The Arkansas Supreme Court today also lifted a stay of execution for Don Davis, who’d been granted a stay along with Bruce Ward in April and whose stay also was lifted today.

There were no dissents in this case, as was the case with Ward. As with Ward, the stay was issued while the U.S. Supreme Court was considering the McWilliams case that argued for proper mental evaluation and assistance from a competent psychiatrist in defense. The Court subsequently held that Alabama hadn’t provided sufficient assistance, but the Arkansas Supreme Court has said that case didn’t go as far as defense lawyers contend.


Davis has a low IQ and ADHD and psychoactive substance abuse disorders, according to pleading by his lawyers. He was convicted in 1994 in the Benton County slaying of Jane Daniel. Davis was evaluated by local and state doctors and found competent to stand trial, but was initially denied a request for an independent examination. On that ground, he argued against his execution.

Today, the Supreme Court said the U.S. Supreme Court had not clearly answered the question of whether Davis was entitled to an independent psychiatrist to assist in his defense. But it also said the assistance Davis received at the time met due process requirements for an adequate defense. The defense lawyer made a calculated decision, they said, to use helpful testimony from a local doctor to counter unhelpful testimony from the state. The lawyer said an expenditure on an independent doctor wouldn’t have made a difference, the court said.


While the U.S. Constitution guarantees a right to a competent psychiatrist, it does not guarantee a psychiatrist who will reach the medical conclusions the defense team desires.

Chief Justice Dan Kemp and Justice Josephine Hart concurred with the decision. Kemp joined Hart, who wrote:

While I agree with the outcome of this case, I write separately because I cannot sign on to the majority’s intimation that Arkansas has always correctly interpreted the requirements of Ake v. Oklahoma. Without parsing the details of the majority’s opinion, it suffices to say that in my view, Arkansas case law has interpreted Ake to guarantee a defendant with less than what McWilliams v. Dunn confirms is actually required. I believe Arkansas’s prior interpretation of Ake is similar to that of the Alabama Court of Appeals in McWilliams, which the United States Supreme Court declared was “plainly incorrect.”  However, because of the unique factual circumstances of this case, I nonetheless join the result reached by the majority. In spite of Arkansas’s prior flawed interpretation of Ake’s requirements, Davis was not denied anything Ake affords him, according to current United States Supreme Court precedent.

A new execution date may now be set. But it seems likely that Davis’ lawyers might raise the Alabama decision in a federal appeal.


No executions are currently set in Arkansas and uncertainty exists about a supply of drugs for use in lethal injections.