WASHINGTON

As executions loom, Supreme Court splits on mental health claims

Richard Wolf

USA TODAY

WASHINGTON — The Supreme Court appeared almost evenly divided Monday on whether indigent defendants have a right to their own mental health experts in a case that could affect at least two of eight planned executions in Arkansas.

The Supreme Court debated the death penalty by day Monday, while preparing for two more executions by night.

As the state prepared to execute two more convicted murderers by night, the high court worked by day to determine whether its 32-year-old precedent that says defendants are entitled to expert assistance means the experts must be on their side.

The coincidental timing had the justices debating an Oklahoma case decided in 1985 and its potential effect on a man convicted of murder in Alabama the following year, as well as its impact on two Arkansas executions that were delayed last week.

The court's more liberal justices argued that the 1985 precedent cannot be satisfied by a neutral mental health expert, which is all James McWilliams had in the Alabama case that came before them Monday. The more conservative justices said that Oklahoma case was ambiguous on the requirement.

That left Justice Anthony Kennedy in a familiar position at the center of the court. The key to the Alabama case, he said, could hinge on whether a ruling in favor of McWilliams would be seen as a new right — and therefore not retroactive — or a "refinement" of what the court decided in Ake v. Oklahoma 32 years ago.

Kennedy appeared to agree with Stephen Bright, the lawyer representing McWilliams, that an expert "can't work both sides of the street" by helping the prosecution as well as the defense. Requiring independent experts, Bright said, "at least gives the defense a shot."

Impact on future cases

How the high court rules in the case could have a major impact on thousands of future criminal cases. But it's the potential impact on past cases, including those involving Don Davis and Bruce Ward in Arkansas, that has brought the most attention.

Davis and Ward were to be the first Arkansas prisoners executed since 2005, but the state Supreme Court granted a reprieve last Monday based on their mental health claims and the McWilliams case, which will be decided by June. Theirs were the first two of eight executions scheduled over 11 days by Arkansas officials in a race to beat the April 30 expiration date for one of three lethal injection drugs.

Four of the eight executions have been put on hold, with two more slated for Monday night and another on Thursday. Only one prisoner, Ledell Lee, has been put to death.

During Monday's oral argument, several conservative justices argued that their precedent requires only neutral experts, not partisan ones. Newly confirmed Justice Neil Gorsuch said requiring one-sided experts could extend beyond psychiatry to other fields of medicine, forensic science, and beyond.

"Experts widely disagree on everything," Gorsuch said. "That's why you hire them, and why they cost so very much."

But "assistance of counsel doesn't mean neutral," Justice Ruth Bader Ginsburg said. "What the decision writer had in mind was assisting the defense, just as a lawyer assists the defense."

And Justice Elena Kagan said the court's precedent requires "somebody on the defendant's side."

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