April 01, 2018

Supreme Court Unanimously Rejects Fifth Circuit's Test for Defense Expert Funding in Capital Cases

Emily Olson-Gault, Director

On March 21, 2018, the United States Supreme Court issued its opinion in Ayestas v. Davis, rejecting the circular standard applied by the U.S. Court of Appeals for the Fifth Circuit when deciding whether to grant investigative and expert funding to the defense in federal habeas proceedings. Under the Fifth Circuit’s standard, funding would be granted only if defense counsel could show both a “substantial need” for the funds and that the funds would be used to investigate “‘a viable constitutional claim that is not procedurally barred.’” By contrast, the federal statute governing funding in such cases only requires that the defense show that the funding is “reasonably necessary.”

The Court rejected the Fifth Circuit’s heightened standard, finding that the “substantial need” requirement is more restrictive than the “reasonably necessary” requirement prescribed by statute.  Writing for a unanimous Court, Justice Alito also noted that the Fifth Circuit’s additional requirement of showing that the funds would not be used to advance a claim that was procedurally barred doomed Mr. Ayestas’s request from the start, because he was seeking funding for the precise purpose of overcoming a procedural bar to bringing his claim. Typically, if habeas claims are not first presented to a state court, they are considered procedurally barred in federal court and cannot be considered even if they might otherwise have merit. The Court previously found an exception to this general rule, however, holding that the claims may be heard anyway if 1) the underlying issue is trial counsel’s ineffectiveness, and 2) the prisoner can show that his state court counsel was ineffective for failing to raise the claim about trial counsel. Mr. Ayestas sought funding to show that both his trial counsel and his state post-conviction counsel were ineffective for failing to investigate evidence and present claims about his mental health and substance abuse problems. The Fifth Circuit denied the request based only on the evidence already in the record – that Mr. Ayestas was diagnosed with schizophrenia after the crime. But it was precisely because the record needed to be expanded that he sought funding for additional investigative and expert assistance. The Supreme Court rejected this circular test, holding that a prisoner seeking funding “must not be expected to prove that he will be able to win relief if given the services he seeks.”

Instead, the Court held that the proper standard is “whether a reasonable attorney would regard the services as sufficiently important,” guided by considerations such as the potential merit of the claims that are being pursued, the likelihood that the investigation will generate useful and admissible evidence, and the prospect of clearing any procedural hurdles. The Court remanded the case for the lower courts to reconsider the funding request under the proper standard.

In addition to joining her colleagues in the majority opinion, Justice Sotomayor filed a concurring opinion, joined by Justice Ginsburg, arguing that there was no need to remand the case because it was clear that Mr. Ayestas was entitled to funding under the proper standard. In her concurrence, Justice Sotomayor described in detail the deficient performance of trial and post-conviction counsel. She noted that trial counsel called no witnesses in Mr. Ayestas’s defense at the guilt phase and that his penalty phase presentation lasted approximately two minutes and consisted of submission of three letters from his prison English teachers. She described the numerous red flags that should have led his counsel to investigate mental health issues. Even more striking, post-conviction counsel hired an investigator who discovered the deficient performance of trial counsel and recommended that the necessary investigation be conducted in post-conviction, but after receiving this information, post-conviction counsel apparently took no action. Justice Sotomayor wrote that the extraordinary failure of prior counsel not only demonstrates deficient performance, but also “goes a long way to establishing” that the outcome of Mr. Ayestas’s trial might have been different if all the relevant information had been presented to the jury.

The decision in Ayestas is likely to affect numerous cases in circuits where courts had imposed similar heightened requirements for capital prisoners to obtain expert funding. The ABA submitted an amicus brief in support of Mr. Ayestas, arguing that such funding is critical to the defense effort and ensuring due process at every stage of a capital case.

Emily Olson-Gault, Director