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.
Historically, this position has not been controversial. In the years that followed the Supreme Court’s decision in Ake, roughly two-thirds of death penalty states provided indigent defendants with independent expert assistance upon a reasonable showing of need, including mental health experts, according to research conducted by lawyers who were representing such defendants when Ake was decided.
In the Ake case, the Supreme Court identified an independent mental health expert – an expert who gathers information for the defense, assists the defendant’s lawyer in developing his case, advises the lawyer on how to cross examine the prosecution’s expert and provides other confidential consultations – as necessary for a properly functioning adversarial system.
The Supreme Court explained that the right to an independent mental health expert flows from the right to a lawyer for the accused guaranteed by the Sixth Amendment and recognized in the case of Gideon v. Wainwright. As the Supreme Court put it in Ake, mental health experts “for each party” enable the jury to make its most accurate determination of the truth on the issue before them. In the way our adversary system works, it would be unfair for the accused’s expert to confer with the defense attorney and then walk across the hall and spill the beans to the prosecution.
No financially secure defendant would voluntarily share his consultations with his mental health expert with the prosecution. The only reason a defendant would share his expert with the prosecution would be because he was poor and had no choice.
In this case, Mr. McWilliams was denied his clearly established right to an independent mental health expert and only had access to an expert who simultaneously reported to the court, the defense and the prosecution.
Although Mr. McWilliams’ case for mitigation -- that is, asking the judge to choose a sentence of life without the possibility of parole instead of death -- was based on his mental health history, Mr. McWilliams’ attorney did not receive a psychologist’s report until two days before the sentencing hearing, did not receive updated records from the state mental hospital until the eve of sentencing and did not receive prison records until the morning of sentencing. The report and records were too voluminous to be reviewed in time for the hearing and too sophisticated to be understood without the assistance of an independent mental health expert.
An independent mental health expert would have changed what the court heard about Mr. McWilliams. A state psychologist examined Mr. McWilliams and found that he had organic brain damage likely caused by multiple head injuries he suffered as a child. The psychologist concluded that Mr. McWilliams had “genuine neuropsychological problems” and an “obvious neuropsychological deficit.” This critical information was never presented to the judge because the defense did not understand the psychologist’s report without the assistance of an independent expert.
The Supreme Court should uphold Mr. McWilliams’ clearly established right to an independent expert and reverse the decision that denied him this right. This result is fundamentally fair, equitable and necessary to level the playing field for everyone in our criminal justice system.