Forensic Experts, Indigent Defendants, and the Constitution

James McWilliams, Jr., has been on Alabama’s death row for the past 31 years and was sentenced to be executed for the robbery, rape, and murder of a convenience store clerk (1). His guilt appears not to be in question. However, the proceedings that led to his sentence were the subject of a recent challenge before the U.S. Supreme Court (2). At issue was a question that the Court has left open for more than 30 years: what, exactly, is the nature of the assistance from mental health experts to which an indigent criminal defendant is entitled? Although the Court’s decision does not settle the question, it may move us closer to understanding what the Constitution requires in these cases.

Mr. McWilliams’ Trial and Death Sentence

On December 30, 1984, Mr. McWilliams robbed a Tuscaloosa, Alabama, convenience store (1). After locking the doors of the store, he took the clerk on duty, Patricia Reynolds, into the back room, where he raped her and then shot her six times. She later died in surgery from loss of blood. Apprehended in Ohio while driving a stolen car, Mr. McWilliams was found with the murder weapon in his possession. He reportedly bragged about his crime to other inmates in the jail where he was being detained. After his return to Alabama, he was found to be indigent and had an attorney appointed to represent him. The attorney asked that Mr. McWilliams’ competence to stand trial be assessed, which led to his hospitalization at a secure forensic facility, where three mental health professionals examined him. They concluded that he was fit to stand trial, had not been suffering from mental illness at the time of the offense, and appeared to be exaggerating his symptoms during the evaluation (2).

Having been tried and convicted of capital murder, Mr. McWilliams was subject to what was then a two-part sentencing process in Alabama. First, the same jury that convicted him heard additional evidence regarding sentencing, including testimony from the defendant and his mother about multiple, severe head traumas he had suffered as a child and the conclusions of a psychological evaluation conducted before the offense, which found him to have a “blatantly psychotic thought disorder” and recommended inpatient treatment. The state called a psychiatrist and a psychologist who had been involved with his pretrial assessment, who testified that they had not found evidence of psychosis and that he was exaggerating or faking his symptoms (2). At the conclusion of the hearing, the jury voted 10–2 to impose the death penalty. Had one more juror voted against a death sentence, Mr. McWilliams would have been sentenced automatically to life in prison.

Approximately six weeks later, a second hearing was held, this one before the trial judge, who under Alabama law could confirm or reject the jury’s recommendation. In preparation for that hearing, Mr. McWilliams’ attorney requested a neuropsychological evaluation, which was conducted by a state-employed neuropsychologist appointed by the court, and subpoenaed Mr. McWilliams’ mental health records from the hospital where he had been evaluated and from the prison in which he was being held. The neuropsychologist’s report, which arrived two days before the hearing, concluded that although Mr. McWilliams was exaggerating his problems, he did show “right cerebral hemisphere dysfunction . . . compatible with the injuries [McWilliams] sa[id] he sustained as a child” (2). One day before the hearing, updated records from the forensic hospital arrived, and on the morning of the hearing, defense counsel received more than 1,000 pages of records from the prison, which indicated that Mr. McWilliams was receiving antipsychotic, antidepressant, and antianxiety medications.

Objecting that he could not possibly assimilate all the records that had just arrived or make sense of them without expert help, Mr. McWilliams’ attorney asked for a continuance and the opportunity to have an expert review the material. The judge offered a several-hour postponement but did not appoint anyone to provide expert assistance. When the attorney attempted to withdraw from the case on the grounds that he could not provide effective representation under the circumstances, the judge rejected his request and ordered the sentencing hearing to proceed. At the hearing’s conclusion, the judge noted that he had reviewed the records himself and concluded that Mr. McWilliams was faking his symptoms, and he sentenced him to death.

Ake and the Right to Expert Assistance

The dimensions of Mr. McWilliams’ right to the assistance of an expert mental health professional was defined by a 1985 decision of the U.S. Supreme Court issued just a few months before the crime that led to his death sentence. In Ake v. Oklahoma, the Court considered the case of an indigent capital defendant who was denied access to a state-funded psychiatrist for the purpose of supporting an insanity defense and providing testimony in mitigation at sentencing (3). Justice Thurgood Marshall’s majority opinion held that “when a[n indigent] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be 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.”

In sketching the dimensions of a right to access mental health expert assistance, the Ake court emphasized that the U.S. system of justice is inherently adversarial. That is, it relies on the presentation of conflicting evidence by each party to ensure thorough examination of the relevant issues, with the expectation that truth will thereby emerge. If one of the parties is deprived of the assistance necessary to present that evidence—a psychiatric evaluation in the case of Ake—the criminal process cannot function as intended. Given that the state’s interest in criminal prosecutions is for justice to be achieved, the state must provide indigent defendants with mental health expert assistance to accomplish that end. Moreover, in keeping with the briefs filed by the American Psychiatric Association and the American Psychological Association (4,5), the Court recognized that the role of the expert transcended direct evaluation of the defendant. Its language suggested that an expert must also be available to consult with the defense about strategy, critique the opinions of prosecution experts, and assist defense counsel in the preparation of the case and cross-examination of opposing witnesses.

What Ake did not resolve, and what lower courts have differed on ever since, is the degree of the expert’s independence from the prosecution. Can the psychiatrist who consults with the defense also consult with the prosecution, or, as the joint brief of the American Psychiatric Association, the American Academy of Psychiatry and the Law, and the American Psychological Association in McWilliams argued, does that defeat the point of having an expert consultant? Defendants with sufficient resources to hire their own experts can consult with a number of potential experts before selecting one whose background, manner, or opinion seems most conducive to their case. When the court assigns an expert to work with the defense, it is on a take-it-or-leave-it basis. And if the expert is available to both sides, the defendant may be reluctant to speak freely in an evaluation, and defense counsel may be wary of discussing strategy or approaches to cross-examination. Although that could make a crucial difference in a given case, the opinion in Ake deferred to the states on this issue: “This is not to say . . . that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.”

Was Mr. McWilliams Denied His Rights Under Ake?

Shortly after his conviction, Mr. McWilliams pursued a series of appeals of his death sentence on multiple grounds, including the contention that the failure to provide expert assistance deprived him of his constitutional rights as defined in Ake. The Alabama state courts uniformly rejected his claims, holding that all he was entitled to under Ake was an independent evaluation and that he had received that by virtue of the examination conducted by the state-employed neuropsychologist. Once exhausting his appeals under state law, Mr. McWilliams faced a legal barrier to moving his challenge to federal court. Although the U.S. Supreme Court’s decision in Ake recognized a federal constitutional right to expert assistance, a subsequent statute limited the ability of death row inmates to bring federal claims.

The Antiterrorism and Effective Death Penalty Act of 1996, enacted in part specifically to short-circuit the seemingly endless rounds of appeals pursued by death row prisoners, requires a petitioner to show that when a claim has been rejected in state court, the state court’s holding “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Thus, to obtain a federal writ of habeus corpus, which would allow him to pursue his claim in the federal courts, Mr. McWilliams would have not only to prove that his rights under Ake had been denied but also show that it was so obvious this was true that a federal court should rehear the claims already rejected by the Alabama courts. That is a deliberately high bar and one that Mr. McWilliams had trouble surmounting. His claim was denied by a federal magistrate on the grounds that the neuropsychological evaluation was all he was entitled to; the magistrate’s ruling was upheld by a federal district court and then by the 11th Circuit Court of Appeals.

Mr. McWilliams’ last recourse was a petition for certiorari to the U.S. Supreme Court, which agreed to hear the case. In a 5–4 opinion, with Justice Kennedy the swing vote and siding with the four-justice liberal bloc, the Court held that “Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense’” (2). Absent that kind of assistance, the provision of a neuropsychological evaluation by itself was inadequate to vindicate Mr. McWilliams’ constitutional due-process rights. “Neither Dr. Goff [the neuropsychologist] nor any other expert helped the defense evaluate Goff’s report or McWilliams’ extensive medical records and translate these data into a legal strategy. Neither Dr. Goff nor any other expert helped the defense prepare and present arguments that might, for example, have explained that McWilliams’ purported malingering was not necessarily inconsistent with mental illness (as an expert later testified in postconviction proceedings [citation omitted]). Neither Dr. Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself.”

What McWilliams did not decide—as Justice Alito’s scathing dissent for the four-justice conservative minority pointed out—is whether the defense has the right to its own expert—that is, one who will not also be available to the prosecution. Although that was the issue on which certiorari was granted, the majority decided the case without resolving it, concluding that whatever the dimensions of the right, Alabama had fallen “dramatically short of what Ake requires.” Mr. McWilliams’ case was remanded to the lower courts to consider whether the error in his case was harmless; in other words, whether even with expert assistance he would have been sentenced to death. The question of whether the defense is entitled to exclusive access to an expert will have to wait for another day.

Implications for Mental Health Professionals

By underscoring what appeared all along to be the holding in Ake, namely that the defense is entitled to an expert consultant as well as an expert evaluator and witness, the decision in McWilliams clarifies the dimensions of an expert’s role. The challenge for mental health experts, as I noted shortly after Ake was decided, is to recognize the very different ethical strictures that apply to the consultant’s and testifying expert’s roles—even when they are being filled by the same person (6). When consulting on defense strategies as well as preparing an attorney to conduct cross-examination of an opposing expert and similar tasks, the mental health expert necessarily assumes the defense perspective. However, once on the stand and under oath, the expert is no longer trying to help the defense win the case. He or she is now expected to offer testimony that is both subjectively and objectively truthful, even if that cuts against a defendant’s interests, in keeping with ethics of the forensic role (7). Switching from consultant to impartial expert is by no means a simple task, but McWilliams makes clear that more mental health professionals will be called on to do exactly that in the future.