RIGHT TO COMPETENT, APPROPRIATE, CONFIDENTIAL, AND INDEPENDENT
ASSISTANCE
Competent & Appropriate
Skaggs v. Parker,
235 F.3d 261 (6th Cir. 2000) (capital case)
(relief granted on
penalty phase ineffective assistance of counsel; no Ake violation because the state
provided funds for mental health expert; however, defense attorney chose an expert
whose credentials were fraudulent and whose testimony at the guilt/innocence phase
was so incoherent, attorney did not present expert at penalty phase)
Brown v. Champion,
166 F.3d 346, 1998 WL 838839 (10th Cir. 1998)(unpublished
disposition)
(petitioner whose two requests for an independent expert were denied was
entitled to a mental health expert based on his threshold showing that his defense
would be that his paranoia prevented him from forming the intent to kill, and, at a
competency hearing, one state expert said petitioner was only marginally competent to
stand trial, and another said he was not competent to stand trial; although at trial
petitioner presented testimony of the psychologist who found him incompetent to stand
trial, she also testified she had not evaluated the petitioner for sanity at the time of the
offense, and that she was "not used to assessing the ability to determine right from
wrong"; the psychologist's testimony did not satisfy Ake)(in reaching its conclusion the
court rejected many of the defenses often raised against an Ake claim: (1) the state's
arguments that the error was harmless because Brown's paranoia was "mild" and that
his "true defense" was that the state trooper fired first (where the evidence showed the
trooper had not fired at all) begged the question of whether Brown's paranoia rendered
him insane at the time of the offense; (2) the state's argument that the denial of expert
assistance was harmless because Brown's paranoid feelings of persecution by the
government were within the jury's everyday understanding evinced a fundamental
misunderstanding of the role mental health experts play under Ake; (3) the state's
argument that the denial of an independent expert was harmless because a third expert
would have been redundant, failed because, without the ability to hire his own expert,
petitioner could only present the testimony of the psychologist who was not qualified to
testify regarding sanity at the time of the offense (whereas the state's expert was
qualified to testify on that issue), and because Ake entitles an indigent defendant to an
expert who will assist counsel in preparing the defense case, including the cross-examination of the state's expert)
Starr v. Lockhart,
23 F.3d 1280 (8th Cir. 1994), cert. denied,
115 S.Ct. 499 (1994)(capital case)
(where only viable defense was defendant's mental condition,
defendant was entitled to expert assistance and trial court's denial of request for a
mental health professional at the sentencing phase violated Ake; competency
evaluation would not satisfy Ake because it was not "appropriate" for developing
mitigation based on defendant's functional deficits)
Blake v. Kemp,
758 F.2d 523 (11th Cir. 1985), cert. denied,
474 U.S. 998 (1985)(capital case)
(state's withholding of defendant's statement containing his bizarre
account of the crime deprived the defense of "a psychiatric opinion developed in such a
manner and at such a time as to allow counsel a reasonable opportunity to use the
psychiatrist's opnion in the preparation and conduct of the defense")
United States ex rel. v. Schomig,
162 F.Supp.2d 1020 (N.D.Ill. 2001)(capital case)
(ineffective assistance where trial counsel failed to investigate background, including credentials, of witness presented as mental health expert during sentencing or interview witness prior to testifying where cross-examination revealed the witness lied about his credentials and expert testimony presented in a collateral hearing revealed defendant suffered from serious mental infirmities not presented by the supposed mental health expert at trial)
Buttrum v. Black,
721 F.Supp. 1268, 1312 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th
Cir. 1990), reh. denied, 916 F.2d 719 (11th Cir. 1990)(capital case)
(due process violated where state hired a private psychiatrist to testify as only penalty phase witness
that defendant was a "sexual sadist" and therefore would be dangerous in the future, and trial court limited defendant's access to
expert assistance to having expert, who evaluated for competency, do no more than explain psychological terms used by state's
expert; court "failed to provide the scope of psychiatric assistance contemplated by Ake,
" i.e., a psychiatrist "who was a peer to [the state's expert]" with whom to work closely, and who could conduct an independent
examination, testify if necessary, prepare for the sentencing phase, and respond to state testimony regarding future dangerousness)(
see further discussion, supra, § II)
Christy v. Horn,
28 F.Supp.2d 307 (W.D.Pa. 1998)
(petitioner was denied due process, when, after informing the trial court that he would rely on an insanity defense, and that
he had a history of psychiatric hospitalizations, the trial court refused to appoint an expert on grounds that an expert appointed to report to the court found
petitioner was competent at the time of the offense; the evaluation and report of one expert was "inadequate" in several respects; the appointment of two
psychiatrists who reported directly to the court did not satisfy Ake's requirement of an independent defense expert; error was not harmless in
light of post-conviction evidence that petitioner could have presented a viable diminished capacity defense to guilt, and because his mental health evidence
was necessary at penalty phase to explain his conduct)
United States v. McAlister,
55 M.J. 270 (C.A.A.F. 2001)
(abuse of discretion where judge denied request to replace expert in medical genetics with an expert in forensic polymerase chain reaction testing where DNA evidence was the key to the prosecution's case and DNA testing performed by the prosecution appeared incomplete due to newly developed tests in the rapidly changing science)
Turpin v. Bennett,
525 S.E. 2d 354 (Ga. 2000) (capital case)
(on remand,
lower court granted habeas relief, finding defense counsel ineffective for not
requesting continuance in response to impaired expert's conduct; affirmed)
Turpin v. Bennett,
513 S.E.2d 478 (Ga. 1999) (capital case)
(there is no right to the
effective assistance of a psychiatrist or any other expert; however, an expert's
effectiveness can be addressed in context of ineffective assistance of counsel;
remanded for determination of whether trial counsel ineffective in presenting clearly
incompetent expert)
Frederick v. State,
902 P.2d 1092, 1098 (Ok. Ct.
Crim. App. 1995)(capital case)
(where expert appointed pursuant to Ake said he lacked competence to diagnose
disorder from which defendant apparently suffered and said that expert on particular
disorder was needed, it was reversible error for trial court to deny continuance so that
competent expert could examine defendant)(court found error was structural and
reversed without conducting harmless error analysis)
People v. McPeters,
448 N.W.2d 770 (Mich.App.
1989)
(defendant's due process
rights to expert who would help prepare and present insanity defense were violated
when psychiatrist who evaluated defendant and wrote report finding him insane claimed
he could not recall the case when called to testify (after court had refused to pay
expert's fee))
Engle v. State,
774 P.2d 1303 (Wyo.
1989)
(reversed where state hospital examiners
failed to conduct a reasonable psychiatric evaluation for competency)(relief granted
despite examiner's letter stating evaluation was not completed because defendant was
uncooperative)
State v. Moore,
364 S.E.2d 648 (N.C.
1988)
(where only evidence linking defendant to
crime was confession and palm print, and expert appointed for purpose of evaluating
defendant's competency to stand trial testified that defendant had an IQ of 51, was
easily led and very tractable, defendant was entitled to psychiatric expert appointed to
assist in defense that confession was not reliable)
People v. McClane,
631 N.Y.S.2d 976, 983 (N.Y. Sup.
Ct. 1995)
(state-appointed
psychiatrist who admitted he lacked expertise in evaluating "the relationship of various
brain structures to emotions and behavior," but nevertheless opined that defendant
suffered from organic brain damage that diminished his criminal responsibility,
breached his duty to defendant and was inadequate to satisfy Ake; due process
required appointment of second neurologist for Frye hearing to determine admissibility
of defense testimony about "emotional seizures" from brain injury)
Lindsey v. State,
330 S.E.2d 563 (Ga.
1985)(capital case)
(psychiatric evaluation of
defendant prior to his competency hearing, which did not address the question of
whether he was mentally competent to commit offenses charged, was not adequate
psychiatric assistance; Ake demands that the defendant's competency at the time of
the offense be evaluated)
Confidential &
Independent
Cowley v. Stricklin,
929 F.2d 640 (11th Cir.
1991)
(neither the psychiatrist appointed
by the court for the state and defense, nor the pro bono expert called by the defense,
satisfied Ake because court-appointed expert did not help prepare defense or cross-examination of state's witnesses; state could not preempt defendant's right to a defense
psychiatrist by appointing its own expert)(see further discussion, supra § II)
Smith v. McCormick,
914 F.2d 1153, 1157 (9th
Cir. 1989)(capital case)
(right to
psychiatric assistance is not satisfied by appointing a "neutral" psychiatrist, but requires
"the right to use the services of a psychiatrist in whatever capacity defense counsel
deems appropriate--including to decide, with the psychiatrist's assistance, not to
present to the court particular claims of mental impairment")
United States v. Sloan,
776 F.2d 926, 929 (10th Cir.
1985)
(error to deny defense
request for expert on grounds that there was no need for second opinion beyond that of
government's expert: "when an accused makes a clear showing ... that his mental
condition will be a significant factor at trial, the judge has a clear duty upon request to
appoint a psychiatric expert to assist in the defense of the case[; t]he essential benefit
of having an expert in the first place is denied the defendant when the services of the
doctor must be shared with the prosecution")
Buttrum v. Black,
721 F.Supp. 1268, 1312 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th
Cir. 1990), reh. denied, 916 F.2d 719 (11th Cir. 1990)(capital case)
(trial court "failed to provide the scope of psychiatric assistance contemplated by
Ake"; Buttrum was not provided with a psychiatrist to work closely with the defense,
conduct an independent examination, testify if necessary, prepare for the sentencing phase, and respond to state testimony regarding future
dangerousness)(see further discussion, supra § II)
Morris v. State,
____ So. 2d ___, 2005 WL 3118817 (Ala. Crim. App. 2005) (capital case)
(Defendant’s due process rights were violated where the trial court refused to provide funds to hire an independent
expert to assist in the defense after the defendant had been found by one court-appointed expert to be mentally retarded and incompetent to stand
trial and later found by another court-appointed expert to be malingering and competent to stand trial. That defendant could have subpoenaed one of
the mental-health experts who had already submitted her report and her conclusions to the trial court and to both parties in no way satisfied the
due-process requirements in Ake. “[I]t is unreasonable to expect that a neutral expert
who reports to the court and to the parties would provide the same degree of assistance to a defendant as could be expected from the defendant's
own independent expert.” Especially because of the inconsistency between the two experts’s opinions, “due process required the appointment of an
independent mental-health expert to assist [defendant]. Only with the assistance of a defense expert would [defendant] have been able to reconcile
the inconsistent results, determine whether a mental health defense was viable and, if so, how to present it effectively, and how to effectively
cross-examine the State's expert witnesses.”)
Bentley v. State,
904 So.2d 351 (Ala.Crim.App. 2004)
(finding that trial judge "exceeded his authority when he ordered the third evaluation" of defendant because the
trial court had no legal authority to do so, especially when the prosecution's expert and the defense expert agreed defendant was incompetent
in all areas examined and should be committed to the Department of Mental Health and Retardation, and the state had confessed a finding of not
guilty by reason of mental disease or defect)
Van White v. State,
990 P.2d 253 (Okla. Crim
App. 1999)
(relying in part on Ake,
court held that attorney-client privilege applied to expert appointed by court to aid in
defense, and privilege is maintained whether or not the expert testifies)(error
here-admission of defense psychiatrist's testimony in state's rebuttal-was harmless)
DeFreece v. State,
848 S.W.2d 150 (Tex.
Crim. App. 1993), cert. denied,
114 S.Ct. 284 (1993)
(court's appointed psychiatrist was inadequate pursuant to Ake because an
indigent defendant who makes the requisite threshold showing is entitled to a partisan,
not merely neutral, expert, and is also entitled to a psychiatric expert to assist with his
defense, not just for examination purposes; ability to subpoena expert not enough)
Anderson v. Virginia, 421 S.E.2d 900 (Va. Ct. App. 1992), reh. en banc granted,
Anderson v. Virginia, 436 S.E.2d 625
(Va.Ct.App. 1993)(en banc)
(error to deny the
defendant a psychologist of her own choosing where trial court appointed a private
psychologist of the state's choosing, and mental state was hotly contested and crucial
to sentencing (state law precluded trial as adult of juvenile who is retarded or insane)