High Court Struggles with Death Row Inmates’ Procedural Claims

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By Jordan S. Rubin

The fates of two death row inmates before the U.S. Supreme Court may be tough to divine, given that swing-justice Anthony Kennedy mostly kept to himself during back-to-back oral arguments Oct. 30.

The inmates’ cases, ( Ayestas v. Davis , U.S., No. 16-6795, argued 10/30/17 ) and ( Wilson v. Sellers , U.S., No. 16-6855, argued 10/30/17 ), challenge federal habeas corpus rulings that kept them on death row despite their claims of ineffective assistance of counsel. They were convicted of murder and sentenced to death in Texas and Georgia state courts, respectively.

Though the outcome of neither case was crystal clear based on the mostly technical arguments, the justices, through their questioning, largely divided into the usual tribes that form in contentious cases.

On the whole, Democrat-appointed justices scrutinized states’ claims that procedures upheld by appeals courts below make sense, while Republican-appointed justices scrutinized the inmates’ contrary claims.

‘Just a Matter of Words’

In the Texas case, Carlos Ayestas’s lawyers in state proceedings should have investigated his mental health and other “mitigating” factors that may have spared him from a death sentence, Ayestas said. But the federal habeas court wouldn’t grant resources to investigate his ineffective assistance claim, reasoning that Ayestas couldn’t show ahead of time that such an investigation would be fruitful.

The U.S. Court of Appeals for the Fifth Circuit imposes a higher standard than other courts around the country, Ayestas’s attorney Lee Kovarsky told the justices at oral argument.

In the Fifth Circuit, “inmates must show necessity that is not just reasonable but that is substantial,” Kovarsky said. “As a result, courts in the Fifth Circuit, and the Fifth Circuit alone, are permitted to probe deeply into the merits and procedural viability of as yet undeveloped claims that the requested services might support,” he said.

Justice Samuel A. Alito Jr., for one, struggled with the distinction between the “substantial need” and “reasonably necessary” language, and what effect the difference ultimately has on the case.

“I have been racking my brain trying to think of something that it is reasonably necessary for me to obtain but as to which I do not have the substantial need,” Alito said.

“It seems possibly like just a matter of words,” he said.

Chief Justice John G. Roberts Jr. also scrutinized Kovarsky’s position. Even with investigative resources, any claims raised as a result of any new investigation could still be barred under the strict rules of habeas review, Roberts said.

‘Unusual’ Jurisdiction Argument

The justices granted certiorari in Ayestas’s case to answer the question of whether the Fifth Circuit’s “substantial need” standard wrongly denies “reasonably necessary” investigative resources.

But the high court shouldn’t even reach that question, because it doesn’t have jurisdiction to review it, Texas Solicitor General Scott A. Keller argued at the court. The federal district court’s decision to deny investigative funds is an administrative function, not a judicial one, Keller claimed. That would mean an appellate court can’t even review the district court’s decision to deny funds.

Keller’s jurisdictional argument is “unusual,” Justice Stephen G. Breyer remarked. “Obviously I’m skeptical of your argument,” he told Keller.

Justice Ruth Bader Ginsburg also pushed back on the jurisdictional front. “That sounds to me like a legal question, the kind of question that is fit for a court and not an administrative review,” Ginsburg said.

Justice Elena Kagan jumped in on the jurisdictional circumspection. She said different federal circuits could keep differently interpreting the standard for doling out investigative funds “and we would be, like, whatever,” Kagan quipped, sparking laughter in the audience.

‘Some Bell Goes Off’

it was mostly the Democrat-appointed justices who voiced their disapproval of Ayestas’s trial lawyer’s failure to investigate his mitigating circumstances.

Ayestas had been diagnosed as schizophrenic, for example, but that fact wasn’t investigated at the trial level or presented as mitigation evidence at his sentencing. If you have “a person who has since the incident in question been diagnosed as schizophrenic, you know, some bell goes off that says I think maybe we should do some investigation and try to figure out whether he was suffering from mental health issues at the time of the incident,” Kagan said to Keller.

“I mean, what better purposes would you spend this money on?” Kagan asked, referring to potential investigative funds at issue.

Ginsburg and Justice Sonia Sotomayor also pressed Keller on the apparent lack of mitigation investigation undertaken by Ayestas’s trial lawyer.

“There were two and a half pages of mitigation evidence” presented at the sentencing phase of Ayestas’s trial, Sotomayor said critically. Those two pages didn’t note any of Ayestas’s substance abuse or other health problems. That enabled the prosecution to say during Ayestas’s sentencing that “this is a perfect guy,” Sotomayor said, referring to the fact that the lack of mitigation evidence presented made the jury more likely to sentence him to death.

Ayestas had committed a “horrendous murder,” Ginsburg noted, so “the only chance in the world that this defendant has is if he can put on a mitigation case and convince one juror he shouldn’t get the death penalty,” she said.

Ginsburg further pointed out that the state of Texas took the flipside of that argument, saying Ayestas couldn’t show he was prejudiced by any ineffective assistance of counsel given the “brutality of the crime.”

Federalism, Comity, ‘Bizarre Assumption’

Like Ayestas, Marion Wilson’s case also presented a question that led the justices to puzzle over technicalities.

Wilson’s post-conviction motion for ineffective assistance was denied in Georgia state court, and the state Supreme Court denied his application to appeal it in a one-sentence decision that didn’t explain its reasoning. The question in Wilson’s case is which state court decision should the federal habeas court evaluate: The detailed one from the lower state court or the unexplained state Supreme Court decision?

A 1991 Supreme Court case, Ylst v. Nunnemaker, said federal habeas courts need to “look through” unexplained state court decisions to the “last reasoned” ones, which might, at first glance, seem to settle the question in Wilson’s favor.

But a closely divided Eleventh Circuit below said that a more recent Supreme Court case, Harrington v. Richter, overruled that “look through” presumption from Ylst, even if the high court didn’t explicitly say so, leading the federal appeals court to conclude that the unexplained decision is the one it should review.

During the argument in Wilson, both sides claimed their approaches do a better job of respecting federalism and comity between the federal and state courts.

Federal courts should “look at what the state court did and give it credit where credit’s due” by reviewing the detailed decisions rendered in the states, not the summary decisions, Wilson’s attorney Mark Evan Olive of Tallahassee, Fla., told the justices.

Sarah Hawkins Warren, the state of Georgia’s attorney, said federal courts shouldn’t be required to “look through.” The relevant statute requires federal courts to review “decisions,” which doesn’t necessarily translate to detailed opinions, Warren said.

Kagan wasn’t so sure. The breadth of the state’s position is “confusing,” she said.

It’s a “bizarre assumption” about state courts, Kagan later said, to say those courts are “so uninterested in errors of federal constitutional law that they’re just going to say, well, as long as we have something in our heads that suggests that the ultimate judgment was right, we’re not going to tell anybody about it.”

Sotomayor wasn’t buying Georgia’s argument, either. In fact, an amicus brief from retired Georgia state Supreme Court justices supported Wilson’s look-through position, Sotomayor pointed out.

“You don’t think that there’s more respect for a state court, to let them make their own decisions?” Sotomayor asked.

Kennedy, who didn’t ask any questions during the Ayestas argument, spoke up a bit during the Wilsonargument. He wanted to know, from Olive, whether there had “been any commentary or can the bar offer us any experience as to whether or not the Richter rule, in the cases where it has applied, has proven to be workable and administratable or unworkable and unadministratable. Is there any commentary on how Richter has worked out?”

Kennedy wrote the high court’s opinion in Richter. Olive told Kennedy he wasn’t aware of any such information.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Ayestas oral argument transcript available at http://src.bna.com/tNQ.Wilson oral argument transcript available at http://src.bna.com/tQ0.

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