COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, WARDEN, HOLMAN CORRECTIONAL FACILITY, ATTORNEY GENERAL, STATE OF ALABAMA, Respondents-Appellees.
Petitioner, James McWilliams, is an Alabama prison inmate awaiting execution for murder. A jury found McWilliams guilty as charged and recommended that he be sentenced to death. At McWilliams's sentencing hearing, his attorney requested, under Ake v. Oklahoma, [1] that the court appoint a psychiatrist to assist him in countering the State's argument that McWilliams's mental health status was insufficient to constitute a mitigating circumstance that warranted imposing a sentence of life imprisonment rather than death. The trial judge denied that request. The U.S. Supreme Court, reviewing our denial of McWilliams's application for a writ of habeas corpus under 28 U.S.C. § 2254, [2]concluded that the trial judge's refusal to provide the requested psychiatric assistance, which the Alabama appellate courts had upheld, [3] constituted a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law"-i.e., its holding in Ake v. Oklahoma-and reversed. McWilliams v. Dunn, 137 S.Ct. 1790, 1801 (2017) (quoting 28 U.S.C. § 2254(d)(1)). The Court remanded the case with the instruction that we consider, under Brecht v. Abrahamson, [4] whether McWilliams is entitled to the habeas writ and a new sentencing hearing. We conclude that he is.
We draw from the Supreme Court's opinion in McWilliams v. Dunn in describing McWilliams's murder prosecution, the circumstances that gave rise to his attorney's request for psychiatric assistance, and why the refusal of that request ran afoul of Ake.
[T]he State of Alabama charged McWilliams with rape and murder. The trial court found McWilliams indigent and provided him with counsel. It also granted counsel's pretrial motion for a psychiatric evaluation of McWilliams'[s] sanity, including aspects of his mental condition relevant to "mitigating circumstances to be considered in a capital case in the sentencing stage." . . . .
Subsequently a three-member Lunacy Commission examined McWilliams . . . . The three members, all psychiatrists, concluded that McWilliams was competent to stand trial and that he had not been suffering from mental illness at the time of the alleged offense. . . .
McWilliams'[s] trial took place in late August 1986. On August 26 the jury convicted him of capital murder. The prosecution sought the death penalty, which under then-applicable Alabama law required both a jury recommendation (with at least 10 affirmative votes) and a later determination by the judge. The jury-related portion of the sentencing proceeding took place the next day. The prosecution reintroduced evidence from the guilt phase and called a police officer to testify that McWilliams had a prior conviction. The defense called McWilliams and his mother. Both testified that McWilliams, when a child, had suffered multiple serious head injuries. McWilliams also described his history of psychiatric and psychological evaluations, reading from the prearrest report of one psychologist, who concluded that McWilliams had a "blatantly psychotic thought disorder" and needed inpatient treatment.
Although McWilliams'[s] counsel had subpoenaed further mental health records from Holman State Prison, where McWilliams was being held, the jury did not have the opportunity to consider them, for, though subpoenaed on August 13, the records had not arrived by August 27, the day of the jury hearing.
Five weeks before that hearing, the trial court ordered the Alabama Department of Corrections to respond to McWilliams's subpoena for mental health records. The court also granted McWilliams'[s] motion for neurological and neuropsychological exams. . . .
. . . Dr. John Goff, a neuropsychologist employed by the State's Department of Mental Health, examined McWilliams. On October 7, two days before the judicial sentencing hearing, Dr. Goff filed his report. The report concluded that McWilliams presented "some diagnostic dilemmas." On the one hand, he was "obviously attempting to appear emotionally disturbed" and "exaggerating his neuropsychological problems." But on the other hand, it was "quite apparent that he ha[d] some genuine neuropsychological problems." . . . .
The day before the sentencing hearing defense counsel also received updated records from Taylor Hardin hospital, and on the morning of the hearing he received the records (subpoenaed in mid-August) from Holman Prison. The prison records indicated that McWilliams was taking an assortment of psychotropic medications . . . .
The judicial sentencing hearing began on the morning of October 9. Defense counsel told the trial court that the eleventh-hour arrival of the Goff report and the mental health records left him "unable to present any evidence today." He said he needed more time to go over the new information. Furthermore, since he was "not a psychologist or a psychiatrist," he needed "to have someone else review these findings" and offer "a second opinion as to the severity of the organic problems discovered."
. . . [D]efense counsel moved for a continuance in order "to allow us to go through the material that has been provided to us in the last 2 days."[5] The judge offered to give defense counsel until 2 p.m. that afternoon. He also stated that "[a]t that time, The Court will entertain any motion that you may have with some other person to review" the new material. Defense counsel protested that "there is no way that I can go through this material," but the judge immediately added, "Well, I will give you the opportunity. . . . If you do not want to try, then you may not." The court then adjourned until 2 p.m.
During the recess, defense counsel moved to withdraw. . . . The trial court denied the motion . . . .
"It is the position of the Defense that we have received these records at such a late date, such a late time that it has put us in a position as laymen, with regard to psychological matters, that we cannot adequately make a determination as what to present to The Court with regards to the particular deficiencies that the Defendant has. We believe that he has the type of diagnosed illness that we pointed out earlier for The Court and have mentioned for The Court. But we cannot determine ourselves from the records that we have received and the lack of receiving the test and the lack of our own expertise, whether or not such a condition exists; whether the reports and tests that have been run by Taylor Hardin, and the Lunacy Commission, and at Holman are tests that should be challenged in some type of way or the results should be challenged, we really need an opportunity to have the right type of experts in this field, take a look at all of those records and tell us what is happening with him. And that is why we renew the Motion for a Continuance."
The prosecutor then offered his closing statement, in which he argued that there were "no mitigating circumstances." Defense counsel replied that he "would be pleased to respond to [the prosecutor's] remarks that there are no mitigating circumstances in this case if I were able to have time to produce . . . any mitigating circumstances." But, he said, since neither he nor his co-counsel were "doctors," neither was "really capable of going through those records on our own." . . .
The trial judge then said that he had reviewed the records himself and found evidence that McWilliams was faking and manipulative. . . .
McWilliams, 137 S.Ct. at 1794-97 (alterations within quotation marks in original) (citations omitted).
McWilliams appealed, arguing that the trial court had erred in denying him the right to meaningful expert assistance guaranteed by Ake. The Alabama Court of Criminal Appeals disagreed. It wrote that Ake's requirements "are met when the State provides the [defendant] with a competent psychiatrist." McWilliams, 640 So.2d at 991. And the State, by "allowing Dr. Goff to examine" McWilliams, had satisfied those requirements. Id.
"This was plainly incorrect," in the Supreme Court's view. McWilliams, 137 S.Ct. at 1800. The trial judge's conduct at the sentencing hearing "did not meet even Ake's most basic requirements." Id. 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." Id. (quoting Ake, 470 U.S. at 83, 105 S.Ct. at 1096) (alterations and emphasis in original).
met the examination portion of [the Ake] requirement by providing for Dr. Goff's examination of McWilliams. But what about the other three parts? Neither Dr. Goff nor any other expert helped the defense evaluate Goff's report or McWilliams'[s] extensive medical records and translate these data into a legal strategy. Neither Dr. Goff nor any other expert helped the defense prepare and present arguments that might, for example, have explained that McWilliams'[s] purported malingering was not necessarily inconsistent with mental illness . . . . Neither Dr. Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself.
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Having concluded that the Alabama courts unreasonably applied its holding in Ake, the Supreme Court remanded the case to us to decide if "access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered." Id. at 1801. We deem the phrase "would have mattered" to mean whether the denial of such assistance "would ...