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.”