“Show me the proof…before you can get the proof”: Ayestas offers the Court the chance to fix a paradoxical and unfair standard in death penalty cases

by Emily Olson-Gault, director, American Bar Association Death Penalty Representation Project and Misty C. Thomas, director, American Bar Association Death Penalty Due Process Review Project

*Affiliations are listed for identification purposes only, as the opinions expressed in this post are the authors’ personal views.

In one week, the U.S. Supreme Court will hear oral arguments in the case of Texas death row prisoner Carlos Ayestas to decide whether his federal appeals attorneys should be afforded basic resources to investigate their client’s background and mental health. This should seem obvious, as we know that these investigations are often the only way to uncover new evidence of wrongful convictions or other constitutional violations. However, the courts below have denied Mr. Ayestas investigative resources critical to developing his defense because he could not prove in advance the very claims he sought to investigate. If the lower court’s decision sounds confusing and circular, that’s because it is. It is also an outlier practice that effectively denies poor people access to justice in the most serious and complex cases.

Congress has long recognized the need to provide reasonable funding for investigation to defense counsel who are representing poor people accused or convicted of crimes. Without such resources, defense lawyers cannot fulfill their ethical obligations to their clients and the reliability of our justice system is greatly diminished. While important in all criminal cases, Congress and the courts have noted that the ability to investigate fully is particularly vital in death penalty cases, where mistakes become irreversible once the punishment is carried out.

Carlos Ayestas sought such funding to investigate a claim that his trial attorneys’ woefully inadequate investigation and paltry two-minute plea for his life fell well below the quality of representation guaranteed by the U.S. Constitution. Any attorney who follows the ABA’s widely accepted guidelines on how to conduct a basic mitigation investigation would have easily uncovered that Mr. Ayestas had experienced multiple head traumas in his life, struggled with substance abuse, and exhibited signs of mental illness. Indeed, after trial, mental health experts at the Texas death row prison diagnosed Mr. Ayestas with schizophrenia. Research has repeatedly shown that evidence like this can be particularly compelling to capital jurors when well-presented, making them more likely to spare a defendant’s life when they know of past traumas or disabilities. But Mr. Ayestas’s trial lawyers said nothing about these factors in his life, nor did they adequately investigate Mr. Ayestas’s deteriorating mental condition.

The U.S. Supreme Court has repeatedly held that defense counsel’s failure to conduct a thorough investigation into all aspects of a client’s life violates the Sixth Amendment’s right to counsel. But to win an ineffective assistance of counsel claim, courts require proof of what evidence trial counsel could have uncovered if she had conducted a full investigation and how that evidence might have made a difference at trial. Yet the Texas federal district court and the Fifth Circuit, without allowing him to first obtain such evidence, ruled that Mr. Ayestas has not demonstrated ineffective assistance of counsel. In fact, his habeas lawyers’ request for investigation and expert resources has been rejected because, at the time he asked for funding, Mr. Ayestas was not yet able to provide what the court thought was sufficient evidence to support his claim of ineffective assistance of counsel or a “substantial need” for the investigation. The courts essentially required him to provide, in advance, the very proof that the funding was needed to obtain.

In most other jurisdictions, courts use a “reasonably necessary” standard to assess requests for funding from habeas lawyers who are seeking to prove claims like ineffective assistance of counsel or other constitutional failings. Under this test, the court asks only whether a reasonable attorney with limited resources would choose to spend some of those resources pursuing a particular line of investigation in advance of submitting a habeas petition. This is designed to ensure that defendants who can afford to hire a private lawyer and those who must rely on court-funded counsel receive equitable levels of representation, while giving courts the discretion to reject frivolous requests.

However, in the Fifth Circuit, where Mr. Ayestas’s case was considered, the courts apply a stricter standard, requiring defendants to show they have a “substantial need” for the funding. As Mr. Ayestas’s case demonstrates, this outlier standard is virtually impossible to satisfy. It prevents counsel from obtaining the reasonably necessary funding that Congress intended to provide to ensure that poor defendants do not receive second-class justice and in so doing threatens the functioning and integrity of the criminal justice system.

In Ayestas v. Davis, the U.S. Supreme Court is being asked to consider whether this rigid Fifth Circuit standard misinterprets the federal law that governs funding for habeas investigations. The Court has the opportunity to ensure that the conventional, plain-language reading of the statute remains the status quo, better ensuring that the law is consistent and fair for all poor defendants who simply want to exercise their statutory and Constitutional rights. The Court would be on solid legal footing in doing so.