Whether, 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,” it clearly established that the expert should be independent of the prosecution.
This case is important for anyone representing indigent defendants because it will clarify the scope and application of Ake.
McWilliams was charged with robbery, rape, and murder, for which Alabama sought the death penalty. After an initial brief penalty phase hearing, the state court appointed an expert to conduct a neuropsychological examination of McWilliams. Far from being an expert dedicated to working with and assisting the defense, the expert was a colleague of the experts the state had hired to support its argument McWilliams had no mental health or neuropsychological problems, but was malingering. (While it’s not relevant to the Ake issue, it’s notable the expert’s report was delivered to defense counsel a mere two days before the sentencing hearing, giving counsel no time to prepare to use or, more to the point, undermine the report.) McWilliams’s lawyer objected to he lack of “meaningful” expert assistance under the circumstances, but go nowhere in front of the trial court or on direct appeal.
McWilliams then sought habeas relief, arguing that Alabama’s refusal to provide him with his own dedicated expert violated Ake. The Eleventh Circuit didn’t think so, citing the fact the Supreme Court has not explicitly established that a defendant gets a court-appointed expert “of his own” and that federal circuit courts have split on the question, with some holding that a court-appointed “neutral” mental health expert made available to all parties is good enough, while most others have held that the state must provide a non-neutral mental health expert. The Seventh has not apparently weighed in on the question. The Court will now resolve this split.
Wisconsin courts haven’t directly addressed this question. There’s some language in State v. Kirschbaum, 195 Wis. 2d 11, 20, 535 N.W.2d 462 (Ct. App. 1995), broadly construing Ake as holding that “[a]n indigent defendant has a constitutional right to the state’s assistance in securing the raw materials integral to the building of an effective defense[,]” which certainly suggests a dedicated, independent expert is required. On the other hand, State v. Burdick, 166 Wis. 2d 785, 789, 480 N.W.2d 528 (Ct. App. 1992), talks about Ake more narrowly, as holding “the indigent defendant in a criminal case who puts in issue his mental status at the time of the offense is entitled to appointment of an examining physician at state expense[,]” which might be read as holding that a “neutral” expert is good enough. The Court’s clarification of Ake will thus be an important for state practitioners, too.