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Law Students' Work on US Supreme Court Case Pays Off; Brief Cited by Highest Court in the Land


Early in 2017, first-year students at the University of Cincinnati College of Law were invited to research a high-stakes question that was pending in the United States Supreme Court: when the prosecution chooses to pursue the death penalty against a defendant who has mental illness but cannot afford to hire counsel, does the defendant have the right to a mental health expert who is independent from the prosecution?

Since 1985, capital defense lawyers across the country have obtained such assistance as a matter of right under the Court’s landmark decision Ake v. Oklahoma. Nevertheless, the Alabama courts held there was no such right. In McWilliams v. Dunn, nationally-renowned attorney Steven Bright of the Southern Center for Human Rights asked the Supreme Court to correct that error.

The students jumped at the chance to research the expert appointment practices that have existed across the country since Ake was decided. Their research supported an amicus curiae brief filed by the National Association for Public Defense and other co-amici in McWilliams. Professor Janet Moore supervised the students in her role as chair of NAPD’s Amicus Committee, which she shares with Professor Jennifer Kinsley of NKU-Chase College of Law.

The students’ work paid off. On June 19, 2017, the Court ruled 5-4 that Ake clearly established the capital defendant’s right to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” The students were thrilled to see Justice Breyer’s majority opinion cite the NAPD brief as showing that the majority of jurisdictions have already adopted this principle.

In reflecting on the experience, many contributing students found it to be not only a valuable learning opportunity but a highlight of their first year at UC Law.

Francesca Boland“Assisting Professor Moore with research for the McWilliams brief was one of the highlights of my 1L year,” reflected rising second year law student Francesca Boland. “When I started law school, I never dreamed that before the first year was over I would provide research support for a Supreme Court brief. This was a fantastic opportunity to put my new skills into action and to get a taste of real lawyering. I am thrilled that the brief played a role in the Supreme Court win!”

David WovroshDavid Wovrosh expressed similar sentiments. “It was pretty surreal to see our work cited by the highest court in the land,” he said. “The research really tossed the principles we learn in the classroom into the thresher that is the practical application of law. It was an invaluable learning experience. I could never have imagined having access to such profound and impactful experiences my very first year!”

Marissa Lee also was enthusiastic about her experience: "I'm incredibly appreciative of Professor Moore for giving us the opportunity to do research for an NAPD amicus brief for the Supreme Court. My work allowed me to collaborate with my professor and fellow students outside of class, and my work had a sense of significance. We understood the importance of the case to the defendant in this case and to lawyers representing indigent defendants across the country."Marissa Lee

The students’ energetic response to the opportunity offered in the McWilliams case led to the formation of the College of Law’s Bearcat-NAPD Amicus Team. Students continue to actively assist Professors Moore and Kinsley with research and drafting as well as with the many administrative tasks required to conduct effective appellate advocacy. The team is therefore well-positioned to continue following the McWilliams case, which was remanded for further proceedings, and to assist in the many other cases across the country that raise questions about whether courts are enforcing the bedrock constitutional guarantees that the Supreme Court emphasized in Ake: “a fair opportunity to present [a] defense” and “to participate meaningfully in a judicial proceeding in which . . . liberty is at stake” – in short, “[m]eaningful access to justice.”