Legal Case Summary

We will hear argument first this morning in case 16, 5294, McWilliams versus Dunn. Mr. Bright. Thank you. Mr. Chief Justice, and may it please the Court. This Court in 1985 clearly established in its decision in 8 versus Oklahoma that a poor defendant whose mental health or mental issues were a significant factor in the case is entitled to an expert and an expert independent of the prosecution to assist in the evaluation, the preparation and the presentation of an effective defense for the defendant. Suppose we thought that, and it's not your position, I understand that it was ambiguous on this point. And then over time, it became clear that really the psychiatrist ought to be consulting with the defense. And not with the prosecution. Would we say that the basic right was clearly established and that over time we are simply making a refinement? Or if we think, Aikazan Bighous, I know you disagree. If we think Aikazan Bighous, we are establishing a new right when we say it must be defense psychiatrist. Well, as your honor guest, we don't think it's ambiguous. In fact, we think it's quite clear when you look, sorry, go ahead, Bob. I'm assuming that we find it ambiguous, I'm asking. Then is that, can it be the position that this is just a refinement of the right or is it a new right? Well, if you accept that it was ambiguous, which, of course, we do not accept, but, of course, I mean, this goes to some of the clearly established cases, the Court has looked at where it's, does it extend a decision that the Court has rendered and is asking for something more? We would submit here, this can't be anything but an independent expert, because it even goes to- I'm not going to write if it's, we're informed correctly by the respondent that on remand in O8 itself, the lower court's health, the due process is satisfied by the assistance of a neutral psychiatrist. So if it was all that clearly established, it was not understood by, in the very case, that it was argued here, and then on remand according to the respondent, at least, the lower court's health, a neutral psychiatrist is good enough. Well, but whether or not the Oklahoma Court got it right or wrong when the case was remanded, what clearly established, we believe, starts and ends with this Court, whether something is clearly established. And when the Court says where it's a significant factor, you have a right to an expert and then goes through the things that that expert is going to do, together facts for the defense, to analyze facts for the defense, to even assist in cross-examination of the State's expert witness. You can't get more intimately involved in the defense of a case than being involved in the cross-examination of witnesses for the prosecution. But I'm going to go here that the prosecution didn't have a partisan expert either, that there was this, that everyone who was appointed was a neutral expert serving the court, the prosecution, and the defendant. So I think the Red Beasts suggest you're asking for something that the prosecution didn't have, didn't have an independent expert. Well, in our case, there was very much like AIC. I mean, there were mental health experts who testified, but all of them were State experts. And what do you mean by State experts, provided by the State or working for the prosecution? No, they all worked for the State Hospital. And so as a result, they were people who the Lunacy Commission, which did the first examination, or three doctors, at the State Hospital, that make an evaluation and then report to the court. So you mean they were paid for work by the State as opposed to being working for the prosecution for a particular result in a given case? That's true, Mr

. Chief Justice. But had there been an issue, which there was, in this case, and should have been litigated, certainly the State has no problem having an expert. The State can retain an expert, can retain more than one. The right that was given in AIC was very modest. It was very modest. It was an expert. The defendant can't choose the expert. But it's only one expert. But it is an expert to at least make the adversary system work to some extent. And I think what the Court recognized, and I think this goes to what Justice Ginsburg was asking me about, is that mental health today, as the Court said, in AIC, experts very widely with regard to, first of all, whether there is a mental illness, second, what it is, what the effects of it are on behavior, and how it plays into the legal process. Kagan, do you have even the terminology that you are using, both here and in your briefs, contains some ambiguity, because you keep saying, well, AIC establish the right to an independent expert. But independent can mean, really, the defense expert, or independent can mean independent of both the prosecutor and the defense. And what you are saying that AIC held was that it was a defense expert. But, and there are certainly parts of the opinion that read like that. There's no question that when AIC talks about assistance over and over again, it reads like a defense expert. But the question is, did AIC really preclude the idea of a completely independent person, independent of both the State and the defense? Kagan, well, it did, because of the way it described what the expert was to do. And in the two places where the Court said, we hold, they said, we hold when it is a significant factor that the defendant is entitled to an expert. That was regarded both the guilt phase issues and with regard to the penalty phase issues. So I think the Court, and then the Court, is in, this is not one of these cases that has, at least in my opinion, a lot of ambiguity, because the Court could not have been more detailed or specific about what that expert was going to do. So what you have a single court appointed expert, and let's assume he's not paid by the State, he or she's an outside expert. Can that expert ethically, under the ethical rules that apply to psychiatrists, meet just with the defense and say, now you should be sure to do this and then go meet just with the prosecution or do both parties have to be present? Do you know what their ethical duties are in this regard? I read the article by Dr. Stone and wasn't quite clear on this. Well, I think the ethical duty is that you can't work both sides of the street in that way. It's hard to imagine how that could ever work unless you just want the opinion of the expert, but once what happens so often with people who start out as neutral experts is they become experts for one side or the other, usually the prosecution. So in your reply brief, on page 1, you've got four examples where you say the language clearly shows that they were meant to be, I don't know what the word is, that you hope it's not partisan or non-objective, but aligned experts, I guess. And the first one, they're supposed to provide assistance that may well be crucial to the defendants' ability to marshal his defense

. Well, you can certainly understand the assistance being, here is the diagnosis. This is what these medical terms mean. This is what the rules are or this is, you know, it doesn't necessarily mean that they're going to be partisan in helping shape the defense. The other one, another one of the four you say is they're needed to translate a medical diagnosis into language that will assist the trial of fact. Well, that doesn't entail partisanship of any kind. It's simply sort of a medical instruction. You know, this particular term means this, and then the lawyer can go off and develop her defense. But I don't think you can take each one in isolation. You have to look at all the things that the Court talked about. You talked about this person gathering information, organizing information, meeting with the defense about how this can be used in the defense of the case, choosing among viable defenses. It even talks about the person, as I said, talking to the lawyers about how do you cross examine the prosecution's expert. Mr. Prowick, that is the essence of this. I know that there is a lot of talk about independent, neutral defense expert, but really what's at issue is what kind of aid a defendant is entitled to to mount a viable defense. Correct? Correct. And so once there is evidence, and here there was evidence at the last moment, that in fact, as the prior experts had testified that certain test should be taken, that certain signs of organic brain injury were present, once that was confirmed, what the expert was saying to the Court is, now I need help. Because this expert is telling this Court-appointed expert is telling us that all these things really are irrelevant to my defense, but I have a viable claim that organic brain injury exists and that it might have an effect and provide me with a defense. So I need assistance in determining that, correct? Exactly. In what other area do we permit the State or a Court to appoint, to not fund an expert once there is viable evidence of a potential defense? I don't know. Do you mean with regard to mental health? In any area. I mean, you look at Ford versus Wainwright, where the Court looked at the question of whether someone was competent to be executed or not. And the Court found that there, for the process to work, you couldn't have what Florida had, which was just except information from the State's doctors and not except information from the defendant's doctors. And of course, this Court found in Pinede versus Quattermen that that was a clearly established rule, what was in Justice Powell's concurring opinion, was a clearly established rule about the procedures that were to be involved with regard to whether or not a person is competent to be executed. Now, I'm not sure that you've answered Justice Kennedy's question. He started with the observation that there is an argument. I know we know you don't accept it

. You don't have to keep saying that. That ache was ambiguous. If it was what happens to your case, how do you win? How do you get to the point that this was sufficiently clearly established at the time of this case so that it was an unreasonable application of law by the Court below? I think to prevail under 2024D, we have to show that there was a violation of a clearly established, of a Federal rule, a constitutional rule, that was clearly established by the decision of this Court. So I think that's what we have to show and ache is what we have to show for that. And I want to say this to Mr. McCormick. Mr. McCormick, before I move on to that, you say it's clear that the Lafayette treatise on criminal law, which I think is, if not the most cited treatise in this Court, certainly one of them, this is a quote. Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration. So your position has to be that the Lafayette treatise is wrong. It wasn't ambiguous at all. Well, I am. Libertly ambiguous. Greatest respect for a professional affair, but just like lower courts, professors make mistakes too. Well, they do, but your position has to be that Lafayette made a mistake, the Fifth Circuit made a mistake. Eight State Courts, the final State Courts made mistakes. On remand in ache, it was a mistake. All of those things, nothing whether you're right or wrong in the merits, but that body of authority that takes a different position would seem to meet it, establish that the question was ambiguous, at least coming out of ache, as opposed to clearly established. Well, you think whether a proposition is clearly established begins and ends with this Court. I think the ultimate question of whether it was clearly established, yes, this has been 30 years since ache was decided. So, of course, there are going to be lawyers and judges being what they are, there are going to be differences. But I would point out the weight of the authority is certainly on our side. Mr. Brink, the Court is finding it. As I understand your position, and you'll correct me if I'm wrong, I'll correct me if I'm wrong. You seem to be arguing that what the defendant is entitled to is an expert who will function more or less like the kind of expert who would be retained by the defense if the defense were simply given fun stock to hire an expert

. Am I right in thinking that? Well, that's not what the case holds, but as in terms of what this expert would do, you want an expert who would function more or less like that. Well, to, I mean, the prosecution can hire as many experts as it wants. It can choose experts that will come out the way it wants. If you're in Texas and you want to prove future dangerousness, doctors will testify every single time they get a chance that the defendant is a future danger, so you can hire that kind of partisan expert. But I'm not. I don't see how an expert who is chosen by the Court and paid by the Court can ever function in anything like that capacity for a defendant. And one thing that is perfectly clear from the opinion in AIC is that the Court would pick the expert, and it's one that the Court will pick one expert, and that's it the defense has to live with it. And I just, if you could explain how that kind of an expert can ever function like an expert retained by the defense. Well, it's no different than a court appointed lawyer. I would be different from a lawyer because a lawyer, you know, a lawyer doesn't have to believe in the clients. And since a lawyer has a professional duty within the bounds of professional responsibility to do everything that can be done to advance the interests of the client, but an expert who's going to write a report and is going to testify presumably, if the person acts in good faith, is going to give an honest opinion. Am I wrong? Right. So what would you say to this court of point that you get one expert, it's a point at what do you say to this expert? Now, I don't really want you to give your neutral opinion. I want you to give your most defense friendly opinion on this. No, but I think what the court could have gone further. But Mr. Bright, why is that wrong? What? Why is it wrong to ask an expert that's been provided to the defense to do that? Well, I think what would say I have to defend this man, give me my best argument? I think that's what lawyers do. And I think that's not lawyers' experts. Yeah, experts. I think we asked the expert to look at whatever information the expert is gathered, look at the defendant, examine the defendant, all of those sorts of things. And of course, you're looking for, hopefully, a favorable opinion, but that's not always going to be the case. Well, no, I understand. That really wasn't my question. Of course, you could ask the expert, you know, give me the, give me whatever is most favorable. Give me advice that is most favorable to my client. But when it comes down to giving an opinion about whether the individual is sane or something that's relevant to mitigation, I don't see how you can ask the expert to do any favor

. Anything other than to give the expert's honest professional opinion. So it doesn't, it's doubt, I'm having difficulty seeing how an expert who is appointed by the Court, you get one, could ever function that way. And I read the oral argument transcript in this case, and there are several places in the oral argument transcript when where the Court and the attorney for aqueates an expert who is appointed by the Court with a neutral expert. And that seems to be what that kind of an expert would be, a neutral expert, not an expert who is really part of the defense team. But the expert described in the A.C. opinion, Justice Alito, is someone who's a part of the defense team. I mean, this question of partisan came up of using the word partisan, of course, parties, whether it be the prosecution, whether it be a wealthy criminal defendant, whether it be a wealthy civil litigant, or all going to hire partisan experts. They're going to hire the experts that they think will give them the opinion that will help their side of the case. The defendant asked for an expert on page 11 of their brief, they quote the respondents, the Court of Appeals, which says there is no indication in the record that it was a lawyer who was appointed by the Court of Appeals, the Court of Appeals, or the trial court, indicated that it would have considered a motion to present an expert, but McWilliam says the respondent chose not to follow well. And your brief on page 9 doesn't say he did ask for an expert. He wanted more time. Well, Justice, does he ask these a judge? Please appoint an expert, did he? Two things, Justice Brown. Did he or didn't? Yes or no? Well, what he did, and you can look at what John Bivens, one of the lawyers said, right towards the end, Ritheson, the joint appendix at about 207, where he made a long plea, you can almost see him on Bended Knee, reading this, in which he said, we've received these records, we've shown his own psychotropic drugs, we've received this report, we don't know what these terms mean or what it's about, we cannot determine for ourselves what we have here. And I point out these lawyers were really sandbathed. And then he ended up by saying that is why we renew the motion for a continuance. For an expert. Does it mean that? Where does it say that? I just don't see where he read. Well, if you read all the way through, all the motions for a continuance, I mean half the pages. Did he ask the judge to appoint an expert? He didn't come right out and say. The answer is no, then, is that right? Well, no, I don't think that's true. Because I think everybody knew what exactly was going on, we kept saying, I need an expert, and I need a tenor. Okay, where is somewhere else? Does it become apparent that he wants the state to appoint an expert? Where? I just wanted to know where. Well, he says over and over, we can't do this without an expert. But maybe he already has an expert. They did have someone advising them

. Well, when the case goes up on appeal to the court of criminal appeals, both the state of Alabama and the defendant, brief it on the merits of the eighth claim. The state argues he got everything he's entitled to underache a neutral expert. He's not entitled to any more. The argument for, on behalf of Mr. McWilliams, was that he was entitled to an independent expert. And the court of criminal appeals, when it decided the case, said all he was entitled to was the expert that he had, or no expert at all, but would have these state experts examined him. So that issue is crisply and clearly presented there. It's presented in the district court. It's presented in the court of appeals. And Eric Corp has looked at this on the question of whether he was entitled to an independent expert or not. May I point out, on page 218, Mr. Sogoldusin, I told your honor that my looking at these records, or it's not of any value to me, that I needed to have somebody look at these records who understood them, who could interpret them for me. Did I not tell your honor that? And shortly thereafter, he says, your honor gave me no time in which to do that. Your honor told me to be here at two o'clock this afternoon. Would your honor have wanted me to file a motion for extraordinary expenses to get someone? The court, I want you to report with your client and proceed at the sentencing, correct? Send him to death, right then. Without any further. And I'd point out this, instead of saying about to say a moment ago, all of this evidence came in in 48 hours. 48 hours before they get the first report from Dr. Gough, which is a neuropsychological examination. The day before they get records from the mental health, the hospital, from the Taylor Harden Mental Health Hospital. And on the day of, he had been subpoenaing the records from the prison since August. And this is October 7th, he receives those records on the morning of the hearing itself when he gets to court. And now he's got two huge piles of records from the hospital and from the prison. He's got a report using terminology that he doesn't understand, making findings that he doesn't understand. And he says, I need help. We can't possibly go forward in this case, because we don't know what we have

. Suppose the judge, the court appoints the head of the psychiatric department at a distinguished private university, one person. And he comes in, he tells the defense counsel, now I'm going to explain to you what all these terms mean. There are lots of tests, I'll tell you about each of these tests. And I'm going to have the same meeting with the prosecution later on. You can ask me anything you want, and then I'm going to testify. I'm not sure what my opinion is yet, but I'll give my opinion. But here's the basis for my opinion, and I want you to ask any questions you want about what these tests mean. Is that sufficient? That's not sufficient, because so you say there's always a conflict of interest, unless the psychiatrist works for the defending, for the defense only. No, not necessarily a conflict of interest, but what AQ stands for is two things, really, the adversary system. The court talks about making it possible for the defendant to present his case within the adversary system. It's a minimal ability. He doesn't get a partisan expert. He doesn't get to choose the expert. But he gets a competent expert to give whatever advice that expert can give to him as he prepares his defense, and is he prepares to deal with the prosecution case? Kagan. Yes. Mr. Breit, can I ask you for your interpretation of there are two paragraphs on page 85, which talk about Smith V. Bouldy, which was a case where there was, in fact, a neutral expert. And the court talks about why it doesn't have to pay attention to Smith V. Bouldy. I'm just curious as to what your interpretation of these paragraphs are, because, um, well, I'll just leave it like that. Well, I think it was giving Bouldy, Smith V. Bouldy a respectable burial is what it boils down to, because the court says we're in fundamental disagreement and points out that Bouldy is a case that comes from 1953. At the time that case was decided, there wasn't even a right to counsel for defendants. So the court says this is of another time and other variables, and therefore it's not, it's not, uh, keep us from, from facing, taking on this issue. But counsel, we could just follow up on that

. Doesn't imply that a neutral expert would be permissible. No, I think it says that was the old days. Those were the horse and buggy days, or almost there. And this is today, and today, mental health is hardly contested. It takes experts on both sides, and for the defense to, where's the stopping point then, because the common law history, our tradition is that often courts could apply and appoint a neutral expert of its own choosing. If the defense now has a right to a particular kind of expert, partisan expert. It's not a partisan expert. Well, if I might just finish, then you can tell me where I've gone off the rails. Where's the stopping point? Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine? Perhaps, forensic science? Where is the stopping point that you would advocate for the Court? Well, I wouldn't advocate it because it's not before the Court in this case. And it would be something for the implication we clearly have to consider. Well, but the thing that the Court has to consider here is the unique nature of mental health. And the fact that experts widely disagree on mental health. Experts widely disagree on everything. And then you hire them. And that may mean that they cost so very much. And many courts, state courts, other courts have said, and of course, under the Criminal Justice Act and the Federal Courts, that where there are other issues, there may be other experts. Does it do process question? This is my other question. If do process requires a partisan expert, surely would also require a partisan lawyer, in which case, what does the Sixth Amendment do? Does it guarantee the right of effective assistance in council? It's just a perfluous. No, the Sixth Amendment guarantees a lawyer who will carry out their professional responsibilities in an ethical and legal way as they should. And by the same token, an expert who's appointed would stay within, would act within the professional boundaries of the profession, of the mental health profession. I'd like to reserve the remainder of my time. Thank you, Council. Mr. Brasher? Thank you, Mr. Chief Justice, and may it please the Court. Egg did not hold that a neutral expert fails to satisfy the due process clause

. Let me talk about the psychiatric assistance that was provided in this case, because I think it's important to begin there. So before the trial of this case even started, the defendant made a motion for a full psychiatric evaluation, specific to mitigating circumstances that he was then going to want to put it issue at the penalty phase of the case. And he was evaluated for over a month by three psychiatrists and a psychologist for that purpose for developing mitigating circumstances. Sorry, I thought that the three psychiatrists were part of the lunacy committee. That's correct, Your Honor. And I thought that the purpose of the lunacy committee was to see if he was mentally competent, Your Honor. That's incorrect, Your Honor. The first motion that was presented by the defendant expressly asked for an evaluation with respect to mitigating circumstances, and the lunacy commission report also addressed that issue of mitigating circumstances. But then after that report suggests that further tests had to be taken with respect to that. No, Your Honor, that report suggested that there were no mitigating circumstances on the fact of the case. Then after the penalty phase, the defendant asked for more psychiatric assistance, a file to motion for full neuropsychological evaluation, including a specific series of psychological tests. And that motion was also granted. And that motion was granted on the same day it was filed September 3, 1986, which is just a year or so after this court had decided to ache. And then two experts did that. There was an ex- Sorry, General, but if we could just focus on, I think it would help to just sort of let's assume for the moment that this defendant did not get what he was asking for, which was a defense expert, and say whether ache entitled him to such an expert. And I just want to sort of focus on the money sentence in ache, you know, what the we therefore hold sentence. And it says, here's what we hold. We hold that when the defendant makes this preliminary showing that mental health is going to be an issue, the State must assure the defendant access to a competent psychiatrist who will assist in evaluation, preparation, and presentation of the defense. And you know, recognizing that we're all smart people and we can read any words, we can have an argument that any words mean anything we say, still assist in evaluation, preparation, and presentation of the defense. Doesn't that mean like, you know, that's what you, that's the phrase you would use for a counsel to assist in evaluation, preparation, and presentation of the defense. It means somebody, I think, is going to say, I'm going to say, I'm going to say, I'm on the defendant's side. Well, if I could answer that with two points, you know, the first is that I think neutral experts are capable of assisting the defense in a way that an expert assists the defense. And expert? How's it capable in the sense that sometimes they might, but it's not what you would, this is, I guess I'm repeating myself, but this is the language that you use when you're talking about not somebody who sometimes might and is capable of, but who in fact will do so to the best of his ability assist the defendant. And I think the way an expert assists the defendant is by translating medical diagnosis into language that lawyers can understand. The Court says in a that psychiatrists gather facts and offer opinions. And we would submit that a psychiatrist who does what you ask them to do, who does the evaluations that you ask them to do prepares the reports that you ask them to prepare their assisting your defense, just like they did in this case

. The Court's assistance, you know, what you use it most often is the defendant is entitled to the assistance of counsel. The assistance of counsel doesn't mean neutral. And this one thing that stands out in this case is the word assist to defense, assisting adversarial. Those at least are cues that what the decision right ahead of mine was assisting the defense, just as a lawyer, assist the defendant. Well, I could just respond to that, Justice Ginsburg. I think the Court has to evaluate the holding of vague in light of the facts and the question presented in A.K. This isn't a statute that we're interpreting as a judicial decision. And the problem in A.K. was not that there was a neutral expert that had assisted the defendant. The problem in A.K. was that there was no expert that had assisted the defendant. But sometimes the Court goes beyond what the facts are. And sometimes, you know, sometimes it issues a holding that's just precisely calibrated to the facts and sometimes broader. And it seems that what we do is we look at the language. We look at what the Court said and said, given what the Court said, is this right clearly established. And I guess, again, just to repeat what Justice Ginsburg said, I started counting up the word assist in this opinion and, frankly, a lost track. That every time this opinion talks about this, it talks about assisting the defense and assisting the defendant, including to cross-examine the prosecution. It just seems that the premise of the entire opinion is you are on the defense team. Well, there are parts of the opinion that we would suggest that also cut in our favor. So, for example, the Court's discussion of Baldy, I think, cuts in our favor because the Court does distinguish Baldy on the grounds that neutral experts testified in that case. Baldy was a case with this Court of Justice. Well, at first it does. You're exactly right. And this is why I asked about Baldy. I find those two paragraphs incredibly confusing. Because the first paragraph says we're distinguishing it because there it was a neutral expert. And then the second paragraph says anyhow, Baldy, I mean, it does, I think, it doesn't use the term overrule, but a lower court would be crazed if it relied on Baldy after that opinion. Well, I'll count incredibly confusing as a plus for me in a Federal habeas case where the law has to be confused. No, no, no. Two paragraphs might be confusing. But the question is, what does the opinion say, and particularly what does the holdings say? Right. And the other part of the opinion that we think counts in our favor is the part where the Court says in the paragraph that has this holding in it that we're going to leave it to the States to decide how to implement this rise. Yes, all right. But what about the point that Justice Kagan raised? She was quoting from the opinion, why do we have to get into an argument about whether they can be independent or partisan? An expert should not be, he should give his honest opinion. That's what they're supposed to do. Why is that the right characterization? Why not just quote from the opinion? The defense has to have somebody who will conduct an appropriate examination, assist in evaluation, preparation, and presentation of the defense. And in case we're unclear what that means, the Court previously said that that person, the job object is, is the insanity defense viable? Present testimony to that effect? Assist in preparing the cross-examination of a State psychiatric witness? So why do we have to say more than? That's the question, and here it seems to me that this defendant certainly did not get that help. Well, came in, they presented a report, I've read pages from the report, and that report was apparently controversial. And did the defendant have someone to do cross-examination, helping with that, helping to understand the report, et cetera? And that's the end of the case. So if I could just address that, Justice Breyer. So with respect to the timing, the defendant asked for this report, asked for a full neuropsychological evaluation, and the Court granted the motion, and the defendant asked for that report to be provided to the court before the judicial sentencing, and that's when the report was provided. So what? So what? I'm sorry, not being facetious. I mean, literally, I don't know the answer to that. So what? Did he have a person who, well, could look at the report, help him cross examine, help him understand? Now, who was that person? I didn't see one here. My point, Your Honor, is that person who prepared the report was his expert? It was exactly what he called. Mr. Goff. Exactly. He didn't seem to be his expert

. And this is why I asked about Baldy. I find those two paragraphs incredibly confusing. Because the first paragraph says we're distinguishing it because there it was a neutral expert. And then the second paragraph says anyhow, Baldy, I mean, it does, I think, it doesn't use the term overrule, but a lower court would be crazed if it relied on Baldy after that opinion. Well, I'll count incredibly confusing as a plus for me in a Federal habeas case where the law has to be confused. No, no, no. Two paragraphs might be confusing. But the question is, what does the opinion say, and particularly what does the holdings say? Right. And the other part of the opinion that we think counts in our favor is the part where the Court says in the paragraph that has this holding in it that we're going to leave it to the States to decide how to implement this rise. Yes, all right. But what about the point that Justice Kagan raised? She was quoting from the opinion, why do we have to get into an argument about whether they can be independent or partisan? An expert should not be, he should give his honest opinion. That's what they're supposed to do. Why is that the right characterization? Why not just quote from the opinion? The defense has to have somebody who will conduct an appropriate examination, assist in evaluation, preparation, and presentation of the defense. And in case we're unclear what that means, the Court previously said that that person, the job object is, is the insanity defense viable? Present testimony to that effect? Assist in preparing the cross-examination of a State psychiatric witness? So why do we have to say more than? That's the question, and here it seems to me that this defendant certainly did not get that help. Well, came in, they presented a report, I've read pages from the report, and that report was apparently controversial. And did the defendant have someone to do cross-examination, helping with that, helping to understand the report, et cetera? And that's the end of the case. So if I could just address that, Justice Breyer. So with respect to the timing, the defendant asked for this report, asked for a full neuropsychological evaluation, and the Court granted the motion, and the defendant asked for that report to be provided to the court before the judicial sentencing, and that's when the report was provided. So what? So what? I'm sorry, not being facetious. I mean, literally, I don't know the answer to that. So what? Did he have a person who, well, could look at the report, help him cross examine, help him understand? Now, who was that person? I didn't see one here. My point, Your Honor, is that person who prepared the report was his expert? It was exactly what he called. Mr. Goff. Exactly. He didn't seem to be his expert. He seemed to be a member of the State Lunacy Commission. I don't think he consulted. Did he consult with the defense attorney before? Did he explain to the defense attorney, et cetera? Just to be clear, he was not a member of the Lunacy Commission. He was a, he was the head of psychology at a mental hospital, and Dr. Goff also routinely testifies for a certain, a fine doctor. My question is, did he assist the defense in the cross examination? Did he assist of himself, I doubted? Did he assist in the preparation, you know, these, those four things that were listed? Did he or did he not? There was no cross examination. And why was there no cross examination? Because he was the defense expert. I mean, this, because he was the defense expert. Right. Well, you usually meet with your expert and go over the testimony with care. Did that happen here, or could that happen here? I would suggest that. And if he had met with the prosecution, would that have been a violation of his ethical obligations? Dr. Goff comes into the case because the defendant files a motion for full neuropsychological testing after the penalty phase of trial. He wants to get those results to provide to the court. I mean, we submit that an ache, this Court said that the defendant has the right to get a psychiatrist to assist him, to put his mental health at issue, and hear the defendant wanted to put his mental health at issue. Could he be consulted by either or both sides privately to prepare anything? I don't think that there was anything prohibiting the prosecution from talking to talk about that. Would you object to the following disposition of the case? That we say the issue is not partisan versus independent. The issue is whether the defense had assistance from a psychiatrist in the evaluation, preparation, and presentation of the defense, including cross examination of hostile or state psychiatric witnesses. That's what ache provides. That's clear. And what we want you to do, Gordavine Peele, is decide whether that was so. I think that we, I would suggest that the right way to look at that issue or you're not. Well, I agree with it, except for this one caveat. You do agree with it. Except for this one caveat, which is that this is a Federal habeas case. So the question would be whether the State Court's un reasonably applied the holding of the case, if they did not give, but if they did not give him psychiatric assistance and pay for it, a psychiatrist who would have done those four things that I just mentioned, then they did violate clearly established law

. He seemed to be a member of the State Lunacy Commission. I don't think he consulted. Did he consult with the defense attorney before? Did he explain to the defense attorney, et cetera? Just to be clear, he was not a member of the Lunacy Commission. He was a, he was the head of psychology at a mental hospital, and Dr. Goff also routinely testifies for a certain, a fine doctor. My question is, did he assist the defense in the cross examination? Did he assist of himself, I doubted? Did he assist in the preparation, you know, these, those four things that were listed? Did he or did he not? There was no cross examination. And why was there no cross examination? Because he was the defense expert. I mean, this, because he was the defense expert. Right. Well, you usually meet with your expert and go over the testimony with care. Did that happen here, or could that happen here? I would suggest that. And if he had met with the prosecution, would that have been a violation of his ethical obligations? Dr. Goff comes into the case because the defendant files a motion for full neuropsychological testing after the penalty phase of trial. He wants to get those results to provide to the court. I mean, we submit that an ache, this Court said that the defendant has the right to get a psychiatrist to assist him, to put his mental health at issue, and hear the defendant wanted to put his mental health at issue. Could he be consulted by either or both sides privately to prepare anything? I don't think that there was anything prohibiting the prosecution from talking to talk about that. Would you object to the following disposition of the case? That we say the issue is not partisan versus independent. The issue is whether the defense had assistance from a psychiatrist in the evaluation, preparation, and presentation of the defense, including cross examination of hostile or state psychiatric witnesses. That's what ache provides. That's clear. And what we want you to do, Gordavine Peele, is decide whether that was so. I think that we, I would suggest that the right way to look at that issue or you're not. Well, I agree with it, except for this one caveat. You do agree with it. Except for this one caveat, which is that this is a Federal habeas case. So the question would be whether the State Court's un reasonably applied the holding of the case, if they did not give, but if they did not give him psychiatric assistance and pay for it, a psychiatrist who would have done those four things that I just mentioned, then they did violate clearly established law. Because that's what ache says. But my point though, Your Honor, is that the question under Federal habeas laws, whether the State Court un reasonably applied the law. That was the second question presented in the cert petition for Mr. Grascher. I thought the question on which we granted cert was whether somebody with the status of Dr. Goff, whether it was clearly established that somebody with the status of Dr. Goff did not satisfy ache. Not whether Dr. Goff, given his status, did the things that he was supposed to do under ache. That's exactly right, Justice Alito. And my point was that that was the second question presented in the cert petition. Justice Breyer's question was the second question that the Court didn't grant cert on. To talk about the question that the Court did grant cert on, I do think it's important that this issue wasn't presented in ache because this is a Federal habeas case, and this is the first time that anyone representing a State or the Federal government has been able to stand here and argue that a neutral expert actually does satisfy the due process clause. And we would submit that the way Federal habeas is supposed to work in this area is that the State sort of get a first shot at this Supreme Court to argue our position. Sotomayor, any jurisdiction that holds that today, that all that ache requires is a neutral expert. I thought by now every jurisdiction recognizes that ache requires an expert who will be essentially part of the defense team. Well, this issue really has been mooted over the last 30-some odd years because of statutory changes. So there are there are jurisdictions that have reversed their previous cases, but there are. Including Alabama, am I right that in 2005, the Alabama Court of Criminal Appeals said, ache made it clear that an inded independent is entitled to an independent expert devoted to assisting his defense, not one providing the same information or advice to the Court in prosecution. That's correct, but what we would submit is what these lower courts are doing is they're extending this Court's precedent to address this question. And we don't have to really address this here because this is not a direct appeal case. The question in this case is not whether ache should be extended to say that a neutral expert doesn't satisfy the due process clause. The question in this case is whether ache held that. And we would submit that ache says nothing about indedentment. Well, if ache says that you have a right to meaningful assistance from a psychiatrist, you the defense. And then over time it becomes clear to us that that psychiatrist must be retained for the benefit of the defense only

. Because that's what ache says. But my point though, Your Honor, is that the question under Federal habeas laws, whether the State Court un reasonably applied the law. That was the second question presented in the cert petition for Mr. Grascher. I thought the question on which we granted cert was whether somebody with the status of Dr. Goff, whether it was clearly established that somebody with the status of Dr. Goff did not satisfy ache. Not whether Dr. Goff, given his status, did the things that he was supposed to do under ache. That's exactly right, Justice Alito. And my point was that that was the second question presented in the cert petition. Justice Breyer's question was the second question that the Court didn't grant cert on. To talk about the question that the Court did grant cert on, I do think it's important that this issue wasn't presented in ache because this is a Federal habeas case, and this is the first time that anyone representing a State or the Federal government has been able to stand here and argue that a neutral expert actually does satisfy the due process clause. And we would submit that the way Federal habeas is supposed to work in this area is that the State sort of get a first shot at this Supreme Court to argue our position. Sotomayor, any jurisdiction that holds that today, that all that ache requires is a neutral expert. I thought by now every jurisdiction recognizes that ache requires an expert who will be essentially part of the defense team. Well, this issue really has been mooted over the last 30-some odd years because of statutory changes. So there are there are jurisdictions that have reversed their previous cases, but there are. Including Alabama, am I right that in 2005, the Alabama Court of Criminal Appeals said, ache made it clear that an inded independent is entitled to an independent expert devoted to assisting his defense, not one providing the same information or advice to the Court in prosecution. That's correct, but what we would submit is what these lower courts are doing is they're extending this Court's precedent to address this question. And we don't have to really address this here because this is not a direct appeal case. The question in this case is not whether ache should be extended to say that a neutral expert doesn't satisfy the due process clause. The question in this case is whether ache held that. And we would submit that ache says nothing about indedentment. Well, if ache says that you have a right to meaningful assistance from a psychiatrist, you the defense. And then over time it becomes clear to us that that psychiatrist must be retained for the benefit of the defense only. Is that a new clearly established holding or is it simply a refinement of a clearly established right that was set forth in ache? The petitioner's counsel didn't seem to want to embrace that. This was the impression that if it's ambiguous, he loses, but I'm not sure that's the case. Well, I think the reason my friend didn't want to embrace that is because when you use the word refinement, I think what you're suggesting Justice Kennedy is extension. And this Court has said that you can't extend a precedent in the context of Federal habeas. And that really is what my friend is suggesting is that this Court should extend the actual holding of ache to embrace this new right that says that a neutral expert is insufficient. What was the case where we said that? I think you're right. The Court said that in White V. Woodall. The Court said that. I should also point out that there's that. Again, General, I mean, the actual holding of ache calls for assistance and evaluation preparation and presentation of the defense. And the theme of ache, if you will, is all about how we used to think that psychiatric opinions were just like one thing, but now we know better. We know that different psychiatrists have different opinions, and it's really important to arm even an indigent defendant with the tools that he needs to come back at the state and to say, and to say, and to establish what he wants to establish about his mental health. I mean, that's really the theme of the opinion that you have to give the indigent defendants just as you give the wealthier defendant the tools that they need to establish what they want to establish about mental health. And then that's consistent with the, with these words that are repeated in the holding and elsewhere. Well, to go to the issue of wealthy and indigent indigence, this Court did say in a footnote that it was reserving that question. It was not talking about the equal protection clause. No, no, no, and it's not talking about parity. All it's saying is that we recognize that the state is going to have experts. We recognize that if you had money, you would have experts. We recognize that mental health is one of those things that people can have different opinions about and that people would really like to have experts. Right. And we're going to give this indigent person a single one who will be able to assist him in these ways and evaluate in preparing and presenting the defense. And our point, Justice Kagan, is just that this question presented in this case, which is about whether a neutral expert can satisfy that, was not at issue in A. It wasn't in the defense. Well, here, what about this? Is it you saying this? The defendant should be entitled to one competent opinion from the psychiatrist who acts independently of the prosecutor's office

. Is that a new clearly established holding or is it simply a refinement of a clearly established right that was set forth in ache? The petitioner's counsel didn't seem to want to embrace that. This was the impression that if it's ambiguous, he loses, but I'm not sure that's the case. Well, I think the reason my friend didn't want to embrace that is because when you use the word refinement, I think what you're suggesting Justice Kennedy is extension. And this Court has said that you can't extend a precedent in the context of Federal habeas. And that really is what my friend is suggesting is that this Court should extend the actual holding of ache to embrace this new right that says that a neutral expert is insufficient. What was the case where we said that? I think you're right. The Court said that in White V. Woodall. The Court said that. I should also point out that there's that. Again, General, I mean, the actual holding of ache calls for assistance and evaluation preparation and presentation of the defense. And the theme of ache, if you will, is all about how we used to think that psychiatric opinions were just like one thing, but now we know better. We know that different psychiatrists have different opinions, and it's really important to arm even an indigent defendant with the tools that he needs to come back at the state and to say, and to say, and to establish what he wants to establish about his mental health. I mean, that's really the theme of the opinion that you have to give the indigent defendants just as you give the wealthier defendant the tools that they need to establish what they want to establish about mental health. And then that's consistent with the, with these words that are repeated in the holding and elsewhere. Well, to go to the issue of wealthy and indigent indigence, this Court did say in a footnote that it was reserving that question. It was not talking about the equal protection clause. No, no, no, and it's not talking about parity. All it's saying is that we recognize that the state is going to have experts. We recognize that if you had money, you would have experts. We recognize that mental health is one of those things that people can have different opinions about and that people would really like to have experts. Right. And we're going to give this indigent person a single one who will be able to assist him in these ways and evaluate in preparing and presenting the defense. And our point, Justice Kagan, is just that this question presented in this case, which is about whether a neutral expert can satisfy that, was not at issue in A. It wasn't in the defense. Well, here, what about this? Is it you saying this? The defendant should be entitled to one competent opinion from the psychiatrist who acts independently of the prosecutor's office. That's, I think, what you're arguing. Well, I mean this is a trick question. Well, of course I'm quoting from the dissent. Okay. And what the dissent says is that is precisely what the court doesn't hold. And I wish they would. I've written dissents like that too. We all have. But if it's dissent and you say that isn't what the court holds, that's at least some evidence that that wasn't what the court held. Well, Justice Rinkwist, former Justice Rinkwist in that case, to send in for three reasons really on this issue. The facts was most of his dissent. He said that this is a situation where no expert assistance was required at all. He also said that this entire discussion was dicta. And then, of course, he does have this phrase where he says that you shouldn't be entitled to a defense consultant or an opposing view. But we would suggest that his dissent is no more despositive than the Chief Justice concurrence in that case, which took a very limited view of A. I mean, ultimately, the way you interpret what is clearly established under one of this court's holdings is you look at the facts of the case and you look at the question presented, and there's just no dispute that on the facts of A. The problem was that he did not get any expert assistance at all. Kagan, that just has to be wrong as a statement of how we figure out what clearly established us. We don't look at the facts in the Q.P. We look at the Holden. Well, this is what the Holden says. You're entitled to somebody who will assist you in evaluating, preparing, and presenting your defense. Well, with respect to Justice Kagan, this is what the Court said in Lopez about how you evaluate this issue. The Court said, quote, sorry, the Court said you look at, quote, the specific question presented in, quote, in the case, and you see whether it's come up again. And so the specific question presented here is about whether a neutral expert can satisfy the due process clause that wasn't presented in A

. That's, I think, what you're arguing. Well, I mean this is a trick question. Well, of course I'm quoting from the dissent. Okay. And what the dissent says is that is precisely what the court doesn't hold. And I wish they would. I've written dissents like that too. We all have. But if it's dissent and you say that isn't what the court holds, that's at least some evidence that that wasn't what the court held. Well, Justice Rinkwist, former Justice Rinkwist in that case, to send in for three reasons really on this issue. The facts was most of his dissent. He said that this is a situation where no expert assistance was required at all. He also said that this entire discussion was dicta. And then, of course, he does have this phrase where he says that you shouldn't be entitled to a defense consultant or an opposing view. But we would suggest that his dissent is no more despositive than the Chief Justice concurrence in that case, which took a very limited view of A. I mean, ultimately, the way you interpret what is clearly established under one of this court's holdings is you look at the facts of the case and you look at the question presented, and there's just no dispute that on the facts of A. The problem was that he did not get any expert assistance at all. Kagan, that just has to be wrong as a statement of how we figure out what clearly established us. We don't look at the facts in the Q.P. We look at the Holden. Well, this is what the Holden says. You're entitled to somebody who will assist you in evaluating, preparing, and presenting your defense. Well, with respect to Justice Kagan, this is what the Court said in Lopez about how you evaluate this issue. The Court said, quote, sorry, the Court said you look at, quote, the specific question presented in, quote, in the case, and you see whether it's come up again. And so the specific question presented here is about whether a neutral expert can satisfy the due process clause that wasn't presented in A. And just to be clear, in A. There was a motion filed for a psychiatric evaluation for sanity at the time of the defense, and that motion was denied. The motion that was filed here for a psychiatric evaluation for mitigating circumstances, the two motions, both before trial and the full psychological evaluation after the penalty phase, both were granted. And that's the dispositive difference. Mr. Bashar, one piece of evidence about what a holding it means is what the parties ask for in an adversarial system where parties generally control the outcome of cases in terms of the issues presented. And in A. Because I understand that Defense Counsel asked for either a partisan expert or a court appointed expert would have been satisfied with either one. It's my understanding. That's exactly right. And the fact that that motion was denied led this Court in a talus in the, in the opinion to say, quote, there was no expert testimony for either side on A. Cassidy at the time of the investigation. That would be quite something I have to say, General. If we say, listen, when you read our opinions and when you try to figure out what we're saying, what you have to do is go back to the QP and just narrow it to exactly what the QP said. I think that that would be a shocking way to interpret the Court's opinions. Well, just to be clear, Justice Kennedy, I'm not saying you look at the cert petition itself. I'm saying you look at the question presented on the facts of the case. Because once again, we're not doing statutory interpretation. The effort here is not to determine the intent of the author of A. The question here is to determine what A clearly established. And just the way you interpret judicial opinions has to be in light of the facts of the case and the question that's actually presented in the case. Because this is the first time that someone from the State has been able to make this argument to you because it was not presented in A. At all. The State of Oklahoma could marry with the parties actually. About you, too, right? What, Justice Ginsburg? One, one facet of this case, you presented as the defense is asking for a defense oriented expert. And you said that there was no such expert for the State

. And just to be clear, in A. There was a motion filed for a psychiatric evaluation for sanity at the time of the defense, and that motion was denied. The motion that was filed here for a psychiatric evaluation for mitigating circumstances, the two motions, both before trial and the full psychological evaluation after the penalty phase, both were granted. And that's the dispositive difference. Mr. Bashar, one piece of evidence about what a holding it means is what the parties ask for in an adversarial system where parties generally control the outcome of cases in terms of the issues presented. And in A. Because I understand that Defense Counsel asked for either a partisan expert or a court appointed expert would have been satisfied with either one. It's my understanding. That's exactly right. And the fact that that motion was denied led this Court in a talus in the, in the opinion to say, quote, there was no expert testimony for either side on A. Cassidy at the time of the investigation. That would be quite something I have to say, General. If we say, listen, when you read our opinions and when you try to figure out what we're saying, what you have to do is go back to the QP and just narrow it to exactly what the QP said. I think that that would be a shocking way to interpret the Court's opinions. Well, just to be clear, Justice Kennedy, I'm not saying you look at the cert petition itself. I'm saying you look at the question presented on the facts of the case. Because once again, we're not doing statutory interpretation. The effort here is not to determine the intent of the author of A. The question here is to determine what A clearly established. And just the way you interpret judicial opinions has to be in light of the facts of the case and the question that's actually presented in the case. Because this is the first time that someone from the State has been able to make this argument to you because it was not presented in A. At all. The State of Oklahoma could marry with the parties actually. About you, too, right? What, Justice Ginsburg? One, one facet of this case, you presented as the defense is asking for a defense oriented expert. And you said that there was no such expert for the State. But I think the opinion itself says that before the sentencing judge, the prosecutor relied on the testimony of State psychiatrist who had testified at the guilt phase that he was dangerous to society. So the judge, before the judge imposed his sentence, is looking back to the guilt phase where there were experts for the State, not independent, whatever. They were called by the prosecutor to testify to future dangerousness. Just to be clear, Justice Ginsburg, are you talking about the facts of A or the facts of this case? I'm telling you about the facts of A. Yes, Justice Ginsburg. So in that case, one of the issues at Capitol sentencing was that the State actually put the defendant's mental health issue as an aggravating circumstance. So this Court knows that the way Capitol punishment works is it's the State's burden to prove an aggravating circumstance. And if the State doesn't meet that burden, then a defendant isn't eligible for the death penalty. And in A. The problem was that is that the State used psychiatric testimony to meet its burden to make the defendant eligible for the death penalty, and the defendant didn't have any way to rebut that because the defendant's motion had been denied. Here, once again, the defendant was trying to put his mental health issue. He was trying to raise it as a mitigating circumstance. There is no issue of future dangerousness in this case because the aggravating circumstances that made Mr. McWilliams eligible for the death penalty. I'm not asking about that particular issue, but I thought that the sentencing judge now after the guilt phase is looking to the testimony that was given at the execution experts, not neutral experts. And I'm sorry. Is that in A? Is this your question about A? Yes, is it all in A? Yes. So there were not prosecution experts. There were experts that had evaluated the defendant for competency to stand trial. There was no evaluation ever done for the defendant's sanity at the time of the offense. And that was a key fact in A. Because that was the issue that the defendant wanted to raise. His mental health with respect to his sanity at the time of the offense. And because his motion was denied, although Mr. McWilliams motion was granted, his motion was denied and he couldn't put that issue in front of the court. Here, the motion was granted, so he was allowed to put that issue in front of the court

. But I think the opinion itself says that before the sentencing judge, the prosecutor relied on the testimony of State psychiatrist who had testified at the guilt phase that he was dangerous to society. So the judge, before the judge imposed his sentence, is looking back to the guilt phase where there were experts for the State, not independent, whatever. They were called by the prosecutor to testify to future dangerousness. Just to be clear, Justice Ginsburg, are you talking about the facts of A or the facts of this case? I'm telling you about the facts of A. Yes, Justice Ginsburg. So in that case, one of the issues at Capitol sentencing was that the State actually put the defendant's mental health issue as an aggravating circumstance. So this Court knows that the way Capitol punishment works is it's the State's burden to prove an aggravating circumstance. And if the State doesn't meet that burden, then a defendant isn't eligible for the death penalty. And in A. The problem was that is that the State used psychiatric testimony to meet its burden to make the defendant eligible for the death penalty, and the defendant didn't have any way to rebut that because the defendant's motion had been denied. Here, once again, the defendant was trying to put his mental health issue. He was trying to raise it as a mitigating circumstance. There is no issue of future dangerousness in this case because the aggravating circumstances that made Mr. McWilliams eligible for the death penalty. I'm not asking about that particular issue, but I thought that the sentencing judge now after the guilt phase is looking to the testimony that was given at the execution experts, not neutral experts. And I'm sorry. Is that in A? Is this your question about A? Yes, is it all in A? Yes. So there were not prosecution experts. There were experts that had evaluated the defendant for competency to stand trial. There was no evaluation ever done for the defendant's sanity at the time of the offense. And that was a key fact in A. Because that was the issue that the defendant wanted to raise. His mental health with respect to his sanity at the time of the offense. And because his motion was denied, although Mr. McWilliams motion was granted, his motion was denied and he couldn't put that issue in front of the court. Here, the motion was granted, so he was allowed to put that issue in front of the court. He had a full neuropsychological evaluation and the judge at sentencing looked at that report as part of his evaluation. I just want to do mention one thing that goes back to the timing issue, which is this argument from my friend that there was some kind of sandbagging with respect to these records from the Department of Health. The only thing that he's ever suggested was relevant in those records was the specific prescriptions that Mr. McWilliams was getting at the Department of Corrections. But the lawyer for Mr. McWilliams knew about those drugs well in advance of this hearing. If you look at page 269 of the trial transcript, well in advance of trial, counsel from Mr. McWilliams talks about the drugs that his client is getting. Actually, if you look at the Joint Appendix on page 191A, you'll see that the lawyer for Mr. McWilliams actually shows up to the judicial sentencing with articles about the specific drugs that his lawyer, that his client is being prescribed. So he knew about this well in advance of the hearing. And another way to evaluate this issue is that on post-conviction review, 20 some odd years after this conviction was done, Mr. McWilliams got to hire a partisan expert. He got to search the country for the best partisan expert and he hired Dr. Woods, an expert from California. And his analysis of this was just that Mr. McWilliams was bipolar. He didn't draw anything significant out of those records that would lead to a change in the ultimate outcome here. I mean, ultimately, this case has been pending for over 30 years. And part of the reason why Congress said that, and her federal habeas were going to require clearly established law at the time of the State Court's decision is because we're supposed to look at this not, you know, through 2017 eyes, we're supposed to look at this through the eyes of the State Court that had to evaluate this issue in 1991. And that we submit is why the fact that all these lower courts were saying that neutral experts could satisfy the due process clause is important because- It's truth. There have been a lot of lower courts, a lot of smart judges have read, ache, and they found it ambiguous. And I wonder if this may have been what went on in their minds. We know what's going on in ache because we have written opinions like that and we have joined opinions like that. This is an opinion that is deliberately ambiguous because there was probably disagreement among the members of the majority about how far they wanted to go. Do you think that's a reasonable hypothesis? I think that's a very reasonable hypothesis

. He had a full neuropsychological evaluation and the judge at sentencing looked at that report as part of his evaluation. I just want to do mention one thing that goes back to the timing issue, which is this argument from my friend that there was some kind of sandbagging with respect to these records from the Department of Health. The only thing that he's ever suggested was relevant in those records was the specific prescriptions that Mr. McWilliams was getting at the Department of Corrections. But the lawyer for Mr. McWilliams knew about those drugs well in advance of this hearing. If you look at page 269 of the trial transcript, well in advance of trial, counsel from Mr. McWilliams talks about the drugs that his client is getting. Actually, if you look at the Joint Appendix on page 191A, you'll see that the lawyer for Mr. McWilliams actually shows up to the judicial sentencing with articles about the specific drugs that his lawyer, that his client is being prescribed. So he knew about this well in advance of the hearing. And another way to evaluate this issue is that on post-conviction review, 20 some odd years after this conviction was done, Mr. McWilliams got to hire a partisan expert. He got to search the country for the best partisan expert and he hired Dr. Woods, an expert from California. And his analysis of this was just that Mr. McWilliams was bipolar. He didn't draw anything significant out of those records that would lead to a change in the ultimate outcome here. I mean, ultimately, this case has been pending for over 30 years. And part of the reason why Congress said that, and her federal habeas were going to require clearly established law at the time of the State Court's decision is because we're supposed to look at this not, you know, through 2017 eyes, we're supposed to look at this through the eyes of the State Court that had to evaluate this issue in 1991. And that we submit is why the fact that all these lower courts were saying that neutral experts could satisfy the due process clause is important because- It's truth. There have been a lot of lower courts, a lot of smart judges have read, ache, and they found it ambiguous. And I wonder if this may have been what went on in their minds. We know what's going on in ache because we have written opinions like that and we have joined opinions like that. This is an opinion that is deliberately ambiguous because there was probably disagreement among the members of the majority about how far they wanted to go. Do you think that's a reasonable hypothesis? I think that's a very reasonable hypothesis. And I think one way that that hypothesis has some merit is that when this precise issue about neutral expert versus partisan experts came back up to this Court in Granville where it was directly presented, this Court didn't grant search. And instead Justice Marshall was writing a dissent from the denial of search. I see that my light is on unless the Court has any further questions. I'll just wrap up and say that this case has been going on for over 30 years. This Federal habeas case has actually been pending for over about 14 years now. And we respectfully request that the Court affirm the Court of Opinions. Thank you. Thank you, Council. Three minutes, Mr. Bright. Thank you very much, Mr. Chief Justice. I think with regard to this question about extension, I think what really has happened here is refinement. That AQ was decided 1985, it's 30 years ago, there's been some refinement of it. It was pointed out almost everybody today, this is just not a controversial issue. And I think because of AQ, you now have, is the Amicus brief for the Public Defender showed almost in every state that either that's done in-house in a public defender office so you don't even go before a judge and ask for an expert? You just go and get it from your boss and there's a budget and the Public Defender budget for it. There are other places they've done it other ways, but that most people, including as Justice Ginsburg pointed out, the State of Alabama courts have come around to the view, and in Morris versus State, the Alabama courts said it is clear that this must be an expert independent of the prosecution, defrease case, defrease versus state, that Texas court of criminal appeals. Regardless of what Granville Health said, this can't be right what Granville Health is in order for this to work in the adversary system. And I think that's what we come back to at the end on this case is the proper working of the adversary system. And this certainly doesn't put the defense in an equal position with a prosecutor not by a long shot, but it at least gives the defense a shot. It at least gives them one competent mental health expert that they can talk to, understand what the issues are, present them as best they can, and one of the things it said, is that that expert may very well testify for the defense. So we're talking about everything from gathering information, to organizing it, to preparing and deciding on the defense to be used in the case to coaching the, or advising the lawyer about cross-examination to actually testify. And this is like what Strickland versus Washington, and the statement that was made there, and this Court in two cases, and Wiggins versus Smith, and Williams versus Taylor, looked at the rule that is that there had to be an investigation that was clearly established in Strickland, and then applied it to the lack of investigation, different types of investigations for different things in Smith and in Williams versus Taylor. If you prevail, it would be a new sentence in hearing, right? Yes. Because guilt is over. Yes

. That's true. Otherwise, if there are no questions, I'd ask the Court to reverse. Thank you. Thank you, counsel. Case is submitted