¶1dissenting:
¶2Edinburgh’s defense to this murder charge was insanity. The trial judge instructed the jury on insanity. The State argued his defense should be rejected because he presented no experts to support it. Of course he did not present an expert. He was indigent and his application for assistance was denied in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The majority affirms the denial of an expert by holding, in essence, that an indigent defendant must prove he is insane before he is entitled to a psychiatrist to assist in proving his insanity.
¶3In this case, a timely pleading, signed by an officer of the court, was filed clearly setting forth the need and justification for an expert. Moreover, if actual testimonial proof is required by Ake(and I do not believe it is) the preliminary hearing testimony is more than sufficient to support the request. I therefore dissent to affirming the conviction and sentence in this case.