Davis v. State.dissent
2017 Ark. 135
| Ark. | 2017Background
- Don William Davis and Bruce Earl Ward, both convicted of capital murder in separate cases (1990 and 1989 murders), jointly moved to recall the appellate mandates and obtain stays of execution based on Ake v. Oklahoma claims.
- Both defendants argue that Ake requires the State to provide a psychiatrist exclusively for the defense (not a neutral evaluator) and that their state-hospital evaluations did not satisfy Ake.
- Each litigant has extensively litigated these claims at trial, on direct appeal, in state postconviction proceedings, and in federal habeas; Davis and Ward raised the same Ake-based argument repeatedly.
- The Arkansas Supreme Court majority granted relief (not included in this dissent), while Justice Shawn A. Womack dissented, opposing recall/stay for three independent reasons summarized below.
- Womack’s reasons: (1) Arkansas precedent has already rejected the defendants’ reading of Ake; (2) recalling mandates or staying executions on the basis of speculative outcomes in pending U.S. Supreme Court cases is inconsistent with the court’s reluctance to disturb finality; (3) even an adverse U.S. Supreme Court decision could be a new rule not retroactively applicable, so relief may not be available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper scope of Ake — must state provide a psychiatrist to assist defense (not neutral evaluator)? | Davis/Ward: Ake guarantees access to a psychiatrist who will assist defense exclusively. | State/Ark. precedent: State’s neutral-evaluator protocol satisfies Ake. | Womack: Arkansas precedent rejects the plaintiffs’ exclusive-assistant reading of Ake. |
| Is recall of mandate or stay of execution warranted because SCOTUS granted certiorari in McWilliams? | Davis/Ward: Granting certiorari in McWilliams suggests the law may change; this justifies recall/stay pending Supreme Court decision. | State: Speculation about a pending certiorari does not meet narrow standards for recalling mandates or staying executions. | Womack: Deny recall/stay based on speculative outcome; no controlling precedent requires such relief. |
| Should the court depart from finality to revisit issues already litigated extensively? | Davis/Ward: The pending Supreme Court review creates sufficient grounds to revisit Ake application in their cases. | State: Finality of judgments and narrow, rare grounds for recall counsel against reopening long-settled cases. | Womack: Finality principle precludes reopening; court has historically been reluctant to grant such extraordinary relief. |
| Would a favorable SCOTUS ruling in McWilliams afford retroactive relief to Davis or Ward? | Davis/Ward: A McWilliams clarification would show prior practice violated plain Ake and warrants relief. | State: A new Supreme Court rule would likely be non-retroactive; relief may be unavailable. | Womack: Even if SCOTUS rules for petitioners, it may announce a new rule not retroactive, so remedy is uncertain. |
Key Cases Cited
- Ake v. Oklahoma, 470 U.S. 68 (1985) (defendant entitled to access to competent psychiatrist to assist defense)
- Branscomb v. State, 299 Ark. 482 (1989) (Arkansas held state protocol satisfies Ake)
- Robbins v. State, 353 Ark. 556 (2003) (recall-of-mandate relief is extraordinarily rare)
- Pickens v. Tucker, 316 Ark. 811 (1994) (denial of stay despite related Supreme Court activity)
- State v. Earl, 336 Ark. 271 (1999) (declined to recall mandate even with intervening Supreme Court ruling)
- Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) (new rules of constitutional law generally apply only to cases on direct review)