June 29, 2017

Private: Giving the Defense a Fair Chance to Present Science

Brandon L. Garrett

by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

Last week, the Supreme Court at long last ruled on the case of James McWilliams, a man sentenced to death thirty-one years ago in Alabama, without any assistance of a mental health expert, despite evidence that he was psychotic and had organic brain damage. His lawyers argued he had no way to show the jury he did not deserve the death penalty without his own medical expert. The Justices agreed.

The ruling may impact death penalty cases around the country, where mental health evidence is often central. But the ripple effects may be felt across our entire criminal justice system, where as a shocking federal report highlighted last week, vast numbers of people in our jails and prisons have serious mental health issues.

As a fundamental matter of due process, the Justices said in McWilliams’ case, the judge must give a defendant, who cannot afford one, a mental health expert to effectively “assist in evaluation, preparation, and presentation of the defense.” The Court also emphasized that the simplest way to be sure the defendant has a fair trial is to provide a qualified expert.  

Instead, what McWilliams received was a “Lunacy Commission”---yes that was what it was called in Alabama---with three experts who readily concluded he was sane and had no relevant mental health problems worth telling the jury about. One government expert did note he had “genuine neuropsychological problems” and records showed he was being given several psychotropic medications in jail, including anti-psychotics. The defense lawyer asked repeatedly for an expert to examine those records and examine McWilliams. The trial judge always refused. 

At the 1986 trial, the prosecutor called two experts from the Lunacy Commission and then unfairly cross-examined McWilliams on the stand asking him whether he was mentally ill. McWilliams responded right on point: “I am not a psychiatrist.” He should have been given one. The trial judge concluded that he “was not and is not psychotic” and in addition, that there was not even any mental health information that could possibly provide even a factor to mitigate against sentencing him to death. McWilliams was sentenced to death.

The Supreme Court reversed and noted while not all states provide such an expert, most do, since an expert provides the best way to ensure a fair and adequate defense in a death penalty case. The ruling may impact other death penalty cases. Far more often today, jurors decide not to impose death sentences when they hear about the defendant’s background. 

But the case is about more than just the death penalty. The Justices’ ruling was issued the same week as a remarkable report just released by the federal Bureau of Justice Statistics. A survey of over 100,000 jail inmates and federal prisoners in 2011 and 2012 found that one in four jail inmates and one is seven prisoners had serious psychological distress. Far more had been told in the past by a mental health professional that they had a disorder. This was equally true for people convicted of property offenses and violent offenses. And the figures were far higher for female offenders, with a stunning two-thirds having had been told they had a mental disorder in the past. 

How many of the millions of individuals in our jails and prisons have had careful mental health screening? And how many had an expert to evaluate them and convey their condition to the judge or the jury? Outside of death penalty cases, and jurisdictions that have set up mental health screening in jails, perhaps not many.

For that matter, how about other crucial experts in criminal cases, like forensic experts on DNA, ballistics, fingerprints, or drug tests? Routinely, judges deny the defense access to such experts, despite real questions about the accuracy and reliability of some forensic techniques. How can a defense lawyer actually prepare for trial without an expert to evaluate the evidence, help prepare for trial and present evidence at trial---the three key aspects of due process that the Justices emphasized in McWilliams’ case? 

In the era of CSI, scientific evidence has never been more important in our criminal courtrooms. And with our jails and prisons housing vast numbers of mentally ill people, the ruling in the McWilliams case was much needed. It is hopefully just the beginning of a national effort to make sure that no one is convicted without a fair chance to present the science.