Right to Independent Expert Witness, Supreme Court to Decide

Do indigent defendants have a right to mental health expert witnesses, independent of the prosecution, in capital cases? The U.S. Supreme Court heard arguments April 24th on that question in the Alabama death-penalty appeal case, McWilliams v. Dunn.

Jurisdictions today normally provide independent experts in capital cases, based on the 1985 U.S. Supreme Court ruling in Ake v. Oklahoma, where the Court found that indigent defendants had a right to psychiatric expert witnesses in capital cases where the defendant's sanity or competence were at issue.

A year after Ake, an Alabama trial judge found that "neutral" expert witnesses were sufficient, and sentenced James Edmund McWilliams Jr. to death for the rape and murder of a convenience store clerk. The court had appointed two expert witnesses that were state-employed psychiatric experts. They testified that McWilliams was faking his mental illness.

Two months before the sentencing hearing, the defense asked for a neuropsychological examination of McWilliams and his prison mental health records. Two days before the hearing, the state produced the exam results: McWilliams had organic brain dysfunction as a result of a traumatic brain injury. On the morning of the hearing, the state provided 1,200 pages of McWilliam's prison medical records which revealed that McWilliams was being given psychotropic drugs.

McWilliams' attorney asked for a continuance so that he could review the records and test results. The trial judge rejected the request and sentenced McWilliams to death.

On appeal, Alabama has taken the position that Ake "did not clearly establish the right to a partisan psychiatrist" unless the prosecution has its own psychiatrist. Alabama argues that "a neutral psychiatrist who reports to all parties can satisfy due process." (Although Alabama made this argument before the U.S. Supreme Court, the state law now provides for a separate expert witness for the defense.)

Arguing for McWilliams before the U.S. Supreme Court, Stephen Bright of the Southern Center for Human Rights, contended that expert witnesses "cannot work both sides of the street" in a criminal case.

During oral arguments, the Supreme Court justices seemed divided on the question of requiring a separate expert witness for the defense.