From Death Row, a Plea on 'Ineffective Assistance'

      Carlos Ayestas has spent almost 20 years on death row in Texas, sentenced by a jury that heard none of the evidence that might have spared him the death penalty. Ayestas was convicted along with two others of strangling an elderly woman during a home invasion in a cut-and-dried, two-day guilt phase trial. The subsequent capital sentencing hearing — required under Supreme Court precedents — was even shorter, woefully deficient even by Texas's low standards.
      Two decades later, Ayestas is before the U.S. Supreme Court, seeking funds that his current lawyers say are needed to show his previous attorneys violated his Sixth Amendment rights by providing "ineffective assistance" at trial and in a subsequent state habeas corpus proceeding. Those lawyers all but completely ignored evidence of possible mental illness and head traumas suffered by the Honduran immigrant as a youngster — information that jurors might have found to be "mitigating circumstances" weighing against imposition of a death sentence.
      The arguments in Ayestas v. Davis last week [Oct. 30] illustrate the importance of the court's continuing role in policing what the late justice Harry A. Blackmun famously referred to near the end of his career as "the machinery of death." The Roberts Court seems unlikely to declare capital punishment flatly unconstitutional under the Eighth Amendment and has repeatedly refused to find the current three-drug lethal injection protocol unconstitutionally "cruel or unusual." Year after year, however, the court throws out death sentences or capital murder convictions based on narrower constitutional violations.
      Many of those cases come from Texas, far and away the leading state in executions since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. Just last term, the court told the state to update its definition of intellectual disability used to determine eligibility for the death penalty (Moore v. Texas) and threw out a black inmate's death sentence because of sentencing-hearing testimony linking future dangerousness to race (Buck v. Davis).
      Ayestas's case presents an even starker illustration of the low standards that the Lone Star State sets for justice in capital cases. To appreciate the extent of the injustice to Ayestas, death penalty cases need to be understood today as focusing less on guilt or innocence than on aggravating or mitigating circumstances as presented by opposing lawyers in the post-verdict sentencing hearing. A properly staffed capital defense team today includes not just lawyers and a Paul Drake-type investigator, but also a "mitigation specialist" with a combination of investigative and interviewing skills needed to ferret out details of a defendant's social history to use as mitigating circumstances in the capital sentencing phase.
      Ayestas's two defense lawyers learned just before his 1997 trial that the twenty-something immigrant had suffered repeated head traumas as a youngster and presented some symptoms of mental illness. In their two-minute presentation of mitigating evidence, however, they introduced nothing more than three letters from a teacher at the Harris County jail that Ayestas was a "serious and attentive" student in her English as a second language class and was making good progress.
      With his conviction and sentence affirmed on appeal, Ayestas was given a new lawyer to challenge the conviction through a state habeas corpus proceeding. That lawyer also failed to investigate Ayestas's medical and mental health issues, much less challenge the trial lawyers as "ineffective" for having failed to do so. He argued only that Ayestas's trial lawyers were deficient for failing to get his family from Honduras to the trial to testify in his behalf. State courts again upheld the conviction and sentence.
      A decade later, a new legal team filed a federal habeas corpus petition for Ayestas that, for the first time, claimed ineffective assistance of counsel based on the failure to investigate the mental illness and medical issues. By this time, a prison psychiatrist had also formally diagnosed Ayestas with schizophrenia — a condition likely to have been diagnosable earlier. The federal district court judge who heard the case, however, dismissed Ayestas's petition as procedurally defaulted because he had not raised the ineffective assistance claim earlier.
      A pair of Supreme Court decisions effectively required the district court to reconsider the issue, but the judge again rebuffed Ayestas's plea. Ayestas also asked for funds, as provided by a federal law, to investigate and present the claim. The Criminal Justice Act provision guarantees death row inmates the funds "reasonably necessary" to present post-conviction challenges in federal habeas corpus proceedings.
      The Fifth U.S. Circuit Court of Appeals, the federal court with jurisdiction over Texas, has adopted a unique interpretation of that provision to require funds for federal habeas corpus cases only if the inmate demonstrates "a substantial need" for the money. No other federal circuit has put this gloss on the seemingly straightforward phrasing from the statute itself.
      In Ayestas's case, a panel of three Republican-appointed judges upheld the judge's decision. "The district court did not abuse its discretion when it declined to authorize a mitigation specialist for Ayestas before it determined the viability of Ayestas’s claim," the court wrote in an unsigned opinion.
      At the Supreme Court, University of Maryland law professor Lee Kovarsky argued in Ayestas's behalf that the Fifth Circuit's rule, in effect, allowed the court improperly to "guess" what a properly funded investigation would show. Liberal justices evidently sympathized, while conservatives fretted about issues of jurisdiction and judicial administration. Troublingly for Ayestas's chances, Justice Anthony M. Kennedy sat silently and expressionlessly throughout the hour. "Without Kennedy asking any questions," Kovarsky remarked afterward, "it's really hard to know where you stand."