McWilliams v. Dunn: An unseemly maneuver or a necessary compromise?
On June 19, 2017, the U.S. Supreme Court issued its 5-4 opinion in McWilliams v. Dunn.1 Of all the cases from the Court’s recent October term, McWilliams carried significant implications for the capital bar, as well as for those practitioners representing clients with mental illness. However, such implications were never fully realized due to what the dissent characterized as “means of a most unseemly maneuver.”2
This strong rebuke is best understood alongside some substantive and procedural context. First, the McWilliams case has undeniable roots in Ake v. Oklahoma.3 In Ake, the Court held “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.”4 Approximately one year after the Court’s decision in Ake, James McWilliams was convicted of capital murder.5
Less than two full days before the judicial sentencing hearing though, counsel for the defense received a flurry of previously sought updated mental-health records, as well as a written report authored by a psychiatrist appointed from Alabama’s Department of Public Health. Despite strong imploration by counsel for a continuance so that the late-produced information could be interpreted and analyzed, the trial court denied such motions and sentenced McWilliams to death.
The case was appealed throughout state and federal courts. In the Alabama courts McWilliams argued, among other things, that he was denied his due process right to meaningful expert assistance under Ake. Upon exhausting his state appellate rights, McWilliams sought federal habeas relief—a notoriously high burden—and was denied at the magistrate and district level when the court found that the existing mechanisms for psychiatrist involvement satisfied Ake and, accordingly, the decision of Alabama’s courts was not an unreasonable application of such clearly established federal law.
The Court of Appeals for the Eleventh Circuit affirmed this reasoning, while Judge Wilson dissented, stating, “[a]lthough his life was at stake and his case for mitigation was based on his mental health history, McWilliams received an inchoate psychiatric report at the twelfth hour and was denied the opportunity to utilize the assistance of a psychiatrist to develop his own evidence. As a result, McWilliams was precluded from meaningfully participating in the judicial sentencing hearing and did not receive a fair opportunity to rebut the State’s psychiatric experts. Put simply, he was denied due process.”6 What’s more, Judge Wilson took issue with the notion that the defense counsel could have simply consulted with the already-appointed psychiatrist that provided the written report, reminding that such expert could “cross the aisle and disclose to the State the future cross-examination of defense counsel.”7
McWilliams petitioned for writ of certiorari to the Supreme Court of the United States. On petition, McWilliams presented two questions for review:
(1) When this Court held in Ake that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” did it clearly establish that the expert should be independent of the prosecution?;
(2) Did the Alabama courts unreasonably apply Ake in finding that McWilliams’s rights were satisfied when the only mental health expert he was provided distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records?
The U.S. Supreme Court granted certiorari but limited its review and the briefing to only the first question.8
By signaling its review would only be of the first question, the Court set off widespread speculation and commentary on its upcoming decision. Some commentators highlighted the life-and-death aspect of the looming opinion.9 The implications were not abstract nor academic, as some pending death row matters were halted specifically due the potential effects of the McWilliams decision.10 In order to prevail via a habeas petition, McWilliams needed to successfully argue that Ake’s holding was not ambiguous – that it clearly meant he was entitled to an expert to assist him (independent of the prosecution) – and that the state court’s application of Ake was unreasonable given such law.
At oral argument, the parties navigated the nuances of the question presented and advanced various distinctions from the briefs. For instance, some justices queried whether the respondent was truly seeking an “independent” expert or someone more akin to a “partisan” expert and, whether one or the other was ever feasible given certain implications and conflicts.11
But the eventual outcome of McWilliams was an opinion that sidestepped almost all of the commentary, speculation, and indeed, even the question briefed. The real result was hidden in plain sight at oral argument. During an exchange with counsel for Alabama’s Attorney General, Justice Breyer asked:
“Would you -- would you object to the following disposition of the case: That we say the issue is not partisan versus independent. The issue is whether the defense had assistance from a psychiatrist in the evaluation, preparation, and presentation of the defense, including cross-examination of hostile or State psychiatric witnesses. That’s what Ake provides. That’s clear. And what we want you to do, court of appeals, is decide whether that was so.”12
This query then prompted Justice Alito to ask whether the focus of such an inquiry arguably fell under the other question presented for review – that is, the very question excluded when the Court granted certiorari. Counsel for Alabama wholeheartedly agreed, stating “[t]hat’s exactly right, Justice Alito. And my point was that that was the second question presented in the cert petition. Justice Breyer’s question was the second question that the Court didn’t grant cert on.”13
Sure enough, though, when the opinion was issued, Justice Breyer, writing for the majority, found that “Alabama here did not meet even Ake’s most basic requirements.”14 Due to this fundamental failure, the majority declined to adjudicate the broader question of whether Ake clearly established the right to an expert independent witness. Instead, the Court remanded for further proceedings such as consideration of whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered when applying the federal habeas standard.15
After all of the commentary and prognosticating, the Court ultimately issued an opinion answering the very question presented for review it had specifically excluded when granting certiorari. The majority, facing a hostile dissent, acknowledged the swap, “[w]e recognize that we granted petitioner’s first question presented—which addressed whether Ake clearly established a right to an independent expert—and not his second, which raised more case-specific concerns. Yet that does not bind us to issue a sweeping ruling when a narrow one will do.”16 Justice Alito was not assuaged, pointing out “heeding our decision, the parties briefed the first question but scarcely mentioned anything related to the second. The Court, however, feels no similar obligation to abide by the Rules.”17
It is easy to read McWilliams and wonder, with cynicism, whether the majority charted a course away from the actual question briefed in order to secure Justice Kennedy’s needed fifth vote on the basis of the second question presented. At least one reporter hinted as much, highlighting how at oral argument, “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.”18 Perhaps some on the Court saw the danger of a different five-person majority potentially issuing a ringing endorsement of the careless methods employed in McWilliams and forged a compromise in what was eventually issued. But the concept of compromise is generally accompanied by the standard refrain of neither side being altogether satisfied. McWilliams is no exception.