On October 15, 2019, on remand from the Supreme Court (McWilliams v. Dunn, 137 S.Ct. 1790 (2017)), the Eleventh Circuit (Tjoflat, with Wilson; Jordan concurring in the judgment) issued a decision holding that James McWilliams is entitled to habeas relief as to his death sentence due to a violation of Ake v. Oklahoma, 470 U.S. 68 (1985). The Supreme Court had found that the trial judge’s refusal to provide McWilliams with requested psychiatric assistance at sentencing, which the Alabama appellate courts had upheld, was a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law” and that a violation of Ake had occurred. It then remanded for the Eleventh Circuit to reassess its prior flawed determination that any "error" did not have the "substantial and injurious effect or influence" required to warrant a grant of habeas relief and to decide if “access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered.” McWilliams, 137 S.Ct. at 1801. Looking to Brecht v. Abrahamson, 507 U.S. 619 (1993), the panel majority found that the error at issue was structural and, therefore, not subject to harmless error analysis. The majority explained:
Like the denial of counsel, the Ake error infected the entire sentencing hearing from beginning to end, as McWilliams was prevented from offering any meaningful evidence of mitigation based on his mental health, or from impeaching the State’s evidence of his mental health. The assistance a psychiatrist would have provided McWilliams’s counsel in “evaluating, preparing, and presenting the defense that Ake requires” is unknown and, as such, cannot be quantitatively assessed in the context of the evidence presented to the sentencing judge. To determine whether it “would have mattered”—i.e., would have helped McWilliams defend against the State’s case for a death sentence and present mitigating evidence—would require us to speculate as to how a psychiatrist would have assisted the defense, what mitigating evidence the defense would have presented based on the psychiatrist’s analysis, or what evidence the defense would have offered to impeach the State’s evidence, and how the State would have responded in rebuttal. Such a hypothetical exercise, as with the denial of counsel, is all but impossible. Because this Ake error defies analysis by harmless-error review, prejudice to McWilliams must be presumed.
In so ruling, the majority pointed out that the claim in this case had been raised and resolved on direct appeal, leaving the record devoid of evidence as to what could have been developed with expert assistance. This was contrasted to a case where Ake was raised in a collateral attack with a hearing at which the petitioner could introduce the evidence that would have been obtained and presented at trial but for the Ake violation. In that circumstance, harmless error review under Brecht was appropriate.
Jordan concurred in the judgment, finding that circuit precedent required application of harmless error analysis in this case. Applying such analysis, Jordan concluded McWilliams was entitled to relief.