TCP Files Brief on Right to Counsel in Capital Cases

In a brief filed Friday, June 16, The Constitution Project (TCP) urged the U.S. Supreme Court to reverse a Fifth Circuit decision requiring a death-sentenced habeas petitioner to show a “substantial need” before a court may fund expert or investigative support for the defense. TCP’s friend-of the-court brief argues that the law, 18 U.S.C. §3599, requires support for reasonably necessary expert and investigative services and that any greater burden on a death-sentenced petitioner to show “substantial need” increases unfairness and disproportionate application of the death penalty. The brief notes that the Fifth Circuit’s heightened standard for accessing investigative and expert services is especially problematic for defendants in state  capital cases. “Constitutionally deficient representation is endemic in state capital trials,” and federal habeas proceedings allow defendants to challenge the quality of their inadequate representation. The brief further explains that in these cases, “Section 3599 services play a central role in ensuring the fairness and integrity of state proceedings.”

The case before the Court involves a petition for federal habeas relief filed by Carlos Ayestas, who was convicted and sentenced to death for murder in Texas in 1997. In order to support his claim for ineffective assistance of trial counsel, Ayestas filed a motion for investigative assistance under federal law, which requires that the requested services are “reasonably necessary for the representation” of the defendant or habeas petitioner.  The Fifth Circuit rejected this request, holding that this habeas petitioner must prove the underlying claim—in this case, ineffective assistance of counsel—by showing a “substantial need” for the investigative assistance requested.

TCP’s brief argues that for those who are convicted and sentenced to death in state courts, federal habeas review may be the first opportunity where a defendant is able to meaningfully challenge the trial attorney’s performance. Resources provided under Section 3599 are often necessary to support these claims.  But because the Fifth Circuit requires a defendant to show a “substantial need” for these services, a capital defendant is unlikely to receive the resources he needs to prove his constitutional claim. “When a defendant deprived of adequate expert or investigative assistance in state court is able to invoke Section 3599 in federal court, a ‘reasonable attorney’ standard may help mitigate the disparity between States that offer appointed counsel the services they need to provide constitutionally sufficient representation and those that do not,” the TCP brief states.

Further, the Fifth Circuit’s heightened standard exacerbates the disparity between petitioners who can afford private attorneys and those who cannot, as those with private counsel need not ask the court for authorization of funding to support their defense. Furthermore, this heightened standard creates a disparity among petitioners based on geography: in some jurisdictions, a death-sentenced prisoner is appointed counsel and must therefore rely on court authorization for investigative and expert assistance; in other jurisdictions, they may be appointed a federal defender who has access to investigators and experts funded through their office.

TCP’s interest in this case stems from our longstanding commitment to addressing the many concerns raised by the systemic deprivation of the right to counsel.  TCP’s National Right to Counsel Committee addressed global concerns in the provisions of indigent defense across the country, including lack of access to experts and other needed resources to mount an adequate defense in Justice Denied, the Committee’s seminal report on the Sixth Amendment crisis plaguing jurisdictions across the United States.  TCP is grateful for the pro bono services of Hogan Lovells; without their assistance, this brief would not have been possible.  The case will be argued in the fall of 2017.

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