- Associated Press - Monday, April 24, 2017

WASHINGTON (AP) - The Supreme Court seemed closely divided Monday about whether an Alabama death row inmate should get a new sentencing hearing because he did not have a mental health expert on his side when he was tried and sentenced to death more than 30 years ago.

The court has ruled previously that poor defendants whose mental health might be a factor in the criminal charges they are facing have a right to an expert’s evaluation. The justices are deciding whether the expert must be independent of the prosecution.

The outcome also could affect two Arkansas inmates who were spared execution last week by the Arkansas Supreme Court while the nation’s highest court considers the issue.

The question mainly arises in older cases because poor criminal defendants today, even in Alabama, routinely get a defense expert to assist in their cases.

In the Alabama case, a jury convicted inmate James McWilliams of raping and killing a convenience store clerk in Tuscaloosa. Prior to McWilliams’ sentencing, a state psychologist appointed by the trial judge determined that McWilliams had “organic brain damage” and other problems stemming from earlier head injuries. The report was delivered to the inmate’s lawyers two days before the sentencing hearing, followed by voluminous mental health records and a prison file showing that McWilliams was taking psychotropic drugs.

The judge refused a defense request to delay the hearing to digest the new material and sentenced McWilliams to death.

The court appeared divided between liberal and conservative justices, with Justice Anthony Kennedy holding the pivotal vote.

Justice Elena Kagan said the court-appointed psychologist did not meet the standard set out by the Supreme Court in its 1985 case of Ake v. Oklahoma.

“This is what the holding says. You’re entitled to somebody who will assist you in evaluating, preparing, and presenting your defense,” Kagan said in an exchange with Alabama Solicitor General Andrew Brasher.

But other justices said the court wasn’t so clear in the 1985 case. Maybe all the court decided defendants are entitled to is a court-appointed expert, without resolving anything about the expert’s independence, Justice Samuel Alito suggested.

“This is an opinion that is deliberately ambiguous, because there was probably disagreement among the members of the majority about how far they wanted to go,” Alito said.

Stephen Bright, representing McWilliams, said prosecutors will always have more resources than indigent defendants. He said the 32-year-old high court ruling was intended to provide some balance in the nation’s adversarial system of justice.

“And this certainly doesn’t put the defense in an equal position with the prosecutor, not by a long shot. But it at least gives the defense a shot, at least gives them one competent mental health expert that they can talk to, understand what the issues are, present them as best they can,” Bright said.

A decision in McWilliams v. Dunn, 16-5294, is expected by late June.

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