JAMES E. McWILLIAMS, PETITIONER
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.
April 24, 2017
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT .
v. Oklahoma, 470 U.S. 68, 83, clearly established that
when an indigent "defendant demonstrates . . . that his
sanity at the time of the offense is to be a significant fact
at trial, the State must" provide the defendant with
"access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation,
preparation, and presentation of the defense."
month after Ake was decided, Alabama charged
petitioner McWilliams with rape and murder. Finding him
indigent, the trial court appointed counsel, who requested a
psychiatric evaluation of McWilliams. The court granted the
motion and the State convened a commission, which concluded
that McWilliams was competent to stand trial and had not been
suffering from mental illness at the time of the alleged
offense. A jury convicted McWilliams of capital murder and
recommended a death sentence. Later, while the parties
awaited McWilliams' judicial sentencing hearing,
McWilliams' counsel asked for neurological and
neuropsychological testing of McWilliams. The court agreed
and McWilliams was examined by Dr. Goff. Dr. Goff filed a
report two days before the judicial sentencing hearing. He
concluded that McWilliams was likely exaggerating his
symptoms, but nonetheless appeared to have some genuine
neuropsychological problems. Just before the hearing, counsel
also received updated records from the commission's
evaluation and previously subpoenaed mental health records
from the Alabama Department of Corrections. At the hearing,
defense counsel requested a continuance in order to evaluate
all the new material, and asked for the assistance of someone
with expertise in psychological matters to review the
findings. The trial court denied defense counsel's
requests. At the conclusion of the hearing, the court
sentenced McWilliams to death.
appeal, McWilliams argued that the trial court denied him the
right to meaningful expert assistance guarantee by
Ake. The Alabama Court of Criminal Appeals affirmed
McWilliams' conviction and sentence, holding that Dr.
Goffs examination satisfied Ake's requirements.
The State Supreme Court affirmed, and McWilliams failed to
obtain state postconviction relief. On federal habeas review,
a Magistrate Judge also found that the Goff examination
satisfied Ake and, therefore, that the State Court
of Criminal Appeals' decision was not contrary to, or an
unreasonable application of, clearly established federal law.
See 28 U.S.C. §2254(d)(1). Adopting the Magistrate
Judge's report and recommendation, the District Court
denied relief. The Eleventh Circuit affirmed.
1. Ake clearly established that when certain
threshold criteria are met, the state must provide a
defendant with access to a mental health expert who is
sufficiently available to the defense and independent from
the prosecution to effectively "conduct an appropriate
examination and assist in evaluation, preparation, and
presentation of the defense." 470 U.S., at 83. The
Alabama courts' determination that McWilliams received
all the assistance to which Ake entitled him was
contrary to, or an unreasonable application of, clearly
established federal law. Pp. 11-16.
(a) Three preliminary issues require resolution. First, the
conditions that trigger Ake's application are
present. McWilliams is and was an "indigent defendant,
" 470 U.S., at 70, and his "mental condition"
was both "relevant to . . . the punishment he might
suffer, " id., at 80, and "seriously in
question, " id., at 70. Second, this Court
rejects Alabama's claim the State was relieved of its
Ake obligations because McWilliams received brief
assistance from a volunteer psychologist at the University of
Alabama. Even if the episodic help of an outside volunteer
could satisfy Ake, the State does not refer to any
specific record facts that indicate that the volunteer
psychologist was available to the defense at the judicial
sentencing proceeding. Third, contrary to Alabama's
suggestion, the record indicates that McWilliams did not get
all the mental health assistance that he requested. Rather,
he asked for additional help at the judicial sentencing
hearing, but was rebuffed. Pp. 11-13.
(b) This Court does not have to decide whether Ake
requires a State to provide an indigent defendant with a
qualified mental health expert retained specifically for the
defense team. That is because Alabama did not meet even
Ake's most basic requirements in this case.
Ake requires more than just an examination. It
requires that the State provide the defense with "access
to a competent psychiatrist who will conduct an appropriate
 examination and assist in  evaluation, 
preparation, and  presentation of the defense." 470
U.S., at 83. Even assuming that Alabama met the examination
requirement, it did not meet any of the other three. No
expert helped the defense evaluate the Goff report or
McWilliams' extensive medical records and translate these
data into a legal strategy. No expert helped the defense
prepare and present arguments that might, e.g., have
explained that Mc Williams' purported malingering was not
necessarily inconsistent with mental illness. No expert
helped the defense prepare direct or cross-examination of any
witnesses, or testified at the judicial sentencing hearing.
Since Alabama's provision of mental health assistance
fell so dramatically short of Ake's
requirements, the Alabama courts' decision affirming Mc
Williams' sentence was "contrary to, or involved an
unreasonable application of, clearly established Federal
law." 28 U.S.C. §2254(d)(1). Pp. 13-16.
2. The Eleventh Circuit should determine on remand whether
the Alabama courts' error had the "substantial and
injurious effect or influence" required to warrant a
grant of habeas relief, Davis v. Ayala, 576 U.S.__,
__, specifically considering whether access to the type of
meaningful assistance in evaluating, preparing, and
presenting the defense that Ake requires could have
made a difference. P. 16.
634 Fed.Appx. 698, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which
KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO,
J., filed a dissenting opinion, in which ROBERTS, C. J., and
THOMAS and GORSUCH, JJ., joined
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.
and the State of Alabama agree that Ake (which this
Court decided in February 1985) sets forth the applicable
constitutional standards. Before turning to the circumstances
of McWilliams' case, we describe what the Court held in
Ake. We put in italics language that we find
particularly pertinent here.
Court began by stating that the "issue in this case is
whether the Constitution requires that an indigent defendant
have access to the psychiatric examination and assistance
necessary to prepare an effective defense based on his mental
condition, when his sanity at the time of the offense is
seriously in question." Id., at 70 (emphasis
added). The Court said it would consider that issue within
the framework of earlier cases granting "an indigent
defendant ... a fair opportunity to present his defense"
and "to participate meaningfully in a judicial
proceeding in which his liberty is at stake."
Id., at 76. "Meaningful access to justice,
" the Court added, "has been the consistent theme
of these cases." Id., at 77.
Court then wrote that "when the State has made the
defendant's mental condition relevant to his criminal
culpability and to the punishment he might suffer, the
assistance of a psychiatrist may well be crucial to the
defendant's ability to marshal his defense."
Id., at 80. A psychiatrist may, among other things,
"gather facts, " "analyze the information
gathered and from it draw plausible conclusions, " and
"know the probative questions to ask of the opposing
party's psychiatrists and how to interpret their
answers." Ibid. These and related
"lea[d] inexorably to the conclusion that, without
the assistance of a psychiatrist to conduct a professional
examination on issues relevant to the defense, to help
determine whether the insanity defense is viable, to present
testimony, and to assist in preparing the cross-examination
of a State's psychiatric witnesses, the risk of an
inaccurate resolution of sanity issues is extremely high.
With such assistance, the defendant is fairly able to present
at least enough information to the jury, in a meaningful
manner, as to permit it to make a sensible
determination." Id., at 82 (emphasis added).
Court concluded: "We therefore hold that when 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 who will conduct an
appropriate examination and assist in evaluation,
preparation, and presentation of the defense. . . . Our
concern is that the indigent defendant have access to a
competent psychiatrist for the[se] purpose[s]'."
Id., at 83 (emphasis added).
thus clearly establishes that when its threshold criteria are
met, a State must provide a mental health professional
capable of performing a certain role: "conducting] an
appropriate examination and assisting] in evaluation,
preparation, and presentation of the defense."
Ibid. Unless a defendant is "assure [d]"
the assistance of someone who can effectively perform these
functions, he has not received the "minimum" to
which Ake entitles him. Ibid.
month after this Court decided Ake, the State of
Alabama charged McWilliams with rape and murder. The trial
court found McWilliams indigent and provided him with
counsel. It also granted counsel's pretrial motion for a
psychiatric evaluation of McWilliams' sanity, including
aspects of his mental condition relevant to "mitigating
circumstances to be considered in a capital case in the
sentencing stage." T. 1526. ("T." refers to
the certified trial record; "P. C. T." refers to
the certified court reporter's state postconviction
proceedings transcript.) The court ordered the State to
convene a "Lunacy Commission, " which would examine
McWilliams and file a report with the court. See
id., at 1528-1529.
a three-member Lunacy Commission examined McWilliams at a
state hospital, the Taylor Hardin Secure Medical Facility.
The three members, all psychiatrists, concluded that
McWilliams was competent to stand trial and that he had not
been suffering from mental illness at the time of the alleged
offense. Id., at 1544-1546. One of them, Dr. Kamal
Nagi, wrote that "Mr. McWilliams is grossly exaggerating
his psychological symptoms to mimic mental illness."
Id., at 1546. Dr. Nagi noted that McWilliams'
performance on one of the tests "suggested that
[McWilliams] had exaggerated his endorsement of symptoms of
illness and the profile was considered a 'fake
trial took place in late August 1986. On August 26 the jury
convicted him of capital murder. The prosecution sought the
death penalty, which under then-applicable Alabama law
required both a jury recommendation (with at least 10
affirmative votes) and a later determination by the judge.
See Ala. Code §13A-5-46(f) (1986). The jury-related
portion of the sentencing proceeding took place the next day.
The prosecution reintroduced evidence from the guilt phase
and called a police officer to testify that McWilliams had a
prior conviction. T. 1297, 1299-1303. The defense called
McWilliams and his mother. Both testified that McWilliams,
when a child, had suffered multiple serious head injuries.
Id., at 1303-1318, 1320-1335. McWilliams also
described his history of psychiatric and psychological
evaluations, reading from the prearrest report of one
psychologist, who concluded that McWilliams had a
"blatantly psychotic thought disor- der" and needed
inpatient treatment. Id., at 1329-1332.
the prosecutor, cross-examining McWilliams, asked about the
neurological effects of his head injuries, McWilliams
replied, "I am not a psychiatrist." Id.,
at 1328. Similarly, when the prosecutor asked McWilliams'
mother whether her son was "crazy, " she answered,
"I am no expert: I don't know whether my son is
crazy or not. All I know, that my son do need help."
Id., at 1317.
prosecution then called two of the mental health
professionals who had signed the Lunacy Commission's
report, Dr. Kamal Nagi and Dr. Norman Poythress. Dr. Nagi
testified that he had found no evidence of psychosis, but did
not appear to be aware of McWilliams' history of head
trauma. See id., at 1351-1352. Dr. Poythress
testified that one of the tests that McWilliams took was
"clinically invalid" because the test's
"validity scales" indicated that McWilliams had
exaggerated or faked his symptoms. Id., at
McWilliams' counsel had subpoenaed further mental health
records from Holman State Prison, where McWilliams was being
held, the jury did not have the opportunity to consider them,
for, though subpoenaed on August 13, the records had not
arrived by August 27, the day of the jury hearing.
the hearing, the jury recommended the death penalty by a vote
of 10 to 2, the minimum required by Alabama law. The court
scheduled its judicial sentencing hearing for October 9,
about six weeks later.
weeks before that hearing, the trial court ordered the
Alabama Department of Corrections to respond to Mc
Williams's subpoena for mental health records.
Id., at 1619. The court also granted McWilliams'
motion for neurological and neuropsychological exams.
Id., at 1615-1617. That motion (apparently filed at
the suggestion of a University of Alabama psychologist who
had "volunteer [ed]" to help counsel "in her
spare time, " P. C. T. 251-252) asked the court to
"issue an order requiring the State of Alabama to do
complete neurological and neuropsychological testing on the
Defendant in order to have the test results available for his
sentencing hearing." T. 1615.
Dr. John Goff, a neuropsychologist employed by the
State's Department of Mental Health, examined McWilliams.
On October 7, two days before the judicial sentencing
hearing, Dr. Goff filed his report. The report concluded that
McWilliams presented "some diagnostic dilemmas."
Id., at 1635. On the one hand, he was
"obviously attempting to appear emotionally
disturbed" and "exaggerating his neuropsychological
problems." Ibid. But on the other hand, it was
"quite apparent that he ha[d] some genuine
neuropsychological problems." Ibid. Tests
revealed "cortical dysfunction attributable to right
cerebral hemisphere dysfunction, " shown by "left
hand weakness, poor motor coordination of the left hand,
sensory deficits including suppressions of the left hand and
very poor visual search skills." Id., at 1636.
These deficiencies were "suggestive of a right
hemisphere lesion" and "compatible with the
injuries [McWilliams] sa[id] he sustained as a child."
Id., at 1635. The report added that McWilliams'
"obvious neuropsychological deficit" could be
related to his "low frustration tolerance and
impulsivity, " and suggested a diagnosis of
"organic personality syndrome." Ibid.
before the sentencing hearing defense counsel also received
updated records from Taylor Hardin hospital, and on the
morning of the hearing he received the records (subpoenaed in
mid-August) from Holman Prison. The prison records indicated
that McWilliams was taking an assortment of psychotropic