Arkansas Supreme Court Held That Law of the Case Doctrine Precluded Reconsideration of Challenges Previously Rejected in Death Penalty Case; an Evaluation at the State Hospital Was Sufficient to Satisfy Ake v. Oklahoma, and McWilliams v. Dunn Did Not Require the Court to Meet Any Additional Ake Requirements
In Ward v. State of Arkansas, 2018 Ark. 59 (Ark. 2018), the petitioner, Mr. Bruce Earl Ward, argued that he was entitled to an independent defense expert. Mr. Ward was convicted of murder and sentenced to death for strangling a convenience store worker in 1989. After multiple appeals and sentence reversals extending over many years, Mr. Ward was eventually resentenced to death by the Arkansas State Supreme Court in 1997. In a motion in 2017, Mr. Ward asserted that the court erred in not following precedent set in Ake v. Oklahoma, 470 U.S. 68 (1985) because he was not afforded an independent mental health expert to aid in his defense. In addition, Mr. Ward requested a stay of execution until the U.S. Supreme Court issued its opinion in McWilliams v. Dunn, 137 S.Ct. 1790 (2017), as it could have a direct impact on his case. The Arkansas Supreme Court granted the stay and took the motion to consider Mr. Ward's claims.
Facts of the Case
Mr. Ward was convicted of murder and sentenced to death for strangling a convenience store clerk in 1989. In Mr. Ward's first appeal (Ward I), the Arkansas Supreme Court affirmed Mr. Ward's capital-murder conviction; however, it reversed and remanded for resentencing based on evidentiary error (Ward v. State, 308 Ark. 415 (1992)). Mr. Ward was again sentenced to death in 1993 upon remand. On his case's second appeal in Ward II, the court again reversed his death sentence and remanded to a new sentencing trial because a court transcript was incomplete (Ward v. State, 321 Ark. 659 (1995)). In Ward III, Mr. Ward was again sentenced to death (Ward v. State, 338 Ark. 619 (1999)). Mr. Ward subsequently filed an appeal for post-conviction relief. In Ward IV, the court affirmed the circuit court's denial of Mr. Ward's petition (Ward v. State, 350 Ark. 69 (2002)). In 2010, Mr. Ward filed a petition asserting that he was incompetent at the time of his initial sentencing. The court denied this petition.
In 2013, Mr. Ward filed motions to recall mandates from his direct appeal (Ward I), resentencing (Ward III), and his denial of post-conviction relief (Ward IV). He asserted that an evaluation at the Arkansas State Hospital was insufficient to determine his competency to proceed and satisfy the ruling in Ake, which requires the state to provide, when applicable, a psychiatric evaluation to an indigent defendant. The Arkansas State Supreme Court denied all three motions in subsequent rulings. Following this, Mr. Ward again filed a motion to recall his death-sentence mandate. He contended that he was entitled to an independent mental health expert under Ake, that the court misinterpreted Ake, and that the court should postpone his execution as McWilliams could be a landmark case that might impact its ruling. On April 17, 2017, the Arkansas State Supreme Court suspended Mr. Ward's execution. After the U.S. Supreme Court issued its opinion in McWilliams on June 19, 2017, the Arkansas State Supreme court ruled to deny Mr. Ward's motion and lifted the stay of execution.
Ruling and Reasoning
The Arkansas Supreme Court denied Mr. Ward's motion to recall the mandate from his resentencing in Ward III. This reaffirmed his death sentence. The court referenced Robbins v. State, 353 Ark. 556, 663 (Ark S.C. 2003), where it opined that the recall of a mandate is to only be done to “avoid a miscarriage of justice” or “to protect the integrity of the judicial process.” It referenced Ward VII, where the court wrote, “As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law” (Ward v. State, 2015 Ark 62, p 5). It added that doctrine of law of the case asserts that the decision of an appellate court establishes law of the case for the trial upon remand.
The court addressed Mr. Ward's claim that the court did not meet the requirements set out in Ake to assist the defense with a mental health expert to evaluate, prepare, and present a defense. According to the U.S. Supreme Court's holding in Ake, when sanity at the time of the offense is likely to be a significant factor at trial, due process requires that a state provide access to a mental health expert. In February 1997, Mr. Ward filed a motion for appropriation of funds for an independent mental health expert to assist his defense pursuant to Ake. The circuit court subsequently denied this motion. In October 1997, a forensic evaluation team attempted to complete a court order to assess Mr. Ward. Mr. Ward refused this evaluation stating, “I am competent … I am not going to submit to evaluation” (Ward, p 550). Dr. Michael Simon reported, “There was no evidence to indicate [Mr. Ward's] unwillingness was due to mental disease or defect” (Ward, p 550). The court additionally reviewed a report from Dr. William Logan, who examined Mr. Ward in October 2008 at Varner Supermax Prison. Dr. Logan diagnosed Mr. Ward with schizophrenia, paranoid type as evidenced by a preoccupation with persecutory and grandiose delusions, occasional hallucinations, and disorganized thinking. Dr. Logan provided the opinion that Mr. Ward was not competent to be executed. Dr. Logan also reported that Mr. Ward suffered from paranoid schizophrenia at the time of his 1997 trial and that he was not competent to proceed at that time. The court opined that Dr. Logan's report was of limited support as he examined Mr. Ward only on one occasion 11 years after his initial sentencing.
The court ruled that “a defendant's rights are adequately protected by an examination at the state hospital, an institution that has no part in the prosecution of criminals.” The court added, “The defendant does not have a constitutional right to search for a psychiatrist of his personal liking or to receive funds to hire his own…. Ward simply failed to make a threshold showing that his sanity at the time of the offense or his competency to stand trial were significant factors” (Ward, p 553). The majority opinion concluded that McWilliams did not establish new law or answer the question that Mr. Ward was relying on in seeking relief in his motion.
Dissent
The dissent in this case argued that other jurisdictions have interpreted the minimum Ake requirements differently, citing, “a ‘neutral’ court psychiatrist does not satisfy due process” (Smith v. McCormick, 914 F.2d 1153, 1158 (9th Cir. 1990)). The dissent pointed out that in Ake, the U.S. Supreme Court asserted that once there is a preliminary finding that the defendant's mental condition is likely to be a significant factor at trial, that the defendant is indigent, and that the mental condition was relevant to the punishment that the defendant might suffer, then the state must “at a minimum assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense” (Ake, p 83). In McWilliams, the Court opined that Alabama met the examination portion of the Ake requirement; however, it had not met the requirement of the mental health expert assisting the defense. The mental health expert did not help the defense prepare examination of witnesses or testify at the hearing, and therefore fell short of Ake requirements. The dissent held that Arkansas similarly fell short of the minimum Ake requirements, given the Court's holding in McWilliams. Although the dissent did recognize the state's attempt to evaluate Mr. Ward, it opined that it neglected to fulfill the additional Ake requirements. The state's mental health experts did not assist the defense in evaluating their mental health report, translating this report into legal strategy for the defense, preparing its arguments in regard to Mr. Ward's defense, or help to prepare direct examinations or in testifying for the defense. The dissent additionally pointed out that the state's mental health expert who attempted to evaluate Mr. Ward actually testified for the state and not for the defense. The dissent wrote that in McWilliams the U.S. Supreme Court held that more is required in Ake than what Mr. Ward received.
Discussion
In Ward v. Arkansas, the Arkansas Supreme Court ruled that Mr. Ward was not entitled to a recall of the mandate of his resentencing in light of the controversial U.S. Supreme Court decision in McWilliams. For the forensic evaluator who participates in death-penalty litigation as a defense expert, it will be necessary to understand the complexity of one's role. The psychiatric expert must follow the principles of striving for objectivity and honesty, while respecting the defendant's expanded constitutional right to have a mental health expert who not only completes an evaluation and assessment but may be placed in the role of consultant as a member of the defense team, participating in strategic planning and presentation of mitigation, while adhering to foundational ethical principles consistent with the role of a forensic expert.
- © 2018 American Academy of Psychiatry and the Law
