What Happens When One State Flouts the Constitution?

In many capital cases, the defendant’s mental health is a central issue. Serious mental conditions—such as brain injuries, delusions that leave the person out of touch with reality, PTSD brought on by combat or traumatic childhood abuse—are often crucial to the issues the jury must decide, not the least of which is whether to sentence the defendant to life in prison without parole or impose the death penalty.

Lawyers may be well-versed in the law and advocacy, but they are not psychiatrists or psychologists. For that reason, the U.S. Supreme Court has clearly established that the government must provide defendants facing the death penalty with “access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense’” if they need such an expert and can’t afford one.

It may seem a technical issue, but it assuredly is not. In short, the need for expert assistance in a capital trial is so vital that anything less violates the defendant’s rights to counsel and a fair trial.

The simplest way for states to comply with this constitutional requirement—at least for those defendants who cannot pay for their own experts—is to provide a qualified expert who is specifically retained for the defense. The overwhelming majority of jurisdictions take this straightforward approach.

But Arkansas is an outlier. For more than three decades, the state has flouted the Court’s directive and taken the position that a mental health exam by a doctor at the state hospital, who may or may not respond to requests for assistance from defense counsel, is sufficient to meet the demands of the Constitution. A man on death row in Arkansas, Don Davis, has petitioned the Supreme Court to end the state’s practice of requiring the defense and prosecution to share the same state mental health professional in death penalty cases.

When Mr. Davis was on trial for his life in Arkansas, the trial court ordered two mental health exams, one by a state-contracted doctor and the other by a doctor at the state hospital. In an effort to understand the complex mental health information in their reports, Mr. Davis’s counsel requested funds to hire an independent mental health expert, but the court denied the request. As a result, the jury never learned the full extent of Mr. Davis’s cognitive limitations and how those limitations affected his own understanding of his conduct. The bottom line is that the jury didn’t get the evidence it needed to make an informed decision about whether Mr. Davis should live or die.

Arkansas does not meet its constitutional duty by simply ordering a mental health exam at the state hospital. The requirement extends beyond the exam to include an independent mental professional who is available to work with the defense. As the Court explained in Ake v. Oklahoma in 1985, “By organizing a defendant’s mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them.”

In addition, as the Supreme Court has made clear, an expert must both assist the defense and be independent from the prosecution to meet the demands of the Sixth Amendment. When the Court reaffirmed Ake last year in McWilliams v. Dunn—a case in which The Constitution Project filed an amicus brief—it considered the many ways that a mental health expert assists the defense, including evaluating exam reports and extensive medical records, translating that data into a legal strategy, helping to prepare for the direct and cross-examination of witnesses, and presenting testimony in support of the defendant’s mitigation case and other helpful testimony – none of which happened in Mr. Davis’s case. A majority of federal courts have held that a neutral expert available to both sides does not satisfy constitutional requirements. It’s high time that Arkansas be brought into line with the majority rule.

For the truth to come out through the adversarial trial process, people who can’t afford their own independent mental health experts must be provided with them. No defendant with financial means would voluntarily share their expert with the prosecution. Because of his poverty, Arkansas insists that Mr. Davis must take what the state will give him, even though his life depends on it. The Court has rejected this argument before—and it should accept Mr. Davis’s case to say so again.