In a criminal case, if a defendant is unable to personally bear litigation costs, the state is obliged to provide defense counsel, and the government is obliged to enable a criminal defendant access to psychological and medical experts (Ake v. Oklahoma, 1986) when the defendant can first make "substantial threshold showing" (Panetti v. Quarterman, 2007) that his mental state is relevant to the proceedings. Ironically, defendants can find themselves obliged to make a threshold showing to gain access to funds for an expert evaluation, which is necessary to meet the threshold in the first place.
The U.S. Supreme Court has agreed to hear a case that may help clarify when a criminal defendant should be granted access to an expert to assess his mental health. In the case, Kevan Brumfield argues that a Louisiana state court's denial of his post-conviction request for funding to develop his claim that he is mentally retarded — and therefore not eligible for the death penalty — violates constitutional protections. Brumfield was convicted of the 1993 murder of a Baton Rouge police officer. He was sentenced to death in 1995 before the decision in Atkins v. Virginia (2002) made clear that people with what the law still refers to as "mental retardation" cannot be executed, so Brumfield's intellectual limitations were not made a central issue at his original trial.
Before the Supreme Court agreed to hear Brumfield's case, the Fifth Circuit Court of Appeals issued a ruling, noting that the Supreme Court has never held that a defendant's right to present evidence that he meets the legal standard of mental retardation required a court or the state to provide the prisoner with funds to obtain such expert evidence for purposes of a threshold showing (Brumfield v. Cain, 2014). Indeed, just the opposite was suggested by Judge Higginbotham in Morris v. Dretke: "[T]he State was within its rights to deny [the petitioner] assistance in obtaining intellectual testing" in order to make out a prima facie case of mental retardation (2005, p. 501).
The Louisiana Code of Criminal Procedure defines "mental retardation" as a disability characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social and practical adaptive skills. The Supreme Court has also recognized that determining whether an individual meets the legal standard of "mental retardation" requires thorough analysis of IQ test findings and adaptive functioning, including consideration of past performance, environment and upbringing (Hall v. Florida, 2014). The interpretation of individual performance on psychological assessment instruments and integration of that data with evidence of adaptive functioning; medical, social, and educational history; and overall psychological functioning is a complex task that requires expertise that is beyond the reach of a defendant and his counsel without expert assistance.
The Fifth Circuit's finding that access to expert witnesses accrue to a criminal defendant only after he has made a "substantial threshold showing" of a mental disorder or intellectual disability is analogous to a lifeguard offering a lifeline to a drowning man just as soon as the man can swim close enough to the shore to keep the lifeguard from having to get wet.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
