Oral argument [Monday] morning in McWilliams v. Dunn looks to be a fairly predictable split between the four liberal justices and the four conservatives, with Justice Anthony Kennedy performing his customary demi-Hamlet at the middle.From Adam Liptak's account in the New York Times:
In a 1985 case, Ake v. Oklahoma, the Supreme Court established that when an indigent defendant’s sanity becomes a major issue 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.”
The issue at the Supreme Court today is simply whether the right to the kind of expert assistance granted in Ake—“to conduct a professional examination … to help determine whether that defense is viable, to present testimony, and to assist in preparing the cross-examination of the State’s psychiatric witnesses”—demands something more than what McWilliams received, a neutral expert dumping files on the counsel table right before trial. The Alabama courts and some federal appeals courts have taken the position that the mental health expert needn’t be “independent” of the prosecution, and that indigent defendants aren’t entitled to have experts that side solely with them. The trickier question is whether or not the requirement that your expert be truly helpful is “clearly established” case law that can be used to set aside the capital conviction.
Justice Samuel A. Alito Jr. said the Ake decision was similar to ones he and his colleagues had written and joined. “This is an opinion that is deliberately ambiguous, because there was probably disagreement among the members of the majority about how far they wanted to go,” he said.
But Justice Kagan said there was only one natural reading of the Ake decision. “It means somebody on the defendant’s side,” she said. The decision, she said, used variations on the term “assist” countless times.
Justice Ruth Bader Ginsburg said that in the context of legal representation, there would be no doubt what “assist” meant. “Assistance of counsel doesn’t mean neutral,” she said.
But Justice Alito said the Ake decision required only a neutral expert, not one aligned with the defense team. Justice Sonia Sotomayor disagreed, saying that defense lawyers should be able to say to their expert, “I have to defend this man — give me my best argument.”
Justice Stephen G. Breyer said some of his colleagues were asking the wrong question. The issue was not whether the expert in the case had been independent but whether he had provided the required assistance. Justice Breyer suggested that the Supreme Court could send the case back to the lower courts to explore that question. Justice Anthony M. Kennedy appeared intrigued by the idea.
Justice Neil M. Gorsuch said he was worried that a ruling in Mr. McWilliams’s favor would open the door to all kinds of court-appointed experts.
“Where’s the stopping point?” he asked. “Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?”
“Experts widely disagree on everything,” Justice Gorsuch said. “That’s why you hire them. And why they cost so very much.”