June 6, 2017
By Laura Ashpole*
The Supreme Court is currently weighing whether an indigent defendant whose mental health is at issue is entitled to an independent expert in a decision that could have significant implications for the criminal defense of the mentally ill and has already impacted executions in Arkansas scheduled for last month. On April 24, 2017, the Court heard oral argument in the case of McWilliams v. Dunn, concerning the Court’s 1985 holding in Ake v. Oklahoma that a defendant whose mental state is a significant factor at trial is entitled to a competent expert who will assist in evaluation, preparation, and presentation of the defense.1
In 1986, James Edmund McWilliams, Jr. was convicted of the robbery, rape, and murder of a convenience store clerk in Tuscaloosa, AL. After hearing testimony from McWilliams and his mother about head injuries he suffered as a child which resulted in black outs, hallucinations, headaches, and memory problems, the court ordered the Department of Corrections (DOC) to perform neurological and neuropsychological testing on McWilliams. At the advice of the DOC psychologist who performed the testing, the court appointed a clinical neuropsychologist independent of the DOC to perform additional neuropsychological testing on McWilliams. Although subpoenaed prior to the penalty phase of trial, McWilliams’ medical and psychiatry records arrived at the court on the morning of his sentencing hearing. At the hearing McWilliams’ defense counsel made two motions for a continuance to review the records with the assistance of an independent expert, however the court denied both motions and sentenced McWilliams to receive the death penalty.2
After being unsuccessful in the lower courts, McWilliams filed a petition with the Supreme Court in July 2016, which was granted in January of this year. At oral argument last month, counsel for McWilliams and the state of Alabama argued about whether, under Ake, an expert must be truly independent or can be simply neutral. Counsel for McWilliams argued that Ake “clearly established” that the defendant was entitled to an expert independent of the prosecution who functions as part of the “defense team.” In fielding questions from Justice Elena Kagan about whether the Ake decision precluded provision of a neutral expert, or someone independent of both sides, McWilliams’ counsel emphasized that the expert’s duties on behalf of the defense were discussed in specific detail in the Ake holding and necessarily require the expert to be intimately involved on the side of the defense.
Counsel for the state of Alabama focused his argument on what the holding in Ake did not stand for, namely, that a neutral expert fails to satisfy the Due Process Clause. Counsel argued that McWilliams was asking the Court to “extend the actual holding” of Ake to “embrace a new right that says that a neutral expert is insufficient,” an action which the Court previously held in White v. Woodall was inappropriate in a federal habeas case. Both Justice Ruth Ginsburg and Justice Kagan made reference to the particular verbiage in the Ake opinion construing an expert as someone who “assists in the evaluation, preparation, and presentation of the defense,” reasoning that this would arguably mean someone on the defendant’s side. Justice Kagan went so far as to say that she attempted to count the number of times the word “assist” appeared in the Ake holding and “lost track.” Justice Stephen Breyer also sounded off on what the Court had previously held constituted the duties of an expert witness, specifically, to provide an opinion as to whether the insanity defense is viable, present testimony to that effect, and assist in preparing the cross-examination of a state psychiatric witness. Justice Kennedy added that a party usually meets with its expert to go over the testimony with care, asking whether that had happened here and whether the expert in the case could have been consulted by either or both sides privately to prepare the examination. Counsel for the state did not directly answer Justice Kennedy’s questions.
In his rebuttal, McWilliams’ counsel argued that the right to an expert under Ake by no means puts the defense in an equal position with the prosecution, but instead gives the defense a competent mental health expert who can help them understand what the issues are, present the issues as best they can, and testify for the defense.
If the defense prevails, McWilliams would receive a new sentencing hearing. A decision is expected in the McWilliams case by the end of June.
*We would like to thank Laura Ashpole (Community Psychiatry Management LLC, Sacramento, CA) for authoring this alert.
1 Ake v. Oklahoma, 470 U.S. 68 (1986).
2 McWilliams v. Comm’r, Ala. Dep’t of Corr., 634 Fed. Appx. 698 (11th Cir. 2015).