Justices Blast One-Stop-Shop Experts in Alabama

WASHINGTON (CN) – The Supreme Court’s liberal justices shredded an argument by Alabama’s solicitor general Monday that criminal defendants are not entitled to a mental health expert separate from the ones tapped by prosecutors.

McWilliams v. Dunn, the case the Supreme Court heard this morning, is nested inside the court’s 1984 decision in Ake v. Oklahoma, which held that poor criminal defendants using a defense of insanity are entitled to an expert to help support their claim.

A split has emerged in the 30 years since the decision, with some states deciding one expert helping both the prosecution and defense satisfies the requirement, and others choosing to assign an expert for the defendant to use exclusively.

Facing the death penalty for raping and killing a convenience store clerk in Tuscaloosa, Alabama, in 1984, James McWilliams turned to the Supreme Court to spare his life, claiming Ake implicitly requires courts to follow the latter example.

McWilliams’ argument found sympathetic ears in the liberal justices on the court, who questioned how anyone could think their predecessors considered any other arrangement. 

“I started counting up the word ‘assist’ in this opinion and, frankly, I lost track,” Justice Elena Kagan said, referring to the opinion in Ake. “Every time this opinion talks about this, it talks about assisting the defense and assisting the defendant, including to cross-examine the prosecution. It just seems that the premise of the entire opinion is you’re on the defense team.”

Though a panel of state-sponsored mental health experts found McWilliams competent to stand trial, and free of mental illness that could have explained the crime, at least one clinical psychologist determined that a head injury as a child left McWilliams with “genuine neuropsychological problems.”

The clinical psychologist, Dr. John Goff, worked for Alabama and provided his report to McWilliams’ defense team, along with the prosecution and judge, two days before the defendant was sentenced in 1986.

McWilliams’ attorney did not have a chance to have an expert look over the report or help him prepare a defense. McWilliams claimed on appeal that this violated his due-process rights under Ake.

At oral arguments Monday, Alabama Solicitor General Andrew Brasher defended Alabama’s choice to provide an expert shared between the prosecution and defense. Brasher cautioned the justices not to divine new meaning in a three-decade-old decision.

“The question in this case is not whether Ake should be extended to say that a neutral expert doesn’t satisfy the due process clause,” Brasher said. “The question in this case is whether Ake held that.”

Justice Stephen Breyer said it seems clear the court meant to give poor defendants an expert who can help them evaluate whether the insanity defense would be viable and gather evidence to support it. Anything less would violate due-process rights, Breyer said.

“That’s the question,” Breyer said. “And here it seems to me that this defendant certainly did not get that help.”

Kagan lead most of the prodding of Brasher’s argument, saying the description of the expert in Ake looks more like one of a court-appointed lawyer than of the floating counselor the court made available to McWilliams. 

“The actual holding of Ake calls for assistance in evaluation, preparation and presentation of the defense,” Kagan said. “And the theme of Ake, if you will, is all about how we used to think that psychiatric opinions were just like one thing, but now we know better. We know that different psychiatrists have different opinions and it’s really important to arm even an indigent defendant with the tools that he needs to come back at the state and to establish what he wants to establish about his mental health.”

Stephen Bright, an for McWilliams with the Southern Center for Human Rights, made a similar argument. He said decision in Ake was meant to bring poor defendants on a level field with rich defendants, who have the means to hire a parade of experts to help them prepare the best defense possible.

In a system like Alabama’s, where neutral experts must try to hop between the prosecution and defense sides of a case, defendants are not afforded the advantage of having an expert weigh in on the minute details of their cases, Bright argued.

“It’s hard to image how that could ever work, unless you want just the opinion of the expert,” Bright said. “What happens so often with people who start out as neutral experts is they become experts for one side or the other, usually the prosecution.”

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