The U.S. Supreme Court is set to hear oral arguments Monday on a death penalty case that hasn’t attracted much attention, but could bring important new focus to the standard of whether experts must be appointed to the defense in capital punishment cases. Here, University of Virginia law professor Brandon Garrett analyzes the case.
By Brandon L. Garrett
For 15 months, the lawyers appointed to represent Carlos Manual Ayestas in a 1997 Texas death penalty case did not investigate the facts to prepare for the trial.
Ayestas, an immigrant charged with the murder of a 67-year-old woman, told his lawyers about his background, which included multiple head traumas, regular cocaine and alcohol use, and mental health issues. Neither his trial lawyers, nor the investigator they hired, looked into any of this or even asked for a basic mental health exam. Furthermore, Ayestas’ lawyers presented no witnesses at trial.
It took the jury just 12 minutes to decide he should die for committing the murder.
It’s easy to sentence someone to death if the defense lawyer doesn’t tell jurors what kind of person’s life they have in their hands. At the crucial sentencing phase, the defense presented nothing to convince the jury to spare his life except for three letters from a prison instructor, who said that Ayestas was a “serious and attentive” student.
On Monday, the Supreme Court hears arguments in the case, following Ayestas’ unsuccessful appeals and habeas. The case goes to the core of what we expect our legal system to do: fully uncover the truth — on both sides — when the most serious criminal accusations are brought to court.
In his federal habeas petition, Ayestas argued that his trial lawyer failed to effectively investigate his case. Indeed, Ayestas had been diagnosed with schizophrenia and has been placed on antipsychotic medication in prison. To show what his trial lawyer missed, though, he would need to have funds to hire a social worker — called a mitigation specialist — to conduct a real investigation.
That was what the federal courts refused to provide, repeatedly rejecting this request.
The Supreme Court will hear arguments on this question: Are investigative or expert services reasonably needed to fulfill the federal statute requiring that the accused in death penalty cases receive an adequate defense? In this instance, the Fifth Circuit Court of Appeals had interpreted the statute to create a high bar, that a defendant must show a “substantial” and not a “reasonable” need for services.
Perhaps the most crucial job of a death penalty lawyer is to convey the background of the client. That requires a rigorous and thorough investigation, as the Supreme Court has explained and as the American Bar Association’s standards lay out in detail. Mitigation specialists, or social workers who conduct fact investigations, have the skills to ask questions about sensitive subjects like childhood abuse, mental illness, and substance abuse, which lawyers often lack. Social workers are also much less costly than lawyers.
Unfortunately, for decades it was common for defense lawyers to fail to investigate. Jurors never heard all of the facts, and appeals courts regularly denied relief in death penalty cases that became infamous: cases with sleeping, drug-addicted and drunk lawyers, and lawyers who freely admitted they had not prepared for trial.
The death penalty was reserved not for the worst murderers, but as legendary death penalty lawyer Stephen Bright famously put it, the people with the worst lawyers.
I have studied Virginia death penalty trials from the 1990s and found that sentencing phases in those trials were typically very short, averaging less than two days long, with very little evidence put on by the defense. But after 2005, when regional capital defender’s offices were created in Virginia, the sentencing phase was longer, and the defense commonly presented more witnesses. As a result, juries rejected the death penalty a majority of the time.
In 2016, just 31 people were sentenced to death in the entire country: a remarkable decline in death sentencing from its peak of over three hundred per year in the mid-1990s. I have spent the past several years collecting data on death sentencing, and I found that the quality of defense lawyering has changed the game. States like Virginia that have statewide capital defense offices experienced far greater declines in death sentences than states that have none.
In recent cases in Texas, jurors have rejected death sentences in about half of the death penalty trials in the past few years, often due to mental health evidence, evidence of childhood abuse and of addiction — the same type of evidence that Ayestas’ lawyers failed to investigate.
The Supreme Court has already emphasized the importance of a meaningful, factual investigation in capital cases. The Ayestas case can help to cement the importance of that role. It is crucial that federal courts and also the states provide the resources for social background investigations, and not just in death penalty cases.
It is a disturbing reality that the way we sentenced hundreds of people to death each year in decades past was to often hide the truth from the jurors. When jurors do hear about the social background of the defendant, they often decide to reject harsh punishment. The Ayestas case illustrates how knowing the facts of a case truly is a matter of life and death.
Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. This fall, Harvard University Press published his new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.”