Amicus Curiae Brief — McWilliams v. Dunn, 137 S. Ct. 808 (2017) (No. 16-5294)

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ANAS 1 FLED

1B, No. 16-5294 MAR ~ 6 2015

IN THE

Supreme Court of the Anited States

JAMES E. MCWILLIAMS,

Petitioner,

Vv.

JEFFERSON S. DUNN, COMMISSIONER,

ALABAMA DEPARTMENT OF CORRECTIONS, ET AL..,

Respondents.

On Writ of Certiorari

to the United States Courts of Appeals

for the Eleventh Circuit

BRIEF OF

AMERICAN PSYCHIATRIC ASSOCIATION,

AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW,

AND AMERICAN PSYCHOLOGICAL ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

DAVID W. OGDEN

DANIEL S. VOLCHOK

ALEXANDRA STEWART*

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue, N.W.

Washington, D.C. 20036

(202) 663-6000

* (Admitted only in Tennessee;

supervised by members of the firm)

Counsel for American

Psychological Association

March 6, 2017

(Additional Counsel Listed On Inside Cover)

AARON M. PANNER

Counsel of Record

T. DIETRICH HILL*

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C,

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(apanner@kellogghansen.com)

* (Admitted only in New York;

supervised by members of the firm)

DEANNE M. OTTAVIANO

NATHALIE F.P. GILFOYLE

AMERICAN PSYCHOLOGICAL

ASSOCIATION

750 First Street, N.E.

Washington, D.C. 20002

(202) 336-5500

Counsel for American

Psychological Association

TABLE OF CONTENTS

Page

TARR OF RUT Tee OI vs vevicdsessessedsdandiniais rf

INTEREST OF AMICT CURIAE wwii... cccccccccccecccceceeess ]

RPE E IIE ES oresssncsssesvidionsbdotnrdiasiiontiniauspaa kel an }

SUMMARY OF ARGUMENT. 1.00... c.c ccc ccecccccecceceeeeess 5)

FRIAS 0000000 01s0s00enséshevitenidhdssnaaamurum tide 7

I. AKE CLEARLY ESTABLISHED THE

RIGHT TO THE ASSISTANCE OF

A QUALIFIED MENTAL HEALTH

EXPERT INDEPENDENT OF THE

PP URMEIAS BERIT sosncisesessnecsricsaccsighiencdia mane 7

A. Before This Court Decided Ake, the

Law Had Moved Away from the

“Neutral Examination” Model to an

“Adversarial Expert” Model ....................6.. 7

B. Ake Clearly Established the Right

to a Defense Mental Health Expert

Independent of the Prosecution................ 18

Il. ‘THIS COURT'S DECISIONS SINCE

AKE HAVE BEEN PREMISED ON

DEFENSE ACCESS TO THE ASSIS.

TANCE OF A MENTAL HEALTH

SUE WES. sscdseinscéscieniuadansbasirieisaar maine een 21

A. Ford v. Wainwright........ nati Rae vsiestadesairaoheiedl 21

FOR OI vsciciscinsitrndsodaussiacasocalsedstcn’ 22

C. Panetti v. Quarter man ...........:ccccceccsseceoeees 23

RUA DIG cccveneseiscinicatiuonschsetimeommmendddsaanae 24

ii

TABLE OF AUTHORITIES

Page

CASES

Ake v. Oklahoma, 470 U.S. 68 (1985)......... 1, 4, 5, 6, 7,

10, 12, 13, 14, 15,

17, 18, 19, 20, 21, 22, 23

Atkins v. Virginia, 536 U.S. 304 (2002) ...............0066. 2

Barefoot v. Estelle, 463 U.S. 880 (1983) ........ 15, 16, 19

Brown v. Plata, 563 U.S. 493 (2011)....................000. 1

Clark v. Arizona, 548 U.S. 735 (2006)....................... 2

Coon v. State, 179 So. 2d 710 (Ala. 1965) ..................0.. 8

Ford v. Wainwright, 477 U.S. 399 (1986) ............... 21,

22, 23, 24

Graham v. Florida, 560 U.S. 48 (2010)...................... 2

Hall v. Florida, 134 S. Ct. 1986 (2014).................. *

Indiana v. Edwards, 554 U.S. 164 (2008)............... 1-2

McWilliams v. State, 640 So. 2d 982 (Ala.

I i caniiininaeipeeenats 3, 4

Panetti v. Quarterman, 551 U.S. 930 (2007)....2, 23, 24

Penry v. Johnson, 532 U.S. 782 (2001) ...............0.66 2

Reilly v. Berry, 166 N.E. 165 (N.Y. 1929) ............... ccs 8

Ross v. Moffitt, 417 U.S. 600 (1974).................e 18

Ryan v. Gonzales, 133 S. Ct. 696 (2013) «00.0.0... l

State v. Geelan, 120 N.W.2d 533 (S.D. 1963)............. 8

United States ex rel. Smith v. Baldi, 344 U.S.

STARE SS er ene 7

Wiggins v. Smith, 539 U.S. 510 (2008) ......... 17, 22, 23

il

CONSTITUTION, STATUTES, AND RULES

U.S. Const.:

I CT uninnuieamiaatbaonsomeuaia

pO See <siabdimeinaiaesiehaidiieiemaaieatteats

Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110

Sl Re IESE Povo A Pe aD

Se NE te SI siccnecichpeclicnaiinsiininsncciiaeicntetaieaninabibaii

Criminal Justice Act of 1964, Pub. L. No.

88-455, § 2, 78 Stat. 552, 553 (codified, as

amended, at 18 U.S.C. § 3006A(e))...............

Sup. Ct. R.:

ca

RESETS CT AER se oe eRe ED eA OREO UES 2

OTHER MATERIALS

Ake v. Oklahoma, 470 U.S. 68 (1985) (No. 83-

5424):

Brief Amicus Curiae for the American

Psychiatric Association (U.S. filed June

11, 1984), 1984 U.S. S. Ct. Briefs LEXIS

Brief of Amici Curiae American Psycho-

logical Association and Oklahoma Psycho-

logical Association in Support of Petitioner

(U.S. filed June 11, 1984), 1984 U.S. S.

1 EES RE ERC ne

Brief for the Petitioner (U.S. filed June 2,

Be ee

sssinnitien 9

saiaeei l

iv

Brief of Respondent (U.S. filed Aug. 20,

Sn ceignutnauaians 13

American Academy of Psychiatry & the Law,

Ethics Guidelines for the Practice of

Forensic Psychiatry (2005), available at

http://www.aaplLorg/ethics. htm.........................-. 10

Am. Bar Ass’n:

ABA Criminal Justice Mental Health

a 10, 11, 12

ABA Criminal Justice Standards on

Mental Health (2016), available at http://

www.americanbar.org/publications/criminal_

justice_section_archive/crimjust_standards _

ER EST A 10-11

Guidelines for the Appointment and Per-

formance of Defense Counsel in Death

Penalty Cases (rev. ed. Feb. 2003), available

at http://www.americanbar.org/content/

dam/aba/migrated/2011_build/death_penalty_

representation/2003guidelines.authcheck

Ri tniecssiadieanntaatinenmaiiia soiticienied shabibadininasnnees wa ae

Paul S. Appelbaum, Psychiatric Ethics in the

Courtroom, 12 Bull. Am. Acad. Psychiatry

& L. 225 (1984), available at http://jaapl.

org/content/jaapl/12/3/225.full.pdf ........................ )

Richard J. Bonnie & Christopher Slobogin,

The Role of Mental Health Professionals

in the Criminal Process: The Case for

Informed Speculation, 66 Va. L. Rev. 427

(1980), available at htip://www.law.virginia.

edu/pdf/faculty/hein/bonnie/66va_|_rev427_

Vv

Craig Bowman, Note, /ndigent’s Right to an

Adequate Defense Expert and Investiga-

tional Assistance in Criminal Proceedings,

55 Cornell L. Rev. 632 (1970), available at

http://scholarship.law.cornell.edu/cgi/view

content.cgi?article=38 11 &context=clr................... 8

Mary Alice Conroy & Phylissa P. Kwartner,

Malingering, 2 Applied Psychol. Crim. Just.

29 (2006), available at http://dev.cjcenter.

org/_ files/apcj/2_3_Malingering.pdf....................... 20

Cara H. Drinan, The Revitalization of Ake:

A Capital Defendant's Right to Expert

Assistance, 60 Okla. L. Rev. 283 (2007),

available at http://adams.law.ou.edu/olr/

articles/vol60/202drinanarticleblu5.pdf.............. 24

Emily J. Groendyke, Ake v. Oklahoma:

Proposals for Making the Right a Reality,

10 N.Y.U. J. Legis. & Pub. Pol’y 367 (2007),

available at http://www.nyujlpp.org/wp-

content/uploads/2012/11/GROENDYKE-

AKE-V.-OKLAHOMA-PROPOSALS-FOR-

MAKING-THE-RIGHT-A-REALITY.pdf............ 15

Elizabeth F. Maringer, Note, Witness for the

Prosecution: Prosecutorial Discovery of

Information Generated by Non-Testifying

Defense Psychiatric Experts, 62 Fordham

L. Rev. 653 (1993), available at http://ir.

lawnet.fordham.edu/cgi/viewcontent.cgi?

article=3067 &context=fir ...............cccccccceceeeeeeeeees 23

Alan A. Stone, The Ethical Boundaries of

Forensic Psychiatry: A View from the Ivory

Tower, 12 Bull. Am. Acad. Psychiatry &

L. 209 (1984), as reprinted in 36 J. Am.

Acad. Psychiatry & L. 167 (2008), avail-

able at http://jaapl.org/content/jaapl/36/2/

167.full.pdf............. lenadbeaiasiibdetipediliditinsbaigatddedepiee )

INTEREST OF AMICI CURTAE'

Amicus American Psychiatric Association, with

more than 36,000 members, is the Nation’s leading

organization of physicians who specialize in psychi-

atry. Members of the American Psychiatric Associ-

ation engage in treatment, research, and forensic

activities, and many of them regularly perform roles in

the criminal justice system. The American Psychi-

atric Association and its members have substantial

knowledge and experience relevant to the issues in

this case. The American Psychiatric Association has

frequently participated as an amicus in this Court,

including in Ake v. Oklahoma, 470 U.S. 68 (1985).

Amicus American Academy of Psychiatry and the

Law (“AAPL”), with approximately 1,800 psychiatrist

members, is the leading national organization of

physicians who specialize in forensic psychiatry.

AAPL is dedicated to excellence in practice, teaching,

and research in forensic psychiatry. AAPL members

evaluate defendants in all aspects of the criminal

justice system and adhere to the principle of honesty

and strive for objectivity. AAPL has participated as

an amicus curiae in other cases before this Court,

including Hall v. Florida, 134 S. Ct. 1986 (2014);

Ryan v. Gonzales, 133 S. Ct. 696 (2013); Brown v.

Plata, 563 U.S. 493 (2011); Indiana v. Edwards, 554

! Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici, their members, or their counsel, made

a monetary contribution intended to fund the preparation or

submission of this brief. Pursuant to Rule 37.3(a), counsel for

amici also represent that all parties have consented to the filing

of this brief by submitting letters granting blanket consent to

the filing of amicus briefs.

2

U.S. 164 (2008); Clark v. Arizona, 548 U.S. 735

(2006); and Penry v. Johnson, 532 U.S. 782 (2001).

Amicus American Psychological Association is the

leading association of psychologists in the United

States. A non-profit scientific and _ professional

organization, the American Psychological Association

has approximately 115,000 members and affiliates,

including the vast majority of psychologists holding

doctoral degrees from accredited universities in the

United States. Among the American Psychological

Association’s major purposes are to increase and

disseminate knowledge regarding human behavior,

to advance psychology as a science and profession,

and to foster the application of psychological learning

to important human concerns, thereby promoting

health, education, and welfare. The American

Psychological Association has filed more than 155

amicus briefs in state and federal courts nationwide.

These briefs have been cited frequently by courts,

including this Court. See, e.g., Hall v. Florida, 134

S. Ct. 1986, 1994-95, 2000-01 (2014); Graham v. Flor-

ida, 560 U.S. 48, 68 (2010); Panetti v. Quarterman,

551 U.S. 930, 962 (2007); Atkins v. Virginia, 536 U.S.

304, 316 n.21 (2002).

3

STATEMENT

1. Petitioner James McWilliams was convicted

of the rape and murder of a clerk at a convenience

store. See McWilliams v. State, 640 So. 2d 982, 986

(Ala. Crim. App. 1991). The day after the guilty ver-

dict, a capital sentencing hearing was held in front of

the jury. At that hearing, McWilliams testified about

head injuries he had suffered as a child and further

testified that he had been seen by several mental

health professionals both before his arrest and while

in state custody. He also read from the report of a

psychologist who evaluated him prior to his arrest.

McWilliams’ mother testified about his injuries and

subsequent changes in his behavior and about recom-

mendations for mental health treatment (which were

not followed). In rebuttal, the State called a psychia-

trist and a psychologist from the state mental hospi-

tal, who testified that McWilliams was a malingerer

and not psychotic. The jury voted (10-2) to recom-

mend the death penalty.

In Alabama, the jury’s recommendation is not

binding, and the trial court held a judicial sentencing

hearing approximately six weeks later. Before that

hearing, the defense sought neuropsychological

testing; a clinical neuropsychologist employed by

the State’s Department of Mental Health found (in a

report provided to the court, the prosecution, and the

defense two days prior to the judicial hearing) that

McWilliams had “organic brain dysfunction.” In

addition, McWilliams’ counsel received, on the day

prior to the hearing, updated records from the state

mental hospital and, on the morning of the hearing,

records from the state prison that the defense had

subpoenaed before trial. The prison records stated

that McWilliams had been treated with psychiatric

4

medications, including Mellaril, a drug used to treat

psychotic illnesses such as schizophrenia.

Confronted with this additional evidence, defense

counsel moved for a continuance and told the court

that he would require the assistance of a mental

health expert in evaluating both the report of the

neuropsychological expert and the medical records.

The trial court denied the request. During closing

arguments, defense counsel explained that, without

expert assistance, he was unable to present evidence

of mitigation based on McWilliams’ mental illness or

incapacity. The trial court sentenced McWilliams to

death, expressly finding that McWilliams had malin-

gered and was not psychotic and that his claimed

mental illness was not a mitigating factor.

2. On direct appeal, the Alabama Court of

Criminal Appeals rejected McWilliams’ argument

that he had been denied his right to the assistance of

a mental health expert under Ake v. Oklahoma, 470

U.S. 68 (1985). The court held that “the require-

ments of Ake... are met when the State provides the

appellant with a competent psychiatrist. The State

met this requirement in allowing [a neuropsycholo-

gist] to examine the appellant.” McWilliams, 640 So.

2d at 991.

The Alabama Supreme Court affirmed the convic-

tion without addressing the Ake issue McWilliams

had raised, and state courts denied post-conviction

relief. McWilliams then sought post-conviction relief

in federal court. The district court denied relief;

the Eleventh Circuit granted a Certificate of Appeal-

ability to review, among other things, whether

McWilliams had demonstrated a violation of his rights

under Ake v. Oklahoma. A divided panel] of the court

of appeals affirmed. The per curiam majority held

5

that Ake was satisfied because a state-appointed

expert examined McWilliams and produced a report,

even though that expert was not a member of the

defense team and the expert’s report was dissemi-

nated simultaneously to the defense, the prosecution,

and the court. The court indicated that McWilliams

“could have called [that expert] as a witness.” Pet.

App. 35a.

SUMMARY OF ARGUMENT

In Ake v. Oklahoma, 470 U.S. 68 (1985), this Court

made clear that, whenever a defendant “demonstrates

to the trial judge that his sanity at the time of the

offense is to be a significant factor at trial, the State

must, at a minimum, assure the defendant access to

a competent psychiatrist.” Jd. at 83.2 The Court's

opinion in Ake makes unmistakably clear that, where

a fact-finder may be required to resolve potentially

competing views related to the mental state of a

criminal defendant for purposes of determining guilt

or, in a capital case, punishment, access to an expert

independent of the prosecution is constitutionally

required.

Ake was fundamentally concerned with the “proper

functioning of the adversary process” and the need to

provide necessary “tools of an adequate defense or

appeal” to “defendants who cannot afford to pay for

them.” Jd. at 77 (emphasis added, internal quotation

marks omitted). Where mental illness or disability is

at issue, access to a defense-side expert is critic ] to

permit the defendant to explore trial strategies and

to consider the viability of defenses without puttin;;

2 The Court in Ake referred specifically to a psychiatrist

because that was what Ake’s counsel requested before trial.

Ake is universally understood, however, to encompass qualified

psychologists and other mental health experts.

6

his right against self-incrimination at risk. More-

over, access to a defense-side expert also provides

potentially essential assistance to defense counsel in

preparing to cross-examine the State’s expert. That

adversarial testing of expert testimony benefits not

only the defense, but also the fact-finder, because it

provides a basis for assessing the strengths of vary-

ing opinions. The Court’s opinion in Ake embraced

all of these rationales. An expert who is not indepen-

dent of the prosecution cannot fulfill the roles that

the Court recognized, more than 30 years ago, may

be essential to a fair trial.

As applicable here, Ake further clearly established

that when, “in the context of a capital sentencing

proceeding,” the State relies on testimony by mental

health experts, “due process requires access to a psy-

chiatric examination on relevant issues, to the testi-

mony of the psychiatrist, and to assistance in prepa-

ration at the sentencing phase.” Id. at 84 (emphasis

added). In Ake, the relevant issue was future

dangerousness, whereas in this case it was whether

mental illness was a factor mitigating against the

death penalty. The principle articulated in Ake

nevertheless clearly applies: it is precisely the assis-

tance that this Court held “due process requires” that

the trial court denied to McWilliams.

7

ARGUMENT

I. AKE CLEARLY ESTABLISHED THE RIGHT

TO THE ASSISTANCE OF A QUALIFIED

MENTAL HEALTH EXPERT INDEPENDENT

OF THE PROSECUTION

The Question Presented is whether this Court's

decision in Ake v. Oklahoma, 470 U.S. 68 (1985),

“clearly establish[ed],” for purposes of the Anti-

terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254, that an indigent defen-

dant, when circumstances warrant, is entitled to

the assistance of a mental health expert who is

independent of the prosecution. The answer to that

question is yes.

A. Before This Court Decided Ake, the Law

Had Moved Away from the “Neutral Exam-

ination” Model to an “Adversarial Expert”

Model

Ake reflects a recognition that determinations

concerning a defendant’s mental state at the time of

a serious crime require a fact-finder to make sense

of clinical evidence that may be largely incompre-

hensible to a lay jury. Before Ake was decided,

the legal and mental health professions had already

recognized that adversarial presentation and testing

is essential for that purpose — and that, accordingly,

a criminal defendant must have the assistance of

an independent expert, that is, a» expert who ts

not also working with the prosecution or on behalf of

the court.

1. Historically, many States provided for only a

neutral evaluation by one or more court-appointed

experts when a defendant’s mental state was at

issue. See, e.g., United States ex rel. Smith v. Baldi,

344 U.S. 561, 568 (1953). Statutes providing for such

8

an evaluation by an expert or panel — sometimes

referred to as a “lunacy commission” — generally left

appointment to the trial court’s discretion, rather

than giving the defendant the right to demand one.

See, e.g., Coon v. State, 179 So. 2d 710, 711 (Ala. 1965);

State v. Geelan, 120 N.W.2d 533, 535 (S.D. 1968).

Some courts, legislatures, and commentators

recognized that this approach raised concerns about

fairness, including constitutional concerns. Without

expert assistance, for example, defendants would in

some cases be unable even to raise a defense based

on the defendant’s mental state at the time of the

offense. Indeed, then-Chief Judge Cardozo deemed it

“a matter of common knowledge|] that upon the trial

of certain issues, such as insanity or forgery, experts

are often necessary both for prosecution and for

defense.” Reilly v. Berry, 166 N.E. 165, 167 (N.Y. 1929)

(emphasis added). An expert equally available to the

prosecution also forced defendants to risk their right

to avoid self-incrimination by submitting to examina-

tion — the contents of which would not be protected

by any privilege — simply to determine whether a

defense was viable. See Richard J. Bonnie & Chris-

topher Slobogin, The Role of Mental Health Profes-

sionals in the Criminal Process: The Case for

Informed Speculation, 66 Va. L. Rev. 427, 497 (1980);

see also Craig Bowman, Note, Indigent’s Right to an

Adequate Defense Expert and Investigational Assis-

tance in Criminal Proceedings, 55 Cornell L. Rev.

632, 637-42 (1970)4 (arguing that denial of an inde-

3 Available at http://www.law.virginia.edu/pdf/faculty/hein/

bonnie/66va_|_rev427_1980.pdf.

4 Available at http://scholarship.law.cornell.edu/cgi/viewcontent.

cgi? article=381 1 &context=clr.

9

pendent expert could violate Sixth and Fourteenth

Amendments).

For similar reasons, the “neutral examination” also

hampered reliable evaluation of a defendant’s mental

state. The reliability of a mental health profession-

al’s examination is undercut when the defendant has

a “powerful legal disincentive to full disclosure” —

namely, “the defendant’s fear that what he says

during the forensic evaluation will be used against

him in court.” Bonnie & Slobogin, 66 Va. L. Rev. at

497. A “defense expert” can conduct an examination

(and collect other data) without fear that any infor-

mation gathered will be used against the defendant,

unless and until the defendant chooses to put his

mental state at issue.

Just as important, “[t]he adversarial system

requires” mental health professionals “for both sides.”

Alan A. Stone, The Ethical Boundaries of Forensic

Psychiatry: A View from the Ivory Tower, 12 Bull.

Am. Acad. Psychiatry & L. 209 (1984), as reprinted in

36 J. Am. Acad. Psychiatry & L. 167, 171 (2008).5 In

psychiatric and psychological evaluation, given the

uncertainties of determining long-past mental states,

defining causal pathways for criminal behavior, and

similar tasks, “little ... can be spoken of in terms of

certainty.” Paul S. Appelbaum, Psychiatric Ethics

in the Courtroom, 12 Bull. Am. Acad. Psychiatry &

L. 225, 226 (1984).© In an area where conscientious

experts may reach different conclusions, adversarial

presentation of different expert opinions fosters the

truth-finding process. See, e.g., Bonnie & Slobogin,

66 Va. L. Rev. at 452-95 (suggesting approaches to

© Available at http://jaapl.org/content/jaapl/36/2/167.full.pdf.

6 Available at http://jaapl.org/content/jaapl/1 2/3/225.full. pdf.

10

help ensure that “clinical testimony” can “enlighten

rather than confuse or obstruct the administration

of criminal justice”); see also American Academy of

Psychiatry & the Law, Ethics Guidelines for the

Practice of Forensic Psychiatry, Guideline IV (2005)?

(psychiatric experts should “adhere to the principle

of honesty” and “strive for objectivity”). The adver-

sarial expert model allows a fact-finder to assess

multiple opinions and understand why they differ.

(Where multiple mental health issues are contested,

multiple experts with different areas of expertise

may be needed.) Furthermore, the risk that a jury

may ascribe too much weight to an expert opinion is

mitigated by adversarial presentation.

By the time Ake was before this Court, at least

42 States recognized a defendant’s right to an expert

independent of the prosecution when necessary to his

defense, see Ake, 470 U.S. at 78 n.4 (compiling state

statutes and court decisions). Federal law likewise

provided at the time that indigent federal defendants

were entitled to funds to retain necessary experts.

See Criminal Justice Act of 1964, Pub. L. No. 88-455,

§ 2, 78 Stat. 552, 553 (codified, as amended, at 18

U.S.C. § 3006A(e)).

The contemporaneous American Bar Association’s

Criminal Justice Mental Health Standards, approved

in 1984 and published in 1986, also reflect the model

of the adversarial expert, who plays a dual role as

both evaluator of the defendant and consultant to

the attorneys. See generally Am. Bar Ass’n, ABA

Criminal Justice Mental Health Standards 7-1.1

commentary, at 6-13 (1986) (“ABA Standards”).§

’ Available at http://www.aapl.org/ethics. htm.

8 In 2016, the ABA adopted its new Criminal Justice

Standards on Mental Health (2016), available at http://www.

11

Rather than relying on a “neutral” court-appointed

expert or panel, the ABA Standards “attempt to

ensure a fair adjudication of [mental health-based]

defenses by affording both sides as much access to

relevant information as is constitutionally permis-

sible.” ABA Standards Intro. to Part VI, at 327.

Thus, they provide that a defendant must have “an

adequate opportunity to explore, through a defense-

initiated mental evaluation, the availability of any

defense” and that the government should provide

funds for indigent defendants to do so. ABA Stan-

dards 7-3.3(a), at 79.

The Standards also criticize court-appointed “neu-

tral” experts as risking unfairness at trial, because

“[j)uries may be led to believe that a ‘court’s experts’

are more credible or impartial than defense or prose-

cution experts because of the judicial imprimatur

implicit in judicial appointments.” ABA Standards

7-6.4 commentary, at 365. The quality of expert

testimony depends on the depth and care of the

qualified mental health expert’s investigation, as well

as the expert’s level of expertise. Appointment by

the court thus does not make an expert “inherently

superior to any others, and the legal system should

not foster a contrary conclusion.” Jd. (footnote omit-

ted).

Further supporting the defendant’s right identified

in Standard 7-3.3, the standards for providing notice

of a defendant’s intent to offer expert testimony

specifically seek to preserve the “maximum scope for

americanbar.org/publications/criminal justice_section_archive/

crimjust_standards_mentalhealth_toc.html. The commentary

is not yet publicly available, but Standard 7-3.3 in the 2016

Standards is materially identical to Standard 7-3.3 in the 1986

Standards, quoted above.

12

defense attorneys... to explore strategic and tactical

alternatives ... before committing themselves to

a specific defense theory.” ABA Standards 7-6.4

commentary, at 363. The Standards thus recognize

the importance of a defendant being able to consult

with a mental health expert before trial so that

the lawyers can take expert opinion into account

in shaping trial strategy — consultation that is not

feasible with a “neutral” expert.

In sum, when this Court decided Ake, there was a

prevailing view that a defendant should have access

to a mental health expert independent of both the

prosecution and the court to assist in adversarial

presentation of relevant evidence.

2. The parties’ briefs in Ake made clear that what

was at issue in that case was the right to defense-

side expert assistance, and not merely a neutral

evaluation. The petitioner’s opening brief, for

example, argued that a neutral examination could not

“satisfy the defendant’s need for expert assistance.”

Brief for the Petitioner at 19-20, Ake v. Oklahoma,

No. 83-5424 (U.S. filed June 2, 1984), 1984 WL

564026.

|A]n independent expert may come to a different

conclusion [from a government expert]. But the

defendant's need for an expert is not based only

on that possibility, important as it is. An expert

serves many crucial purposes in litigation other

than testifying at trial. At the very outset of

a case, an expert may be necessary to evaluate

the facts and lay a groundwork for future

investigation and trial strategy.... If the case

goes forward, counsel often needs an expert for

assistance in becoming an expert in the field

\himself], and then to understand the intricacies

13

of the case sufficiently to try it successfully. In

helping the attorney prepare for trial, an expert

will advise counsel about the facts and theories

that counsel may face from the opposing side.

She may be able to refer counsel to relevant

studies and data not otherwise available to him,

and can assist in preparing for the examination

of witnesses — especially the cross-examination of

the other party’s experts.

Id. at 20 (internal quotation marks and citations

omitted) (last alteration in original).

The respondent in Ake identified the kind of right

the petitioner was seeking: a “constitutional right to

have a psychiatric expert provided to an indigent.”

Brief of Respondent at 34, Ake v. Oklahoma, No.

83-5424 (U.S. filed Aug. 20, 1984), 1984 WL 564027.

As the respondent put it, if the Court ruled in favor

of Ake,

[vjirtually every defendant who had a mental

problem before or after a crime would claim the

right to funds for independent psychiatric exami-

nations to determine if he or she was insane at

the time of the crime, or if even a reasonable

doubt existed as to sanity....

Id. at 47 (emphasis added).

3. Amicus briefs filed by the American Psychiat-

ric Association and the American Psychological Asso-

ciation in Ake emphasized the importance of expert

assistance to ensure adequate adversarial presenta-

tion regarding the defendant’s mental state. That

point was emphasized in particular with respect to

cases where, as here, the prosecution relies on expert

testimony at the penalty phase of a capital case.

The amicus brief filed by the American Psychiatric

Association articulated a number of arguments

14

demonstrating the need to provide an indigent

defendant assistance of a psychiatric expert. One

central concern was that, in investigating a potential

insanity defense, for example, defense counsel have

the opportunity for a confidential examination and

consultation (whether the expert be appointed by the

trial court or selected by the defendant). An exami-

nation undertaken for purposes of investigating a

potential defense to a criminal charge is generally not

protected by therapist-patient or physician-patient

privilege (as it is not undertaken for the purpose of

treatment), but an examination undertaken to assist

the defense is protected by the attorney-client privi-

lege. See Brief Amicus Curiae for the American Psy-

chiatric Association at 17 & n.12, Ake v. Oklahoma,

No. 83-5424 (U.S. filed June 11, 1984) (“Psychia-

trists’ Ake Brief”), 1984 U.S. S. Ct. Briefs LEXIS

1514.

The brief explained that confidentiality is “impor-

tant for the conduct of a valid psychiatric examina-

tion” because it allows the defendant to speak freely.

Id. at 18. “[A] criminal defendant will not divulge al!

necessary information concerning his mental! state

unless he is given adequate assurances of confidenti-

ality.” Id. At least as important, without a confiden-

tial examination, an indigent defendant is seriously

disadvantaged in his ability to investigate and sup-

port defenses related to mental state. See id. at 12;

see also Bonnie & Slobogin, 66 Va. L. Rev. at 497.

The Psychiatrists’ Ake Brief also explained why

a defendant requires the assistance of a psychiatric

expert to rebut expert evidence offered at the

sentencing phase of a capital trial. In Ake, the

defendant's future dangerousness was at issue at

the sentencing hearing, and the prosecution offered

psychiatric expert testimony against the defendant.

15

See Ake, 470 U.S. at 86. In Barefoot v. Estelle, 463

U.S. 880, 899-902 (1983), this Court held that such

opinion testimony is consistent with due process

despite its unreliability. The brief pointed out that

Barefoot was premised on the recognition that the

defendant would be permitted to submit opposing

testimony and to cross-examine the prosecution’s

expert. Psychiatrists’ Ake Brief at 20; see Barefoot,

463 U.S. at 900-01. Thus, “the defense must be given

the opportunity to challenge the scientific basis for

such predictions through the testimony of its own

psychiatric expert” in addition to thorough cross-

examination. Psychiatrists’ Ake Brief at 20; see also

Emily J. Groendyke, Ake v. Oklahoma: Proposals for

Making the Right a Reality, 10 N.Y.U. J. Legis. &

Pub. Pol’y 367, 385 (2007)9 (“A single ‘neutral’ expert

who makes ... mistakes, but who faces no opposing

expert, may never be exposed.”).

The brief filed by the American Psychological

Association in Ake likewise emphasized the need for

“access to expert assistance and testimony necessary

to the cross-examination and rebuttal” of expert

witnesses presented by the prosecution at the pen-

alty phase of a capital case. Brief of Amici Curiae

American Psychological Association and Oklahoma

Psychological Association in Support of Petitioner at

28, Ake v. Oklahoma, No. 83-5424 (U.S. filed June

11, 1984) (“Psychologists’ Ake Brief”), 1984 U.S. S.

Ct. Briefs LEXIS 1516. The brief described the

crucial role of a mental health expert in evaluating

the defendant's mental state, explaining that “the

detection and diagnosis of mental disorders and the

9 Available at http://www.nyujlpp.org/wp-content/uploads/

2012/11/GROENDYKE-AKE-V.-OKLAHOMA-PROPOSALS-FOR-

MAKING-THE-RIGHT-A-REALITY pdf.

16

assessment of facts relevant to mental processes 1s

recognized to be well beyond the competence of most

lay people.” Jd. at 4. Moreover, the brief elaborated,

“le]ven if the lay person can recognize in the defen-

dant signs of cognitive or emotional disturbance,

professional training or experience often may be

required to elicit more detailed information.” /d.

at 16. But if the expert is equally available to the

prosecution, the defendant will likely be unwilling

to share unfavorable facts with the expert — thus

preventing the expert from “elicit{ing] more detailed

information.” /d.

The Psychologists’ Ake Brief went on to emphasize

the need for a defense-side mental health expert at

sentencing. In addition to rebutting the govern-

ment’s expert by offering opposing testimony, the

brief explained, a defense expert could “help [counsel]

prepare for cross-examination” of the witness, a diffi-

cult task without specialized knowledge. /d. at 27.

Like the Psychiatrists’ Ake Brief, the Psychologists’

Ake Brief highlighted this Court’s decision in Bare-

foot, which “strongly implied that if the trial court

had refused to provide an expert for an indigent

defendant, so that there could be no opposing views of

the defendant’s doctors,” the state expert’s testimony

could not be admitted. Jd. at 29 (internal quotation

marks omitted). Indeed, the brief argued, the defen-

dant’s access to his own expert is “essential to the

integrity of the adversary process in which the relia-

bility of such testimony must be tested.” Id. at 30.

In conjunction, the two amicus briefs provided

three important justifications for a defense expert

independent of the prosecution. First, an initial

examination of the defendant must be confidential

to be effective. Second, the inherent uncertainty of

17

opinions concerning a defendant's mental state

requires that a defendant be able to offer opposing

expert testimony through the adversarial process.

And, third, defense counsel is likely to be able to

cross-examine a prosecution expert effectively only if

advised by an expert.!?

10 In this case, as in Ake, the prosecution relied on expert

testimony at the penalty phase of a capital proceeding, making

this an especially straightforward case for requiring provision of

an expert at the request of the defense, In any event, the right

to expert assistance under appropriate circumstances extends

to any capital defendant who secks to offer affirmative mitigat-

ing evidence at the sentencing hearing regardless of whether

the prosecution offers expert testimony. See generally Am. Bar

Ase’n, Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases, Guideline 4.1 (rev. ed.

Feb. 2003) (“ABA Death Penalty Guidelines”) (requiring “at

least one [team] member qualified by training and experience to

screen individuals for the presence of mental or psychological!

disorders or impairments,” and “[c]lounsel should have the right

to have [needed] services provided by persons independent of

the government”), available at http://www.americanbar.org/

content/dam/aba/migrated/2011_build/death_penalty_representation/

2003guidelines.authcheckdam.pdf. The ABA commentary further

notes that “the defendant's psychological and social history and

his emotional and mental health are often of vital importance to

the jury’s decision at the punishment phase.” /d., Guideline 4.1

commentary. Indeed, counsel may be constitutionally inadequate

for failing to investigate adequately possible mitigating evidence,

see Wiggins v. Smith, 539 U.S. 510, 536 (2003); yet “[clounsel’s

own observations of the client's mental status, while necessary,

can hardly be expected to be sufficient to detect the array of

conditions (e.g., post-traumatic stress disorder, fetal alcoho!

syndrome, pesticide poisoning, lead poisoning, schizophrenia,

mental retardation) that could be of critical importance,” ABA

Death Penalty Guidelines, Guideline 4.1 commentary (footnote

omitted). Even to know whether investigation is warranted

may require the assistance of a mental health expert.

18

B. Ake Clearly Established the Right to a

Defense Mental Health Expert Independent

of the Prosecution

Ruling in favor of the petitioner in Ake, the Court’s

decision clearly established the right of an indigent

defendant, under appropriate circumstances, to a

mental health expert independent of the prosecution.

1. Ake framed the question presented in

that case in terms of the “proper functioning of the

adversary process” and recognized that “fundamental

fairness entitles indigent defendants to ‘an adequate

opportunity to present their claims fairly within the

adversary system.’” 470 U.S. at 77 (quoting Ross v.

Moffitt, 417 U.S. 600, 612 (1974)) (emphases added).

The Court’s references to the adversary system and

process are inconsistent with the notion of a neutral

expert. The Court noted the “reality ... that when

the State has made the defendant’s mental condition

relevant to his criminal culpability and to the pun-

ishment he might suffer, the assistance of a psychia-

trist may well be crucial to the defendant’s ability to

marshal his defense.” Jd. at 80 (emphasis added).!!

This Court explained that, in assisting the defense,

“psychiatrists gather facts, through professional

examination, interviews, and elsewhere, ... analyze

the information gathered and . . . offer opinions about

how the defendant’s mental condition might have

affected the behavior at the time in question.” /d.

Furthermore, the assistance of qualified mental

health experts is essential “in preparing the cross-

examination of a State’s psychiatric witnesses,” because

‘l As noted above, the Court discusses psychiatric testimony

because the petitioner in Ake framed his request for relief in

terms of the assistance of a psychiatrist, but Ake applies equally

to any qualified mental health expert.

19

they “know the probative questions to ask of the

opposing party’s psychiatrists and how to interpret

their answers.” /d. at 80, 82. An expert who is not

independent of the prosecution cannot help defense

counsel prepare for cross-examination.

The Court also noted that “[p]sychiatry is not ...

an exact science.” Jd. at 81. Opinions about a

defendant’s mental state are inherently uncertain;

“psychiatrists disagree widely and frequently.” Id.

The adversary system approaches that uncertainty

by having the jury “resolve differences in opinion

within the psychiatric profession on the basis of the

evidence offered by each party,” so that “the psychia-

trists for each party enable the jury te make its most

accurate determination of the truth.” Jd. (emphasis

added). Expert assistance not only helps the defen-

dant present his case, but also serves the institu-

tional goal of fair and accurate adjudication — a

benefit, as the Court stated, that requires each party

to proffer its own expert.

2. The Court also recognized, as amici had

argued, that the determination in Barefoot that the

Constitution permitted the prosecution to introduce

expert testimony on the question of future danger-

ousness was premised “on the assumption that the

factfinder would have before it both the views of the

prosecutor’s psychiatrists and the ‘opposing views

of the defendant’s doctors.” Ake, 470 U.S. at 84

(quoting Barefoot, 463 U.S. at 898-99).

Justice Rehnquist’s dissent likewise acknowledged

this principle. See id. at 91 (Rehnquist, J., dissent-

ing) (“There may well be capital trials in which the

State ... makes significant use of psychiatric testi-

mony in carrying its burden, where ‘fundamental

fairness’ would require that an indigent defendant

20

have access to a court-appointed psychiatrist to

evaluate him independently and ... contradict such

testimony.”).

We submit that, as the record appears, this case

falls squarely within this rationale of Ake. Indeed,

the circumstances here demonstrate the need for

access to a defense-side expert. At the penalty

phase, an important question arose as to whether

McWilliams’ brain injury and other mental illness

was a mitigating factor. The State introduced expert

testimony on that issue; moreover, immediately

prior to judicial sentencing, additional evidence on

McWilliams’ mental state (some of which had been

requested from the state prison before trial but not

produced) became available for the first time.

Defense counsel indicated that he could not fairly

represent the defendant without the assistance of an

expert. Had such assistance been provided, the trial

judge might have concluded that, whether or not the

defendant was malingering, his mental illness was a

mitigating factor. Malingering is not inconsistent

with serious mental illness; it is not clear that the

trial court was aware of this fact. See Mary Alice

Conroy & Phylissa P. Kwartner, Malingering,

2 Applied Psychol. Crim. Just. 29, 30-31 (2006)!

(“Malingering and mental illness are not mutually

exclusive phenomena.”). “In such a circumstance,

where the consequence of error is so great, the rele-

vance of responsive psychiatric testimony so evident,

and the burden on the State so slim, due process

requires access ... to assistance in preparation at the

sentencing phase.” Ake, 470 U.S. at 84 (majority).

12 Available at http://dev.cjcenter.org/_files/apcj/2_3_ Malingering.

pdf.

21

ll. THIS COURT’S DECISIONS SINCE AKE

HAVE BEEN PREMISED ON DEFENSE

ACCESS TO THE ASSISTANCE OF A

MENTAL HEALTH EXPERT

Since Ake, this Court has repeatedly relied on the

assumption that a capital defendant has the right to

obtain assistance from a defense-side mental health

expert independent of the prosecution.

A. Ford v. Wainwright

In Ford v. Wainwright, 477 U.S. 399 (1986),

the Court held that the execution of an incompetent

person violated the Eighth Amendment. See id. at

409-10 (majority opinion). A majority also deter-

mined that Florida’s procedures for establishing a

person’s competency to be executed were constitu-

tionally inadequate. Although a panel of three

psychiatrists had evaluated the defendant, the Court

held that the inability of the defendant to present his

own expert rendered the procedure deficient. Refer-

ring specifically to Ake, Justice Marshall’s plurality

opinion emphasized “the value to be derived from

a factfinder’s consideration of differing psychiatric

opinions when resolving contested issues of mental

state.” Jd. at 414 (plurality opinion). The principle

of Ake carried over to this context:

The same holds true after conviction; without

any adversarial assistance from the prisoner’s

representative — especially when the psychiatric

opinion he proffers is based on much more exten-

sive evaluation than that of the state-appointed

commission — the factfinder loses the substantial]

benefit of potentially probative information. The

result is a much greater likelihood of an errone-

ous decision.

Id.\8

13 Ford was decided before the trial and sentencing in this case.

22

Thus, in Ford, as in Ake, the defendant was

entitled to more than an examination by a competent

expert; he was entitled to present testimony from his

own mental health expert.'4 Justice Powell’s concur-

ring opinion found Florida’s procedures for establish-

ing competency inadequate for the same reason: the

decision was “made solely on the basis of the exami-

nations performed by state-appointed psychiatrists,”

which “invites arbitrariness and error by preventing

the affected parties from offering contrary medical

evidence or even from explaining the inadequacies

of the State’s examinations.” Jd. at 424 (Powell, J.,

concurring in part and concurring in the judgment).

At the very least, Justice Powell would have required

“an impartial officer or board that can _ receive

evidence and argument from the prisoner’s counsel,

including expert psychiatric evidence that may differ

from the State’s own psychiatric examination.” Id. at

427 (emphasis added).

While Ford did not address the right of an indigent

defendant to obtain his own expert at the expense of

the State, the opinions make evident that the kind of

expert necessary to ensure a fair procedure is the

same as in Ake: an expert who works on behalf of the

defendant, independent of the prosecution.

B. Wiggins v. Smith

In Wiggins v. Smith, 539 U.S. 510 (2003), the Court

held that a failure to investigate potential mitigating

'4 The plurality identified a “related flaw,” as well: “the

denial of any opportunity to challenge or impeach the state-

appointed psychiatrists’ opinions.” 477 U.S. at 415 (plurality

opinion). While the opinion did not discuss the role of the

defendant's expert in this capacity, for all of the reasons identi-

fied above, an effective cross-examination will often require

expert assistance.

23

evidence may constitute ineffective assistance of

counsel. In Wiggins, defense counsel had consulted

a psychologist, who examined the defendant; but

neither counsel nor the expert investigated the

defendant’s life history. See id. at 523-25. Implicit

in the Court’s analysis is that consulting a mental

health expert was necessary, but not sufficient, for

an adequate investigation into mitigating evidence.

In many circumstances, however, counsel can fulfill

that obligation only if the defendant has a right to

an expert independent of the prosecution. Without

knowing what an examination will reveal, counsel

must choose either to seek an examination and risk

an unfavorable result that could generate evidence

for the prosecution, or to forgo an examination and

risk providing constitutionally ineffective assistance.

See generally Elizabeth F. Maringer, Note, Witness

for the Prosecution: Prosecutorial Discovery of Infor-

mation Generated by Non-Testifying Defense Psychi-

atric Experts, 62 Fordham L. Rev. 653 (1993).'5

Wiggins is thus fairly read to be premised on the

understanding that — under Ake — a defendant is

entitled to psychiatric assistance that is independent

of the government.

C. Panetti v. Quarterman

In Panetti v. Quarterman, 551 U.S. 930 (2007), the

Court reaffirmed the holding of Ford and invalidated

another State’s procedures for determining competence

to be executed. The Texas state court in Panetti

made its competency finding “solely on the basis of

the examinations performed by the psychiatrists it

had appointed” and “failed to provide petitioner with

15 Available at http://ir.lawnet.fordham.edu/cgi/viewcontent.

cgi? article=3067 &context=fir.

24

an adequate opportunity to submit expert evidence in

response to the report filed by the court-appointed

experts.” Jd. at 951. This Court refused to defer to

the state-court finding under AEDPA because that

procedure violated the constitutional minimum under

Justice Powell’s opinion in Ford — which, the Court

explained, constituted “clearly established law” for

AEDPA’s purposes, id. at 949.

Of particular relevance, the state court never ruled

on the defense’s motion for “funds to hire a mental

health expert,” giving the defense neither the time

nor the resources to respond to the report of the

court-appointed psychiatrists. Jd. at 951; see also id.

at 976 (Thomas, J., dissenting) (“The record demon-

strates that what Panetti actually sought was not the

opportunity to submit additional evidence — because,

at that time, he had no further evidence to submit —

but state funding for his pursuit of more evidence.”).

Although the Court did not expressly hold that that

failure to provide funds itself violated Ford, the right

to present one’s own expert is meaningless without

the ability to obtain one. See Cara H. Drinan, The

Revitalization of Ake: A Capital Defendant’s Right to

Expert Assistance, 60 Okla. L. Rev. 283, 303 (2007)'6

(without such a guarantee, “the Court’s insistence

upon [Panetti’s] opportunity to challenge the report

of court-appointed experts would ring hollow’).

CONCLUSION

The judgment of the court of appeals should be

reversed.

16 Available at http://adams.law.ou.edu/olr/articles/vol60/202

drinanarticleblu5. pdf.

25

DAVID W. OGDEN

DANIEL S. VOLCHOK

ALEXANDRA STEWART*

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue, N.W.

Washington, D.C. 20036

(202) 663-6000

* (Admitted only in Tennessee;

supervised by members of the firm)

DEANNE M. OTTAVIANO

NATHALIE F.P. GILFOYLE

AMERICAN PSYCHOLOGICAL

ASSOCIATION

750 First Street, N.1.

Washington, D.C, 20002

(202) 336-5500

Counsel for American

Psychological Association

March 6, 2017

Respectfully submitted,

AARON M. PANNER

Counsel of Record

T. Di#TRicH HiLL*

KELLOGG, HANSEN, Topp,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(apanner@kellogghansen.com)

* (Admitted only in New York;

supervised by members of the firm)

Counsel for American

Psychiatric Association

and American Academy of

Psychiatry and the Law