Is a Defendant Claiming Mental Illness Entitled to an Expert Witness?

  A defendant sentenced to death for a 1984 crime is requesting the right to have  an independent expert witness to assist with a mental illness defense.

 A defendant sentenced to death for a 1984 crime is requesting the right to have  an independent expert witness to assist with a mental illness defense.

By Christopher Zoukis

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 into evidence, which was done a few months before the crime spree, detailing psychiatric test results and concluding 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 not providing 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 finding 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 it might be sufficient if the defendant were reviewed by state mental health experts, as McWilliams was.

At the April 24 hearing, however, some observers thought that swing vote Justice Anthony Kennedy may side with the court’s four liberal justices, and hand 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, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and