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SCOTUS reinforces right to the assistance of a psychiatrist in preparing a defense to a capital case

McWilliams v. Dunn, USSC No. 16-5295, 2017 WL 2621324 (June 19, 2017), reversing McWilliams v. Dunn, 634 Fed.Appx. 698 (11th Cir. 2015); Scotusblog page (including links to briefs and commentary)

A win for defendants in capital cases. Ake v. Oklahoma “clearly established” that when an indigent defendant demonstrates that his sanity at the time of the offense is to be a significant fact at trial, the State must provide him with access to a competent psychiatrist who will conduct an appropriate (1) examination and assist in (2) evaluation, (3) preparation, and (4) presentation of the defense. Ake did not specifically require the appointment of a defense team expert (as opposed to a neutral expert). It left that issue open, and with this decision SCOTUS leaves the issue open. It does hold, however, that simplest way for a state to satisfy Ake is to prove the defense with its own psychiatric expert.

Justice Breyer wrote the majority opinion (joined by Kennedy, Ginsburg, Sotomayor, and Kagan):

We turn to the main question before us: whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance that Ake requires was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). McWilliams would have us answer “yes” on the ground that Ake clearly established that a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties. He points to language in Ake that seems to foresee that consequence. See, e.g., 470 U. S., at 81 (“By organizing a defendant’s mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them” (emphasis added)).

We need not, and do not, decide, however, whether this particular McWilliams claim is correct. As discussed above, Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83. As a practical matter, the simplest way for a State to meet this standard may be to provide a qualified expert retained specifically for the defense team. This appears to be the approach that the overwhelming majority of jurisdictions have adopted. Op. at 13.

We are willing to assume that Alabama met the examination portion of this requirement by providing for Dr. Goff ’s examination of McWilliams. See supra, at 6. But what about the other three parts? Neither Dr. Goff nor any other expert helped the defense evaluate Goff ’s report or McWilliams’ extensive medical records and translate these data into a legal strategy. Neither Dr. Goff nor any other expert helped the defense prepare and present arguments that might, for example, have explained that McWilliams’ purported malingering was not necessarily inconsistent with mental illness (as an expert later testified in postconviction proceedings, see P. C. T. 936–943). Neither Dr. Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself. Op. at 15.

The dissent, written by Justice Alito, takes the majority to task for failing to decide whether Ake requires the state to appoint a defense team expert. They say the answer is “no.” Dissent at 1.

 

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