Justices: 5th Cir. Applied ‘Wrong’ Standard on Legal Funds (1)

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By Jordan S. Rubin

A federal appeals court applied the wrong legal standard to a Texas death row inmate seeking funds to prove his lawyers were ineffective, the U.S. Supreme Court ruled March 21.

Justice Samuel A. Alito Jr., who appeared skeptical of inmate Carlos Ayestas’s position at the Oct. 30 oral argument, wrote the unanimous opinion in his favor.

The high court said the U.S. Court of Appeals for the Fifth Circuit imposed a burden that was too high when it affirmed the denial of Ayestas’s request under a federal law authorizing funds to certain indigent parties.

“I would say that when Justice Alito is writing to reverse the Fifth Circuit in a criminal case, it’s a sign of how out of step the Fifth Circuit might have become on some criminal procedure issues,” Leah Litman told Bloomberg Law. She’s a professor at the University of California, Irvine School of Law, and a former Supreme Court clerk.

Alito frequently votes against criminal defendants relative to some of his colleagues’ votes.

But the high court’s ruling doesn’t guarantee victory for Ayestas.

The justices sent his case back to the Fifth Circuit so it can apply the correct standard and decide whether he gets his requested funds.

But his attorney is happy with the result, for now.

“We are pleased that the Court unanimously recognized that indigent people facing the death penalty are entitled to investigate their legal claims before they must prove them, the same way it has always worked for everybody else,” Ayestas’s attorney, Lee Kovarsky, told Bloomberg Law.

He’s a professor at the University of Maryland Francis King Carey School of Law in Baltimore.

A spokesperson for Texas Attorney General Ken Paxton, whose solicitor general argued the case on behalf of the state, declined comment.

Reasonably Necessary v. Substantial Need

The Fifth Circuit denied Ayestas’s request for resources to assist him with his contention that his lawyers were ineffective for not investigating his mental health issues.

Ayestas said those issues should have been presented as a mitigating factor to the jury that sentenced him to death in Texas for a 1995 murder.

But the only mitigation evidence at trial “consisted of three letters from petitioner’s English instructor,” Alito noted in his opinion, referring to Ayestas.

“The letters, each two sentences long, described petitioner as ‘a serious and attentive student who is progressing well in English,’” Alito said.

The law under which Ayestas requested the funds requires showing that they’re “reasonably necessary.”

But the Fifth Circuit required that applicants show a “substantial need” for the money.

Ayestas argued the Fifth Circuit’s standard—an outlier in the federal circuits—made it so that he had to prove ahead of time that getting the funds would make his claim succeed, an impossible standard, he said.

Fifth Circuit = Too Restrictive

The Fifth Circuit was wrong, Alito wrote for the court.

Its “substantial need” test is “arguably more demanding” than the “reasonably necessary” standard laid out in the law, Alito wrote.

The word “substantial” suggests a heavier burden than the statutory term “reasonably,” he wrote.

The difference between the terms “may be small,” Alito noted. But he went on to say that “the Fifth Circuit exacerbated the problem” by also requiring Ayestas to show he had “a viable constitutional claim that is not procedurally barred.”

That rule is “too restrictive,” Alito wrote.

But he cautioned that an applicant’s prospect of success with the funds is still relevant. Even the proper “reasonably necessary” standard “cannot be read to guarantee that an applicant will have enough money to turn over every stone,” he wrote.

The justices also made clear that courts can review district courts’ funds denials in the first place.

Texas had argued that decision couldn’t even be reviewed here because it was just “administrative.”

The state’s argument on that front is “unpersuasive,” Alito wrote.

Sotomayor, RBG: Ayestas Should Win

Justice Sonia Sotomayor wrote a concurrence joined by Justice Ruth Bader Ginsburg.

She wrote separately to explain why “there should be little doubt that Ayestas” has satisfied the proper standard that the Fifth Circuit will apply on remand.

Sotomayor noted what she viewed as “the troubling failures of counsel at both the trial and state post-conviction stages of Ayestas’ case.”

Even though courts have discretion to deny funds under the proper standard, those failures “are exactly the types of facts that should prompt courts to afford investigatory services to ensure that trial errors that go to a ‘bedrock principle in our justice system’ do not go unaddressed,” she wrote.

The case is Ayestas v. Davis , U.S., No. 16-6795, vacated and remanded 3/21/18 .

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

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

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