The pervasive tension in the law between substantive justice and procedural regularity can be especially pronounced in death penalty cases. The high stakes in capital cases seem to cry out for attention to substantive justice, but the Justices of the Supreme Court—and Congress, too, to some extent—have spent decades trying to perfect the procedures in death penalty cases, striving to ensure fairness and reliability while still allowing executions to proceed. That effort may have been preordained for failure, and a growing number of Justices, past and present, have wound up finding it futile. But the Court continues to try to reconcile the death penalty with the demands of due process. Consequently it is called upon to decide, in case after case, how much to focus on whether substantive justice is being done, and how much to focus on process—whether the state and the defendant have been provided with adequate opportunities to develop and to present their respective sides of the story, and whether the machinery of adjudication has operated as intended. Often the line between substance and procedure gets blurred, and the tension is between different levels of procedural abstraction: should the question be whether the process was fair, or whether the process for assessing the fairness of the process was itself fair?
McWilliams v. Dunn is a good example. James McWilliams was convicted and sentenced to death in 1986 for raping and murdering a convenience store clerk; he has been sitting on Alabama’s death row ever since. The Supreme Court ruled that the trial court that tried and sentenced McWilliams failed to comply with Ake v. Oklahoma, a 1985 decision requiring that an indigent defendant must be given access to a psychiatric expert to assist the preparation of his or her defense, if the accused’s mental condition at the time of the crime is in issue. McWilliams’s appointed counsel had argued unsuccessfully, both to the jury and to the judge, that McWilliams had suffered head injuries as a child that had left him neurologically impaired, and that his impairment should be treated as mitigating circumstance. That argument had been undercut by the findings of a panel of state psychiatrists who examined McWilliams before trial and concluded that he was not mentally ill; one member of the panel concluded, furthermore, that McWilliams was trying fake mental illness. Two days before McWilliams was sentenced, though, an Alabama state neuropsychologist, Dr. John Goff, filed a report finding that McWilliams suffered from “genuine neuropsychological problems” consistent with childhood head injuries, although those problems were not as severe as McWilliams tried to suggest. McWilliams’s lawyer asked for a continuance to review Goff’s report and to consult with a psychiatrist or psychologist about its findings, but the trial court denied the request.
The Supreme Court granted certiorari in McWilliams to answer a question that has divided the lower courts: whether the psychiatrist guaranteed by Ake must be completely independent of the prosecution. Ultimately, though, the Justices declined to reach that question. They concluded that the trial court has failed to meet “even Ake’s most basic requirements,” because even if Goff could qualify as the expert guaranteed by Ake, he was never asked to help McWilliams prepare his defense; all Goff did was examine McWilliams and report his findings. The trial court didn’t ask him to do anything more, and the defense didn’t have an opportunity to ask him to do anything more.
On one level, then, McWilliams is a simple exercise in error correction: the Alabama trial court failed to give McWilliams meaningful access to a mental health expert, even an expert that was shared with the prosecution. And the Court didn’t throw out the death sentence entered against McWilliams; instead it remanded the case for a determination whether the Ake error had been harmless. A straightforward and narrow decision, you might think.
Nevertheless the Supreme Court split 5-4 in this case, along the standard ideological lines. Justice Breyer wrote the majority decision, joined by Justices Ginsburg, Kagan, Kennedy, and Sottomayor. Justice Alito’s dissent was joined by Chief Justice Roberts and Justices Gorsuch and Thomas. What bothered the dissenters was that the Court didn’t limit itself to the issue on which it had granted certiorari. And this really bothered the dissenters. The dissent was longer than the majority opinion. Justice Alito accused the majority of “a most unseemly maneuver” that was “acutely unfair to Alabama,” because the state wasn’t on notice that it needed to brief the issue the Court wound up finding decisive. For the dissenters, the heart of the matter wasn’t whether Ake had been violated, let alone whether McWilliams really suffered from a psychological impairment that made the death penalty inappropriate—it was whether Alabama had been given an adequate opportunity to argue that Ake hadn’t been violated in the particular way that the Court thought it had.
The death sentence against McWilliams will remain in place unless, on remand, the Eleventh Circuit concludes that the failure to have Dr. Goff assist the defense had a “substantial and injurious effect or influence” on the outcome of the case. Justice Breyer suggested that this might in fact have happened. He noted that “the trial judge relied heavily on his belief that McWilliams was malingering,” so his view of the case might have been altered if defense counsel had had the assistance of experts who could have explained that malingering can be consistent with serious psychological impairment.
So here is a thought experiment. Suppose the Eleventh Circuit does decide that the Ake error in this case had a “substantial and injurious effect or influence,” and suppose that it therefore throws out the death sentence against McWilliams. Would that result be “acutely unfair” to the State of Alabama, because it never was told it should argue before the Supreme Court that the assistance provided by Dr. Goff fully satisfied Ake? That would amount to saying that Alabama should have had a better chance to argue that the expert assistance McWilliams received was all the Constitution required, even though further assistance—of a kind that prosecutors, and wealthy defendants, obtain as a matter of course—could well have saved his life. How “unseemly” will it have been that Alabama didn’t have a better opportunity to see if that argument would have allowed it to kill James McWilliams?
The Supreme Court often finds that criminal defendants—including criminal defendants in capital cases—have waived arguments and procedural protections that their lawyers didn’t invoke, even when the waivers were unintentional, even when the arguments and procedural protections seem important, and even when the fault lies entirely with the lawyers, not with the defendants. If you are looking for unseemly maneuvers in the Supreme Court’s handling of capital cases, McWilliams is an odd place to start.
David Alan Sklansky is Stanley Morrison Professor of Law at Stanford Law School and a former federal prosecutor.