In its 1985 decision in Ake v. Oklahoma, the U.S. Supreme Court determined that if the sanity of an indigent defendant at the time of the offense is a significant factor at trial, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Just months later, the courts tested that decision with the case of James McWilliams Jr., who was charged with rape and murder. Before his trial, the court provided him with a three-member "lunacy commission" to complete a psychiatric evaluation. The panel opined that he was competent and was exaggerating his symptoms. At trial, two panel members testified for the prosecution about McWilliams's symptom exaggeration and absence of psychosis. Meanwhile, the defense counsel had subpoenaed records on McWilliams's mental health, which did not arrive in time for the jury to consider them. The jury voted for death. Although the court approved McWilliams's motion for neuropsychological and neurological exams before the sentencing hearing, that report was provided only two days before the hearing, and his medication records did not arrive until the morning of the hearing. The defense requested time to review the materials, but the court denied the continuance.
On appeal, McWilliams contended the trial court denied him the benefits of meaningful expert services under Ake. Lower courts denied his appeals, and not until 31 years later, in June 2017, did the Supreme Court address his concerns in a habeas corpus claim under federal law. In McWilliams v. Dunn, the court reversed and remanded, holding that "Alabama's provision of mental health assistance fell so dramatically short of what Ake requires." Although the McWilliams ruling did not decide whether Ake requires a state to provide an expert retained specifically for the defense team, it did require that states provide the defense with an expert who will examine and assist in evaluation, preparation and presentation of the defense. Whether these cases require truly "independent," "adversarial" experts remains somewhat unsettled.
APA contributed to amici curiae briefs in Ake and McWilliams, supporting the appointment of independent expert services for indigent defendants whose mental state is in question. Not providing such evaluations, APA said, could create "potentially erroneous determinations." In the McWilliams brief, APA et al. emphasized the preference for "independent" versus "neutral" experts in the "proper functioning of the adversary process and the need to provide necessary ‘tools of an adequate defense or appeal.'"
After Ake, states have applied both broad and narrow interpretations of the case, either limiting experts to capital cases or expanding the reach to noncapital, juvenile and civil cases, authorizing or denying the appointment of multiple experts for various mental health issues based on due process considerations, and expanding the cadre of nonpsychiatric professionals designated as experts for various trial issues. The facts recited in McWilliams highlight the continuing burden for indigent defendants who wish to present mental health defenses and the inadequacies in only presenting lay witness testimony or simply cross-examining the state's expert. In addition, McWilliams underscores the continuing and prejudicial effects of courts delaying expert funding approval, providing inadequate expert funds or denying access to appropriate experts.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
