By Lawrence Hurley
WASHINGTON (Reuters) - Liberal U.S. Supreme Court justices on Monday indicated support for a convicted murderer held on Alabama's death row who argued he had a right to an independent medical expert to assess his mental health and potentially help him avoid execution.
The legal fight involving Alabama inmate James McWilliams assumed greater importance in the past week after two death row inmates who Arkansas plans to execute, Don Davis and Bruce Ward, had their cases put on holding pending the Supreme Court's decision regarding McWilliams, due by the end of June.
Questions posed by the justices during a one-hour argument in the case indicated the four liberals could be joined by conservative Anthony Kennedy, the court's frequent swing vote, in backing McWilliams, sentenced to death for raping, murdering and robbing a convenience store clerk in Tuscaloosa in 1984.
The nine-member court's other conservatives, including Donald Trump's newly seated appointee Neil Gorsuch, appeared more likely to vote against McWilliams.
At issue in his appeal is whether an indigent defendant like McWilliams during a trial in which his mental health is a pivotal matter is entitled to an expert witness completely independent of the prosecution.
The Supreme Court ruled in a 1985 case called Ake v. Oklahoma that indigent defendants are entitled to expert assistance. But the ruling did not specifically say the expert had to be assigned to assist the defense as opposed to being a neutral expert helping both sides. The question before the justices is whether the 1985 decision "clearly established" McWilliams' right to an expert who would assist only the defense.
"That's the question. And here it seems to me that this defendant certainly did not get that help," liberal Justice Stephen Breyer said.
'ON THE DEFENSE TEAM'
McWilliams' lawyers noted that during his trial the only expert analysis of his mental health came from a witness provided by the state.
While some of the conservatives indicated that was enough, liberal Justice Elena Kagan said the 1985 ruling went further, noting that it was specific about the expert assisting the defense.
"It just seems that the premise of the entire opinion is you're on the defense team," Kagan said.
Kennedy indicated he thinks the 1985 ruling was ambiguous but that a ruling favoring McWilliams could be viewed as "simply a refinement of a clearly established right" outlined in the earlier case.
In the 1984 crime, McWilliams entered a convenience store, locked the doors, took money from clerk Patricia Reynolds, forced her into a back room, raped her, shot her 16 times with a pistol and left her to bleed to death. McWilliams, later caught driving a stolen car in possession of the murder weapon, was found guilty and sentenced to death in 1986.
The ruling in McWilliams' case could affect non-capital cases as well as death penalty cases.
Arkansas had planned to carry out eight executions in a span of 11 days. So far only one, Ledell Lee, has been executed. Two more executions were scheduled for later on Monday. The state's original plan called for the most executions by any state in the shortest period of time since the U.S. death penalty was reinstated in 1976.
The Supreme Court has shown little appetite for reconsidering whether the death penalty itself violates the U.S. Constitution's ban on cruel and unusual punishment, but has faulted the way some states handle capital punishment.
The court has rebuked Texas, the U.S. leader in executions, twice since February in cases involving racist testimony from an expert witness and the state's standard for assessing intellectual disabilities that could preclude execution.
(Reporting by Lawrence Hurley; Editing by Will Dunham)