DON DAVIS: A case for independent mental examinations for capitall defendants.

The Constitution Project illuminates Arkansas’s long refusal to allow independent mental examinations of defendants in capital cases.

It so happens the Arkansas Supreme Court heard oral arguments in appeals of two somewhat related cases yesterday. From questioning, it seemed evident that resistance to meaningful due process for such defendants continues on the part of some justices. In the cases of Bruce Ward and Jack Green, their attorneys are arguing that it’s unconstitutional to leave to the prison director the decison on whether they are mentally competent to be killed by the state.


The Constitution Project writes about mental exams before trial. 

… the U.S. Supreme Court has clearly established that the government must provide defendants facing the death penalty with “access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense’” if they need such an expert and can’t afford one.

It may seem a technical issue, but it assuredly is not. In short, the need for expert assistance in a capital trial is so vital that anything less violates the defendant’s rights to counsel and a fair trial.

The need for expert assistance in a capital trial is so vital that anything less violates the defendant’s rights to counsel and a fair trial.

The simplest way for states to comply with this constitutional requirement—at least for those defendants who cannot pay for their own experts—is to provide a qualified expert who is specifically retained for the defense. The overwhelming majority of jurisdictions take this straightforward approach.

But Arkansas is an outlier. For more than three decades, the state has flouted the Court’s directive and taken the position that a mental health exam by a doctor at the state hospital, who may or may not respond to requests for assistance from defense counsel, is sufficient to meet the demands of the Constitution. A man on death row in Arkansas, Don Davis, has petitioned the Supreme Court to end the state’s practice of requiring the defense and prosecution to share the same state mental health professional in death penalty cases.

We like doing things the way we’ve always done them in Arkansas. That’s why the Davis case pending before the U.S. Supreme Court is important. (He’s sentenced to die for capital murder in 1991 in Benton County.)


For the truth to come out through the adversarial trial process, people who can’t afford their own independent mental health experts must be provided with them. No defendant with financial means would voluntarily share their expert with the prosecution. Because of his poverty, Arkansas insists that Mr. Davis must take what the state will give him, even though his life depends on it. The Court has rejected this argument before—and it should accept Mr. Davis’s case to say so again.