Brief of the National Association of Criminal Defense Lawyers, National Association for Public Defense, National Legal Aid and Defender Association and Twenty-Three Capital Attorneys and Investigators as Amici Curiae in Support of Petitioner.

Argument: Ake v. Oklahoma clearly established an indigent defendant's right to the assistance of an independent mental health expert at a capital sentencing proceeding. Ake unequivocally requires the provision of an independent expert. Ake's requirement of a state-funded mental health expert reinforced pre-existing state practice in most jurisdictions. In the initial years after Ake, state law in numerous capital jurisdictions supported the recognition of state-funded experts as independent of the state. Texas, Florida, and California Law recognized that court-appointed defense experts must be independent. Georgia, North Carolina, and Virginia construed Ake as requiring an independent expert. Other states with the death penalty during this time recognized the independence of defense experts. On-the-ground practices in eighteen then-active jurisdictions show independent expert assistance was available upon a sufficient demonstration of need.