539 S.W.3d 565
Ark.2018Background
- Davis, convicted and sentenced to death, sought recall of this court's mandate arguing inadequate Ake compliance (right to access psychiatric assistance).
- At trial Davis was examined by Dr. Travis Jenkins (private) and by state hospital psychiatrists (Drs. Anderson and Hall); all found him competent and not psychotic; reports noted ADHD, substance abuse, antisocial features, but did not expressly identify mitigating evidence.
- Davis requested funds for a privately retained psychiatric expert; the trial court initially denied funding but ordered counsel to confer with the state hospital doctors and return if their assistance was inadequate.
- Counsel met with state doctors for several hours, concluded their opinions offered no mitigation, and decided to present Jenkins’s testimony (which addressed ADHD and related issues). Counsel did not return to the court to renew the funding request.
- Davis argued on motion to recall the mandate that Arkansas’s prior Ake jurisprudence (permitting state-hospital exams to satisfy Ake) was flawed and that he was denied the required assistance; the majority denied the motion and lifted the stay of execution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court should recall its mandate based on an alleged Ake violation | Davis: Arkansas misapplied Ake by treating state-hospital examination alone as sufficient; he was entitled to a defense-retained psychiatrist to assist evaluation, preparation, presentation | State: Davis received statutory and constitutional minimums—examinations were provided and trial counsel made a tactical decision to use Jenkins; no appellate-process defect | Court denied recall: no defect in appellate process shown; Davis received Ake minimum and counsel made strategic choice |
| Whether the state hospital examinations satisfied Ake’s assistance requirements (evaluation, preparation, presentation) | Davis: State doctors did not provide the necessary assistance; counsel needed funding for a partisan expert to develop mitigation | State: The state doctors examined, evaluated, and met with counsel; they were available to present their views; counsel elected a different strategy based on those interactions | Majority: Examination and assistance were adequate here; counsel’s tactical decision forecloses relief |
| Whether counsel’s failure to renew motion for funds or to renew complaint to the trial court constitutes a constitutional defect | Davis: Counsel needed funds and should have pursued them when state doctors were unhelpful | State: Counsel interviewed the doctors, chose Jenkins as more helpful, and declined to press further—this was strategy, not a structural defect | Court: Tactical choices are not reversible error; no breakdown in appellate process |
| Whether Arkansas’s precedent interpreting Ake is incorrect after McWilliams v. Dunn | Davis: Argued Supreme Court would clarify and require defense-retained experts; this court’s past rulings are flawed | State: McWilliams did not definitively require defense-retained partisan experts and Arkansas precedent remains controlling | Concurrence: Justice Hart agreed with result but warned Arkansas’s prior interpretation likely understates McWilliams’ requirements; nonetheless no relief for Davis based on facts |
Key Cases Cited
- Ake v. Oklahoma, 470 U.S. 68 (1985) (holding indigent defendant is entitled to access to competent psychiatrist to assist in evaluation, preparation, and presentation when sanity is a significant factor)
- McWilliams v. Dunn, 137 S. Ct. 1790 (2017) (reiterating Ake requires more than a neutral examination; assistance must include evaluation, preparation, and presentation)
- Calderon v. Thompson, 523 U.S. 538 (1998) (discussing extraordinary relief and recalling mandates in capital cases)
- Davis v. Norris, 423 F.3d 868 (8th Cir. 2005) (Eighth Circuit found Jenkins’s testimony met Ake requirements on habeas review)
- Creed v. State, 372 Ark. 221 (Ark. 2008) (Arkansas case treating state-hospital examination as satisfying Ake under state precedent)
- Dirickson v. State, 329 Ark. 572 (Ark. 1997) (similar Arkansas precedent regarding state-hospital examinations)
- Branscomb v. State, 299 Ark. 482 (Ark. 1989) (Arkansas precedent on Ake examination via state hospital)