Powell v. Collins,
332 F.3d 376 (6th Cir. 2003)(capital case)
(reversing petitioner’s death sentence because the trial court failed
to appoint an independent psychiatrist who was qualified to conduct
appropriate testing to diagnose petitioner with organic brain damage
when the court appointed psychiatrist testified that she did not have
the qualifications to perform such testing)
Schultz v. Page,
313 F.3d 1010 (7th Cir. 2002)
(state court’s denial of defendant’s request for a psychiatric
examination to determine defendant’s sanity at the time of the crime was
contrary to and an unreasonable application of federal law where the
state court erroneously based its decision on the prosecution’s decision
not to request an examination, which is irrelevant, and the defendant’s
failure to assert an insanity, which would be difficult to do formally without a
psychiatric examination, but had been done informally through evidence of defendant’s prior hospitalization
and abnormal behavior during police interrogation)
U.S. v. Barnette,
211 F.3d 803 (4th Cir. 2000) (capital case)
(at sentencing, the
defense presented 3 mental health experts, including Dr. Cunningham, who testified the
defendant's risk of future violence in prison was very low; in rebuttal, government
presented Dr. Duncan, who testified the defendant was a psychopath and would be
future risk; the court denied the defense motion to present Cunningham in surrebuttal
because the defense had cross-examined Duncan; Court of Appeals reversed; since
there had been no mention of "psychopath" until Duncan testified, the defense should
have been allowed to present surrebuttal; the court relied largely on Ake in discussing
whether the error was harmless, finding the error deprived the defendant of the
"opposing views of the defendant's doctors"; cross-examination was no substitute for
the testimony of an expert where the unanswered government evidence was
devastating)
Walton v. Stewart,
168 F.3d 504 (Table; text in Westlaw)
1999 WL 57427 (9th Cir.
Feb. 5, 1999)(unpublished opinion)(petitioner was entitled to an evidentiary hearing on
Ake claim; prior to trial petitioner showed that he had been found mentally ill, had been
addicted to various drugs, and had been diagnosed with possible schizophrenia; district
court erred in concluding petitioner was not entitled to appointment of mental health
expert because M'Naughten insanity was not at issue because Ake requires
appointment of expert where defendant places his mental state at issue, regardless of
whether M'Naughten insanity was involved)
Castro v. State,
71 F.3d 1502, 1515 (10th
Cir. 1995)(capital case)
(error to deny
psychiatric assistance during the sentencing phase where the state argued the
aggravating circumstance of future dangerousness/continuing threat to society; court
noted that while the defense had obtained a psychiatric evaluation of the defendant, the
expert was unwilling to testify and "Ake specifically noted part of the expert's role
included taking the stand"; the psychiatric assistance Castro received was not a "viable
substitute" for the assistance required by Ake)
Starr v. Lockhart,
23 F.3d 1280 (8th Cir. 1994), cert. denied,
115 S.Ct. 499 (1994)(capital case)
(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; the right to subpoena state
professionals who conducted a competency evaluation was not an adequate substitute
for the assistance of a defense mental health professional in evaluating, preparing, and
presenting defense; competency evaluation would not satisfy Ake because it was not
"appropriate" for developing mitigation based on defendant's functional deficits)
Dunn v. Roberts,
963 F.2d 308 (10th Cir.
1992)
(where state's theory was that
defendant intended to aid and abet in crime spree, and defendant made a "clear and
genuine" showing that expert assistance was needed on the "close question" of whether
she remained with her male co-defendant because she intended to or because she
suffered from Battered Women's Syndrome, refusal to provide expert assistance
precluded defendant from presenting an effective defense that her presence with co-defendant was a product of BWS)
Cowley v. Stricklin,
929 F.2d 640 (11th Cir.
1991)
(relief granted where court denied
defense requests for psychiatric expert assistance and instead sent defendant to state
hospital for psychiatric evaluation; mental condition was to be significant factor at trial
based on defendant's history of treatment in mental hospitals and state expert's
conclusion that defendant suffered from "sexual sadism"; state psychiatrist's evaluation
was inadequate and "provided little if any assistance to the defense"; "[t]he state cannot
preempt a defendant's right to a defense psychiatrist by first appointing its own expert";
pro bono service of defense counsel's psychologist friend was not "a sufficient
substitute for the provision of an adequate defense psychiatrist")
Liles v. Saffle,
945 F.2d 333 (10th Cir. 1991), cert. denied,
502 U.S. 1066 (1992)(capital case)
(trial court erred in denying defense motion for psychiatric expert;
defendant's history of mental problems, treatment with antipsychotic medication, and
conflicting diagnoses about competency made a sufficient showing that sanity was
likely to be a significant factor at trial despite state's argument that expert was not
required because defendant was not raising an insanity defense; defendant required
psychiatric assistance to meet the state's evidence of future dangerousness and
present mitigating evidence during the penalty phase, even though the state did not rely
on psychiatric evidence)
Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1989)(capital case)(defendant's due process rights in penalty phase were
violated by refusal to provide expert assistance; 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"; court notes the sentencing court "relied
heavily" on state psychiatrist's report in sentencing
order)
United States v. Crews,
781 F.2d 826 (10th Cir.
1986)
(error not to provide mental
health expert to person who was in mental hospital on "large dose of antidepressant
medication" when he said he would shoot Ronald Reagan; defense was entitled to
expert to aid in cross-examination of the treating psychiatrist and court-appointed expert
whose testimony "involved technical psychiatric diagnoses" concerning "whether the
source of defendant's condition was organic and treatable")
United States v. Sloan,
776 F.2d 926, 929 (10th Cir.
1985)
(due process violated
where government's request for expert was granted, defendant sought own expert to
pursue lack of capacity theory, and defense requests were denied despite showing that
defendant had a history of psychiatric treatment, abnormal EEGs, and treatment with
antipsychotics)(also discusses appointment of experts under § 3006A)
Holloway v. Horn,
161 F.Supp.2d 452, 573 (E.D.Pa. 2001), rev'd on other grounds, 355 F.3d 707 (3rd Cir. 2004)
(finding trial counsel ineffective for failing "to
reasonably investigate petitioner’s background for mental health related
issues and because he failed to request that a mental health expert be
appointed to assist the
defense" without any "strategic or tactical reason")
Holland v. Horn,
150 F.Supp.2d 706 (E.D.Pa. 2001)
(error to deny petitioner court-appointed defense
mental health expert to develop mitigation evidence and petitioner’s
appellate counsel provided ineffective assistance by failing to raise
any claims regarding
defendant’s lack of a court-appointed psychiatric expert)
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; trial court limited defendant's access to expert
assistance by allowing expert to 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; "when the issue of future
dangerousness is raised at the sentencing hearing. . . by testimony of a prosecution witness, the defendant must be provided a
competent psychiatrist")
Commonwealth v. Curnutte,
871 A.2d 839 (Pa. 2005)
(indigent defendant entitled to expert assistance in sexually violent predator determination as part of right
to counsel and due process. Defendant’s mental condition and future dangerousness are “critical issues.” Ake stands for proposition that
“procedural due process guarantees that a defendant has the right to present competent evidence in his defense, and the state must
ensure that an indigent defendant has a fair opportunity to present his defense.”)
State v. Hagerty,
2002 WL 707858 at * 7 (Tenn.Crim.App. April 23, 2002) (unpublished)
(error to deny defense request for psychiatrist with expertise in the filed of posttraumatic stress disorder induced by
repeated physical and emotional trauma in a murder trial where neither case law nor state court rules require a showing that defendant’s sanity
was at issue and trial judge’s opinion that evidence of prior violence between defendant and victim only revealed that victim stayed in a "bad
relationship" further evidenced the need for expert assistance to inform the jury about "the dynamics of an abusive, interpersonal relationship,
and about the abused woman’s perception of imminent danger at the time she commits the act for which she is later prosecuted")
State v. Abelt,
759 N.E.2d 847 (Ohio Ct. App. 2001)
(error to deny defense psychological/psychiatric
expert assistance for sexual predator hearing where defendant received
extensive treatment while incarcerated, and the function of the hearing
is to determine the defendant’s current condition, not his condition at the
time of the ten-year old crime)
State v. Frank,
803 So.2d 1 (La. 2001) (capital case)
(trial court
found defendant not to be indigent; defendant had filed motion for funding for mental
health expert assistance for guilt/innocence and penalty phases; because the trial court
denied indigency, it did not rule on this motion; therefore, the defendant went to trial
without expert assistance; the error had no impact on the guilt/innocence phase
because the defendant never alleged insanity, but the record was insufficient to
determine the effect on the penalty phase; remanded for hearing to allow the defendant
to make showing of need for expert assistance; if the defendant makes such a showing,
trial court should vacate the sentence, provide expert funding and have a new penalty
phase)
In re Detention of Kortte,
738 N.E.2d 983 (Ill. Ct. App. 2000)
(defendant's due process rights were violated by the section of the Sexually Violent Persons Commitment Act that prohibits a person who fails to cooperate with the state department of human services expert evaluator from introducing evidence from a retained or court appointed defense expert)
State v. Taylor,
2000 WL 1847554 (Ohio Ct. App. 2000) (unpublished)
(lower
court found defendant to be a sexual predator based on 1973 offenses for which
defendant was paroled in 1983; lower court denied defendant funds for mental health
expert; appellate court reversed, finding denial of due process; under due process
analysis, a defendant must make a "particularized showing" of (1) reasonable
probability that requested expert would aid in defense and (2) denial of expert
assistance would result in unfair trial; by denying expert assistance, lower court ensured
that only evidence regarding defendant's future conduct was nearly 30 years old)
State v. Burns,
4 P.3d 795 (Utah 2000)
(error to condition defendant’s access to publicly-funded expert assistance on
her acceptance of court-appointed counsel without making a finding of
indigency)
In the Matter of R.D.B., a juvenile,
20 S.W.3d 255 (Tex. 2000)
(ineffective assistance during court hearing
determining whether to transfer juvenile to adult prison after he attained the age of
eighteen where juvenile’s counsel failed to seek expert mental health assistance regarding
juvenile’s frontal lobe brain injury resulting from a self-inflicted gunshot
injury)
Brown v. State,
749 So.2d 82 (Miss. 1999)
(remanding the case to the trial court for
a determination regarding whether defense counsel was ineffective in failing to seek
other expert assistance when the state hospital examination yielded no
report)
Chatman v. Com.,
518 S.E.2d 847, 851 (Va. App. 1999)
(trial court erred in denying motion for appointment of expert to raise insanity defense in juvenile
delinquency proceeding; remanded to determine whether defendant is entitled to state-funded expert)
Brown v. District of Columbia,
727 A.2d 865, 869 (D.C. 1999)
(defendant convicted of violating Compulsory School Attendance Act because of her child's
school absences; trial court denied funds for expert child psychologist to examine mother and child and explain school phobia;
appellate court reversed based on D.C. Code, without addressing constitutional issue; defense made adequate showing of need
for expert; remanded for appointment of expert and to reopen proceedings if defense requests)
Fitzgerald v. State,
972 P.2d 1157 (Ok. Cr. App. 1998)
(defendant who presented
evidence he suffered from juvenile-onset diabetes and brain damage, either of which
could have effected his behavior on the night of the crime, exceeded the necessary
showing for entitlement to expert assistance; to require that he demonstrate that he
actually suffered from these conditions at the time of the offense in order to obtain
expert aid "renders the Ake categories of assistance meaningless," i.e., assessing
viability of insanity defense, and evaluating, preparing, and presenting a defense.
Examination by one psychologist did not satisfy Ake requirement of "appropriate expert
assistance" where that psychologist recommended neuropsychological testing and
stated he was not qualified to conduct the testing himself. Testimony of lay witnesses
that defendant suffered from diabetes and received a gunshot to the head could not
have made Ake error harmless. Defendant was also prejudiced by denial of expert to
rebut future dangerousness)
In the Matter of
J.E.H.,
972 S.W.2d 928 (Tex. Cr. App. 1998)
(applying Ake to a
hearing to determine whether a child would be transferred to an adult prison, court held
that the child was entitled to appointment of an expert to counter expert testimony the
state planned to introduce, and to present evidence regarding his treatment which a
psychologist stated would be critical in deciding issues relevant to transfer)
Russell v. State, 715 So. 2d 866
(Ala.Crim.App. Oct. 31 1997)
(court erred by
denying defense request for expert where expert testified at preliminary hearing that
defendant had been diagnosed as paranoid schizophrenic and had been taken off his
antipsychotic medication because of an overdose just prior to alleged attack)(court
applies Ake significant factor test only on issue of competency at time of offense and
requires that defendant raise a reasonable doubt about competency to get expert on
competency for trial)
Hoskins v. State,
702 So.2d 202 (Fla.
1997)(capital case)
(defendant was entitled to
Positron Emission Tomography Scan (PET-scan) based on neuropsychologist's
recommendation that the test be performed to determine whether statutory mitigation
was present; unable to say "without the benefit of the requested testing, that this error
had no effect on the outcome")
Roy v. State,
680 So.2d 936, 941 (Ala. Cr.
App. 1996)(capital case)
(where
defendant's mental condition was so in doubt that court ordered a competency
evaluation, funding for psychiatric assistance could not be withdrawn merely because
defendant asserted that he was not "crazy" and did not want psychiatric assistance;
moreover, trial judge dictated to defense counsel which defenses he could investigate
and pursue, thereby stripping "defense counsel of the ability to defend his
client")(counsel's acceptance of defendant's refusal to be evaluated was IAC)
Doe v. Superior Court,
45 Cal.Rptr.2d 888 (Cal. Ct.
App. 1995)(capital case)
(writ
action against trial court)(Ake's requirement that defendant have "'access to a
competent psychiatrist' who 'will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense" meant defendant was entitled
to an expert specializing in Battered Women's Syndrome (BWS) and Post Traumatic
Stress Disorder (PTSD), and if an expert with the required expertise could not be found
among a panel of court-approved experts, defendant was entitled to the appointment of
the expert she chose)
Bright v. State,
455 S.E.2d 37 (Ga. 1995), cert. denied,
116 S.Ct. 196 (1995)(capital case)
(although mental condition was not so significant that refusal to provide expert at
guilt-innocence phase was error, it was error to deny request for expert for penalty
phase where defendant had a history of crack and alcohol abuse, depression, suicidal
thoughts, and poor impulse control; defendant was entitled to appointment of a
psychiatrist and toxicologist, but defendant's head injuries and studies showing
statistical prevalence of brain damage among death row population was insufficient,
standing alone, for appointment of neurologist; diminished capacity was "perhaps" only
defense at sentencing and experts "could have assisted Bright in that defense")
Binion v. Commonwealth,
891 S.W.2d 383 (Ky.
1995)
("appointment of . . . neutral
mental health expert was insufficient to satisfy the constitutional requirement of due
process because" expert was not available to assist in evaluation or presentation of
defense of man whom court expert determined to be borderline retarded,
schizophrenic, and in need of antipsychotic drugs "to control somatic delusions" like
those defendant claimed to have experienced before and during crime; court expert
was not adequate to defense's needs because he was not familiar with defendant's
history of mental health problems and treatment)
State v. Eastlack,
883 P.2d 999, 1020 (Ariz. 1994), cert. denied,
115 S.Ct. 1978 (1995)(capital case)
(conviction and sentence reversed because defendant was denied
a continuance to obtain expert psychological testing and assistance; court noted
presence of several "red flags" including defendant's use of cocaine and history of
mental illness; held that remand was required because "the appointment of an
independent expert might well have produced mitigating evidence")
State v. Craig and State v. Harris,
637
So.2d 437, 447 (La. App. 1994) (capital
cases)
(consolidated appeals from writ actions concerning whether funds for indigent
defense services were to be paid out of local or state fisc; both defendants were entitled
to an investigator, mitigation expert and a psychologist)
State v. Murray,
644 A.2d 1040 (Me.
1994)
(defense showed necessity of mental health
expert where psychologist opined that pain from tooth abscess may have "impaired
[defendant's] judgment or attention to matters of right and wrong," and defense was that
this "abnormal condition" created reasonable doubt about defendant's state of mind;
trial court violated due process by first ruling that the abnormal condition was a question
for the jury and then refusing to instruct jury on that question because defendant failed
to introduce testimony of psychiatrist on that issue)
In Re Wilson,
509 N.W.2d 568 (Minn.
1993)
("A defendant's right to adequate
resources under Ake is a personal right, not a right accruing to the public defender
system generally. The government is obligated to vindicate that right by means of
public defender financing if available, but, in any event, by some means.")(when state-funded public defender runs out of money, the counties must bear the costs of
providing a defendant with necessary investigative and psychiatric services)
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 for child who is retarded or insane))
Washington v. State,
836 P.2d 673 (Okla. Crim.
App. 1992)(capital case)
(state
alleged malice aforethought and future dangerousness; defense introduced testimony
regarding defendant's use of PCP at time of crime, his slowness, learning disability, and
violent behavior change after head injury, evidence which was "more than adequate" to
show entitlement to psychiatric expert; but, although Ake applies to non-psychiatric
experts, defendant was not entitled to appointment of odontologist or chemist given that
evidence they would discuss was less damaging and there was little risk of error)
State v. Boyd,
418 S.E.2d 471 (N.C. 1992),
cert. denied, 117 S.Ct. 778 (1997)(capital
case)
(although new trial was granted on different issue, court, citing Ake, holds it was
error to deny defendant's request for appointment of mental health expert on grounds
that defendant had retained counsel)
State v. Parks,
417 S.E.2d 467 (N.C.
1992)
(error to deny funding for psychiatrist when
the defense made "particularized showing" of defendant's long-term mental illness
(including a diagnosis of schizophrenia and a history of being prescribed neuroleptic
medications), defense intended to rely on the insanity defense at trial, and the only
physician who had evaluated the defendant had given opinions "somewhat favorable to
defendant" but was a state's witness)
People v. Kegley,
529 N.E.2d 1118 (Ill. App.
2. Dist. 1988)
(despite trial court's refusal
to let defendant present witnesses at pretrial hearing, showing that defendant had
history of psychiatric problems, and, on the day of arrest, had needle tracks, asked
police to shoot him, and banged his head on cell wall and bars was more than enough
to meet significant factor test; trial court abused discretion and violated due process by
denying request for mental health expert)
People v. Vale,
519 N.Y.S.2d 4 (N.Y. App.
Div. 1987)
(error under Ake to deny
psychiatric assistance on grounds that defendant had not shown that insanity defense
"might succeed"; defendant had been declared incompetent for trial by court appointed
psychiatric experts who found defendant to suffer from anxiety, major depression,
previous suicidal ideation, childhood hyperactivity, uncontrolled diabetes, borderline
intelligence, and inability to read due to attention deficit; because these doctors, whom
defendant called to testify, had formed no opinion about mental state at time of offense,
defendant was denied "all realistic opportunity to defend himself effectively")
Holloway v. State,
361 S.E.2d 794, 795 (Ga.
1987)(capital case)
(error to deny funds
for a psychiatric expert when the defendant had an IQ of 49 and his mental condition
was virtually the only issue at both the guilt-innocence and sentencing phases; the trial
judge had rejected the defendant's attempt at pleading guilty because he found that
defendant "obviously does not understand the distinction between what happens when
he pleads guilty and what happens when he pleads not guilty, does not know his date of
birth...")
Harris v. State,
352 S.E.2d 226 (Ga.
1986)
(conviction reversed where defendant's
strange behavior gave rise to temporary insanity defense, and the court failed to
appoint a forensic psychiatrist or psychologist to determine whether mental condition
would likely be a significant factor at trial)
State v. Gambrell,
347 S.E.2d 390 (N.C.
1986)(capital case)
(where a pre-trial
evaluation at a mental facility found mental illness, defendant met threshold
requirement for entitlement to a psychiatrist to assist defense counsel in evaluating,
preparing and presenting a defense at trial because sanity was a significant factor;
appointment of psychiatrist employed by state can satisfy Ake, if he or she serves in
defense capacity)
State v. Poulsen,
726 P.2d 1036 (Wash. Ct.
App. 1986)
(where diminished capacity
was only defense, it was error to refuse to appoint psychiatrist after defendant proffered
evidence of an organic brain disorder, specifically that he had fits of rage following head
injuries)
In re Allen,
506 A.2d 329 (N.H.
1986)
(opinion by now-Justice David Souter)(in juvenile
delinquency proceeding, trial court abused its discretion in failing to provide funding for
a private psychologist where trial court made express finding that private psychologist's
testimony was crucially significant in leading to dismissal of nine of 11 charges)