The Case Halting Arkansas' Executions

Arkansas Governor Asa Hutchinson speaks at the RNC in 2016. Mario Anzuoni / Reuters

The Supreme Court’s 2016-17 docket has been, by recent standards, relatively sleepy. But one of its cases—an Alabama death-penalty appeal called McWilliams v. Dunn—woke up on Monday.

That’s because the issue—whether a capital defendant whose sanity or competence is at issue is entitled to an independent psychiatrist to assist with the defense—is also at stake in the cases of two Arkansas inmates, Don William Davis and Bruce Earl Ward, sentenced to death by courts in that state. The two had been scheduled to be executed Monday evening. The double executions were to be the opening act of a rapid-fire set of executions planned by Arkansas Governor Asa Hutchinson, who issued orders to kill eight prisoners in two weeks.

On Monday, the Arkansas Supreme Court court ordered the executions stayed pending the resolution of McWilliams. The state did not appeal the stay of Ward’s execution, but asked the U.S. Supreme Court to lift the stay in Davis’s case. The high court refused to do so, sparing Davis minutes before the drugs were to be administered. Because the execution drugs Arkansas has obtained are scheduled to expire by the end of April, the stays mean that in practical terms the executions are probably off indefinitely.

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Davis and Ward are the second and third of the eight condemned prisoners to receive stays. As of Tuesday, state officials were still insisting that the remaining 5 would be put to death as scheduled; but with multiple requests for stays pending—and world condemnation of the bizarre execution plan mounting—it’s anybody’s guess whether any of the remaining death warrants will be carried out.

Under long-established constitutional precedent, an indigent capital defendant is entitled—in appropriate cases—to a court-appointed psychiatrist to provide a psychiatric evaluation. That rule was laid down by a 1985 case called Ake v. Oklahoma, in which the Supreme Court held that when a defendant’s sanity at the time of a crime is at issue, “the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” The precise issue in McWilliams is whether, when an indigent defendant asserts a defense of insanity or claims to be incompetent to stand trial, the state must provide an independent psychiatrist who will work with the defense team, under the shield of by lawyer-client privilege, to assess that claim.

Instead,  in McWilliams, the state of Alabama provided the defense only with test results, mental-health records, and a raw report by a court-appointed psychiatrist that was sent to both sides and the judge. That meant that the defendant had no expert who could advise defense counsel on what the reports meant, how to use them to put on testimony designed to mitigate the defendant’s culpability, or how to rebut prosecution evidence and witnesses offered to prove that the defendant was sane and eligible for execution.

Only two amicus briefs were filed in McWilliams, a contrast with the nine filed in Moore v. Texas, another death case decided earlier this term. The reason is, probably, that most jurisdictions provide independent experts as a matter of course. According to an amicus brief filed by the National Association of Criminal Defense Lawyers, Alabama and Arkansas seem to be outliers in this regard.

The McWilliams case arose in 1984, when James E. McWilliams robbed an Alabama convenience store, raped a clerk named Patricia Reynolds, and then fatally shot her with a handgun. McWilliams had a history of disturbed behavior; one mental-health counselor had recommended hospitalization, and had warned other professionals never to meet with McWilliams after dark. After his arrest, McWilliams was first examined by a three-physician “Lunacy Commission” assembled by the court. The “Commission” concluded that he was not insane and indeed was actively faking mental illness. After McWilliams was convicted, the trial judge appointed a psychiatrist to examine McWilliams as part of the death-sentence process. The psychiatrist did not deliver his report, including his test results, until two days before the hearing; mental health records kept by the prison where McWilliams had been held were not delivered until the very day he was to be sentenced.

The trial judge refused to delay sentencing to permit the defense to evaluate this flood of material. Instead, he suggested McWilliams’s lawyer look over them during the lunch break. At the afternoon hearing, the defense lawyer protested to the judge that “we really need an opportunity to have the right type of experts in this field, take a look at all of those records and tell us what is happening with him.” The judge denied the motion, then sentenced McWilliams to death.

Because McWilliams is a federal habeas corpus review of a state conviction, the issue is not simply whether the Constitution requires states to furnish an independent expert, but whether that requirement was “clearly established,” making the Alabama courts’ decision unreasonable. In this connection, the practice of other states is relevant—and according to the NACDL, most states have taken for granted that Ake requires appointment of an expert who will not simply dump a report into the record, but will work with the defense—under the protection of the privilege—to shape testimony and evidence that may save the defendant’s life.

In the Ake opinion, Justice Thurgood Marshall wrote that an indigent defendant is entitled to an expert “to conduct a professional examination on issues relevant to the insanity defense, to help determine whether that defense is viable, to present testimony, and to assist in preparing the cross-examination of the State’s psychiatric witnesses”—none of which can be done by an expert who is allowed to report his discussions with defense lawyers to the prosecutors.

Alabama argues that Ake “did not clearly establish the right to a partisan psychiatrist”—that is, one who works actively with the defense—except where the prosecution has already brought in a psychiatrist as part of its case. In cases like McWilliams’s, the state argues, “a neutral psychiatrist who reports to all parties can satisfy due process.” There’s something to this argument; but on the other hand, a defendant who asserts insanity or incompetence bears the burden of proving that the claim is true. Thus, allowing the prosecution to determine whether psychiatric testimony is needed seems backward.

Arkansas defendant Don Davis asked at trial for an expert to help prepare testimony on “mitigating factors” —that is, reasons why the jury should not sentence him to death.  The Arkansas court rejected that argument by citing a state case interpreting Ake: “the Supreme Court did not hold in Ake that a defendant has the constitutional right to choose a psychiatrist of his personal liking or to shop around to find one who will support his insanity defense.”

Bruce Ward, by contrast, argues that he was incompetent to stand trial, and that his lawyer was ineffective because he did not request an independent expert to determine that. The Arkansas Supreme Court relied on another earlier state case interpreting Ake: “the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. In the present case, appellant was examined at the state hospital, and, thus, the requirements under Ake were satisfied.”

When the Supreme Court said in Ake that there is a right to an expert who will “assist in evaluation, preparation, and presentation of the defense,” did it mean in each case an independent expert? That court did caution that its decision did not mean that “the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own”; instead, the defense simply must “have access to a competent psychiatrist for the purpose we have discussed.” When the Eleventh Circuit considered McWilliams’s case, it concluded that there is a split among the Circuits on the issue of whether an “independent” expert can, in some cases, satisfy due process—and, thus, that the Alabama trial court’s failure to supply the defense with its own consultant was not “clearly established.”

The two Arkansas inmates are now linked with McWilliams. The “sleeper case” will be keeping a lot of people awake between now and June.