In the

Supreme Court of the United States

James Edmond McWilliam, Petitioner,

v.

Jefferson Dunn, Respondent.

BRIEF FOR PETITIONER

QUESTION PRESENTED

When this Court held in Ake v. Oklahoma, 470 U.S. 68 (1985), that an indigent defendant is entitled to meaningful expert assistance for the "evaluation, preparation, and presentation of the defense," did it clearly establish that the expert should be independent of the prosecution?

STATEMENT OF THE CASE

The Alabama judge who sentenced James McWilliams to death did not find a single mitigating circumstance to weigh against three aggravating circumstances. However, two days before sentencing, the parties and the court received a neuropsychologist's assessment reporting that McWilliams had "organic brain dysfunction." The assessment found that McWilliams had "genuine neuropsychological problems" and an "obvious neuropsychological deficit," which included "cortical dysfunction attributable to right cerebral hemisphere dysfunction" indicative of a "right hemisphere lesion."

The day before the judicial sentencing hearing, all parties received McWilliams's updated records from the state mental hospital. The following morning, just prior to the hearing, all parties received records from the state prison where McWilliams was being held, which showed that he was being treated with psychotropic medication. Defense counsel had subpoenaed the prison records approximately two months earlier, but did not receive them until moments before the hearing. Defense counsel repeatedly sought a continuance in order to consult with an independent defense expert about the neuropsychological assessment and the records so as to understand and interpret them and then to fashion a mitigation case based on the evidence of McWilliams's mental disorders and impairments. Consultation with an expert also would have provided defense counsel with an opportunity to rebut the testimony of the State's experts from a previous sentencing hearing before a jury that McWilliams had no real mental impairment and that he had malingered on his psychological tests. The judge denied the motions and sentenced McWilliams to death. In imposing that sentence, the judge concluded that McWilliams had faked the answers on his psychological tests and on that basis found no mitigating circumstances.

McWilliams argued on appeal that he was denied his right to independent expert assistance under Ake v. Oklahoma. Affirming the death sentence, the Alabama Court of Criminal Appeals held thatAke did not entitle McWilliams to anything more than the views of the psychologist who reported simultaneously to the prosecution, the defense, and the judge

A. Trial and Sentencing Before the Jury

McWilliams was charged with the rape and murder of Patricia Reynolds, which occurred during the robbery of a convenience store in Tuscaloosa, Alabama, on December 30, 1984. The trial court found him indigent and appointed counsel to represent him. Prior to trial, the defense filed a "Petition for Inquisition Upon Alleged Insane Prisoner," and, in response, the court ordered that McWilliams be sent to the Taylor Hardin Secure Medical Facility, a state hospital, for examination. A "Lunacy Commission" was convened to conduct the evaluation and found that McWilliams was competent to stand trial, that he was sane at the time of the crime, and that there "seemed to be no mitigating circumstances involved" in the case.

McWilliams was convicted of capital murder on August 26, 1986. The sentencing hearing before the jury began the following day, and testimony lasted less than three hours. The prosecution reintroduced its evidence from the guilt phase, and also called a police officer to testify that McWilliams had a prior conviction.

The defense called McWilliams and his mother. Both testified about head injuries McWilliams suffered as a child and the headaches, doctor visits, and medications that followed. McWilliams also testified that he had been seen by several psychiatrists and psychologists both before his arrest and after it while in state custody. He then read from the report of a psychologist who had evaluated him prior to his arrest; the report stated that he had a "blatantly psychotic thought disorder," and needed inpatient treatment. When the prosecutor questioned McWilliams about the neurological effects of his head injuries, McWilliams replied, "I am not a psychiatrist." The prosecutor also pressed McWilliams's mother:

Q: You are not saying James is crazy, are you?

A: I am no expert: I don't know whether my son is crazy or not. All I know, that my son do need help.

* * *

A: I said that I believe my son needs help, professional help: the help that I cannot give him.

Defense counsel had subpoenaed McWilliams's mental health records from Holman Prison on August 13, to be delivered by August 25, but the prison did not produce them, so the defense presented no additional evidence.

In rebuttal, the State presented the testimony of a psychiatrist and a psychologist from the state mental hospital. The psychiatrist, Dr. Kamal Nagi, who was a member of the Lunacy Commission, testified that he found no evidence of psychosis. In support of that finding, he said that two Minnesota Multiphasic Personality Inventory assessments ("MMPIs") were performed on McWilliams. He then backtracked, saying that a second test was recommended, but he was not sure if it was given. He ultimately stated that only one MMPI was done, but not by him, and he volunteered that "the results were faked bad." He also testified that observation and interviewing are "more important than psychological testing,", yet he was unaware of McWilliams's history of head trauma.

Dr. Norman Poythress, a psychologist who signed the final report issued by the Lunacy Commission, testified that the MMPI administered to McWilliams by a graduate student at the state hospital was "clinically invalid" because the test's "validity scales" indicated that McWilliams had not been candid in his responses. Dr. Poythress testified that a second test was not given.

Ten jurors voted for a death sentence-the minimum required for a death recommendation under Alabama law. The other two jurors voted for a sentence of life in prison without parole. A judicial sentencing hearing was scheduled for October 9, 1986.

B. Judicial Sentencing Hearing

Prior to the judicial sentencing hearing, which is required by Alabama law," defense counsel filed a motion for neuropsychological testing of McWilliams, as well as a motion to require the Department of Corrections to show cause as to why it should not be held in contempt for failing to produce McWilliams's mental health records, which had been subpoenaed in August but still had not been produced. The court granted both motions, but McWilliams's counsel did not receive the results of the neuropsychological testing until October 7, 1986-just two days before the judicial sentencing hearing-and did not receive the prison records until the morning of the sentencing.

On the afternoon of October 7, an assessment prepared by Dr. John Goff, who, like Dr. Nagi and Dr. Poythress, worked for the state's Department of Mental Health, was distributed to the court and the prosecution as well as the defense. According to the report, Dr. Goff found that McWilliams had "organic brain dysfunction which is localized to the right cerebral hemisphere." More specifically, McWilliams suffered from "cortical dysfunction attributable to right cerebral hemisphere dysfunction," which manifested in "left hand weakness, poor motor coordination of the left hand, sensory deficits including suppressions of the left hand and very poor visual search skills." These deficits were "suggestive of a right hemisphere lesion," and were "compatible with the injuries McWilliams says he sustained as a child," Accordingly, Dr. Goff concluded that McWilliams had "genuine neuropsychological problems" and an "obvious neuropsychological deficit."

Counsel also did not receive McWilliams's updated records from the state mental hospital until the day before sentencing, and they did not receive the Holman Prison records until they arrived to court on the morning of the sentencing hearing. The prison records indicated that McWilliams was "on an assortment of drugs that were prescribed for him by the prison authorities," including Desyrel, Librium, and the antipsychotic Mellaril.

When the sentencing hearing began, McWilliams's counsel informed the judge that due to the late arrival of the report and records, he needed time to "have someone else review these findings." He stated, "It is just incumbent upon me to have a second opinion as to the severity of the organic problems discovered," that is, an opinion other than the one produced by the neutral expert Dr. Goff. In support of his request, counsel explained that he could not understand and meaningfully present the information he had just received, as Dr. Goff's neuropsychological testing was sophisticated" and the records were lengthy and technical.

In response, the judge stated, "All right. Well, let's proceed." The prosecution presented the testimony of the probation officer who prepared a pre­sentence investigation report and introduced the report into evidence. The judge made the records from the state hospital, the prison records, and Dr. Goff's report part of the record even though Dr. Goff did not testify and no one explained his assessment or the records. The judge recessed at approximately 10:40 a.m., indicating that defense counsel could review the records before pronouncement of sentence at 2:00 p.m. In response, counsel reiterated that there was "no way" he could go through all the material in that amount of time.

During the recess, counsel filed a motion to withdraw, arguing that "the arbitrary position taken by this Court regarding the Defendant's right to present mitigating circumstances is unconscionable resulting in this proceeding being a mockery." The motion was denied.

When court resumed, defense counsel stated:

We cannot determine ourselves from the records that we have received and the lack of receiving the test and the lack of our own expertise, whether or not such a condition exists; whether the reports and tests that have been run by Taylor Hardin, and the Lunacy Commission, and at Holman are tests that should be challenged in some type of way or the results should be challenged, we really need an opportunity to have the right type of experts in this field, take a look at all of those records and tell us what is happening with him. And that is why we renew the Motion for a Continuance.

The motion was denied.

The prosecutor then gave his closing argument, stating that there were "no mitigating circumstances" to weigh against the aggravating circumstances. Defense counsel followed, beginning, "I would be pleased to respond to Mr. Freeman's remarks that there are no mitigating circumstances in this case if I were able to have time to produce any mitigating circumstances." Moments later, defense counsel concluded, "The Court has foreclosed, by structuring this hearing as it has, the Defendant from presenting any evidence of mitigation in psychological--psychiatric terms."

The trial judge stated that he had reviewed the mental health records during the break and found passages indicating that McWilliams was faking and manipulative and that there was no evidence of psychosis. Defense counsel reiterated, "I told Your Honor that my looking at those records was not of any value to me; that I needed to have somebody look at those records who understood them, who could interpret them for me. Did I not tell Your Honor that?" When the judge replied that he would have given the defense "the opportunity to make a motion," counsel responded, "Your Honor gave me no time in which to do that. Your Honor told me to be here at 2 o'clock this afternoon. Would Your Honor have wanted me to file a Motion for Extraordinary Expenses to get someone?" The trial judge responded, "I want you to approach with your client, please." He then sentenced McWilliams to death.

In a written sentencing order, the judge found three aggravating circumstances'' and no mitigating circumstances because "the preponderance of the evidence from these tests and reports show the defendant to be feigning, faking, and manipulative." With regard to the records from the state hospital and prison-which were unexplained by an expert or anyone else, but indicated that McWilliams was being administered antipsychotic medication-the judge stated that McWilliams "was not and is not psychotic."

C. State Appellate and Post-Conviction Proceedings

On appeal, McWilliams argued to the Alabama Court of Criminal Appeals that he was denied his due process right to meaningful expert assistance under Ake v. Oklahoma. In his brief, McWilliams stated:

Defense counsel received Dr. Goff's written report less than two days before the sentencing hearing. He did not understand it, but he sensed that it was sufficiently favorable to merit further investigation. Counsel advised the Court that he lacked the expertise to interpret the highly technical report. He explained that Dr. Goff's findings appeared to conflict with the findings of the Taylor Hardin experts. Counsel literally begged the Court for an opportunity to consult with an expert who could explain the report to him. The Court refused to allow this.

McWilliams added that the accuracy of the sentencing proceeding would have been '''dramatically enhanced' if counsel had the assistance of an expert to help him 'translate a medical diagnosis into language' that the court would have understood." The Court of Criminal Appeals affirmed, holding that Ake is satisfied "when the State provides the defendant with a competent psychiatrist."

McWilliams sought certiorari review in the Alabama Supreme Court, arguing that Ake "prohibits granting neuropsychological testing but denying an expert to assist the defense with understanding and presenting the test results." The Alabama Supreme Court affirmed without addressing the Ake issue.

McWilliams filed a petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, raising a number of issues. Among the witnesses who testified at a hearing on the petition was Dr. George Woods, a psychiatrist, who explained that one possibility for high scores on certain MMPI scales is, in fact, "that a person is just so pathologically disturbed that their testing brings that out, and so you see a number of elevations, you see a number of areas, where they are pathologically disturbed." An elevated scale can also reflect that a person has exaggerated certain responses but is still mentally ill. The Alabama courts denied post-conviction relief.

D. Federal Habeas Proceedings

McWilliams then sought relief in the federal courts pursuant to 28 U.S.C. 2254. In the United States District Court for the Northern District of Alabama, he argued that he was denied his Fourteenth Amendment right to due process of law because he did not receive the assistance of an independent expert required by Ake. The magistrate judge, in his report and recommendation that was later accepted by the district court, ruled that the appointment of Dr. Goff satisfied Ake and, as such, the decision of the Alabama Court of Criminal Appeals was not an unreasonable application of "clearly established Federal law" under 28 U.S.C. 2254(d)(1).

The Court of Appeals for the Eleventh Circuit affirmed in a per curiam decision with one judge concurring and one judge dissenting. The court found that McWilliams had received the constitutionally required expert assistance by being provided Dr. Goff's report two days before the judicial sentencing hearing. The court also suggested that defense counsel could have contacted Dr. Goff, even though he was also available to the prosecution, and called him as a witness, even without understanding his assessment. It stated:

Nothing in the record suggests that Dr. Goff lacked the requisite expertise to examine McWilliams and generate a report. While Dr. Goff provided the report to McWilliams only a few days before the sentencing hearing, McWilliams could have called Dr. Goff as a witness or contacted him prior to the completion of the report to ask for additional assistance. McWilliams's failure to do so does not render Dr. Goff's assistance deficient. Moreover, the report was admitted into evidence and considered by the court at sentencing, demonstrating the defense utilized Dr. Goff's assistance. Thus, the State provided McWilliams access to a competent psychiatrist, and McWilliams relied on the psychiatrist's assistance.

The court held that the denial of an expert was not contrary to or an unreasonable application of "clearly established Federal law" because although some circuits "have held that the state must provide a non-neutral mental health expert to satisfy Ake," in other jurisdictions, "a court-appointed neutral mental health expert made available to all parties may satisfy Ake."

Judge Wilson dissented, finding that "the state court's resolution of McWilliams'sAke claim was an unreasonable application of Ake itself and this error had a substantial and injurious effect." He explained:

Although his life was at stake and his case for mitigation was based on his mental health history, McWilliams received an inchoate psychiatric report at the twelfth hour and was denied the opportunity to utilize the assistance of a psychiatrist to develop his own evidence. As a result, McWilliams was precluded from meaningfully participating in the judicial sentencing hearing and did not receive a fair opportunity to rebut the State's psychiatric experts. Put simply, he was denied due process.

In response to the suggestion that defense counsel could have consulted with Dr. Goff, Judge Wilson observed that Dr. Goff could not possibly provide the kind of expert assistance contemplated by Ake because he was free to "cross the aisle and disclose to the State the future cross-examination of defense counsel."

This Court granted certiorari to address the question of whether Ake clearly established that an indigent defendant who makes a threshold showing that mental health issues will be a significant factor at trial has a right to a mental health expert who is independent of the prosecution."

 

SUMMARY OF THE ARGUMENT

In Ake v. Oklahomathis Court held that an indigent defendant with mental health issues significant to his case is entitled to an expert to "assist in evaluation, preparation, and presentation of the defense." That assistance includes gathering information for the defense, helping the defense assess the viability of potential defenses, aiding the defense in preparing the cross-examination of the prosecution's mental health experts, and translating medical concepts into language understandable to lay people. This Court recognized that such assistance is essential to providing the defendant "a fair opportunity to present his defense," and to ensuring that facts are resolved based on the views and expertise of "psychiatrists for each party," which is consistent with the adversary system. Thus, Ake clearly established the right to an independent expert to assist the defense. The ruling of the Alabama Court of Criminal Appeals that Ake was satisfied by the appointment of a neutral expert who reported to the prosecution, the defense, and the judge, is contrary to and an unreasonable application of Ake.

First, the role of the expert guaranteed by Ake demonstrates that the expert provided to the defense must be independent of the prosecution. The state trial court in Ake had denied the defendant's request for expert assistance, finding that the evaluations of "neutral" experts who reported to the court, the prosecution, and the defense were sufficient. This Court reversed, holding that due process requires an expert to assist the defense. The specific types of assistance described by the Court, including consultation and trial preparation, cannot be achieved absent independence from the prosecution. As Judge Wilson recognized in his dissent below, it would be untenable for an expert to help the defense prepare for cross-examination of the prosecution's experts, "only to cross the aisle and disclose to the State the future cross­-examination of defense counsel." Similarly, a defense attorney could not consult with an expert about potential defenses if the expert was free to share the content of the consultation with opposing counsel. Nor could the expert assist the defense in preparing for cross-examination if the expert was going to testify for the prosecution.

Second, then-Justice Rehnquist's dissent in Ake confirms that Ake clearly established the right to an independent expert to assist the defense. Justice Rehnquist dissented to express his disagreement with the Court's holding that due process requires an expert to assist in "evaluation, preparation, and presentation of the defense."

Third, this Court reiterated in subsequent decisions that Ake requires an independent expert. It remanded a Virginia case the year Ake was decided and later explained that it did so because under Ake, "due process requires that the State provide the defendant with the assistance of an independent psychiatrist." It also emphasized in Ford v. Wainwright, that under Ake, "the fact-finder must resolve differences in opinion within the psychiatric profession 'on the basis of the evidence offered by each party.'"

Fourth, when Ake was decided, federal courts already provided for the assistance of experts "necessary for an adequate defense" under the Criminal Justice Act. This Court referred to the Criminal Justice Act in Ake and then adopted language similar to it. This is significant because numerous Courts of Appeals had already recognized that providing an expert "necessary for an adequate defense" under the Criminal Justice Act meant providing an expert who was independent of the prosecution.

Fifth, the Court expressly envisioned ex parte proceedings when describing the threshold showing required for expert assistance. The purpose of such proceedings is to ensure that indigent defendants, in making a showing of need for expert assistance, are not forced to divulge privileged and confidential information and strategic considerations that financially secure defendants would keep confidential. There would be no reason for a defendant to proceed ex parte in a request for expert assistance if the end result was the appointment of an expert who would share the defense's information and strategy with the prosecution.

"'Clearly established Federal law' under 2254(d) (1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." The governing principle of Ake is that due process requires a mental health expert who can assist the defense by performing the specific tasks delineated in the opinion, which include consultation and preparation with defense counsel and thus necessarily require independence from the prosecution.

The Eleventh Circuit and many other courts have recognized that Ake requires an independent expert. However, the Eleventh Circuit held in this case that the right to such an expert was not "clearly established" in Ake because the Fifth Circuit has declined to recognize the right and the Sixth Circuit has recognized it but held that it was not clearly established in Ake. These cases misinterpreting Ake do not undermine the principles that Ake clearly articulated. Even the Alabama Court of Criminal Appeals, which held in this case that McWilliams was not entitled to an independent expert, has since held that Ake was "clear" in requiring exactly that.

The absence of an independent expert rendered McWilliams unable to present any mitigating evidence on the only significant factor at the sentencing: his mental health. The sentencing judge found that there were "no mitigating circumstances," despite having received a neuropsychological report indicating that McWilliams suffered from brain damage and records showing that state doctors were medicating McWilliams with psychotropic drugs. An expert assisting the defense would have explained in lay terms to defense counsel how to present the diagnoses and information in the report and records as mitigating circumstances. Consideration of McWilliams's brain damage and other mental health issues was essential to a fair and reliable sentencing determination. Because neither judge in the majority below considered the ways in which McWilliams would have developed and presented his mitigation case if he had been provided the independent expert assistance required by Ake, remand to the Eleventh Circuit is warranted.

Had McWilliams received the expert assistance Ake requires, his organic brain damage would have played an integral role within a compelling mitigation case. Instead, as Judge Wilson observed, "McWilliams received an inchoate psychiatric report at the twelfth hour and was denied the opportunity to utilize the assistance of a psychiatrist to develop his own evidence." a result, the court "heard almost nothing that would humanize McWilliams or allow it to accurately gauge his moral culpability." Therefore, the absence of an independent mental health expert had a substantial and injurious effect on McWilliams's sentencing.

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment of the Court of Appeals for the Eleventh Circuit and remand this case for further proceedings.