The Arkansas State Supreme Court today heard arguments from two death row inmates on whether a recent U.S. Supreme Court ruling on the necessity of mental health evaluation and assistance during sentencing and trial should alter their death sentences.

The executions of Don Davis and Bruce Ward — two of the eight men set to die in a historically short period of time by Arkansas in April — were stayed to consider the issue on 4-3 votes by the Arkansas Supreme Court. Ward’s case was also stayed on the grounds he was mentally incompetent to be executed. Defense attorneys have said Ward has schizophrenia and Davis has ADHD coupled with childhood trauma and substance abuse.


The stays for Ward and Davis were granted in April, as the U.S. Supreme Court mulled the case McWilliams v. Dunn out of Alabama. In June, the court, in a 5-4 decision, further clarified Ake v. Oklahoma (from 1985), telling the state of Alabama that, if certain thresholds are met, an independent mental health professional must be provided by the state to “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

Lawyers for Davis and Ward argued that their clients were not provided this independent mental health professional during their trial and sentencing. They also said that, for years, the Arkansas Supreme Court has been misinterpreting what’s required by Ake. They say the ruling in the McWilliams case makes that clear.


But attorneys for the state argued that Ake provisions did not apply to either inmate. Neither Davis nor Ward had met the threshold requirements for its provisions, attorneys for the state said. Meeting threshold would require a “preliminary showing,” solicitor general Lee Rudofsky told the justices. Defining “preliminary showing” can be complex, but it generally means that there is a reason to believe that mental health will be relevant during the trial. He said neither man met this. The defense argued that both men deserved Ake’s requirements.

Rudofsky said that McWilliams did not change Ake and that the court had made clear its interpretation of the required mental health evaluation and assistance.


“[The justices] thought McWilliams was going to tell you something,” Rudofsky said of the stay in April, but noted that the decision was narrow and did not change precedent.

Associate Justice Rhonda K. Wood mentioned this multiple times in questions. Pointing out that the court had ruled on Ake requirements in Ward’s case in 2015. Wood asked Scott Braden, defense attorney for Ward, “What has changed since 2015?”

“Nothing and everything,” Braden said, agreeing that Ake’s logic is still in place but contending McWilliams clarifies that Arkansas “has been incorrect in its conclusion” on Ake.

“All McWilliams does is reinforce Ake,” Braden told reporters after the hearing, “and correct these states.”