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June 19, 2017

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to 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.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 at 10:19 AM | Permalink


Breyer responds to the "unseemly charge."

Posted by: Joe | Jun 19, 2017 10:38:49 AM

Breyer responds, but unconvincingly. Bottom line: The Supreme Court doesn't consider itself bound by law when it comes to the death penalty.

Posted by: federalist | Jun 19, 2017 10:47:13 AM

The majority -- meaning primarily Justice Kennedy -- decides that this case can be decided on a narrower issue than the one granted for review. I suppose that you could have had a 4-1-4 decision with the plurality holding that Ake clearly requires allowing defense counsel to choose the expert and Kennedy writing a narrower opinion similar to the opinion actually issued.

Taking the majority at face value, it appears that -- to clearly present the issue of what Ake clearly requires -- a state would need to maintain a list of psychiatrist willing to accept appointment to assist a defendant (i.e. not just evaluate the defendant but be available as needed to assist defense counsel in reviewing and understanding any other records that might come in after the evaluation), similar to the way that some courts handle the appointment of counsel. Such a list-system would clearly present the question of whether Ake is satisfied by court appointment or if Ake requires letting defense counsel pick the experts that the defense wants to use.

Posted by: tmm | Jun 19, 2017 11:14:20 AM

SCOTUS recently in a closely divided districting case according to the dissent did not feel itself "bound by the law." Alito argued a precedent was being treated like a disposable household item like a paper napkin.

In both cases, the majority argued it was following the law. It's not very surprising when the dissent in a case argues that the majority is not honoring precedent. Both ideological sides on multiple issues have provided arguments over the years.

Posted by: Joe | Jun 19, 2017 12:07:22 PM

Ake didn't clearly hold that the defense got to choose the expert.

Posted by: federalist | Jun 19, 2017 12:27:10 PM

Here is an alternative for the legislature to enact. The expert works and gets paid ahead of time by the judge. The aim is to assist in the verdict, not advocacy. The professionalism of the expert is protected by the judge, and by pre-payment.

For example, as an expert on one side, I would seek the personal destruction of opposing expert. I would find a phrase or utterance that would represent false testimony, even in a resume (check every reference). Then, I would demand the arrest and prosecution of the expert witness, within the tribunal, not afterward. I would propose a mistrial, and all legal costs assessed to the personal assets of the misleading expert. It can get rough if advocacy is the game.

That being said, mental illness, intellectual disability are aggravating factors, making the defendant more dangerous, not less. But, the lawyer is in denial and operates in a fantasy Twilight Zone world where everything is the reverse of reality. This is for the purpose of generating income for the lawyer profession. It is a fraudulent scheme.

Only the legislature can stop it. It must start by deterring the Supreme Court, the top of the lawyer hierarchy. It should begin impeaching Justices for their opinions. These opinions are their greatest and most damaging crimes. These decisions are insurrection against the constitution and fraud.

Posted by: David Behar | Jun 19, 2017 12:53:38 PM

Joe, it is undeniable that SCOTUS played fast and loose with its own rules. It gets to do that--but to do it in favor of a guilty murderer who apparently feigned mental illness brings disrepute onto the Court.

Congress should remove federal court jurisdiction over death sentences.

Posted by: federalist | Jun 19, 2017 7:10:38 PM

Speaking of sentencing, check out this bile from the HuffPo:


This is a 'rat publication through and through.

Posted by: federalist | Jun 19, 2017 7:47:43 PM

"Joe, it is undeniable that SCOTUS played fast and loose with its own rules. It gets to do that--but to do it in favor of a guilty murderer who apparently feigned mental illness brings disrepute onto the Court."

It is deniable. Your disagreement with five justices on the rules is duly noted. But, "undeniable" doesn't mean "I find their argument weak."

Next, even federalist, is using a qualifier here. He says "apparently." The very point here is what is required to determine that very question. Next, the Supreme Court is not here to assume facts. It is to decide the law on the point. IF it was actually "playing fast and loose," they shouldn't do so if five justices thought the guy was not guilty.

And, "guilty" here doesn't merely mean the guy killed someone. It includes his sanity etc. that determines if he is guilty ENOUGH to be executed and what sentence he warrants.

Finally, the Constitution protects certain rights. The federal courts are there to protect them in a basic way. I don't think there should be an exception when death sentences are involved. I cited a case where the exact same justice alleged the Supreme Court was not correctly following the law. It involved basic matters: racial justice and how we should divide districts; basic matters of self-government.

What is special about the death penalty here? If the allegation is that the courts are being lawless, something both sides allege in various ways, why should we single out one specific area? Now, I don't think we should strip federal courts of power here. But, still, looking big picture, the question remains.

Posted by: Joe | Jun 19, 2017 8:39:48 PM

"correctly following the law"

At the end of the day, I think that is the dispute, but Alito was similarly quite upset about them playing "fast and loose," using a quotable reference to disposable paper products. Also, I'd add -- see, e.g., section IV of the opinion, the opinion directly argues the expert can help answer claims of "malingering" etc. OTOH, it also leaves open a finding the expert might in effect be harmless for habeas purposes.

What we have is a narrow ruling that people disagree with on the merits. Basic stuff.

Posted by: Joe | Jun 19, 2017 8:54:28 PM

Joe, your posts are basically saying "scoreboard"---there's no analysis--and why is that--because the Supreme Court blew off its own rules, and that's undeniable. As a matter of raw power, the Supreme Court gets to do that--but it's unseemly and unjust.

Posted by: federalist | Jun 19, 2017 9:49:42 PM

I don't think you provide enough evidence to show it is "undeniable" that they "blew off the law."

Not that they were merely wrong. Mistaken. But, they actually knew it, and blew off the law. High test. Not shown.

You mostly assert things. I hold to the other stuff I wrote too.

Posted by: Joe | Jun 20, 2017 6:27:17 PM

"You mostly assert things." Talk about unadulterated nonsense. I generally provide detailed legal analysis. When I don't, it's often because things are (or should be self-explanatory). Do you deny that the QP wasn't answered and that the QP rejected was answered by the opinion? We can disagree as to the propriety of this, but it's exceeding difficult to deny that SCOTUS didn't follow its own rules here--now, I get it, SCOTUS gets to do that (unless someone wants to pull an Andrew Jackson).

And you think that SCOTUS Justices don't know what they are doing--hence my attribution of scienter.

Posted by: federalist | Jun 21, 2017 10:16:58 AM

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