Death-Row Inmate’s Psych Evaluation Case Heard by SCOTUS

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By Melissa Heelan Stanzione

The U.S. Supreme Court heard arguments April 24 about whether a case it decided over 30 years ago established that poor defendants are entitled to an independent mental health expert ( McWilliams v. Dunn , U.S., No. 16-5294 , argued 4/24/17 ).

The court’s holding here could determine whether petitioner James McWilliams Jr. lives or dies and also could influence the fates of two Arkansas death-row inmates, whose executions have been stayed pending the case’s resolution.

Although the question presented to the court was whether poor defendants are entitled to independent experts, several justices seemed to think that this wasn’t the most important question.

Justice Elena Kagan pointed to the “money” sentence in in Ake v. Oklahoma, holding that “the state must assure the defendant access to a competent psychiatrist who will assist in evaluation, preparation and presentation of the defense.”

The high court tried to figure out what this sentence means for McWilliams.

It decided Ake in 1985, and the U.S. Court of Appeals for the Eleventh Circuit found that under its holding, the state need only provide a competent psychiatrist.

Crime Committed

McWilliams was convicted of capital murder in 1986 for the rape and killing of a convenience store clerk in Oklahoma.

Two days before sentencing, the court-appointed state psychologist—who was a colleague of the state’s mental health experts in the case—found that McWilliams had a brain “dysfunction” that was “compatible with” head injuries he sustained as a child.

The court refused a request from his lawyer for extra time to consult with an expert to evaluate the finding, and sentenced him to death. It found there were no mitigating circumstances and cited the state’s view that McWilliams was a “malingerer.”

McWilliams asked the Supreme Court to determine whether that ruling entitles him to an independent mental health expert or merely a competent, “neutral” one, like the state psychologist.

‘Modest’ Right

Ake provided a “very modest” right for defendants, but such an expert can “at least make the adversary system work, to some extent,” Stephen B. Bright argued for McWilliams.

Providing a defendant with an independent expert “at least gives the defense a shot,” Bright said.

Bright, of the Southern Center for Human Rights, was appointed by the Supreme Court to represent McWilliams.

So “really what’s at issue is what kind of aid a defendant is entitled to to mount a viable defense?” Justice Sonia Sotomayor asked Bright.

You seem to be saying a defendant is entitled to an expert that would function like the expert it would hire “if the defense were simply given funds” to retain its own expert, Justice Samuel A. Alito Jr. said.

Ake requires the court, however, to appoint a mental-health expert, Alito said. That seems to equate with a neutral expert, not an expert who is really part of the defense team, he added.

Even though he can’t choose his expert, under Ake he at least gets a “competent” one to give “whatever advice that expert can give to him as he prepares his defense and as he prepares to deal with the prosecution case,” Bright said.

Neutral Expert OK?

Ake didn’t hold that a “neutral expert” fails to satisfy the due process clause, said Alabama Solicitor General Andrew L. Brasher, who represented the state respondents.

But this court’s holding in Ake means that the defendant is entitled to “somebody on the defendant’s side,” Kagan said.

Neutral experts can assist the defense, Brasher said.

The word “assistance” is used most often by this court when referring to “assistance of counsel,” Justice Ruth Bader Ginsburg said.

“Assistance of counsel doesn’t mean neutral,” she said.

The word “assist” is used so many times throughout the Ake opinion that “I lost track” when trying to add them up, Kagan said.

“It just seems that the premise of the entire opinion is you’re on the defense team,” she said.

He Didn’t Get That Help

Why do we have to get into an argument about whether they can be independent or partisan? Justice Stephen G. Breyer asked.

“The defense has to have somebody who will conduct an appropriate examination, assist in evaluation, preparation, and presentation of the defense,” he said, quoting from Ake.

And McWilliams “certainly did not get that help,” Breyer said.

Let’s say that “the issue is not partisan versus independent” but “whether the defense had assistance from a psychiatrist in the evaluation, preparation, and presentation of the defense, including cross-examination of hostile or state psychiatric witnesses,” Breyer said.

“That’s what Ake provides. That’s clear,” he said.


Brasher didn’t fully agree with Breyer, but went along with Alito.

Ake is “deliberately ambiguous, because there was probably disagreement among the members of the majority about how far they wanted to go” with regard to what kind of expert is required, Alito said.

That’s a “very reasonable hypothesis,” Brasher said.

Effect on Arkansas Cases

The case will have immediate ramifications for two men whose executions were put on hold by the Arkansas Supreme Court April 17.

Don William Davis and Bruce Earl Ward were among eight men the state planned to execute before the end of the month. One member of that group, Ledell Lee, was put to death by lethal injection on April 20. Two more are scheduled for execution April 24.

Davis and Ward claim they weren’t provided with an independent expert to evaluate their mental health claims.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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