Supreme Court considers: When are defendants entitled to experts in death penalty cases?

The U.S. Supreme Court is set to hear oral arguments Monday on a death penalty case that hasn’t attracted much attention, but could bring important new focus to the standard of whether experts must be appointed to the defense in capital punishment cases.

For 15 months, the lawyers appointed to represent Carlos Manual Ayestas in a 1997 Texas death penalty case did not investigate the facts to prepare for the trial.

Ayestas, an immigrant charged with the murder of a 67-year-old woman, told his lawyers about his background, which included multiple head traumas, regular cocaine and alcohol use, and mental health issues. Neither his trial lawyers, nor the investigator they hired, looked into any of this or even asked for a basic mental health exam. Furthermore, Ayestas’ lawyers presented no witnesses at trial.

It took the jury just 12 minutes to decide he should die for committing the murder.

It’s easy to sentence someone to death if the defense lawyer doesn’t tell jurors what kind of person’s life they have in their hands. At the crucial sentencing phase, the defense presented nothing to convince the jury to spare his life except for three letters from a prison instructor, who said that Ayestas was a “serious and attentive” student.

On Monday, the Supreme Court hears arguments in the case, following Ayestas’ unsuccessful appeals and habeas. The case goes to the core of what we expect our legal system to do: fully uncover the truth — on both sides — when the most serious criminal accusations are brought to court.

In his federal habeas petition, Ayestas argued that his trial lawyer failed to effectively investigate his case. Indeed, Ayestas had been diagnosed with schizophrenia and has been placed on antipsychotic medication in prison. To show what his trial lawyer missed, though, he would need to have funds to hire a social worker — called a mitigation specialist — to conduct a real investigation.

That was what the federal courts refused to provide, repeatedly rejecting this request.

The Supreme Court will hear arguments on this question: Are investigative or expert services reasonably needed to fulfill the federal statute requiring that the accused in death penalty cases receive an adequate defense? In this instance, the Fifth Circuit Court of Appeals had interpreted the statute to create a high bar, that a defendant must show a “substantial” and not a “reasonable” need for services.

The death penalty is reserved, not for the worst murderers, but for the people with the worst lawyers

Perhaps the most crucial job of a death penalty lawyer is to convey the background of the client. That requires a rigorous and thorough investigation, as the Supreme Court has explained and as the American Bar Association’s standards lay out in detail. Mitigation specialists, or social workers who conduct fact investigations, have the skills to ask questions about sensitive subjects like childhood abuse, mental illness, and substance abuse, which lawyers often lack.  Social workers are also much less costly than lawyers.

Unfortunately, for decades it was common for defense lawyers to fail to investigate. Jurors never heard all of the facts, and appeals courts regularly denied relief in death penalty cases that became infamous: cases with sleeping, drug-addicted and drunk lawyers, and lawyers who freely admitted they had not prepared for trial.

The death penalty was reserved not for the worst murderers, but as legendary death penalty lawyer Stephen Bright famously put it, the people with the worst lawyers.

I have studied Virginia death penalty trials from the 1990s and found that sentencing phases in those trials were typically very short, averaging less than two days long, with very little evidence put on by the defense. But after 2005, when regional capital defender’s offices were created in Virginia, the sentencing phase was longer, and the defense commonly presented more witnesses. As a result, juries rejected the death penalty a majority of the time.

In 2016, just 31 people were sentenced to death in the entire country: a remarkable decline in death sentencing from its peak of over three hundred per year in the mid-1990s. I have spent the past several years collecting data on death sentencing, and I found that the quality of defense lawyering has changed the game. States like Virginia that have statewide capital defense offices experienced far greater declines in death sentences than states that have none.

In recent cases in Texas, jurors have rejected death sentences in about half of the death penalty trials in the past few years, often due to mental health evidence, evidence of childhood abuse and of addiction — the same type of evidence that Ayestas’ lawyers failed to investigate.

The Supreme Court has already emphasized the importance of a meaningful, factual investigation in capital cases. The Ayestas case can help to cement the importance of that role. It is crucial that federal courts and also the states provide the resources for social background investigations, and not just in death penalty cases.

It is a disturbing reality that the way we sentenced hundreds of people to death each year in decades past was to often hide the truth from the jurors. When jurors do hear about the social background of the defendant, they often decide to reject harsh punishment. The Ayestas case illustrates how knowing the facts of a case truly is a matter of life and death.

Source: The Washington Post, Brandon Garrett, October 30, 2017. Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law.  This fall, Harvard University Press published his new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.”

A Supreme Court case could give the poor a better chance to escape the death penalty

No one should face execution because they're too poor to put on a defense. That's the principle the Supreme Court will consider when it hears Ayestas vs. Davis on Monday.

In states with a death penalty, after a jury convicts a defendant of 1st degree murder, the jury hears evidence and decides whether to recommend a death sentence. The jury is required to consider the aggravating and the mitigating factors in coming to its conclusion.

Carlos Ayestas was convicted of murder and sentenced to death in Houston in 1997. His court-appointed trial lawyers performed virtually no background or mental health investigation before the penalty phase of his trial. Instead of presenting days or weeks' worth of evidence explaining why their client should not be sentenced to death, Ayestas' lawyers spoke for 2 minutes about the progress Ayestas had made in prison language classes.

There was much more to tell. Evidence suggests that Ayestas has suffered multiple head traumas, has a history of substance abuse and shows signs of mental illness. He has received 1 diagnosis of schizophrenia by a jailhouse medical professional, but he has never been seen by an independent expert. Each of these avenues of investigation was capable of producing mitigating evidence that might have prompted a jury to refuse a capital sentence.

The Supreme Court has held that when attorneys fail to investigate possible mitigating evidence for the penalty phase of a trial, it constitutes "ineffective assistance of counsel" and is a basis for overturning a conviction or a sentence. Nonetheless, after Ayestas was sentenced to death, his case was brought to the Texas Court of Criminal Appeals without success. Then new lawyers for Ayestas filed a petition for a writ of habeas corpus in U.S. district court. This federal court can grant the petition and order a new proceeding if it finds that a defendant's constitutional rights have been violated.

To support the habeas corpus petition, Ayestas' lawyers requested a court-funded investigator for their indigent client. In almost every federal court, such investigations are routinely authorized. But Ayestas' request was denied, and when the denial was appealed to the 5th U.S. Circuit Court of Appeals, the judges said Ayestas had to show what an investigation would uncover before it would approve funding for an investigation. This type of circular logic is indefensible and at odds with basic norms about the right to legal representation. A poor defendant should not be forced to prove what an investigation will uncover in order to undertake it.

Ayestas' federal appeals were doomed because of an accident of geography. The courts in Texas are historically outliers when it comes to ensuring basic legal representation in death penalty cases. Where most federal courts appoint experts and investigators if they're "reasonably necessary," the 5th Circuit uses a much stricter standard. And when Ayestas' case was taken up, the federal public defenders office in Texas didn't have a Capital Habeas Unit - a group of attorneys, including mitigation specialists, that concentrate on death-sentence appeals. If a CHU had been assigned to his case (or if he'd been able to finance his representation), the basic investigation Ayestas requested would have been done as a matter of course. (The Texas courts have since established a CHU.)

In any other area of the country, the investigation Ayestas deserved almost certainly would have been granted. The Supreme Court now has an opportunity to ensure that everyone who faces the death penalty, no matter where they are in the U.S., will have the chance to uncover the information that might make a difference to a jury. No one should be put to death just because he or she is too poor to conduct an investigation.

Source: Los Angeles Times, Op-Ed, Erwin Chemerinsky, October 30, 2017. Mr. Chemerinsky is dean of the UC Berkeley School of Law.

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde