In McWilliams v. Dunn, decided June 19, a five-member majority of the U.S. Supreme Court avoided answering whether Ake requires that indigent defendants be provided with an expert who is a member of the “defense team” – as opposed to a neutral expert available to both the prosecution and defense. 
Instead, the majority answered a narrower question that the lower courts’ rulings denying an expert in this particular case was an unreasonable application of federal law.
But the broader issue is almost certain to return, since lower courts are divided on the question, and four dissenting justices would hold that Ake does not require appointment of a “defense team” expert.
James McWilliams was convicted of capital murder and sentenced to death in Alabama.
McWilliams’ counsel, to prepare for final sentencing, requested and was granted a neuropsychologist to examine McWilliams.  The expert filed a report with the trial court, which concluded that McWilliams had some neuropsychological problems, but also was exaggerating other symptoms.
The day before the sentencing hearing, counsel received additional mental health records which showed that McWilliams was prescribed various psychotropic medications in prison.  Counsel requested that the sentencing hearing be continued since he was “not a psychologist or a psychiatrist” and he needed to have another expert review the records and offer a “second opinion on the severity of the organic problems discovered.”
The trial court denied a continuance, and ultimately sentenced McWilliams to death.
McWilliams contended on appeal to the Alabama courts that he was denied the right to meaningful expert assistance under Ake.  The Alabama courts rejected McWilliams’ argument since he was provided with access to the neuropsychologist.
The federal habeas courts agreed, and held that the Alabama courts’ decisions were not contrary to or an unreasonable application of federal law, as required to grant habeas relief.

The Supreme Court granted cert. on the question of whether Ake requires appointment of a “defense team” expert for indigent defendants, or is satisfied by appointment of a neutral expert available to both the prosecution and defense.  This question has divided the lower courts.
But Justice Breyer, in an opinion joined by four other justices, sidestepped that question.  The grant of cert. on the broader question “does not bind us to issue a sweeping ruling when a narrow one will do,” Breyer said. 
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,’” Breyer said.
Breyer said that Ake has four components:  (1) examination of a defendant, and expert assistance in (2) evaluation, (3) preparation and (4) presentation of the defense.
Breyer assumed that Alabama met the “examination” requirement by providing the neuropsychologist.  But Breyer said Alabama failed to provide expert assistance to the defense in evaluation, preparation or presentation of a defense.
The neuropsychologist did not help the defense evaluate extensive medical records or translate those into a legal strategy; did not help the defense prepare an explanation for why McWilliams was not faking his symptoms; did not help the defense prepare for direct or cross-examination of any witnesses; and did not himself testify.
“Since Alabama’s provision of mental health assistance fell so dramatically short of what Ake requires, we must conclude that the Alabama court decision affirming McWilliams’ conviction and sentence was ‘contrary to, or involved an unreasonable application of, clearly established Federal law,” Breyer concluded.
Dissenting Justices
Justice Alito, joined by Justices Roberts, Thomas and Gorsuch, dissented.  They would have decided the broader question, and held that “Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.”