Supreme Court Justices Appear Split Over James McWilliams Death Row Case Justice Anthony Kennedy appears likely to cast the deciding vote in a Supreme Court case involving a death row inmate's right to help from a mental health expert who is independent of the prosecution.
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Justices Split Over Defendants' Right To Mental Health Expert Witnesses

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Justices Split Over Defendants' Right To Mental Health Expert Witnesses

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Justices Split Over Defendants' Right To Mental Health Expert Witnesses

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ARI SHAPIRO, HOST:

The U.S. Supreme Court heard arguments today in a case that could have implications for death row inmates. It was brought on behalf of a man from Alabama. At issue is whether an indigent defendant whose sanity is a significant factor is entitled to an independent expert witness. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Today's case goes back to 1985 and an 8 to 1 decision in a case called Ake versus Oklahoma. It declared that when a defendant's mental status is an issue, he's entitled to a competent psychiatrist to assist in his defense. In the 32 years since that decision, the states, prodded by lower court rulings in state and federal courts, have come around. And today, all of them, including Alabama, provide such assistance. And yet some defendants who did not have that expert witness assistance at their trials remain on death row.

The case before the Supreme Court today is one of those. James McWilliams Jr. was sentenced to death in 1986, a year after the Ake case, for the rape and murder of a convenience store clerk. There was overwhelming evidence of his guilt. The only real question was, would he get the death penalty or life in prison?

The trial judge ultimately sentenced McWilliams to death, citing testimony at the trial from two state-employed psychiatric experts who said he was faking his mental illness. Under Alabama law, those expert witnesses were considered neutral. Their evidence and conclusions were available to both sides. But today on the steps of the Supreme Court, lawyer Stephen Bright of the Southern Center for Human Rights said there is no effective way for the prosecution and defense to share an expert witness.

STEPHEN BRIGHT: It's an adversary system. There's just not one holy seer who tells us what the mental health of a defendant is.

TOTENBERG: Alabama Attorney General Steve Marshall conceded that Alabama now provides for a separate expert witness for the defense, but he contended that shouldn't affect the sentences of others who were sentenced without that help.

STEVE MARSHALL: This defendant was given the protections that he was entitled to with the law at the time, not what the law requires now.

TOTENBERG: Inside the courtroom, Justice Anthony Kennedy appeared likely to cast the deciding vote. He seemed to be wrestling with the rule laid down in the 1985 case. Justice Kennedy - could a single expert witness meet with both sides? No, replied lawyer Bright. You can't work both sides of the street in a criminal case. A few moments later, he added, I'd like to point out that the defense lawyers here were really sandbagged.

Two months before, the defense had asked for a neuropsychiatric examination and prison mental health records. Then, 48 hours before the sentencing hearing, the state produced the results of the exam. It showed traumatic brain dysfunction. And on the morning of the hearing, the defense received 1,200 pages of prison medical records which showed, among other things, that the defendant was taking psychotropic drugs. The defense asked for continuance, which the judge denied. And the judge sentenced McWilliams to death.

Justice Alito - it sounds like you want an expert who would function as a defense witness. How could an expert appointed by the court serve that function? Answer - in the same way that a court-appointed lawyer represents the defendant.

Representing the state in the Supreme Court today, Alabama Solicitor General Andrew Brasher found himself under the eagle eye of Justice Elena Kagan. Quoting from the 1985 Ake case that is central here, she read what she called the money sentence. We hold that when the defendant makes a preliminary showing that mental health is going to be an issue, the state must assure the defense adequate access to a competent psychiatrist who will assist in evaluation, preparation and presentation of the defense. And that, she said, means somebody on the defendant's side. Chimed in Justice Breyer - here it seems to me the defendant certainly did not get that help.

Nina Totenberg, NPR News, Washington.

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