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No Second Chances: What to Do After a Botched Execution

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Ohio tried and failed to execute Alva Campbell. The state shouldn't get a second chance.
The pathos and problems of America's death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich set June 5, 2019, as a new execution date.
This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.
Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.
By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America's death-row inmates, the passage of time had inflicted its own punishments.
The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailm…

Alabama Death-Row Inmate Wins High Court Battle Over Mental Health Experts

A divided Supreme Court ruled Monday that an Alabama death-row inmate was denied his constitutional right to an independent mental health expert to help the defense team in his murder trial.

James Edmund McWilliams Jr. challenges his death sentence for robbing, raping and killing convenience store clerk Patricia Reynolds in Tuscaloosa, Ala., in 1984.

Months before he murdered Reynolds, McWilliams attended couple's therapy with his pregnant wife and underwent psychological testing, which found that he is "extremely disturbed" and "has much internal anxiety."

While three doctors nevertheless concluded he was competent to stand trial, his defense counsel portrayed McWilliams during the penalty phase of his trial as someone who grew up with significant psychological problems. McWilliams and his mother testified that he sustained head injuries as a child and had a history of blacking out and hallucinating.

An expert appointed by the trial judge reported his findings simultaneously to the court, the prosecution and the defense 2 days before McWilliams' sentencing hearing.

The expert diagnosed McWilliams with organic personality syndrome, but defense counsel did not have a chance to discuss the findings with the expert or learn what the diagnosis meant for the purposes of mitigation.

Last year, McWilliams petitioned the U.S. Supreme Court for a writ of certiorari, arguing he was "precluded from meaningfully participating in the judicial sentencing hearing and did not receive a fair opportunity to rebut the state's psychiatric experts."

His case is nested inside the high court's 1984 decision in Ake v. Oklahoma, which held that poor criminal defendants using a defense of insanity are entitled to an expert to help support their claim.

McWilliams was charged by Alabama just a month after Ake was decided. His appeals over the years have been unsuccessful, with the 11th Circuit affirming the lower courts' denial of relief.

5 months after agreeing to take up the case, the Supreme Court reversed the 11th Circuit and ruled 5-4 Monday that McWilliams did not receive the assistance he was entitled to under Ake.

Justice Stephen Breyer, writing for the majority, said that Ake does not require just an examination, but also requires the state to provide the defense access to a competent psychiatrist who will also help in evaluation, preparation and presentation.

"We are willing to assume that Alabama met the examination portion of this requirement by providing for Dr. [John] Goff's examination of McWilliams. But what about the other 3 parts?" Breyer wrote. "The dissent emphasizes that Dr. Goff was never ordered to do any of these things by the trial court. But that is precisely the point. The relevant court order did not ask Dr. Goff or anyone else to provide the defense with help in evaluating, preparing, and presenting its case."

McWilliams' requests for additional assistance under Ake were rejected by the judge in his case, according to the ruling.

"Since Alabama's provision of mental health assistance fell so dramatically short of what Ake requires, we must conclude that the Alabama court decision affirming McWilliams's conviction and sentence was 'contrary to, or involved an unreasonable application of, clearly established Federal law,'" Breyer said.

The Supreme Court said the 11th Circuit should determine on remand "whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires could have made a difference" in McWilliams' trial.

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonio Sotomayor and Elena Kagan joined Breyer in the majority.

Justice Samuel Alito wrote the dissenting opinion, and was joined by Chief Justice John Roberts and Justices Clarence Thomas and Neil Gorsuch.

Alito said Ake "did not clearly establish that a defendant is entitled to an expert who is a member of the defense team."

"In Ake, we held that a defendant must be provided 'access to a competent psychiatrist' in 2 circumstances: 1st, 'when [the] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial,' and, 2nd, at the sentencing phase of a capital trial, 'when the State presents psychiatric evidence of the defendant's future dangerousness,'" Alito wrote.

"The question that we agreed to review concerns the type of expert that must be provided. Did Ake clearly establish that a defendant in the 2 situations just noted must be provided with the services of an expert who functions solely as a dedicated member of the defense team as opposed to a neutral expert who examines the defendant, reports his or her conclusions to the court and the parties, and is available to assist and testify for both sides? Did Ake speak with such clarity that it ruled out 'any possibility for fairminded disagreement'? The answer is 'no.' Ake provides no clear guidance one way or the other."

Source: courthousenews.com, June 21, 2017


Supreme Court ruling in capital case mandates psychiatric assistance for indigent defendants


US Supreme Court
The US Supreme Court ruled 5-4 on Monday in favor of a man who has been sentenced to death in Alabama, holding that he had not received "the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition" as required after the 1985 case Ake v. Oklahoma. James McWilliams was convicted of raping and killing a convenience store clerk in 1984. At trial, the defense counsel repeatedly moved to continue the court proceedings so they could have an "expert" evaluate McWilliams' psychiatric report. The judge denied the requests, telling the defense they could have until 2 p.m. on the day of sentencing to look over the report, which the defense had only acquired 2 days earlier. The judge, taking the position that McWilliams was faking and exaggerating his mental illness, sentenced him to death.

Writing for the majority, Justice Stephen Breyer pointed out that the precedent set in Ake goes beyond simply examining an indigent defendant, but also requires assistance:

We are willing to assume that Alabama met the examination portion of this requirement by providing for Dr. Goff's examination of McWilliams. But what about the other 3 parts? Neither Dr. Goff nor any other expert helped the defense evaluate Goff's report or McWilliams' 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' 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.

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, issued a strongly-worded dissent, claiming the Ake decision was intentionally ambiguous, and that more deference should have been granted to Alabama's Supreme Court ruling.

The death penalty continues to be a point of contention across the US. Earlier this month the Supreme Court lifted the stay of execution granted by the US Court of Appeals for the Eleventh Circuit for Robert Melson, who challenged the use of midazolam in the 3-drug cocktail used in Alabama executions, arguing that it does not properly insensate prisoners to the pain of lethal injection. In May the Delaware House of Representatives passed a bill that would reinstate the death penalty. In April the Texas Department of Criminal Justice sued the Food and Drug Administration for banning a shipment of lethal injection drugs to prison officials. Earlier in April Amnesty International released an annual report revealing the US to not be among the world's top 5 executioners since 2006. However, in March the Mississippi house approved a bill allowing firing squad executions. In March, Florida Governor Rick Scott signed a new bill which stated that the death penalty may only be imposed by a judge upon unanimous recommendation from the jury. In January Ohio's lethal injection protocol was deemed unconstitutional under the Eighth Amendment.

Source: jurist.org, June 21, 2017

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