We submit this brief to make three important points. First, Ake itself clearly and unambiguously held as a matter of due process that indigent capital defendants must be provided with independent expert assistance upon a reasonable showing of need. The Court was unanimous on this point and swept aside aging precedent that had held provision of neutral assistance was adequate.
Second, Ake was hardly a revolutionary decision. As the Court noted, many states already provided expert assistance. In the first six years after Ake, numerous states explicitly held independent expert assistance must be provided upon an adequate showing of need.
Third, the full story of the availability of independent expert assistance for indigent capital defendants cannot be fully appreciated from inspection of reported case law. We show that in nearly 20 capitally-active jurisdictions, trial courts capitally-active jurisdictions, trial courts and public defender offices routinely provided for independent expert assistance upon a showing of need. These practices are found in the policies and practice of those defender offices and in often sealed orders of the trial court. They are confirmed by twenty-three distinguished amici who were in the capital trial court trenches in the 1980s and early 1990s.
Moore, Janet, "Brief of the National Association of Criminal Defense Lawyers, et al as Amici Curiae Supporting Petitioner, McWilliams v. Dunn (U.S. March 6, 2017) (No. 16-5294)." (2017). Faculty Articles and Other Publications. 351.