Isham’s retention of an expert, given that the county

government must provide funds for a court-ordered expert. This interest, however, is

insubstantial, comparatively speaking, and the government’s interest in prevailing at trial is

outweighed by the government’s interest in resolving criminal cases fairly and accurately.

Id. at 182-83 (¶ 18). Accordingly, in this case, both Isham’s and the government’s interest

in a fair and accurate criminal trial far outweigh the county government’s pecuniary interest

in the public funds it must pay to compensate Isham’s expert witnesses.

¶28.   Finally, the third prong, which this Court analyzes the most intensely, requires the trial

court to balance the probative value of expert testimony for Isham against the risk of not

providing him expert assistance.




                                                11
¶29.   In Lowe, this Court held that Lowe’s need for an expert was vital, because an expert

could refute the State’s allegations and assist Lowe in cross examining the State’s expert.

The Court noted that the State was required to prove that it was Lowe himself who had

downloaded certain images onto the computer, and that it could not prove that element of the

crime without expert testimony. Id. at 183 (¶ 21). The Court summed up its reasoning:

       Where, as here, the State relies on expert testimony alone to connect the
       defendant to the offense charged, an independent defense expert is part of the
       “raw materials integral to building an effective defense,” and the trial judge
       deprives an indigent defendant of a fundamentally fair trial by refusing him
       funds to procure such an expert.

Id. at 184 (¶ 24) (emphasis added).

¶30.   This Court very recently confronted the issue of expert assistance for a defendant

accused of causing the death of his young son by striking and shaking him, causing severe

head and brain trauma. In Brown v. State, 152 So. 3d 1146 (Miss. 2014), Leevester Brown

was convicted of the capital murder of his son, who died of symptoms that Dr. Steven Hayne,

a pathologist, deemed consistent with shaken-baby syndrome. Id. at 1156-57. Although there

were no external bruises or abrasions, Brown’s son suffered a subdural hemorrhage, meaning

that blood had collected between the child’s brain and skull, causing brain swelling, a

midline shift, and compression of the brain stem. Id. at 1156 (¶ 43). Dr. Hayne also observed

retinal hemorrhaging and determined that the retinal and subdural hemorrhaging were

consistent with shaken-baby syndrome. Id. at 1157 (¶ 46).

¶31.   Prior to trial, Brown requested funds with which to hire a medical expert to challenge

Dr. Hayne’s testimony regarding the cause of death of Brown’s child. Id. at 1165 (¶ 89). The



                                             12
trial court denied the motion because Brown had been able to post his own bail bond and

retain his own legal counsel and had “made his own choices as to where to pay his monies.”

Id. Brown also submitted an affidavit showing his present condition of indigency. Id. This

Court agreed with Brown that the proof of the charge against him consisted of the medical

diagnosis and testimony of Dr. Hayne, and that the trial court’s refusal to grant Brown the

funds with which to retain an expert had denied him “‘the raw materials integral to the

building of an effective defense,’ as he had absolutely no way to counter the State’s sole

evidence of the cause of death, or even to determine the proper questions to ask to challenge

Dr. Hayne on cross.” Id. at 1166 (¶ 92). The Court reversed, finding that “Dr. Hayne offered

the only evidence on both the underlying felony of child abuse and the cause and manner of

death, and Brown had no way to rebut it.” Id. (¶ 93). This was reversible error because it

rendered his trial fundamentally unfair. Id. (¶ 94) (citing Lowe, 127 So. 3d at 184).

¶32.   The Court also examined whether Brown was sufficiently indigent to require state

funding for his expert. It held that the fact that Brown had been able to retain private counsel

did not foreclose his obtaining state funds with which to pay for an opposing expert, and that

the trial judge had erred when he had denied Brown’s request without fully determining

Brown’s personal indigence. Id. at 1169 (¶ 99). Ultimately, because the expert was necessary

to make the trial fair, the “trial court’s failure to properly consider Brown’s request for expert

funds require[d] that we reverse and remand for a new trial.” Id.

¶33.   The mandate of Lowe and Brown is abundantly clear: if the State relies on expert

testimony alone to prove or corroborate an element of the crime, then the defendant is



                                               13
entitled to an expert to assist in his defense and preparation for cross-examination. In such

cases, the assistance of an expert is “a basic tool to an adequate defense,” without which the

defendant cannot receive a fair trial.

¶34.   In this case, to convict Isham of felonious child abuse, the State was required to prove

that Isham himself caused the injuries to Tommy by sufficiently whipping, striking, or

otherwise physically abusing or mutilating him to cause serious physical harm. See Miss.

Code Ann. § 97-5-39(2)(c)(iii) (Rev. 2014). The State clearly proved that Tommy had

suffered serious physical harm, and it showed that the harm seemed to occur whenever

Tommy was in Isham’s custody. However, the State also was required to prove that Isham

had caused Tommy’s injuries through hitting, striking, or otherwise abusing him, not only

beyond a reasonable doubt, but, as this was a circumstantial evidence case, to the exclusion

of every reasonable hypothesis consistent with innocence. See Montgomery v. State, 515 So.

2d 845, 848 (Miss. 1987). Accordingly, it was essential to the State’s case that it prove that

the child’s injuries were inflicted through blunt force or abusive nonaccidental trauma and

that they could have been sustained by the child only through such nonaccidental trauma. It

is unquestionable that the State’s experts were the only source of the testimony concerning

these essential components of the prosecution’s proof.

¶35.   Dr. Lakin, who treated Tommy on both April 30 and May 12, 2012, testified that the

child exhibited “battle signs”—evidence of abuse—when he came in for his soft-tissue

swelling and bruising on April 30. On May 12, when Tommy became nonresponsive and

required emergency brain surgery to save his life due to severe internal bleeding and swelling



                                             14
of the brain, everyone who treated him testified that he had no outward indications of blunt-

force trauma that would have caused such an injury. However, Dr. Einhaus, who performed

the life-saving surgery on the child, testified that the subdural hematoma that was found in

the brain was caused by “blunt force trauma period” and “the only thing that . . . could have

caused [Tommy’s] pathology is blunt force.” Dr. Lakin also testified that Tommy’s injuries

“were consistent with abusive head trauma.” Additionally, this expert testified that Tommy

had hemorrhaging under his eyes that was consistent with severe shaking.

¶36.   All of the foregoing testimony was used to prove that Isham had caused serious bodily

harm to Tommy through blunt-force trauma. It also was used to show that blunt-force trauma

was the only way that Tommy could have received his injuries. As in both Lowe and Brown,

the evidence against Isham was entirely circumstantial, and the State’s primary evidence

showing that Isham had committed the crime came through expert testimony. The trial

court’s denial of expert assistance to Isham prevented his trying to develop a “reasonable

hypothesis consistent with innocence.” It also denied him the opportunity to develop his

defense in general and to improve his ability to question the State’s experts. Although

Isham’s attorney may have been afforded liberal cross examination of the State’s witnesses,

he was left to figure out those questions on his own, without expert assistance.

¶37.   Further, Isham provided the court information indicating that expert witness testimony

was crucial to establishing his defense. He made the trial court aware that Dr. Moore

believed that Isham had suffered from a form of lupus, which could have caused his injuries,

and that Dr. Wippold, a neuroradiologist specializing in the diagnosis of brain trauma,



                                             15
believed that Tommy was injured through accidental trauma. It is possible that these could

have formed the basis of a reasonable hypothesis consistent with innocence. Furthermore,

it is clear that a rigorous cross examination of the State’s experts would not produce this sort

of information in front of a jury. Ultimately, although Isham filed the motion eleven days

before trial was set to begin, the interest in providing a fair trial to the accused far outweighs

the interest of the trial court in keeping a timely docket.

¶38.   It is clear from the record that the trial court denied Isham’s motion for funds to retain

an expert not just because the motion was untimely but also because it misapplied Ake and

its progeny. The court opined: “[i]n a perfect world, I suppose that the county should be

required to provide the defense with—an indigent defendant with experts. However, I don’t

know that I have any authority to order that.” It is clear that Isham required the assistance

of medical experts as “a basic tool of an adequate defense.” Lowe, 127 So. 3d at 182 (¶ 17).

The State could not have proved its case against Isham without expert testimony, and the trial

court deprived Isham of his right to a fair trial when it denied him funds to procure opposing

experts.

       2.      Indigence

¶39.   In order to be entitled to a State-funded expert, a criminal defendant must prove not

only that the expert is necessary to the preparation of his defense, but he also must prove his

indigency. Ake, 470 U.S. at 70.       Here, the trial court’s order assigning Isham a public

defender clearly indicates that he was financially unable to pay for an attorney, and the case

proceeded on the basis that Isham was indigent. Moreover, although Isham was released on



                                               16
a $50,000 bond, this fact is not dispositive of Isham’s indigent status. Here, Isham’s mother

was paying for his bail bond in monthly installments, and she had not paid it in full “by any

stretch.”

¶40.   In Brown, we held that “the existence of retained counsel does not, in and of itself,

bar a defendant from being indigent for purposes of a state-funded expert.” Brown, 152 So.

3d at 1168 (¶ 97). Similarly, the fact that a defendant was able to post bail does not, in and

of itself, determine such defendant to be financially able to hire his own experts.

¶41.   Here, nothing in the record suggests that the trial court doubted Isham’s indigence.

Moreover, the trial court did not deny Isham’s motion for expert funds because he was not

indigent. Instead, the trial court denied the motion because it thought it was not within the

power of the trial court to award those funds and because the court deemed Isham’s motion

to have been untimely.

                                      CONCLUSION

¶42.   The trial court’s denial of funds for the procurement of expert witnesses denied Jason

Isham his due process rights under the Fourteenth Amendment to the United States

Constitution and Article 3, Section 14, of the Mississippi Constitution and denied him his

right to a fair trial. Accordingly, we reverse Isham’s conviction and remand the case for a

new trial in the Circuit Court of DeSoto County.

¶43.   REVERSED AND REMANDED.

     DICKINSON, P.J., LAMAR, KING AND COLEMAN, JJ., CONCUR.
RANDOLPH, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION JOINED BY CHANDLER AND PIERCE, JJ. WALLER, C.J., NOT
PARTICIPATING.

                                             17
       RANDOLPH, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶44.   I concur in result only, as I do not find that the trial judge misapplied the law or

abused his discretion. I would hold that the trial judge acted within his discretion to refuse

an untimely motion for expert funding and to refuse to grant an untimely motion for

continuance. Yet we should not turn a blind eye to Isham’s claim that not having his own

medical experts disadvantaged his defense. See Brandon v. State, 109 So. 3d 128, 131 (Miss.

Ct. App. 2013). That disadvantage deprived Isham of a fair trial. Rarely, but if justice

requires, this Court considers errors, whether assigned or not, where the record supports a

plain-error analysis. Here, the record reveals that deprivation was due to the actions or

inactions of Isham’s counsel, not trial-court error, for Isham’s counsel failed to timely seek

funding and/or to timely seek a continuance.2 What could and should have been raised

additionally on appeal was whether Isham’s constitutional right to effective assistance of

counsel was violated. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). Accordingly, I would reverse and remand for a new trial, and the trial

court should require expert funding, including necessary expenses to attend trial.

¶45.   This conclusion is based on the clear and specific facts as presented in this record.

Isham was denied a fair trial due to the failure of defense counsel to consult expert witnesses

and to schedule their appearances, and if funds were necessary for further consultation and

their appearances, to timely seek same.

                                        Background



       2
        Isham is represented by separate counsel on appeal.

                                              18
¶46.   An investigation into both Isham and his wife, Mary Beth Isham, began almost

immediately following Tommy’s need for emergency medical treatment in the spring of

2012. Mary Beth was represented by attorney Bill Bruce during the investigation and

subsequent criminal proceedings. She also was represented by attorney Duncan Ragsdale in

a medical malpractice claim and suit related to Tommy’s treatment by his treating physicians.

Bruce emailed the Hernando Police Department as early as July 13, 2012, pre-indictment,

attaching a notice/demand letter from Ragsdale to one of the treating physicians. Ragsdale’s

letter set forth reasons for Tommy’s appearance and injuries, contrary to those held by the

treating physicians. Bruce further wrote that he would have an expert opinion from a

radiologist, concluding that the injuries were not a result of abuse, within days, and it would

be forwarded upon receipt. The record offers no indication that Bruce obtained or forwarded

such an opinion(s). Isham and Mary Beth were indicted on August 15, 2012.3

¶47.   Attorney Stacey Spriggs was appointed to represent Isham in September 2012. A joint

motion for continuance for additional discovery was granted on January 4, 2013, resetting

the trial date to June 24, 2013. A second continuance at Isham’s instance was granted on June

11, 2013, to retain experts and conduct additional discovery. The trial was reset for October

28, 2013.

¶48.   On July 10, 2013, Bill Bruce filed his entry of appearance to serve as additional

counsel for Isham. That same day, Bruce filed Isham’s separate Designation(s) of Expert

Opinion, designating; Drs. Terry Moore and Franz Joseph Wippold.



       3
        Mary Beth’s charges were nolle prossed by the district attorney’s office in May 2013.

                                              19
¶ 49. The designations reveal the following:

                                              A.

¶50. Dr. Moore, M.D., F.A.C.P., F.A.A.P., M.A.C.R., is a board-certified physician;

professor of internal medicine, pediatrics, and molecular microbiology; and the immunology

director, division of rheumatology and pediatric rheumatology at St. Louis University. Dr.

Moore was expected to testify on ten topics, including but not limited to, his familiarity with

the facilities available to the doctor treating Tommy; photographs and medical records of

Tommy; numerous CT scans of Tommy; Systemic Lupus Erythematosus (SLE), diagnosis

and treatment; CNS lupus, or CNS vasculitis; World Health Organization (WHO) criteria for

diagnosing SLE; Antiphospholipid Antibody Syndrome; and tests for SLE/CNS vasculitis.

The designation further reads that Dr. Moore was qualified to diagnose and treat SLE, CNS

lupus, and CNS vasculitis. On May 29, 2013 (nearly one month before the second scheduled

trial date of June 24, 2013) Dr. Moore reviewed the aforementioned, including Tommy’s

immunochemistry report and laboratory values. Dr. Moore opined that Tommy had sufficient

criteria to diagnose SLE, however, the photographs indicate that it is likely Tommy had CNS

vasculitis. Dr. Moore further opined that the Le Bonheur physicians’ treatment fell below the

recognized standard of care of acceptable practice on May 2, 2012, by discharging Tommy

without further tests, and fell below the requisite standard by failing to treat Tommy for his

condition. The designation attached Dr. Moore’s Curriculum Vitae (CV) and noted that the

review was not complete but would be supplemented when completed.

                                              B.



                                              20
¶51. Dr. Franz Whippold, II, M.D., was the chief of neuroradiology and a professor of

radiology at the Mallinckrodt Institute of Radiology, Washington University School of

Medicine in St. Louis, Missouri. He is a board-certified neuroradiologist. Dr. Whippold was

expected to testify on twenty-one topics, including but not limited to, that he was familiar

with the facilities and treatment available to the physicians treating Tommy; CT scans from

April 30, 2012, May 1, 2012, May 12, 2012, and May 13, 2012; Tommy’s skeletal survey

reports; immunochemistry reports; lab reports; subdural hematoma aging; subarachnoid

hemorrhage; antinuclear antibody testing; SLE diagnosis and treatment; WHO criteria for

diagnosing SLE; the timing of subdural bleeding in Tommy; and accidental and

nonaccidental trauma. On May 29, 2013, (the same date as Dr. Moore’s review of the raw

materials, nearly one month prior to the June trial date) Dr. Whippold reviewed the

aforementioned, including photographs of Tommy, CT images, immunochemistry reports,

skeletal survey reports, laboratory reports, and reference material. He opined that the April

30, 2012, and May 1, 2012, scans showed a normal brain with no bleeding and with soft-

tissue swelling of the scalp consistent with lupus panniculitis (“LP”). He further opined that

Tommy had seven of the eleven ACR criteria for diagnosing LP, and only four are required

for diagnosis. Based on his review, Dr. Whippold opined that Tommy had SLE in April and

May 2012. Lastly, he opined that Tommy’s skeletal survey reports indicated no evidence of

skeletal trauma to support a diagnosis of nonaccidental trauma, and that Tommy’s symptoms

were not caused by nonaccidental trauma. His opinion concluded that the bleeding shown on

Tommy’s CT scans on May 12, 2012, were the result of SLE combined with minor accidental



                                             21
trauma occurring between May 8, 2012, and May 10, 2012. This designation likewise

provided Dr. Whippold’s curriculum vitae and stated that the review was not complete and

that disclosure would be supplemented upon completion.

¶52.   The trial court heard pretrial motions on October 7, 2013, to determine inter alia the

expert testimony that would be allowed at trial. The State sought a motion to compel

reciprocal discovery, stating that the defense had provided incomplete reports of Isham’s

experts. The State wanted either completed reports or a date certain when the reports would

be finished. Defense counsel responded that he was “not aware of any further

supplementation” from either expert. Defense counsel then stated:

       I believe that the appropriate thing at this point would be just to tell both sides
       that they’re limited to what their experts have disclosed in written response;
       the Defense gets to use the experts they’ve designated and the opinions that
       were disclosed in written discovery and that the State is limited to the same
       thing.

(Emphasis added).

¶53.   Defense counsel then said that Isham was going to request that the State assist in

paying for “further involvement by both Dr. Whippold and Dr. Moore.” The trial court stated

that it would rule on the doctors’ testimony when they were offered as witnesses. The

October 7 hearing concluded with no ore tenus or written motion for funding or continuance,

and without a request for issuance of out-of-state subpoenas for either expert.

¶54.   On Thursday, October 17, the defense filed a motion for the state to pay for expert

fees and for continuance, months after the experts had reviewed Tommy’s medical records,

photographs, images, etc., and months after they were designated as experts. The certificate



                                               22
shows service on the State by regular mail. Unlike prior motions filed by defense counsel and

the State alike, no notice for a hearing date is in the record.

¶55.   The trial court heard the motion on Tuesday, October 22, 2013, six days before trial.

Isham presented arguments but no evidence. Neither of the opinions in the designations were

argued, nor was either designation offered to the trial court in support of the motion. (See

supra ¶ 48). The State presented testimony from Leigh Mercer, witness coordinator, who

testified that she had contacted the doctors upon request from the district attorney. Both were

unavailable for October 28. Both told Mercer that they did not know much about the case,

and had spoken with “defense counsel” only once, months prior to her telephone call.

Defense counsel’s cross-examination of Mercer suggests strongly that neither doctor had

spoken with Spriggs or Bruce, but rather with Ragsdale.

¶56.   The trial court denied the motion based on the lack of concrete reasons provided by

the defense to support its arguments. The trial court also expressed concern for the timeliness

of the motion. The trial court relied on Brandon v. State, discussed infra. See Brandon, 109

So. 3d 128. The trial cited Townsend v. State, in applying the appropriate three-factor test

for determining whether Isham was entitled to a state-funded expert. Townsend v. State, 847

So. 2d 825, 828 (Miss. 2003) (citing Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.

Ed. 2d 53 (1985)). The trial court advised that Isham was required to demonstrate concrete

reasons for needing a state-funded expert, citing McFadden v. State, 929 So. 2d 365 (Miss.

Ct. App. 2006), Ruffin v. State, 447 So. 2d 113 (Miss. 1984), Green v. State, 631 So. 2d 167

(Miss. 1994), and Hansen v. State, 592 So. 2d 114 (Miss. 1991). The trial court noted that,



                                              23
“[a]s a matter of fact, [it had] not been presented with any statements that these experts could

even opine anything that would be beneficial to the defendant in this case.” Defense counsel

failed to offer and ask the trial court to consider Isham’s designation, referred to supra (¶48,

A-B), to demonstrate a concrete reason. Defense counsel further offered no alternative dates

that the two experts would be available to testify.

                                           Analysis

¶57.   In this appeal, the issue raised: trial-court error in refusing to provide Isham funds to

hire an expert witness with regard to the nature of and cause of Tommy’s injuries, otherwise

could be stated as follows: Isham was denied the opportunity to present the testimony of two

experts critical to his defense. However, as set forth supra, the experts already had been

engaged, had responded regarding the nature of and cause of Tommy’s injuries, already had

reviewed extensive evidence related to causation, held opinions in direct contrast to the

State’s case, and had been designated to testify. The crux of the trial court’s ruling was not

funding, but rather, was counsel’s failure timely and correctly to seek relief. Isham’s plea was

not only untimely, counsel failed to provide the trial court with concrete reasons for funding

or to explain the experts’ unavailability. Neither defense counsel requested subpoenas for

either witness or sought funding for either expert, who had been designated more than three-

and-a-half months prior to trial.

¶58.   Based on the preceding facts, it would be a manifest miscarriage of justice for this

Court not to apply the plain-error doctrine, for an ineffective-assistance-of-counsel claim is




                                              24
fully developed in the record before us, unlike that found by the Brandon court. See

Brandon, 109 So. 3d 128.

¶59.   “For the plain-error doctrine to apply, there must have been an error that resulted in

a manifest miscarriage of justice or ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’” Conners v. State, 92 So. 3d 676, 682 (Miss. 2012)

(quoting Brown v. State, 995 So. 2d 698 (Miss. 2008) (quoting United States v. Atkinson,

297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936))). Under the plain-error doctrine, this

Court may sua sponte raise issues not properly raised by the defendant when defendant’s

right to a fair trial has been violated. See Conners, 92 So. 3d at 682 (citing Smith v. State,

986 So. 2d 290, 294 (Miss. 2008) (quoting Debrow v. State, 972 So. 2d 550, 553 (Miss.

2007))). It is the duty of the defendant and counsel to review the record carefully and then

to seek relief accordingly. That did not occur here.

       The benchmark for judging any claim of ineffectiveness [of counsel] must be
       whether counsel’s conduct so undermined the proper functioning of the
       adversarial process that the trial cannot be relied on as having produced a just
       result. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064,
       80 L. Ed. 2d 674 (1984). The test is two pronged: The defendant must
       demonstrate that his counsel’s performance was deficient, and that the
       deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687, 104
       S. Ct. at 2064; Washington v. State, 620 So. 2d 966 (Miss.1993). This requires
       showing that counsel’s errors were so serious as to deprive the defendant of a
       fair trial, a trial whose result is reliable.

Havard v. State, 86 So. 3d 896, 903-04 (Miss. 2012) (citations omitted).

¶60.   Ineffective-assistance-of-counsel determinations are decided on a case-by-case basis.

Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, L. Ed. 2d 389 (2000) (citation




                                             25
omitted). Funding, vel non, also must be determined on a case-by-case basis. Lowe v. State,

127 So. 3d 178, 181 (Miss. 2013). Thus, both issues require fact-specific scrutiny.

¶61.   There must exist a “reasonable probability” that, without counsel’s errors, a different

result would have been reached. Williams, 529 U.S. at 391 (quoting Strickland, 466 U.S.

at 694). Also, there must be “A reasonable probability that at least one juror would have

struck a different balance.” Davis v. State, 87 So. 3d 465, 474 (Miss. 2012) (citing Wiggins

v. Smith, 539 U.S. 510, 537, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)).

¶62.   In Davis v. State, this Court held counsel ineffective for failing to contact and

interview key defense witnesses where the record was certain that counsel’s actions were not

tactical. Davis, 87 So. 3d at 469. This Court instructed that an in-depth analysis is not

required to reach the conclusion that “ . . . an attorney who never seeks out or interviews

important witnesses . . . was not engaging in trial strategy.” Davis, 87 So. 3d at 469. In Johns

v. State, this Court similarly provided “[t]he decision not to interview witnesses, particularly

your own, cannot be considered an effective choice. When counsel makes choices of which

witnesses to use or not to use, those choices must be based on counsel’s proper

investigation.” Johns v. State, 926 So. 2d 188, 196 (Miss. 2006). Although “[t]he line

between effective and ineffective assistance of counsel is not always clear[,]” it is clear in

today’s case. See Davis, 87 So. 3d at 470.

¶63.   Here, counsel’s failure to contact the witnesses, secure their presence for trial, request

subpoenas, request funding, or timely request a continuance cannot be deemed tactical. As

mentioned supra, Isham had two expert witnesses to refute the State’s case, albeit experts



                                              26
and opinions that were obtained through the efforts of others. These were two expert

witnesses who already had been interviewed and had been provided materials and had

rendered opinions. The record is void of any evidence exhibiting that either of Isham’s

counsel talked to the experts, confirming their opinions and determining their availability to

testify the week of October 28-30. The record offers clear evidence to the contrary, for the

experts had not been informed of the trial date, no subpoenas were requested or issued, and

no funds had been requested to secure their presence until the eve of trial. The only evidence

provided to the trial court regarding experts’ fees and availability was produced by the State’s

witness coordinator, not Isham’s counsel.

¶64.   Isham likens this case to Lowe v. State; however, the facts before us are entirely

dissimilar. Lowe, 127 So. 3d 178. In Lowe, a defense expert was needed to “refute the State

expert’s allegations[,]” and to enable Lowe to question the State’s expert effectively. Lowe,

127 So. 3d at 183. Further, the State’s expert provided the sole testimony connecting Lowe

to the crime. Id. We concluded that Lowe was denied the opportunity adequately to prepare

his defense. Id. at 184.

¶65.   Although not relied on by Isham, the majority also cites Brown v. State. Brown v.

State, 152 So. 3d 1146 (Miss. 2014). However, Brown is distinguishable. In Brown, the trial

court failed to conduct an indigency hearing before denying Brown’s timely request for

funding, which had been filed nearly two years before trial, ruling it had no authority to allow

funds for a defendant who had not been found indigent. Brown, 152 So. 3d at 1165.

Additionally, Brown was granted a new trial for unsupported limitations on cross-



                                              27
examination of both testifying doctors. Id. at 1169. Here, it is undisputed that Isham was

indigent, that he had experts who had reviewed the “raw material” and were willing to refute

evidence, and that he had filed a request for funding/continuance. Isham also was allowed

and conducted a liberal cross-examination of the State’s witnesses. Therefore, Isham’s

factual scenario is markedly distinguishable from the facts in Brown.

¶66.   In the case sub judice, Isham already had identified witnesses, who had been furnished

“raw materials” (medical records, tests, photos, etc.), who already had formulated opinions

“to refute” the treating physicians, combined with Ragsdale’s point-by-point outline for

effective cross-examination of the treating physicians. Isham had not one, but two, experts

prepared to refute the experts that the State was calling. Lowe and Brown had no one.

Defense counsel’s cross-examination of the medical experts on Tommy’s medical records,

reports, tests, and peer-reviewed publications and treatises, demonstrates that he was well-

qualified to examine Tommy’s treating physicians. Lowe and Brown were not similarly

prepared. Isham’s disadvantages arose because defense counsel had failed to arrange for

Isham’s experts to appear at trial and testify, not because of trial-court error.

¶67.   On appeal, Isham argues unconvincingly that he was denied the opportunity to consult

with the doctors identified in his designation and therefore to prepare and present his defense.

The record is devoid of evidence to support such an argument. The record actually belies this

argument. The record confirms that Isham possessed the “raw materials” needed for his

defense. His counsel had an outline of the specific failures of the treating physicians, and

defense counsel possessed opinions from both Drs. Moore and Whippold, who already had



                                              28
reviewed Tommy’s medical records, photos, etc. All Isham lacked was their presence at trial

(best achieved by agreement or a subpoena). The record does not reveal any attempt by

defense counsel to secure their attendance. As late as October 7, defense counsel told the trial

court that both experts would testify at trial, but at that time or before, defense counsel failed

to request funds or subpoenas. Further, as mentioned supra, defense counsel’s cross-

examination of the witness coordinator on October 22 indicates that neither of Isham’s trial

counsel actually had spoken with these experts. These facts clearly distinguish the dilemma

facing Lowe and Brown. Lowe, 127 So. 3d 178; Brown, 152 So. 3d 1146.

¶68.   Some of the critical facts identified in today’s case can be found in Brandon v. State,

yet it also has its clear distinctions. Brandon, 109 So. 3d 128. In Brandon, the defendant’s

counsel filed a motion for expert funds in July 2008 but did not request a hearing on the

motion until thirteen months later, the Friday before trial was to begin on Monday. Brandon,

109 So. 3d at 132. Similarly, Brandon was denied funding for an expert witness because he

failed to provide concrete reasons for needing the expert. Id. The Court of Appeals found that

Brandon’s motion was properly denied due to the “actions and inactions” of his counsel, “not

the circuit judge’s denial of his last-minute request[,]” finding that the trial judge did not

abuse his discretion, and any relief should be pursued under an ineffective-assistance-of-

counsel claim, which could be developed fully in his motion for post-conviction relief. Id.

at 130. The overriding distinction is that the record in today’s case requires no further

development of facts.




                                               29
¶69.   In the case sub judice, the trial court ruled that it would not grant Isham state funding

to hire the aforementioned experts because the defense had failed to provide concrete reasons

to support its argument and because of the untimeliness of the motion. The record supports

both rulings and evidences no abuse of discretion. The trial court stated its concern over

defense counsel’s failure to bring this issue for hearing sooner. The trial court expressed its

concern over granting another lengthy continuance, and further that the court had not been

provided alternative dates when the experts would be available. The trial court stated it had

yet to be presented with any statements from the experts, i.e., a concrete reason for

continuance. “The decision to grant or deny a motion for a continuance is within the sound

discretion of the trial court and will not be grounds for reversal unless shown to have resulted

in manifest injustice.” See Simmons v. State, 805 So. 2d 452, 484 (Miss. 2001) (citations

omitted).

¶70.   Based on the extraordinary facts of this case and the failure of Isham’s counsel to

undertake the steps necessary to put before the jury testimony refuting the State’s causation

theory, we conclude that a reasonable probability exists for a different outcome. Assuredly,

a fair trial was not had, but not because of trial-court error. I agree that this case should be

reversed and remanded for proceedings consistent with this opinion.

       CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.




                                              30
