Did Ake v. Oklahoma clearly establish that an indigent defendant’s right to an expert witness requires that the expert be independent from the prosecution?
The Sixth Amendment to the U.S. Constitution provides, in relevant part, that a person standing criminal trial has the right to the assistance of an attorney for his defense. In Ake v. Oklahoma, the Supreme Court interpreted that portion of the Sixth Amendment to mean that a defendant also has the right to an expert “to assist in evaluation, preparation, and presentation of the defense.” It is not clear, however, whether a defendant’s right to such an expert entitles him to an independent expert, devoted to advocating specifically for the defense’s case. McWilliams argues that the Sixth Amendment does guarantee an independent expert for the defense of the accused. The State of Alabama, on the other hand, argues that a defendant need only have access to an expert, which may be satisfied through the assistance of an expert neutral to all parties. The outcome of this case will help to further define the scope of protection afforded by the Sixth Amendment regarding a defendant’s right to counsel.
Questions as Framed for the Court by the Parties
When this Court held in Ake v. Oklahoma, 470 U.S. 68 (1985), that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” did it clearly establish that the expert should be independent of the prosecution?
In 1984, McWilliams raped and murdered a convenience store attendant. For several months leading up to these events, McWilliams had been attending voluntary couples counseling sessions. At some point during this period of counseling, the couples therapist meeting with McWilliams determined that he had “deeper psychological problems that [he] is avoiding and hopefully [future] testing will reveal this.” Upon administering the Minnesota Multiphasic Personality Inventory test to McWilliams, a separate psychologist ultimately concluded that although it appeared that McWilliams was faking, he was actually “extremely disturbed, has much internal anxiety, and [likely had a] serious pathology.”
Soon after McWilliams was arrested, his attorney petitioned the court to provide a mental assessment for McWilliams, which would include an evaluation of his sanity and his ability to stand trial. The court granted the petition and convened a “lunacy commission” for these purposes. The lunacy commission found that McWilliams was competent for trial and that he was free of mental illness at the time of the crime. McWilliams was subsequently convicted at trial. During the penalty hearing, although defense counsel subpoenaed the couples therapist to testify, the therapist did not respond. Counsel was, however, able to admit the psychologist’s report concluding that McWilliams was mentally ill into evidence. But McWilliams was not able to explain the technical aspects of that report because the defense did not have independent access to a psychologist. By contrast, the prosecution was able to call two of the psychologists from the lunacy commission to defend its finding of no mental illness. McWilliams was then sentenced to death.
In between the penalty hearing and sentencing hearing, defense counsel requested that another psychologist evaluate McWilliams, this time to assess the claim, testified to during the penalty hearing, that he had a mental abnormality as a result of a childhood head injury. The court granted the request, but the report detailing the conclusions of the testing was not submitted to the parties until forty-eight hours before the sentencing hearing. When defense counsel requested a continuance to review the new report, the court denied the extra time. Ultimately, the court found three aggravating circumstances and zero mitigating circumstances, and sentenced McWilliams to death by electrocution.
After trying and failing to obtain relief from the state courts on an ineffective assistance of counsel claim, McWilliams filed for habeus corpus to the Northern District of Alabama. The district court denied all of McWilliams’s claims and dismissed his habeas claims with prejudice. On appeal to the Eleventh Circuit Court of Appeals, McWilliams argued that the trial court failed to provide an “independent psychiatric expert,” which he argued is guaranteed under the United States Supreme Court’s Sixth Amendment jurisprudence. The Eleventh Circuit concluded, however, that because the Supreme Court has remained silent on the matter, the trial court did not contradict or unreasonably apply clearly established federal law.
DOES DUE PROCESS REQUIRE AN INDEPENDENT MENTAL HEALTH EXPERT?
McWilliams argues that an indigent defendant whose mental health is a significant issue at trial is entitled to a partisan mental health expert to assist with the defense’s case. McWilliams maintains that the Court in Ake v. Oklahoma held that the Due Process Clause of the Fourteenth Amendment guarantees an indigent defendant a competent expert to “assist in evaluation, preparation, and presentation of the defense.” McWilliams contends that assistance includes, but is not limited to, fact gathering through professional examination and interviews, analyzing gathered information to draw plausible conclusions about the defendant’s mental state, and assisting with cross-examination of the state’s psychiatric witnesses. McWilliams notes that the right established in Ake follows from the right to counsel recognized in Gideon v. Wainwright and ensures every defendant has an opportunity to present a defense fairly within the adversary system. McWilliams further argues that Justice Rehnquist’s dissent in Ake confirms that Ake clearly established the right to an independent expert because he disagreed with the Court’s holding that due process requires appointment of an expert who assists in “evaluation, preparation, and presentation of the defense,” arguing instead that a defendant is entitled only to a competent expert. McWilliams contends that Alabama Court of Criminal Appeals failed to apply this law by only availing McWilliams of the assistance of a mental health expert that he shared with the prosecution.
Jefferson Dunn, the Commissioner of the Alabama Department of Corrections, (hereinafter “Alabama”), disputes that there was federal law on point at the time of the state court’s decision that clearly established a defendant’s right to a partisan mental health expert. Alabama asserts that due process, as determined in Ake, does not entitle an indigent defendant to a partisan state-funded psychiatrist; rather, due process requires only that a defendant have access to a competent and impartial psychiatrist. Alabama notes that while the Court in Ake recognized the “evolving practice” of parties employing their own experts, the decision does not require the practice as a matter of constitutional law. Alabama conveys that because due process is a flexible rule about fairness, its requirements vary based on the facts of the case. Alabama argues that providing a neutral, court-appointed psychiatrist is just as fair as allowing each party to hire a separate partisan expert. Furthermore, Alabama distinguishes Ake from the facts before the Court because in Ake the defendant was not provided with any form of psychiatric assistance. Thus, Alabama argues, Ake does not clearly establish the right to a partisan defense expert, particularly considering that the question of partisan versus neutral psychiatric assistance was not raised in Ake.
Alabama contends that, at most, Ake permits a defendant to use a partisan psychiatrist when the prosecution is doing so. Furthermore, Alabama disputes the claim that a mental health expert can never be independent when it is shared with the prosecution. Alabama notes that in the case before the Court, none of the experts were selected or hired by the prosecution, and that they evaluated McWilliams solely based on defense counsel’s request.
WHAT CONSTITUTES “CLEARLY ESTABLISHED LAW”?
McWilliams contends that Ake’s requirement of an independent expert constitutes clearly established law under 28 U.S.C. § 2254(d). According to Lockyer v. Andrade, “‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” McWilliams argues that the Court’s holding in Ake clearly sets forth the right to an independent mental health expert. Thus, McWilliams argues the Alabama Court of Criminal Appeals decision was contrary to the clearly established law set forth in Ake.
Alabama contends McWilliams errs by asking the Court to extend the rule of Ake to an issue that Ake did not directly address. Alabama notes that “clearly established” law constitutes holdings, as opposed to the dicta, at the time of the relevant state-court decision. When there is no precedent directly on point, Alabama notes, a state court cannot misapply clearly established law. Alabama argues that Ake’s holding that an indigent defendant is entitled to psychiatric assistance is too broad to clearly establish McWilliams’ assertion that an indigent defendant is entitled to partisan psychiatric assistance. Thus, because Ake fails to establish a right to a partisan expert, Alabama claims that there is no violation of clearly established law.
WAS THE ERROR HARMLESS?
McWilliams argues that the Court should remand to the Eleventh Circuit to determine whether the trial court’s failure to provide him with a partisan expert had a “substantial and injurious effect” on the outcome of his case. McWilliams rejects the Eleventh Circuit’s conclusion that there was a “mountain of evidence” that damaged his mental illness claim. Rather, McWilliams contends that defense counsel had inadequate time and expertise to understand the report, which prevented them from calling Dr. Goff as a witness. Furthermore, McWilliams claims that Dr. Goff’s late arrival to the proceedings prevented him from offering meaningful assistance as required by Ake. McWilliams argues that meaningful independent expert assistance would have enabled counsel to educate the judge about McWilliams’s brain damage and challenge the suggestion that McWilliams was faking his mental illness. In addition, McWilliams claims that with expert assistance, defense counsel could have demonstrated that Dr. Goff would have understood McWilliams’s “faking” as well as explained the impact of his heavy medication regimen. Because some appellate courts have found such circumstances to be compelling mitigating factors, McWilliams argues that the absence of a partisan expert was not harmless error.
Alabama argues that the court of appeals was correct to hold that even if a due process violation took place, it would have been a harmless error. Alabama contends that because this was a very aggravated case, a mitigating factor such as McWilliams’s mental health would not have affected the result. In particular, Alabama cites McWilliams’s prior convictions for robbery and rape, as well as the heinous nature of the murder. Alabama also remarks that four mental health experts found that McWilliams was not suffering from psychological problems. Further, Alabama notes that the trial court granted every defense motion on the issue, except the motion to delay the sentencing hearing to seek another round of expert assistance, and that the trial court admitted it would have considered another motion to appoint a new expert if McWilliams had simply asked for one. Lastly, Alabama contends that providing defense counsel with more time for Dr. Goff’s report would not have led to a different outcome because the report was five pages in length, and McWilliams failed to request another round of expert assistance until after the jury had voted to impose the death penalty.
DOES AKE NECESSITATE AN INDEPENDENT MENTAL HEALTH EXPERT?
The National Association of Criminal Defense Lawyers, in support of McWilliams, argues that the Supreme Court’s decision in Ake entitles a defendant in a capital sentencing scenario to an independent mental health expert upon an “adequate showing of need.” Specifically, the NACDL contends that the Supreme Court in Ake directly disagreed with the case that the court below relied upon, particularly its assertion that a neutral mental health expert is adequate to satisfy the Sixth Amendment in capital sentencing scenarios. Moreover, the NACDL contends that Ake recognized the greatly increased role that psychiatry has played in criminal justice system. As such, asserts the NACDL, the Ake Court clearly established that indigent defendants have a right to an independent mental health expert.
Alabama, however, argues that McWilliams misconstrued Ake. Specifically, Alabama asserts that when Ake called for a mental health expert that was “independent” of the prosecution, it meant a neutral expert; one that was not selected, hired, or directed by the prosecution. Alabama contends that McWilliams mistakenly interprets “independent” to mean beholden to the case of the defense. Moreover, because Ake involved the claim that the defendant received no assistance at all, Alabama concludes that it would not be proper to extend the legal holding beyond the facts of Ake.
DO STATES SUPPORT AN INDEPENDENT EXPERT REQUIREMENT?
The NACDL argues that in the years following Ake, numerous states showed support for a requirement that indigent defendants in capital sentencing cases should receive an independent mental health expert. The NACDL offers, for example, the rationale of a California court which said that such a requirement makes effective the dictate that defense counsel be afforded reasonable opportunity to prepare for trial. The NACDL further points out that the Texas Court of Criminal Appeals, in 1993, held that a single neutral mental health expert is not sufficient to satisfy the Due Process Clause under Ake. Therefore, the NACDL infers, because numerous states support the independent expert requirement, it was likely clearly established by Ake.
Alabama argues, on the other hand, that decisions of both the Supreme Court and the lower federal courts since Ake demonstrate that the right to an independent expert, as defined by McWilliams, was not clearly established at the time of trial. Moreover, Alabama notes that jurists and legal commentators alike have pointed out Ake’s ambiguous language regarding the neutrality of mental health experts. Therefore, Alabama contends that because the Supreme Court never clarified this ambiguity and “widespread disagreement,” such a requirement cannot be clearly established.
- Supreme Court to Review Two Death Penalty Cases, Equal Justice Initiative (Jan. 23, 2017).
- Lisa Soronen, What If Your Court-Appointed Psychiatrist Could Talk You To Death?, National Conference of States Legislatures Blog (Feb. 20, 2017).