by Robert M. A. Johnson, Former President of the National District Attorneys Association; Member, American Bar Association and Former Chair of the Criminal Justice Section.
Under our adversarial system of justice, it is only fair that poor people accused of crimes have access to their own independent experts, just like people charged with crimes who can afford experts.
But lawyers for James McWilliams had no access to an independent expert at the Alabama trial in which he was sentenced to death. An expert was indispensable because the lawyers received a complex psychological report and volumes of records within the two days before his sentencing hearing – some even arriving on the day of the hearing. Without consulting with a mental health expert, the lawyers could not possibly review and understand the report and records and present evidence regarding Mr. McWilliams’s mental impairments.
This should not have happened because the Supreme Court decided – more than 30 years ago in Ake v. Oklahoma – that a poor capital defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of his defense.”
On April 24, the Supreme Court will hold oral argument in Mr. McWilliams’s case, McWilliams v. Dunn, to determine whether an indigent capital defendant’s right to a mental health expert, upon a reasonable showing of need, encompasses the right to an independent expert who assists the defense, as opposed to an expert who is shared with the prosecution.