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To win, defendant McWilliams must show not only that he needed an independent expert advisor-witness, but also that the state’s failure to provide one violated a clearly established constitutional requirement.

Supreme Court to Decide If Defendant Claiming Mental Illness Entitled to Expert Witness

The U.S. Supreme Court recently heard a case (McWilliams v. Dunn) raising the issue of whether an indigent criminal defendant claiming mental illness is entitled to get an independent expert witness to assist the defense.

Over three decades ago, in December 1984, Patricia Reynolds, a convenience store clerk in Tuscaloosa, Alabama, was robbed, raped, and murdered. Brought to trial for the crimes, James McWilliams, at his lawyer’s request, received a court-ordered psychiatric assessment, to examine his sanity, competency, and any mitigating factors.

The testing was overseen by the state Department of Corrections, and a panel of three state-employed doctors reported McWilliams was competent to face trial, was not mentally ill at the time of the crimes, and was faking psychotic symptoms.

After McWilliams was found guilty, at the trial’s penalty phase prosecutors offered as expert witnesses two of the state doctors who had examined McWilliams and found him to be sane but feigning psychosis. The only witnesses for the defense were McWilliams and his mother, who spoke about childhood head injuries that they thought were linked to his various disorders, including chronic headaches, black-outs, hallucinations, and memory problems.

The court also admitted a clinical psychologist’s report, done a few months before the crime spree, into evidence, which detailed psychiatric test results and concluded McWilliams probably had serious pathology. That psychologist did not appear when subpoenaed, however, and defense witnesses were unable to explain or discuss the report’s technical features. The jury called for the death penalty.

Before the sentencing hearing, McWilliams’ lawyer asked for more neurological and psychiatric testing; the court again ordered the state corrections department to oversee that. The psychologist in charge said organic impairment was possible, and suggested the court order further testing by a clinical neuropsychological specialist not employed by the state.

The court then named a specialist, who submitted a five-page report just two days before the sentencing hearing. McWilliams’ defense counsel didn’t receive all his client’s medical and psychiatric records from the state corrections system until the morning of that hearing.

Rejecting counsel’s request for more time to review the material, the court determined McWilliams was not psychotic, and any brain dysfunction he might have did not reach the level of a mitigating factor. In view of aggravating factors — a previous rape-robbery conviction, the brutal attack and execution-style shooting of Reynolds, and evidence McWilliams was malingering — the judge sentenced him to death by electrocution.

McWilliams’ lawyer next went to federal court, attacking the state’s failure to provide an independent expert witness to review and explain the technical issues in a mental illness defense; he lost in federal district court and a split appellate panel.

To win, McWilliams must show not only that he needed an independent expert advisor-witness, but also that the state’s failure to provide one violated a clearly established constitutional requirement. The closest Supreme Court decision, a 1986 case that found Oklahoma wrongly withheld all psychiatric review from an indigent defendant whose mental health was a central issue, didn’t decide whether an independent expert was required, or whether it would be sufficient for the defendant to be reviewed by state mental health experts, as McWilliams was.

At the April 24 hearing, however, some observers thought they saw indications that swing vote Justice Anthony Kennedy might side with the court’s four liberal justices, and handing McWilliams a new review of his sentence.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to The Huffington PostNew York Daily News, and Prison Legal News. He can be found online at and

About Christopher Zoukis

Christopher Zoukis, a writer currently incarcerated at FCC Petersburg (Medium), is an impassioned and active prison education advocate, a legal commentator, and a prolific writer of books, book reviews, and prison law articles. While living in federal prison at various security levels, retaliations for his activism have earned him long stretches in solitary, or "the hole." While in prison, he has earned numerous academic, legal, and ministerial credentials. Christopher is very knowledgeable about prison-related legal issues, prison policy, federal regulations, and case law. He is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons (Middle Street Publishing, 2017), College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014) and thePrison Education Guide (Prison Legal News Publishing, 2016).The Federal Prison Handbook is an IndieReader Discovery Awards winner. A regularly featured contributing writer for The Huffington Post and Prison Legal News, the nation's most prominent prison law publication, Christopher has enjoyed significant media exposure through appearances with the Wall Street Journal's Market Watch,,, In These Times, The Jeff McArthur Show, The Simi Sara Show,, 88.9 WERS' award-winning "You Are Here" radio segment, and The Examiner. Other articles and book reviews appeared in The New York Journal of Books, the Kansas City Star, The Sacramento Bee, Blog Critics, Midwest Book Review, Basil and Spice, Seattle Post-Intelligencer, SF Gate, AND Magazine,, Rain Taxi, and the Education Behind Bars Newsletter, with content syndicated by the Associated Press, Google News, and Yahoo News. He established three websites:,, and, and was a former editor of the Education Behind Bars Newsletter. In 2011, his fiction won two PEN American Center Prison Writing Awards for a screenplay and a short story. He taught a popular course on writing and publishing to over 100 fellow prisoners. Today Christopher is successfully working on a Bachelor's Degree in Interdisciplinary Studies (Business/Law) from Adams State University. Following his 2016 graduation, he plans on attending Adams State University's MBA program. He regularly advises fellow prisoners and prison consultants about legal issues and federal regulations governing the Federal Bureau of Prisons operations. Upon release he plans to attend law school and become a federal criminal defense attorney. Christopher will not allow incarceration to waste his years or halt the progress of his life. He began his prison terms as a confused kid who made poor decisions but is today determined to create a better life. "We can't let the past define us," he says. "We have to do something today to make tomorrow what we want it to be."