Defendants' Rights
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* Maureen S. Burrows
* D. Clay Kelly

## A Defendant's Right to an Independent Psychiatric Expert Does Not Include the Provision of State Funds to Hire an Expert Chosen by the Defendant

In *Davis v. Norris*, 423 F.3d 868 (8th Cir. 2005), the Eighth Circuit Court of Appeals addressed the claim that a state court's refusal to provide funds for the defense to hire a psychiatrist to assess potential mitigating factors at the capital sentencing phase of a trial violates due process. In a narrow interpretation of *Ake v. Oklahoma*, 470 U.S. 68 (1985), the court rejected the proposed expansion of rights to which an indigent defendant is entitled.

### Facts of the Case

Don William Davis received the death penalty for the murder of Jane Daniel, plus 80 years' imprisonment for burglary and theft. Mr. Davis, an indigent defendant, pled not guilty by reason of mental disease or defect, and, per Arkansas law, the court suspended proceedings and ordered a psychiatric evaluation. Dr. Jenkins, a psychiatrist at a regional mental health clinic, concluded that Mr. Davis was not incompetent or insane, but that he did show evidence of attention deficit hyperactivity disorder (ADHD). Mr. Davis then underwent a 30‐day extensive evaluation at the Arkansas State Hospital in which examiners also concluded that Mr. Davis was competent to stand trial and was not insane at the time of the alleged crime. Mr. Davis subsequently moved for funds ($2,000) to hire Dr. Marr, a clinical psychologist, to perform an independent psychological evaluation for the purpose of assisting the defense in the delineation of mitigating factors which could be at issue in the penalty phase. The defense cited *Ake v. Oklahoma*, 470 U.S. 68 (1985) as precedent for this additional evaluation. The defense contended that the first two evaluations did not specifically address mitigating factors and were “undertaken on behalf of the court and [were] not protected by physician‐patient confidentiality or evidentiary privilege.” The trial court denied the request and the trial proceeded. Since it had no substantiating evidence, the defense did not rely on an insanity defense at trial. Mr. Davis was found guilty. Dr. Jenkins testified during the penalty phase at the request of the defense.

After exhausting his state court remedies, Mr. Davis filed a petition for a writ of *habeas corpus*. The United States District Court for the Western District of Arkansas denied but granted a certificate of appealability on two issues: (1) the state's denial of funds to hire an independent psychiatric expert to present mitigation evidence at the sentencing phase was possibly a violation of due process (per *Ake v. Oklahoma*), and (2) the failure of Mr. Davis' counsel to argue *Coulter v. State*, 804 S.W.2d 348 (Ark. 1991), pertaining to the allowance of funds, was a possible violation of right to effective counsel.

### Ruling and Reasoning

Judge Murphy, of the Eighth Circuit Court of Appeals, denied the petition, maintaining that “Dr. Jenkins' assistance met the requirements of *Ake*, and that the court's denial of funds was not contrary to or an unreasonable application of clearly established federal law.”

According to Judge Murphy, the *Davis* case was not, as Mr. Davis posited, decisively parallel to *Ake*. Ake mounted an insanity defense; Mr. Davis did not. Ake introduced future dangerousness as an aggravating factor; Mr. Davis did not. Moreover, the state did not introduce any psychiatric factors at Mr. Davis' sentencing. *Ake* held that When the State at a capital sentencing proceeding presents psychiatric evidence of the defendant's future dangerousness … due process requires access to a psychiatric examination on relevant issues, to a psychiatrist's testimony, and to assistance in preparation at the sentencing phase.

Mr. Davis did not satisfy the first component of the requirement, thus negating any right to further psychiatric services.

Even so, the trial court still provided two psychiatric examinations to discern any relevant issues, and Dr. Jenkins testified for the defense at the sentencing phase, willingly answering questions for the defense, as was affirmed by defense counsel at a postconviction hearing. The Eighth Circuit found that the court‐appointed expert, as well as the extensive evaluation at the state hospital, more than satisfied the requirements of *Ake*. Securing an additional $2,000 for a third evaluation by a psychologist specifically selected by Mr. Davis was viewed as superfluous and “beyond the assistance required by *Ake*.” Here, Judge Murphy is not paying homage to *dicta*, but, alternatively, is referring to the Supreme Court's warning that *Ake* should not be interpreted to mean “that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.”

### Discussion

The *Ake* decision is itself a broad extension of *Gideon v. Wainwright*, 372 U.S. 335 (1963). *Gideon*, a sentinel case for defendants' rights, guaranteed indigent defendants access to an attorney. In *Gideon*, the role of the attorney is clear. In *Ake* the role of the psychiatrist is not clear. Mr. Davis' argument is a consequence of the confusion innate to such far‐reaching decisions as *Ake*, where the Court ruled that the State was constitutionally bound to provide “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense,” as well as providing “assistance in preparation” of mitigating factors “at the sentencing phase.”

But a psychiatrist is not an attorney. An attorney, appointed by the court, must defend his or her client. Should a court‐appointed psychiatrist, per *Ake*, defend the client as well? Mr. Davis' argument relies on an interpretation of *Ake* that would require the “*Ake* psychiatrist” to act as a partisan rather than an independent evaluator. In his dissent, Chief Justice Rehnquist criticized the Court's ruling in *Ake* as too “broad,” asserting that the Court should “make clear that the entitlement is to an independent psychiatric evaluation, not to a defense consultant.”

An “appropriate” psychiatric evaluation does not include designing the evaluation for a predetermined, favorable outcome, nor should it include a “search” for ways to exculpate the defendant. It should be unbiased and can then be scrutinized by the attorney for ways in which to use it or not, to aid in the client's defense. Per *Ake*, the defendant should be entitled to only one competent opinion—whatever the conclusion—from a psychiatrist who truly acts independently of the prosecutor's office. Although the independent psychiatrist should be available to answer defense counsel's questions before trial, and to testify if called, the court clarified that there is no justification for a defendant's entitlement to an opposing psychiatric view, or to a “defense‐oriented” psychiatric advocate.

In the *Davis* appeal, the Eighth Circuit did not address the possibility that *Ake* endorsed “partisan” psychiatric evaluations. The court simply held: (1) that Mr. Davis did not meet the basic criteria to mount an insanity defense, thus negating the need for an appointed psychiatric expert at the sentencing phase, and (2) that the lower court's application of the law was not egregious. However, the “*Ake* issues” are not resolved and will undoubtedly be revisited in the future.

*   American Academy of Psychiatry and the Law