Pawlyk

Washington state prisoner William J. Pawlyk appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his 1991 convictions for two counts of aggravated murder in the first degree.

Following his arrest, Pawlyk retained and was examined first by one and then by a second psychiatrist at state expense. When Pawlyk asserted an insanity defense, he identified only one of the psychiatrists as a defense witness. Pawlyk argues that his constitutional rights to counsel and due process were violated when the state compelled the disclosure, to the prosecution and jury, of the evaluation performed by the psychiatrist whom he had not identified as a witness. We conclude that Pawlyk’s rights were not violated.

*1056 Background and Procedural History

Pawlyk stabbed and killed Larry Stu-rholm and Debra Sweiger on July 31,1989. Pawlyk attempted suicide on the scene, but police secured medical assistance and he recovered. The State of Washington charged Pawlyk with two counts of aggravated first-degree murder, potentially capital offenses. One week after the arraignment, defense counsel retained Dr. G. Christian Harris at state expense. Dr. Harris…

dissenting:

With all due respect to the majority opinion, I dissent because I believe that Pawlyk’s due process rights were violated when the prosecution introduced the testimony of Dr. Harris, whom the defense had selected as a defense psychiatrist but chose not to offer as a witness. In my view, a psychiatrist made available by the State to assist the defense is not to be treated as a run-of-the-mill witness; due process requires recognition of his or her position as a member of the defense team. 1 Defense counsel should be able to employ the sendees of such a psychiatrist in preparing an insanity defense without running the risk of involuntarily creating evidence for the prosecution.

The Supreme Court portrayed clearly the role of the defense psychiatrist in Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), which held that an indigent defendant whose sanity is likely to be a significant factor at trial was entitled to a psychiatrist at state expense. Ake said:

Ake, 470 U.S. at 82 , 105 S.Ct. 1087 . Needless to say, several of these functions are often essential to an effective defense. Indeed, the Court considered the furnishing of a psychiatrist as one…