SUPREME COURT OF THE UNITED STATES
JAMES E. McWILLIAMS, PETITIONER v.
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, et al.
on writ of certiorari to the united states court of appeals for the eleventh circuit
[June 19, 2017]
Justice Alito, with whom The Chief Justice, Justice Thomas, and Justice Gorsuch join, dissenting.
We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake
470 U. S. 68 (1985)
, clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.[1
The answer to that question is plain: Ake
did not clearly establish that a defendant is entitled to an expert who is a member of the defense team. Indeed, “Ake
appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law §8.2(d), p. 449 (5th ed. 2010) (LaFave). Accordingly, the proper disposition of this case is to affirm the judgment below.
The Court avoids that outcome by means of a most unseemly maneuver. The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.[2
] That is bad enough. But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.
And the Court decides that fact-bound question without giving Alabama a fair opportunity to brief the issue.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief cannot be awarded on a claim that a state court decided on the merits unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
28 U. S. C. §2254(d)(1). That standard, by design, is “difficult to meet.” White
, 572 U. S. ___, ___ (2014) (slip op., at 3) (internal quotation marks omitted). It requires habeas petitioners to “show that the state court’s ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington
562 U. S. 86,
. Put another way, “[w]hen reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods
, 575 U. S. ___, ___ (2015) ( per curiam
) (slip op., at 4–5).
we held that a defendant must be provided “access to a competent psychiatrist” in two circumstances: first, “when [the] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial,” and, second, at the sentencing phase of a capital trial, “when the State presents psychiatric evidence of the defendant’s future dangerousness.” 470 U. S., at 83.
The question that we agreed to review concerns the type of expert that must be provided. Did Ake
clearly establish that a defendant in the two situations just noted must be provided with the services of an expert who functions solely as a dedicated member of the defense team as opposed to a neutral expert who examines the defendant, reports his or her conclusions to the court and the parties, and is available to assist and testify for both sides? Did Ake
speak with such clarity that it ruled out “any possibility for fairminded disagreement”? Harrington, supra
, at 103. The answer is “no.” Ake
provides no clear guidance one way or the other.
It is certainly true that there is language in Ake
that points toward the position that a defense-team psychiatrist should be provided. Explaining the need for the appointment of a psychiatric expert, Ake
noted that a psychiatrist can “assist in preparing the cross-examination of a State’s psychiatric witnesses” and would “know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.” 470 U. S., at 82, 80. And when Ake
discussed expert assistance during capital sentencing, the Court said that it is important for a defendant to “offer a well-informed expert’s opposing view” in the form of “responsive psychiatric testimony.” Id.,
at 84. Ake
also explained that factfinding is improved when evidence is offered by “psychiatrists for each party.” Id.
, at 81. While it is possible for a neutral expert to provide these services, in our adversary system they are customarily performed by an expert working exclusively for one of the parties.
Other language in Ake
, however, points at least as strongly in the opposite direction. Ake
was clear that an indigent defendant does not have a constitutional right to “choose a psychiatrist of his personal liking or . . . receive funds to hire his own.” Id.
, at 83. Instead, the Court held only that a defendant is entitled to have “access” to “one competent psychiatrist” chosen by the trial judge. Id.
, at 83, 79.
These limitations are at odds with the defense-expert model, which McWilliams characterizes as “the norm in our adversarial system.” Reply Brief 3. As McWilliams explains, “other litigants of means” screen experts to find one whose tentative views are favorable, and they often hire both consulting and testifying experts. Id.
, at 2–3. But the Ake
Court was clear that it was not holding “that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy.” 470 U. S., at 77. On the contrary, Ake
expressly stated that a State need only provide for a single psychiatric expert to be selected by the trial judge. Thus, Ake
does not give the defense the right to interview potential experts, to seek out an expert who offers a favorable preliminary diagnosis, or to hire more than one expert. And if the court-appointed expert reaches a conclusion unfavorable to the defendant on the issue of sanity or future dangerousness, Ake
requires the defense team to live with the expert’s unfavorable conclusions. As McWilliams concedes, when the only expert available to indigent defendants is one selected by the trial court, these defendants “face a risk that their expert will ultimately be unwilling or unableto offer testimony that will advance their cause.” Reply Brief 3.
also acknowledged that one of our prior cases, United States ex rel. Smith
344 U. S. 561 (1953)
,“support[ed] the proposition” that due process is satisfied if a defendant merely has access to a psychiatrist “not beholden to the prosecution.” 470 U. S.,
at 85. While Ake
also declared that Baldi
did not limit the Court “in considering whether fundamental fairness today requires a different result,” 470 U. S., at 85, Ake
did not explicitly overrule Baldi
, and ultimately its treatment of that case was “most ambiguous,” LaFave §8.2, at 450, n. 124.
It is also significant that the Ake
Court had no need to decide whether due process requires the appointment of a defense-team expert as opposed to a neutral expert because Ake was denied the assistance of any
psychiatrist—neutral or otherwise
—for purposes of assessing his sanity at the time of the offense or his mental state as it related to capital sentencing. 470 U. S., at 71–73 (state experts who examined Ake and testified he was dangerous evaluated him only in connection with his competency to stand trial). As Ake’s counsel explained at argument, the Court could rule in his client’s favor without accepting his client’s “primary submission” that due process requires the appointment of a defense-team expert. Tr. of Oral Arg. in No. 83–5424 p. 21 (arguing that Ake’s rights were violated even under Baldi
In short, Ake
is ambiguous, perhaps “deliberately” so. LaFave §8.2(d), at 449; see ibid.
(“[C]omments supporting a move in either direction appear throughout the majority opinion in the case”). If the Justices who joined Justice Marshall’s opinion for the Court had agreed that adefense-team expert must be appointed, it would have been a simple matter for the Court to say so expressly. Justice Marshall demonstrated this a few years later when he dissented from the denial of certiorari in a case that presented the very issue that the Court now dodges. Granviel
495 U. S. 963 (1990)
. There, Justice Marshall stated unambiguously that “Ake
mandates the provision of a psychiatrist who will be part of the defense team and serve the defendant’s interests in the context of our adversarial system.” Ibid.
If all the Justices who joined the opinion of the Court in Ake
had shared this view, there is no obvious reason for the absence of the sort of clear statement that Justice Marshall would later provide when he wrote only for himself. The opinion in Ake
has all the hallmarks of a compromise.
The Court’s actions in the aftermath of Ake
lend support to this conclusion. The Court repeatedly denied certiorari in cases that would have permitted it to resolve this question or others left open by Ake
. See, e.g.
513 U. S. 995 (1994)
497 U. S. 1033 (1990)
484 U. S. 874 (1987)
484 U. S. 878 (1987)
, at 963. And in many of these cases (Vickers
, and Granviel
), Justice Marshall dissented. The most reason-able conclusion to draw from the Court’s silence is that the exact type of expert required by Ake
has remained “an open question in our jurisprudence.” Carey
549 U. S. 70,
When the lower courts have “diverged widely” in assessing whether our precedents dictate a legal rule, that is a sign that the rule is not clearly established, ibid.
, and that is the situation here. At the time the Alabama court addressed McWilliams’s Ake
claim on the merits, some courts had held that Ake
requires the appointment of a defense-team expert. See, e.g.
, 914 F. 2d 1153, 1156–1160 (CA9 1990); United States
, 776 F. 2d 926, 929 (CA10 1985). But others disagreed. The Fifth Circuit had held that a defense-team expert is not required. Granviel
, 881 F. 2d 185, 191–192 (1989), cert. denied,
495 U. S. 963 (1990)
. And the Oklahoma courts in Ake itself
also interpreted our holding this way. Ake
, 778 P. 2d 460, 465 (Okla. Crim. App. 1989) (“[D]ue process does not entitle [Ake] to a state-funded psychiatric expert to support his claim; rather,due process requires that he have access to a compe-tent and impartial psychiatrist”). So had at least seven other state high courts. Willie
, 585 So. 2d 660, 671 (Miss. 1991); State
, 38 Ohio St. 3d 129, 131–132, 527 N. E. 2d 784, 787 (1988); Dunn
, 291 Ark. 131, 132–134, 722 S. W. 2d 595, 595–596 (1987); State
, 382 N. W. 2d 623, 625–626 (N. D. 1986); Palmer
, 486 N. E. 2d 477, 481–482 (Ind. 1985); State
, 217 Mont. 453, 457–460, 705 P. 2d 1110, 1113–1114 (1985); State
, 68 Haw. 246, 248–251, 710 P. 2d 1193, 1195–1196 (1985).
Other courts struggled to reach agreement on the question. Two Eleventh Circuit panels held that a neutral expert suffices, see Magwood
, 791 F. 2d 1438, 1443 (1986) (Ake
satisfied where neutral, court-appointed experts examined the defendant and testified); Clisby
, 907 F. 2d 1047, 1050 (1990) (per curiam
) (“The state provided a duly qualified psychiatrist not beholden to the prosecution and, therefore, met its obligation under Ake
”), reh’g en banc, 960 F. 2d 925, 928–934 (1992) (rejecting Ake
claim on other grounds). But another Eleventh Circuit panel disagreed. Cowley
, 929 F. 2d 640, 644 (1991) (holding that due process requires more than a neutral expert). A Sixth Circuit panel held that Ake
does not require appointment of a defense-team expert. Kordenbrock
, 889 F. 2d 69, 75 (1989). And when the Sixth Circuit reviewed that decision en banc, its holding was fractured, but 7 of the 13 judges expressed the view that Ake
requires only a neutral, court-appointed expert.[3
] 919 F. 2d 1091, 1110, 1117–1120, 1131–1132 (1990).
’s ambiguity has been noted time and again by commentators. See, e.g.
LaFave §8.2(d), at 449 (Ake
appears to be “deliberately ambiguous”); Mosteller, The
Sixth Amendment Right to Fairness: The Touchstone of Effectiveness and Pragmatism, 45 Tex. Tech. L. Rev. 1, 16 (2012) (Ake
held that “the defense had the right of access to an expert, but the Court did not conclude that access had to be a defense expert”); Greeley, The Plight of Indigent Defendants in a Computer-Based Age: Maintaining the Adversarial System by Granting Defendants Access to Computer Experts, 16 Va. J. L. & Tech. 400, 426 (2011) (“[T]he Supreme Court should affirmatively state whether a defendant is entitled to a neutral expert working for the defense and the government, or an expert advocating for the defense”); Groendyke, Ake
: Proposals for Making the Right a Reality, 10 N. Y. U. J. Legis. & Pub. Pol’y 367, 383 (2007) (“The intentions of the Ake
Court regarding the role of the expert are not obvious from the opinion”); Giannelli, Ake
: The Right to Expert Assistance in a Post-Daubert
, Post-DNA World, 89 Cornell L. Rev. 1305, 1399 (2004) (“It is uncertain from Ake
whether the appointment of a neutral expert (who reports to the court) is sufficient or whether a ‘partisan’ defense expert is required”); Bailey, Ake
and an Indigent Defendant’s ‘Right’ to an Expert Witness: A Promise Denied or Imagined? 10 Wm. & Mary Bill Rts. J. 401, 403 (2002) (“[C]ourts have struggled with whether an indigent is entitled to his own independent advocate or a neutral expert provided by the state,” and the Supreme Court “has . . . failed to confront this ambiguity”); Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439, 492 (1995) (“The issue left unresolved in Ake
” is whether the defendant has “merely the right to an evaluation by a neutral mental health expert”); Giannelli et al., The Constitutional Right to Defense Experts, 16 Pub. Def. Rptr. 3 (Summer 1993) (“Ake
fails to specify clearly the role of the expert—whether the appointment of a neutral expert, who reports to the court, satisfies due process, or whether a partisan defense expert is required”); Note, The Constitutional Right to Psychiatric Assistance: Cause for Reexamination of Ake
, 30 Am. Crim. L. Rev. 1329, 1356 (1993) (calling this the “preeminent ambiguity” in the opinion); Harris, Ake
Revisited: Expert Psychiatric Witnesses Remain Beyond Reach for the Indigent, 68 N. C. L. Rev. 763, 768, n. 44 (1990) (“The Court gave mixed signals concerning the psychiatrist’s role with regard to a criminal defendant, resulting in lower court disagreement on the proper interpretation of Ake
on this point”); Comment, A Question of Competence: The Indigent Criminal Defendant’s Right to Adequate and Competent Psychiatric Assistance After Ake
, 14 Vt. L. Rev. 121, 127 (1989) (Ake
“left unanswered many questions,” including “whether the defendant is entitled to ‘neutral’ or ‘partisan’ assistance”); Dubia, The Defense Right to Psychiatric Assistance in Light of Ake
, 1987 Army Lawyer 15, 19–20 (Ake
“did not define clearly the role of the state-supplied psychiatrist,” and “[a] strong case can be made that Ake
requires only access to an independent psychiatric examination”); Note, Due Process and Psychiatric Assistance: Ake
, 21 Tulsa L. J. 121, 143 (1985) (“The Court is unclear as to the exact nature and scope of the substantive right it has created”); Sallet, Book Review, After Hinckley: The Insanity De-fense Reexamined, 94 Yale L. J. 1545, 1551, n. 18 (1985) (predicting that “whether the Constitution requiresone psychiatrist or rather one defense-oriented psy-chiatrist” would “likely be the next constitutional issue adjudicated”).
In this case, the Alabama courts held that Ake
is satisfied by the appointment of a neutral expert, and it is impossible to say that “there could be no reasonable dispute that they were wrong.” Donald
, 575 U. S., at ___ (slip op., 5).
McWilliams’s petition for certiorari asked us to decide two questions. Pet. for Cert. i. The first was the legal question discussed above; the second raised an issue that is tied to the specific facts of McWilliams’s case: whether the neutral expert appointed in this case failed to provide the assistance that Ake
requires because he “distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records.” Pet. for Cert. i. Our Rules and practice disfavor questions of this nature, see this Court’s Rule 10, and we denied review. Heeding our decision, the parties briefed the first question but scarcely mentioned anything related to the second.
The Court, however, feels no similar obligation to abide by the Rules. The Court refuses to decide the legal question on which we granted review and instead decides the question on which review was denied. The Court holds that “Alabama here did not meet even Ake
’s most basic requirements.” Ante
, at 14. In support of this conclusion, the Court states that neither Dr. Goff (the expert appointed by the trial judge) nor any other expert provided assistance in understanding and evaluating medical reports and records, preparing a legal strategy, presenting evidence, or preparing to cross-examine witnesses. Ibid.
The Court does not question Dr. Goff’s qualifications or his objectivity. Instead, the crux of the Court’s complaint is that Dr. Goff merely submitted his report and did not provide further assistance to the defense. Ibid.
But as far as the record shows, Dr. Goff was never asked and never refused to provide assistance to McWilliams. He did not provide the assistance that the Court finds essential because his report was not given to the parties until two days before sentencing, and arrangements were not made for him to provide the assistance during that brief interlude. Thus, the question that the Court decides is precisely the question on which we denied review
namely, whether Dr. Goff’s assistance was deficient
because he “distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records.” Pet. for Cert. i
Our Rules instruct litigants that we will consider only the questions on which review was granted and “subsidiary question fairly included therein.” This Court’s Rule 14.1(a); Yee
503 U. S. 519,
(The Court will consider an “unpresented question” only in “the most exceptional cases” (internal quotation marks omitted)); see also this Court’s Rule 24.1(a) (parties may not change the substance of the question presented once granted). And we have not hesitated to enforce these Rules when petitioners who “persuaded us to grant certiorari” on one question instead “chose to rely on a different argument in their merits briefing.” Visa, Inc.
, 580 U. S. ___ (2016) (internal quotation marks omitted) (dismissing cases as improvidently granted on this ground).
These Rules exist for good reasons. Among other things, they give the parties notice of the question to be decided and ensure that we receive adversarial briefing, see Yee
, at 536, which in turns helps the Court reach sound decisions. But in this case, the Court feels free to dis-regard our Rules and long-established practice. If McWilliams, after inducing us to grant certiorari on the first question presented, had decided to ignore that question and instead brief a fact-specific alternative theory, we would have dismissed the case as improvidently granted. We do not tolerate this sort of bait-and-switch tactic from litigants, and we should not engage in it ourselves.
The Court’s approach is acutely unfair to Alabama. The State surely believed that it did not need to brief the second question presented in McWilliams’s petition. The State vigorously opposed review of that question, calling it “an invitation to conduct factbound error correction,” Brief in Opposition 13, and we denied review. It will come as a nasty surprise to Alabama that the Court has ruled against it on the very question we declined to review—and without giving the State a fair chance to respond.[4
It is worth remembering that today’s ruling requires the Court to conclude that the state court’s treatment of McWilliams’s Ake
claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington
, 562 U. S., at 103. This “standard is difficult to meet,” id.
, at 102, and Alabama would surely have appreciated the opportunity to contest whether McWilliams has met it. Denying Alabama that chance does not show “[a] proper respect for AEDPA’s high bar for habeas relief,” which counsels restraint in “disturbing the State’s significant interest in repose for concluded litigation, denying society the right to punish some admitted offenders, and intruding on state sovereignty to a degree matched by few exercises of federal authority.” Virginia
at 5 (per curiam
) (alterations and internal quotation marks omitted).
It is debatable whether the Court has even answered question two correctly (and, of course, meaningful briefing by the parties would have allowed the Court to answer the question with more confidence).[5
] But the fundamental point is that the Court should not have addressed this question at all.
Having completed an arduous detour around the question that we agreed to decide, the majority encounters an inconvenient roadblock: The Court of Appeals has already determined that any error of the sort the majority identifies today was harmless. So the majority relies on the thinnest of reasons to require the Eleventh Circuit to redo its analysis. That conclusion is unwarranted, and nothing in the majority opinion prevents the Court of Appeals from reaching the same result on remand.
The majority claims that the Court of Appeals did not “specifically consider whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake
requires would have mattered.” Ante
at 15. But the Court of Appeals concluded that, even if Dr. Goff’s performance did not satisfy Ake
, the error did not have a substantial and injurious effect on the outcome of the sentencing proceeding. McWilliams
, Ala. Dept. of Corrections
, 634 Fed. Appx. 698, 706–707 (CA11 2015) (per curiam
). Thus, the Court of Appeals specifically addressed the very question that the majority instructs it to consider on remand.
If the majority disagrees with the Court of Appeals’ decision on that question, it should explain its reasons, but the majority is unwilling to tackle that matter and instead recites that “we are a court of review, not first view.” Ante
, at 16 (internal quotation marks omitted). The Court’s invocation of this oft-used formulation is utterly inapt because the Eleventh Circuit has already reviewed the question of harmless error. Moreover, unlike the question that the majority does decide, the harmless-error issue was at least briefed in a meaningful way by the parties. Brief for Petitioner 41–46; Brief for Respondents 52–56; Reply Brief 14–16.
Had the Court confronted the harmless-error issue, it would have found it difficult to reject the Court of Appeals’ conclusion that any Ake
error here was harmless. In 1984, McWilliams “raped, robbed, and murdered Patricia Vallery Reynolds.” McWilliams
, 640 So. 2d 982, 986 (Ala. Crim. App. 1991) (internal quotation marks omitted). Reynolds was a clerk at a convenience store in Tuscaloosa, Alabama. Ibid.
McWilliams robbed the store, brutally raped Reynolds in a back room, then left her on the floor to die after shooting her six times execution style with a .38 caliber pistol. Ibid.
After McWilliams was apprehended, he bragged to other jail inmates about what he had done. Id.
, at 987. The jury needed less than an hour of deliberation to find him guilty, and it recommended the death penalty by a 10-to-2 vote the following day. Id.
, at 986.
Agreeing with the jury’s nonbinding recommendation, the trial court imposed the death penalty based on three aggravating circumstances. McWilliams had prior violent felony convictions for first-degree robbery and first-degree rape. App.
182a–183a. He murdered Reynolds in the course of committing a robbery and rape. Id.
, at 183a. And his crime “was especially heinous, atrocious, or cruel”: He executed the only potential eyewitness to his robbery, and his conduct during and after the crime showed an “obvious lack of regard or compassion for the life and human dignity of the victim.” Id.,
at 184a. Balanced against these three aggravators was McWilliams’s claim that he was psychotic and suffered from organic brain dysfunction—the mitigating evidence that Dr. Goff’s report supposedly would have supported. But the sentencing court concluded that this evidence “did not rise to the level of a mitigating circumstance,” in part because of the extensive evidence that McWilliams was feigning symptoms. Id.,
at 188a. And in any event, the sentencing court found that “the aggravating circumstances would far outweigh this as a mitigating circumstance
The majority hints that the sentencing court’s weighing might have been different if McWilliams had been afforded more time to work with Dr. Goff to prepare a mitigation presentation and to introduce Dr. Goff’s testimony at the sentencing hearing. But there is little basis for this belief. The defense would have faced potential rebuttal testimony from three doctors who evaluated McWilliams and firmly concluded that McWilliams’s mental state did not reduce his responsibility for his actions. Certified Trial Record 1545 (Dr. Yumul) (McWilliams “was responsible and free of mental illness at the time of the alleged offense”); id.
, at 1546 (Dr. Nagi) (McWilliams “was not suffering from a mental illness” at the time of the crime and “[t]here see[m] to be no mitigating circumstances involved in [his] case”); ibid.
(Dr. Bryant) (finding no “evidence of psychiatric symptoms of other illness that would provide a basis for mitigating factors at the time of the alleged crime”). One of these psychiatrists also concluded that McWilliams was “grossly exaggerating his psychological symptoms to mimic mental illness” and that he “obviously” did so “to evade criminal prosecution.” Ibid.
(Dr. Nagi). Even Dr. Goff found it “quite obvious” that McWilliams’s “symptoms of psychiatric disturbance [were] quite exaggerated and, perhaps, feigned.” Id.
, at 1635. In light of all this, the defense would have faced an uphill battle in convincing the sentencing judge that, despite McWilliams’s consistent malingering, his mental health was so impaired that it constituted a mitigating circumstance and that it outweighed the three aggravators the State proved. If the sentencing judge had thought that there was a possibility that hearing from Dr. Goff would change his evaluation of aggravating and mitigating factors, he could have granted a continuance and called for Dr. Goff to appear. But he did not do so.
The majority also ignores the fact that McWilliams has already had the chance to show that the outcome of the sentencing proceeding would have been different if he had been given more expert assistance. In state postconviction proceedings, McWilliams argued that he was denied effective assistance of counsel because his lawyers did not obtain an expert who would have fully probed his mental state for purposes of mitigation. McWilliams called an expert, Dr. Woods, who offered the opinion that McWilliams suffered from bipolar disorder at the time of the crime and testified that McWilliams’s exaggeration of symptoms was not inconsistent with psychiatric problems. But Dr. Woods also acknowledged that McWilliams “tr[ied] to malinger for purposes of making himself look worse than he is,” agreed that this malingering could have been done for the purpose of avoiding the death penalty, and declined to say that McWilliams’s disorder explains why he raped and murdered Reynolds. Postconviction Tr. 1002–1005, 1022–1023. Dr. Woods even endorsed Dr. Goff’s conclusion that McWilliams “exaggerated certain aspects of his impairment.” Id.,
at 955 (“I think Dr. Goff did an excellent job of attempting to separate out what were in fact exaggerations and what was real impairment”). The State introduced a psychologist of its own (Dr. Kirkland) who strenuously disagreed with Dr. Woods’s diagnosis and concluded that nothing “indicate[s] that Mr. McWilliams was mentally impaired on the night of the offense.” Id.,
at 1088. At the end of a lengthy hearing in which both experts addressed the malingering issue (see, e.g.
, at 935–943, 955, 964–966, 1076–1077), the state postconviction court found that “McWilliams’s claims based upon the testimony of Dr. Woods are without merit.” Id.
, at 1810. It credited the “consensus opinion” reached by the three neutral state psychiatrists, who observed and evaluated McWilliams for over a month before his trial and concluded that he “did not suffer from a mental illness.” Id.
, at 1812. It expressly found that “both the credibility of Dr. Woods and the reliability of his findings are questionable.” Id.
, at 1814. And even if Dr. Woods’s diagnosis was accurate, the court stated, it “[would] not find that a failure to present” evidence of this sort “made a difference in the outcome.” Id.
] The Alabama Court of Criminal Appeals affirmed, McWilliams
, 897 So. 2d 437 (2004), and the Alabama Supreme Court denied review. I see no ground for disturbing the Eleventh Circuit’s decision on harmless error.[7
* * *
The Court’s decision represents an inexcusable departure from sound practice. I would affirm the judgment below, and I therefore respectfully dissent.