This piece was written by Francesca Boland with support from fellow law student David Wovrosh and University of Cincinnati Law School Professor of Law Janet Moore. The original publication can be found online here:

On June 19, 2017, Cincinnati Law students saw their work cited in a 5-4 majority opinion of the United States Supreme Court. The case, McWilliams v. Dunn, resolved a lower courtsplit over what the Constitution requires when prosecutors seek to impose the death penalty against defendants who have mental illness, but cannot afford to hire mental health experts to present an effective defense.

First-year students researched the issue during the spring semester for an amicus brief filed by the National Association for Public Defense (NAPD). The Court cited that brief in holding that Alabama courts violated a right that was clearly established in its 1985 decision, Ake v. Oklahoma

Ake requires defendants to have an opportunity “to participate meaningfully in a judicial proceeding in which [their] liberty is at stake.”  If the prosecution seeks to execute an indigent defendant with serious mental illness, Ake means defendants must have access to a state-funded expert “sufficiently available to the defense and independ­ent from the prosecution to effectively ‘assist in evalua­tion, preparation, and presentation of the defense.’”  More specifically, Ake requires a psychiatric expert to “conduct a professional examination on issues relevant to the defense,” to evaluate potential defenses, “to present testimony,” and to “assist in preparing the cross-examination of a State’s psychiatric witnesses.” The Court held that Alabama violated these clearly established due process guarantees and sent the case back to the Eleventh Circuit Court of Appeals so it could determine whether failure to provide such assistance affected the decision to impose the death penalty.
The Court decided McWilliams amid growing bipartisan calls—including from former Ohio Governor Bob Taft and from Bill Seitz, Cincinnati’s representative to the Ohio House of Representatives—to exempt people with serious mental illness from the death penalty.

Justifications for such a ban include concerns that mental illness reduces culpability and makes people more vulnerable to wrongful conviction.  Mr. McWilliams’s caseraised the former concern.

The case arose on December 30, 1984, when Mr. McWilliams raped, robbed, and murdered Patricia Reynolds, a convenience store clerk. At sentencing, Mr. McWilliams and his mother testified that he suffered multiple traumatic brain injuries as a child. A prearrest report by a psychologist also described him as “blatantly psychotic.” However, as an indigent defendant, Mr. McWilliams lacked the funds to hire an expert to evaluate him, interpret his mental health records, and explain their meaning of this evidence to the judge and jury. Experts working for the state of Alabama offered mixed opinions. One report by a neuropsychologist arrived two days before the final sentencing hearing; mental health records arrived the following day. The trial judge denied defense requests for a delay in the proceedings and for the expert assistance needed to evaluate the records and respond to the neuropsychologist’s report.

Defense counsel challenged this ruling at trial, on direct appeal, and in a habeas corpus petition under federal law.  That statute requires petitioners to meet a high burden. They must prove that state court rulings were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]”

In holding that Mr. McWilliams met that burden, the Court emphasized that “the simplest way” for states to satisfy Ake “may be to provide a qualified expert retained specifically for the defense team.” The dissent derided the majority’s failure to rule that due process requires that level of independence, calling it a “bait-and-switch” that avoided resolution of the question presented in the case. As the majority noted, however, since Alabama did not even meet Ake’s basic requirements for expert independence, any broader constitutional ruling was unnecessary.

In addition, the Court cited NAPD’s amicus brief as showing that “the overwhelming majority of jurisdictions” appear to use the “simplest” approach to Ake compliance by adding the expert to the defense team. Indeed, any alternative practice stirs up a hornet’s nest of constitutional and ethical issues because Ake compliance requires close communication between the expert, the defendant, and the defense about case facts and strategy.  That communication implicates not only the Fifth, Sixth, Eighth, and Fourteenth Amendments but also rules governing legal ethics, discovery, evidence, and agency as well as duties of loyalty, avoiding conflicts of interest, maintaining confidentiality, and protecting privileged information and attorney work product.

By clarifying this important majority practice in the NAPD amicus brief, first-year UC Law students helped to promote accurate, fair sentencing while contributing to the development of critically important constitutional doctrine.