United States v. Walter Porter , 907 F.3d 374 ( 2018 )

Case: 16-31184 Document: 00514699946 Page: 1 Date Filed: 10/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-31184 United States Court of Appeals
Fifth Circuit
FILED
October 26, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff−Appellee,
versus
WALTER PORTER,
Also Known as Moonie Porter, Also Known as Urkel Porter
Defendant−Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before SMITH, CLEMENT, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Walter Porter appeals his conviction by contesting orders finding him
competent to stand trial and denying his request for expert funding and
motions to continue. We affirm.
I.
Nemesis Bates offered Porter $20,000 to murder Christopher Smith.
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Porter accepted and killed Smith. Porter and Bates were charged with violat-
ing 18 U.S.C. § 1958(a) (Solicitation to Commit a Crime of Violence), 18 U.S.C.
§ 924(j) (Causing Death Through the Use of a Firearm), and 18 U.S.C. § 924(o)
(Conspiracy to Possess a Firearm). Before that indictment, Porter was indicted
for RICO violations in a second case and for armed bank robberies in a third. 1
Two of those three cases were assigned to Judge Sarah Vance and the other to
Judge Martin Feldman, both in the Eastern District of Louisiana. 2
In April 2014, Porter’s attorneys 3 moved to declare him incompetent in
all three cases. 4 For efficiency, Judges Vance and Feldman conducted the com-
petency proceedings together. 5 Defense counsel submitted affidavits explain-
ing their difficulties communicating with Porter. Counsel also offered a report
from psychiatrist Brushnan Agharkar, who, after three interviews with Porter,
provisionally diagnosed him with Schizoaffective Disorder. 6 Agharkar also
1At the government’s request, Judge Vance dismissed the bank robbery charges after
Porter was convicted of the murder-for-hire and RICO charges.
2The murder-for-hire charges were docketed as No. 13-066; the RICO charges as
No. 12-001; and the bank robbery charges as No. 12-198.
3The same two attorneys eventually represented Porter in all three cases, at least by
the time of the June 2015 competency hearing at issue.
4 In the RICO case, Porter’s attorney moved for a psychiatric examination. He with-
drew that request the next day after meeting again with Porter. The attorney explained that
Porter “clearly ha[d] a rational and factual understanding of the proceedings against him,”
and the behavior that initially worried him was just the “result of stress related to the poten-
tial consequence of the . . . legal matters . . .” But about four months later, a different set of
counsel (the counsel that would represent Porter throughout the competency proceedings)
requested that the court declare Porter incompetent to stand trial. Competency proceedings
commenced.
5 Some actions discussed infra were taken only by one judge, but others were taken
jointly by both. We refer to “the district court” or “the court” when the judges acted jointly
and each judge by name when he or she acted individually.
6Agharkar describes this as a “psychotic disorder in which the person may have delu-
sions, hallucinations and thought disorganization as well as mood swings consistent with
Bipolar Disorder.”
2
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suggested that Porter suffered from a neurocognitive disorder or an intellec-
tual disability.
In response, the government requested the opportunity to conduct a psy-
chiatric or psychological examination in accordance with 18 U.S.C. §§ 4241(a)
and (b) and 4247(b) and (c). The district court agreed in April 2014, and Porter
was transported to the Federal Medical Center at Devens (“Devens”) in Mas-
sachusetts. Devens’s forensic psychologist, Shawn Channell, examined Porter
and submitted a report in August 2014. Channell provisionally recommended
that Porter was not competent and that he remain at Devens for further eval-
uation and treatment. Channell explained that he needed more time to decide
whether Porter was malingering symptoms 7 or genuinely suffering from a
mental illness.
At a joint competency hearing in October 2014, the court determined that
Porter was not then competent to stand trial and committed him for further
evaluation and treatment under 18 U.S.C. § 4241(d). In April 2015, after fur-
ther evaluating Porter, Channell submitted a new report to the court in May
2015. Channell opined that Porter was malingering symptoms of psychosis
and recommended that he be found competent to stand trial. 8 The court sched-
uled a second competency hearing for July 2015.
7According to Agharkar, “[m]alingering is the intentional production of symptoms for
secondary gain.”
8Channell did diagnose Porter with Antisocial Personality Disorder, a condition “cate-
gorized by a history of breaking the law, irresponsibility, impulsivity, irritability, aggres-
siveness, deceitfulness, and a lack of remorse.” He testified that such a disorder, however,
“does not render Porter incompetent” because “individuals with personality disorders can
mediate their inclinations and beliefs, whereas those who are psychotic have no control over
the symptoms that they exhibit.” Additionally, “the disorder produces narcissism, which
causes individuals to think they always know what is best.” Thus, he would “persistently
demand that counsel file motions on his behalf even after counsel recommended that the
motions are not reasonable or in his best interests.”
3
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Porter then moved for funding for a neurological evaluation in one of his
other pending cases. 9 Judge Feldman denied that motion on the merits. Porter
next moved for reconsideration of that motion in all three cases, which Judge
Feldman again denied on the merits in the case where Porter filed the original
motion. Judge Vance denied the motion for reconsideration in the other two
cases—including the instant case—because the original motion was filed in a
different case.
Next, Porter moved to continue the second competency hearing, averring
that he needed more time for follow-up evaluations with experts and to finish
ongoing discovery. The district court denied that motion, observing that Porter
already had a follow-up scheduled with Agharkar and that Porter either had
received all discovery or had failed to move to compel compliance with any out-
standing requests. Undeterred, in June 2015 Porter sought another contin-
uance for similar reasons, which the court again denied.
The second competency hearing was held July 6, 2015, as scheduled.
After the hearing, the district court issued a 62-page joint opinion finding Por-
ter competent to stand trial. The court thoroughly described each expert’s
reports and testimony. It also recounted Porter’s records from Devens, tran-
scripts of his previous court appearances, his past criminal records, his juvenile
records, his letters to the court, and his mother’s medical records.
The court ultimately credited Channell’s testimony that Porter was
malingering, citing multiple portions of Channell’s report. Channell stated
that Porter first presented his alleged psychotic symptoms at age thirty-eight,
but Schizophrenia normally presents itself in one’s early- to mid-twenties. 10
9 Porter filed the motion in No. 12-001.
10Channell further observed that though Porter was previously detained on other
charges, officials neither observed nor recorded symptoms of mental illness. In fact, Porter
4
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Channell also said that the types of hallucinations Porter claimed (visual and
command hallucinations) are atypical in schizophrenics. Porter’s response to
antipsychotic medications further indicated malingering because Porter re-
ported an increase in symptoms when taking the medications. That Porter
reported and called attention to his symptoms was also abnormal in schizo-
phrenics and evidenced malingering: A genuinely mentally ill person typically
lacks the ability to recognize that he is hallucinating or experiencing delusional
thoughts.
Channell concluded that Porter’s reported symptoms “are demonstrably
absurd because it is extremely unlikely that they could collectively be produced
by genuine mental illness.” In addition, Channell opined that Porter possesses
the ability to cooperate and merely chooses not to. He noted that “Porter was
observed routinely interacting normally with inmates and prison staff” during
his time at Devens. Porter refused to cooperate only during Channell’s compe-
tency evaluations.
The court chose not to credit Agharkar’s report that he prepared after
Porter’s release from Devens. Agharkar maintained his previous conclusion
that Porter was not competent to stand trial, though “only skimmed” the
Devens records, interviewed Porter twice after his release, and spoke with sev-
eral of Porter’s family members. Still, Agharkar “opine[d] that [Porter’s]
understanding of why those charges were brought, his ability to communicate
rationally about the charges and the evidence, and his ability to work with
counsel are impaired by his psychotic or neurocognitive disorder.” Agharkar
averred that Porter’s auditory hallucinations were consistent with a psychotic
disorder but admitted that the visual hallucinations were atypical. The court
received a psychological evaluation when incarcerated as a juvenile, and “testing found no
risk for Schizophrenia, organic impairment, or mental deficiency.”
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refused to credit Agharkar’s opinion, explaining that it would have “to accept
too many unexplained inconsistencies with such diagnosis: Porter’s lack of
prior mental illness and sudden onset of symptoms, his befuddling responses
to antipsychotic medication, his calling attention to his symptoms, and the
inconsistent manner in which he has exhibited symptoms.” 11
The court also considered Porter’s actions during the various judicial pro-
ceedings. Acknowledging that Porter interrupted the proceedings multiple
times, the court emphasized that almost all those outbursts addressed the
immediate proceedings. 12 Porter “voiced factual disagreements with matters
currently under discussion” and “remained engaged and attentive.” In other
words, Porter “left no doubt that he understood the matters under discussion
and was capable of voicing his disagreement with factual testimony.” 13
The district court ultimately concluded that Porter was competent
because he was “not presently suffering from a mental illness or defect.”
Erring on the side of caution, however, the court moved to the other part of the
competency analysis: whether Porter was capable of consulting with his law-
yers with a reasonable degree of rational understanding and whether he
11 The court also addressed Agharkar’s suggestion that Porter might suffer from an
intellectual disability. It noted that Porter’s medical records undermine that conclusion. As
a juvenile, Porter underwent several IQ tests and “scored as high as 90 on a full-scale IQ
test.” Channell observed that one cannot fake a higher IQ.
12The court cited two examples. First, “Porter took issue with statements made by
Dr. Channell. . . . Porter stated that Dr. Channell exaggerated the length of one of his inter-
views with Porter. Porter also stated that he would never take the prescription drug Geodon
again when it was mentioned.” Second, “when Porter was admonished for speaking out dur-
ing the competency hearing, Porter apologized, stating, ‘I’m sorry,’ and/or became silent in
response to Court warnings. The Court observed that, on several occasions, Porter likewise
became silent when prompted by defense counsel . . . He never had to be removed from the
hearing. Clearly, Porter can be interrupted and redirected.”
13 See United States v. Ghane, 593 F.3d 775, 783 (8th Cir. 2010) (“Our review of the
transcript reveals that [defendant’s] interruptions were not related to his delusions but were
related to the testimony being offered at the time . . . .”).
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possessed a factual and rational understanding of the proceedings. The court
found that Porter could reasonably consult with his attorneys and did possess
a factual and rational understanding of the proceedings. 14
The jury convicted on all counts. The district court sentenced Porter to
life in prison on two counts and 240 months’ imprisonment on the other. Porter
timely appealed the competency finding, the denial of his request for funding,
and denials of his motions for continuance.
II.
Porter challenges the finding that he was competent to stand trial. Title
18 U.S.C. § 4241(a) allows a district court to grant a hearing to determine com-
petency where “there is reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect rendering him mentally
incompetent.” The court must determine “by a preponderance of the evidence”
whether “the defendant is presently suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to under-
stand the nature and consequences of the proceedings against him or to assist
properly in his defense.” Id. § 4241(d). “A district court can consider several
factors in evaluating competency, including, but not limited to, its own obser-
vations of the defendant’s demeanor and behavior; medical testimony; and the
observations of other individuals that have interacted with the defendant.”
United States v. Simpson, 645 F.3d 300, 306 (5th Cir. 2011). A defendant is
competent where he has “the present ability to consult with his lawyer with a
reasonable degree of rational understanding and [has] a rational as well as
factual understanding of the proceeding against him.” Id. (cleaned up).
We review a district court’s competency determination using a “species
14 We discuss these findings in more detail infra.
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of clear error” review. Id. (internal quotation marks omitted). “[A]fter re-
analyzing the facts and taking a hard look at the trial judge’s ultimate conclu-
sion, we will reverse only if the finding was clearly arbitrary or unwarranted.”
Id. (cleaned up).
A.
To support his contention that he possessed a mental defect or disease
rendering him incompetent to stand trial, Porter mainly offers his own expert’s
conclusions. But “[i]t is not our task, as an appellate court, to relitigate the
battle of the experts.” Id. The district court had ample evidence supporting
its competency determination, largely as a result of its early decision provi-
sionally to deem Porter incompetent and commit him to a federal facility for
further evaluation and treatment.
Some evidence might suggest that Porter suffers from a mental handi-
cap, including his pressured speech, 15 perseveration, 16 refusal to cooperate
with his lawyers, belief that his lawyers were engaged in a conspiracy against
him, and outbursts during various proceedings. But the record supports the
district court’s conclusion that Porter was malingering. Both experts have tes-
tified that a sudden onset of psychological symptoms in one’s thirties is rare,
and there is no indication of mental illness in any of Porter’s criminal files.
There can, of course, be exceptions to this rule, but other evidence suggests
malingering. Porter’s awareness of and need to call attention to his symptoms
is unusual in a person suffering from a mental illness. The multitude of symp-
toms Porter reported do not usually occur together and do not indicate any
15 Channell explained that pressured speech “means [Porter] was talking rapidly
about . . . things.”
16 Channell described perseveration as “a reference to when [Porter] would talk about
his case, he has a certain area of focus that he returns to again and again.”
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specific illness. He had no positive response to antipsychotic medicine, claim-
ing instead that his symptoms worsened while he was on the medication. 17 We
cannot say that the district court’s considered decision that Porter was
malingering and not presently suffering from a mental disease was “clearly
arbitrary or unwarranted.”
B.
The conscientious district court went on to address the remaining cri-
teria for incompetency—whether Porter possessed both the “ability to consult
with his lawyer with a reasonable degree of rational understanding” and “a
rational as well as factual understanding of the proceeding [ ] against him.”
Id. (internal quotation marks omitted). Porter’s theory boils down to this: His
refusal to cooperate must mean that he is not able to communicate with and
help his lawyers. The district court acknowledged that Porter was a difficult
client but concluded that Porter possessed the ability to communicate with and
assist his attorneys—he just chose not to. The court explained that the attor-
neys might need to exert more effort and patience, but Porter was capable of
cooperating. Porter’s attorneys respond that none of them has successfully
secured his cooperation and that Channell, the government psychologist, was
likewise unable to make Porter cooperate for certain screening tests and
conversations.
17 Porter also contends that the court reversibly erred by failing to consider the affi-
davits or testimony of Porter’s defense attorneys. We disagree. The court is free to consider
a large swathe of information to determine competency, but Porter points to no case requiring
the court to consider any specific evidence. He cites Medina v. California, 505 U.S. 437
(1992), but that case merely states that “a defendant’s inability to assist counsel can . . .
constitute probative evidence of incompetence, and defense counsel will often have the best-
informed view of the defendant’s ability to participate in his defense.” Id. at 450 (emphasis
added). Even so, by Porter’s own admission, the district court’s lengthy opinion notes and
describes at least one of the affidavits submitted in the initial motion requesting an order
declaring him incompetent.
9
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Although his court-appointed attorneys’ frustrations are understand-
able, refusal to cooperate and inability to cooperate are two distinct problems.
And the district court had ample evidence to conclude that the former is the
problem here. To take just one example, Porter’s expert—who Porter says
should be credited over Channell—was able to conduct tests that required Por-
ter’s cooperation, but Channell was not. And now, Porter urges this court to
reject Channell’s findings because he could not conduct full tests. 18 But instead
of suggesting that Channell’s report is wanting, this indicates that Porter can
cooperate when he wants to. This is further supported in that Porter was ami-
able and communicated with other patients and that Channell eventually
obtained some answers to questions from Porter. Additionally, Porter told his
mother that he was purposefully not cooperating. Given this record, we cannot
say that the district court’s conclusion that Porter possesses the ability to
cooperate was “clearly arbitrary or unwarranted.”
The district court also determined that Porter had a factual under-
standing of the proceedings because Porter understood his charges, was aware
of the potential sentences, and submitted various, relevant legal documents to
the court. It further noted that his outbursts during proceedings were on point.
Porter implicitly concedes that factual point but contends that he lacks the
requisite rational understanding of the facts, as evidenced by his belief that
his lawyers are conspiring against him.
Porter’s misconception about his attorneys does not mean that he lacks
18 See Appellant’s Br. at 31 (“Channell was never able to conduct a psychological
assessment for malingering because Porter stopped meeting with him. Agharkar, on the
other hand, spent 14 hours over several visits with Porter and was able to assess both mal-
ingering and preliminary indications of neurocognitive impairment.”); Tr. Competency Hr’g
at 6669 (“[A]lthough it took [Porter] some time, he did cooperate with me[, Agharkar,]
through all my screenings.”).
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a rational understanding of his legal proceedings. As the district court ex-
plained, Porter’s long history with the criminal justice system has made him
distrust the government and his attorneys. “[T]he Government once sought
the death penalty against him; his counsel has refused to file motions he has
requested they filed; and counsel undoubtedly talked to him and the Govern-
ment about plea negotiations.” Even so, distrust or “disagreement with one’s
attorney does not make one mentally unable to consult.” United States v.
Ghane, 593 F.3d 775, 781 (8th Cir. 2010). Porter offers no other evidence indi-
cating that he lacks a factual and rational understanding of the charges and
consequences he faces or that he is unable to assist in his defense. The court’s
conclusion that Porter possesses both a factual and rational understanding of
the proceedings is not “clearly arbitrary or unwarranted.” In sum, the court
did not reversibly err in finding Porter competent to stand trial.
III.
Porter challenges the denial of his request for funding for a neuro-
psychological evaluation. That denial is not properly before this panel. Porter
filed his request in No. 12-001. When it was denied, he filed for reconsideration
in all three of his pending cases, including the case before us, No. 13-066.
Judge Vance denied the motion to reconsider the request in No. 13-066 on the
basis that the original motion was filed in another case. Though Judge Vance
had previously granted Porter’s motion to adopt all filings in No. 12-001 and
No. 12-198 for purposes of the October 2014 competency proceeding, nothing
in the record indicates that that order applied indefinitely. We make no ruling
on the denial of funding.
IV.
Porter contends that the district court erred by denying his motions for
a continuance of the joint competency hearing. We review a denial of a
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continuance for an abuse of discretion. United States v. Messervey, 317 F.3d
457, 461 (5th Cir. 2002). We look to the totality of the circumstances to decide
whether the court abused its discretion, considering “the amount of time avail-
able for preparation; defendant’s role in shortening the time needed; the like-
lihood of prejudice from denial; and the availability of discovery from the pro-
secution.” Id. “[T]he movant must show that the denial resulted in specific
and compelling or serious prejudice.” 19
Porter twice moved for a continuance. 20 In his first motion, filed June 5,
2015, Porter averred that he needed more time in case the court granted fund-
ing for a neuropsychological evaluation. He also asked for more time to follow
up with his expert and complete ongoing discovery. As the court denied the
funding request in a separate order, it refused to grant a continuance on that
basis. 21 It also rejected Porter’s contention that he needed more time to follow
up with his expert, noting that Porter had such a follow-up scheduled for before
the hearing date. Finally, it disagreed that Porter needed more time to finish
ongoing discovery, explaining that he had either “received the subpoenaed
information or . . . failed to move to compel compliance.”
In Porter’s second motion, filed June 29, 2015, he alleged that his counsel
and witnesses lacked sufficient time to prepare for the competency hearing and
that the government had yet to produce the documents Porter requested. The
court again denied Porter’s motion, stating that “[c]ounsel and witnesses have
had ample time to prepare for the hearing and to protect the scheduled date
19 United States v. Francisco, 497 F. App’x 412, 418 (5th Cir. 2012) (quoting United
States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999)).
20 Both requests were filed in the instant case (No. 13-066) but were jointly denied.
21 The court noted that Porter only “filed his motion for funding in case No. 12-001,”
but he filed his motion for a continuance in the instant case (No. 13-066) based on this motion
for funding.
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from any conflicts.” 22
It was well within the district court’s discretion to refuse to grant a con-
tinuance in both instances. Regarding the first motion, counsel had sufficient
time to review the produced discovery, and there was no need to postpone the
competency hearing to wait for results from the neuropsychological evaluation
because funding for such testing was denied. As to the second motion, Porter
had two months from the date the government notified the court that it no
longer deemed Porter incompetent to prepare for the second competency hear-
ing. Porter’s expert was already familiar with Porter’s case and had examined
him several times already. 23 Agharkar was able to interview Porter’s family
members and prepared a report before the hearing. In fact, Agharkar acknowl-
edged that he had “enough time” to “reach an opinion.”
Moreover, by the time of Porter’s second motion, the government had
complied with Porter’s request for discovery by producing between 700 and 900
pages of documents. Though Porter claims that documents trickled in and
Devens did not produce all documents the subpoena required, the court ex-
plained that Porter was not currently entitled under the subpoena to any
In his second motion to compel and throughout his brief on appeal, Porter com-
22
plained that Agharkar had little time to prepare because he was testifying in Florida for
another defendant in the immediate days leading up to Porter’s competency hearing. Aghar-
kar’s scheduling conflict arose after Porter’s competency hearing was scheduled and after
Porter filed his first motion to continue. Despite that late conflict, the court decided to keep
the hearing open for a couple extra days to enable Agharkar to travel back from Florida and
testify. The court also explained that it had tried to contact the Florida court when Porter
filed his second motion to continue to “see if we could work out an accommodation.” It was
unable to do so, however, because Porter had provided incorrect information about which
Florida court was involved. It also noted that Porter’s attorneys “obviously didn’t” try to
contact the Florida court themselves to clear up the conflict. Nor did Porter’s attorneys try
to subpoena Agharkar.
23 By the time of the competency hearing, Agharkar had spent “around 14 hours” with
Porter.
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additional documents. 24 And, even so, Porter fails to “show that the denial
resulted in specific and compelling or serious prejudice.” Francisco,
497 F. App’x at 418 (quoting Barnett, 197 F.3d at 144). At no point during this
appeal has Porter identified evidence that Agharkar would have caught and
included in his report given more time. The district court did not abuse its
discretion.
V.
Porter asserts that the denials of his motions for funding and a continu-
ance amounted to a denial of his right to expert assistance. “[T]he [govern-
ment] must provide an indigent defendant with access 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.’” McWilliams v. Dunn, 137 S. Ct. 1790, 1793 (2017) (quoting
Ake v. Oklahoma, 470 U.S. 68, 83 (1985)). Porter maintains that the denial
put him in the same position as the McWilliams defendant because his expert
did not have time to offer a “full and informed opinion” on account of the late
production of documents and the lack of neurological testing.
24The parties have a protracted history of disputing whether Devens complied with
discovery requests. Porter first claimed Devens failed to comply in November 2014. He filed
a motion requesting a Rule 17 subpoena for various items that was denied by Judge Vance
in February 2014. Without objection by the government, the court granted another Rule 17
request on May 5, 2015. Porter claimed that the government failed to comply with that sub-
poena and filed a motion to compel at the same time he filed his first motion for a continuance.
The court again denied Porter’s motion to compel, determining that the requested disclosures
were not necessary or obviously relevant at that time.
Another motion was filed ex parte on June 29, 2015. The court refused to entertain
the ex parte motion and required the government be notified of the motion and allowed a
chance to respond. Once all parties were notified and had responded, the court denied the
motion in part and granted it in part. It determined that, with one exception, Devens had
complied with the subpoena. The court found that a copy of a competency booklet Devens
used to test Porter was the only outstanding document to which Porter was entitled. Devens
had originally produced Porter’s answers to the booklet’s questions, but not the booklet itself.
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As explained, the question whether the district court erred by denying
funding is not before us, and the court did not abuse its discretion by denying
the motions to continue. We cannot say that the combination denied Porter
the right to expert assistance. Agharkar had ample time to meet with Porter,
evaluate him, review his records, and prepare for the competency hearing.
Agharkar had sufficient information to conclude that Porter was likely suffer-
ing from brain damage that rendered him incompetent.
Agharkar ably explained the reasons for his conclusion and how brain
damage would affect Porter’s fitness to stand trial. This starkly contrasts with
McWilliams, in which the defendant was examined by a volunteer expert who
was not available to assist him in evaluation, preparation, or presentation of
the defense. 25 In sum, Agharkar was sufficiently prepared “to effectively
‘assist in evaluation, preparation and presentation of [Porter’s] defense,’”
McWilliams, 137 S. Ct. at 1793 (quoting Ake, 470 U.S. at 83), and the denials
did not combine to strip Porter of the right to effective expert assistance.
The order finding that Porter is competent to stand trial and the denials
of his requests for funding and motions for continuance are without error. The
judgment of conviction is AFFIRMED.
25 See McWilliams, 137 S. Ct. at 1800–01 (“Neither [the volunteer expert] nor any
other expert helped the defense evaluate [the volunteer expert’s] report or McWilliams’ exten-
sive medical records and translate these data into a legal strategy. Neither [the volunteer
expert] nor any other expert helped the defense prepare and present arguments that might,
for example, have explained that McWilliams’ purported malingering was not necessarily
inconsistent with mental illness. . . .”).
15