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The Habeas Citebook: Prosecutorial Misconduct
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On Remand from Supreme Court, Eleventh Circuit Holds in Specific Circumstances an Ake Violation Constitutes Structural Error

by Douglas Ankney

On remand from the Supreme Court of the United States (“SCOTUS”), the U.S. Court of Appeals for the Eleventh Circuit held that in the particular facts and circumstances of James McWilliams’ sentencing, the Alabama sentencing court’s violation of the provisions of Ake v. Oklahoma, 470 U.S. 68 (1985), was a structural error not amenable to harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619 (1993).

McWilliams was found guilty of rape and murder. The prosecution sought the death penalty, which under Alabama law at that time required a jury recommendation of at least 10 affirmative votes and a later determination by the judge.

Prior to the jury portion of the sentencing proceedings, McWilliams’ counsel had subpoenaed mental health records to offer evidence of McWilliams’ history of psychiatric problems. But the records had not arrived by the day of sentencing, and the jury voted 10-2 in favor of death. The court scheduled its judicial sentencing hearing to be held six weeks later. In the interim, the court granted McWilliams’ motion for neurological and neuropsychological testing.

Dr. John Goff opined in his report that, on the one hand, McWilliams was obviously exaggerating his mental health problems. But on the other hand, it was quite apparent McWilliams had some genuine neuropsychological problems. On the date of the judicial sentencing hearing, defense counsel received the aforementioned subpoenaed mental health records. Counsel requested a continuance to have a mental health professional review the records and assist him in preparing a defense. The sentencing court denied the request, but gave counsel until 2:00 p.m. to review the records. When the hearing resumed, counsel renewed his motion for a continuance, explaining that the defense believed McWilliams had some sort of organic brain injury and other mental deficiencies but that counsel lacked the expertise to determine whether the condition existed or to what extent. Further, without a mental health expert, counsel could not on his own determine from the records if McWilliams’ mental examinations were properly conducted, if the findings were worthy of confidence, or how to make any conclusions from the records. The court denied the motion. The trial judge stated he read the records himself and found evidence that McWilliams was faking and manipulative. The court sentenced McWilliams to death.

The Alabama Court of Criminal Appeals rejected McWilliams’ argument that the trial court erred in denying him the right to meaningful expert assistance guaranteed by Ake. It wrote that Ake’s requirements “are met when the State provides the [defendant] with a competent psychiatrist,” and the State satisfied those requirements by “allowing Dr. Goff to examine” McWilliams. The Alabama Supreme Court affirmed. The federal district court and the Eleventh Circuit denied McWilliams habeas relief, but SCOTUS reversed. SCOTUS held the state court’s decision “was plainly incorrect” because the trial judge’s conduct at sentencing “did not meet even Ake’s most basic requirements.”

SCOTUS explained that Ake “requires the State to provide the defense with access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.” SCOTUS remanded the case back to the Eleventh Circuit with instructions to decide if “access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered.”

The Eleventh Circuit interpreted the phrase “would have mattered” to mean whether the denial of such assistance “would have prejudiced McWilliams in defending against the imposition of a death sentence.” The Court observed that Brecht dictated how the error was to be reviewed. Brecht places error into two categories: trial court errors subject to harmless error review and structural errors that are not. Errors subject to harmless error review are amenable to analysis because the errors may be quantitatively assessed in the context of other evidence presented during trial to determine the effect on the jury. Brecht. But structural errors are not subject to harmless error analysis.

For example, denial of the right to counsel is a structural error not amenable to harmless error analysis because it affects the entire conduct of the trial from beginning to end. Arizona v. Fulminante, 499 U.S. 279 (1991). It defies analysis because there is no way to know what type of assistance counsel would have provided, i.e., how would he have investigated the charges, developed a defense, selected jurors, presented and examined witnesses, or even whether he would have advised going to trial at all. Since a structural error defies analysis, prejudice is presumed, requiring automatic reversal. Brecht.

In the instant case, the assistance a psychiatrist would have provided McWilliams’ counsel in evaluating, preparing, and presenting the defense that Ake requires was unknown and could not be quantitatively assessed in the context of the evidence presented to the sentencing judge. Accordingly, the Court remanded to the district court with instructions to issue a writ of habeas corpus vacating McWilliams’ sentence and entitling him to a new sentencing hearing with the provision of a psychiatrist to provide assistance in accordance with Ake. See: McWilliams v. Commissioner, 940 F.3d 1218 (11th Cir. 2019).

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Writer’s note: The Court distinguished this case from Ake errors that are amenable to harmless error analysis, e.g., where the record provides evidence to quantify whether the error had a prejudicial effect on the jury in light of other evidence presented.

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