NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 2: Capital Punishment Handbook: Pre-Trial And Preliminary Stage Issues

        2.5 Psychiatric And Other Expert Assistance
              2.5  Psychiatric And Other Expert Assistance
                    2.5.1  Retroactivity Of Ake V. Oklahoma
                    2.5.2  Harmless Error Applicable

To ensure that the ability to defend against criminal charges does not depend on a defendant’s wealth, the Supreme Court held that the Constitution requires a trial court to appoint a psychiatric expert to assist an indigent capital defendant when sanity will be a “significant factor” in determining the defendant’s guilt (e.g., to establish an insanity defense or to challenge competency to stand trial) or sentence (e.g., to rebut a claim of future dangerousness). Ake v. Oklahoma, 470 U.S. 68 (1985). The Court considered three factors in determining that Ake was entitled to psychiatric assistance: (1) the private interest affected by the action of the state, (2) the governmental interest affected if the safeguard is to be provided, and (3) the probable value of additional or substitute safeguards sought and risk of erroneous deprivation if the safeguards are not provided. Id. at 77. In meeting the threshold “significant factor” requirement, a defendant must make some showing beyond merely pleading insanity that a psychiatric expert is necessary.

Although addressed by some lower courts, the Supreme Court has not directly ruled whether the Ake entitlement extends to requests for the assistance of nonpsychiatric experts, such as ballistics experts. The only Supreme Court case to address the issue, Caldwell v. Mississippi, 472 U.S. 320 (1985), disposed of the issue in a footnote by finding an insufficient showing of reasonableness of the requested experts, and thus avoided establishing a necessary showing which would entitle an indigent defendant to such nonpsychiatric experts.

The Ninth Circuit has made several specific interpretations of the Ake right to expert assistance. In Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990), the court held that Ake requires more than evaluation by a “neutral” court psychiatrist, but rather the right to use the services of a psychiatrist in whatever capacity defendant finds appropriate, including participating in partisan decisions of what claims to assert. In Harris v. Vasquez, 949 F.2d 1497, 1516 (9th Cir. 1990), cert. denied, 503 U.S. 910 (1992), the Ninth Circuit held that Ake was complied with when the trial court provided adequate funds for the defense to choose its own psychiatric doctors, notwithstanding a collateral challenge to the doctors’ competency.

More recently, the Ninth Circuit held that the prosecution’s compelled disclosure of a defense-requested psychiatric evaluation to rebut an insanity defense did not violate Ake. The court reasoned that the right to psychiatric assistance does not protect against disclosure of an evaluation performed at the defense’s request that has an adverse effect of a mental status defense. Pawlyk v. Wood, 248 F.3d 815 (9th Cir. 2001), cert. denied, 534 U.S. 1085 (2002).

Caldwell v. Mississippi, 472 U.S. 320 (1985) (holding since only undeveloped assertions of benefit for requested psychiatric and other expert assistance, no due process violation in trial court’s denial of requests).

Ake v. Oklahoma, 470 U.S. 68 (1985) (holding due process violated by denial of expert psychiatric assistance to indigent defendant where sanity was at issue in both guilt and sentencing phases of trial).

Pawlyk v. Wood, 248 F.3d 815 (9th Cir. 2001) (holding that the prosecution’s compelled disclosure of a defense-requested psychiatric evaluation to rebut insanity defense did not violate Ake), cert. denied, 534 U.S. 1085 (2002).

Chaney v. Stewart, 156 F.3d 921 (9th Cir. 1998) (holding defendant does not have state constitutional liberty interest in expert psychiatric assistance at sentencing. But see Reinhardt, J, dissent, finding liberty interest created by Arizona statute).

Vickers v. Stewart, 144 F.3d 613 (9th Cir. 1998) (holding that trial court’s denial of request for out-of-state testing for temporal lobe epilepsy did not violate Ake), cert. denied, 525 U.S. 1073 (1999).

Gretzler v. Stewart, 112 F.3d 992 (9th Cir. 1997) (holding Ake established a new rule under Teague and was not retroactively applicable; holding alternatively no showing that sanity was significant factor at trial and therefore trial court did not violate due process in failing to appoint independent psychiatrist to assist capital defendant in preparing insanity defense), cert. denied, 522 U.S. 1081 (1998).

Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990) (holding Ake does not extend to challenge defense psychiatrist’s competency where court provided adequate funding for doctor who was selected by defense; declining to adopt new rule allowing for collateral attack on trial psychiatrist’s competency), cert. denied, 503 U.S. 910 (1992).

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (holding Ake includes right to partisan psychiatric assistance).

Bloom v. Vasquez, 840 F. Supp. 1362 (C.D. Cal. 1993) (following Harris, holding Ake does not provide legal basis for challenging, in federal habeas, competency of defense trial psychiatrist), rev’d, 132 F.3d 1267 (9th Cir. 1997), and cert. denied, 516 U.S. 1124 (1998).

Williams v. Vasquez, 817 F. Supp. 1443 (E.D. Cal. 1993) (following Harris), aff’d by 52 F.3d 1465 (9th Cir. 1995), cert. denied, 516 U.S. 1124 (1996).

Moore v. Reynolds, 153 F.3d 1086 (10th Cir. 1998) (holding that due process requires appointment of mental health expert during sentencing phase if defendant established his mental condition could have been a mitigating factor), cert. denied, 526 U.S. 1025 (1999).

Stewart v. Angelone, 149 F.3d 1170 (4th Cir.) (unpublished) (holding that Ake does not guarantee the right to effective assistance of psychiatric experts), cert. denied, 524 U.S. 978 (1998).

Goodwin v. Johnson, 132 F.3d 162 (5th Cir. 1997) (holding that defendant is entitled to expert psychiatric assistance only when state makes an issue of mental state and future dangerousness with psychiatric testimony, and refusing to adopt petitioner’s view that Ake required experts whenever future dangerousness could be considered an issue).

Preclude Insanity?, 61 N.Y.U. L. Rev. 703 (1986) (arguing that, due to unpredictability of psychiatric diagnoses in criminal trials, Ake right to psychiatric assistance must include right to partisan psychiatrist to aid in defense, or else meaningless).

David A. Harris, Ake Revisited: Expert Psychiatric Witnesses Remain Beyond Reach for the Indigent, 68 N.C. L. Rev. 763 (1990) (arguing lower court restrictive interpretation of Ake violates due process, disadvantaging indigent defendants; urging that indigent defendant who presents evidence of reasonable need for psychiatric assistance should be entitled to private psychiatrist of own choice, paid for but not controlled by state).

Donna H. Lee, In the Wake of Ake v. Oklahoma: An Indigent Criminal Defendant’s Lack of Ex Parte Access to Expert Services, 67 N.Y.U. L. Rev. 154 (1992) (arguing constitutional requirement of ex parte proceedings in implementing Ake right to expert assistance, despite discretion left to states).

Michael J. Lorenger, Ake v. Oklahoma and Harmless Error: The Case for a Pre Se Rule of Reversal, 81 Va. L. Rev. 521 (1995) (analyzing Ake and Supreme Court harmless error jurisprudence, and concluding that Ake violations demand automatic reversal, not harmless error analysis).

Michael J. Todd, Criminal Procedure–Due Process and Indigent Defendants: Extending Fundamental Fairness to Include the Right to Expert Assistance, 29 How. L.J. 609 (1986) (tracing expansion of indigent defendant’s due process rights, examining due process balancing test used in Ake, and determining future course of indigent’s right to expert assistance).

John M. West, Expert Services and the Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich. L. Rev. 1326 (1986) (defining boundaries of indigent criminal defendant’s right to expert assistance, in light of Ake, arguing Ake right should extend as far as right to counsel).

A. Michelle Willis, Nonpsychiatric Expert Assistance and the Requisite Showing of Need: A Catch-22 in the Post-Ake Criminal Justice System, 37 Emory L.J. 997 (1988) (arguing Ake should be read to provide indigent defendants constitutional right to state provided nonpsychiatric expert assistance and suggests alternative showing of need for Ake rights eliminating potential for misapplication inherent in current Ake version).

In 1997, the Ninth Circuit analyzed Ake pursuant to Teague v. Lane, 489 U.S. 288 (1989), to determine Ake’s retroactive applicability to cases on collateral review. In Gretzler v. Stewart, 112 F.3d 992 (9th Cir. 1997), cert. denied, 522 U.S. 1081 (1998), the court held that Ake announced a new constitutional rule of criminal procedure and was not applicable to cases which were final before Ake was decided. Id. at 999. Judge Pregerson dissented, however, arguing for relief on collateral review. He considered Ake’s rule a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of petitioner’s trial.

Chaney v. Stewart, 156 F.3d 921 (9th Cir. 1998) (holding defendant’s Ake-based sentencing challenge Teague-barred).

Gretzler v. Stewart, 112 F.3d 992 (9th Cir. 1997) (holding that Ake is a new rule and does not fall within the Teague exceptions), cert. denied, 522 U.S. 1081 (1998).

Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990) (holding Ake claim of entitlement to psychiatric assistance not retroactive under Teague), cert. denied, 503 U.S. 910 (1992).  

Although Ake does not require a specific showing of prejudice, several circuits have held that an Ake violation is subject to harmless error analysis.

Chaney v. Stewart, 156 F.3d 921 (9th Cir. 1998) (holding that denial of defendant’s request for psychiatric or neurological expert is subject to harmless error analysis).

Castro v. Ward, 138 F.3d 810 (10th Cir.) (reaffirming Brewer), cert. denied, 525 U.S. 971 (1998).

Tuggle v. Netherland, 79 F.3d 1386 (4th Cir.) (concluding Ake error is subject to harmless error analysis under Brecht), cert. denied, 519 U.S. 894 (1996).

Brewer v. Reynolds, 51 F.3d 1519 (10th Cir. 1995) (holding Ake violations subject to harmless error analysis), cert. denied, 459 U.S. 1150 (1996).

Starr v. Lockhart, 23 F.3d 1280 (8th Cir.) (concluding Ake violations are subject to harmless error analysis), cert. denied, 513 U.S. 995 (1994).