ABA asks Supreme Court to require adequate funding for post-conviction investigations

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The U.S. Supreme Court should reject a decision from the New Orleans-based U.S. 5th Circuit Court of Appeals making it harder to investigate post-conviction legal claims, the ABA said in an amicus brief filed Friday.

The brief (PDF) was filed in Ayestas v. Davis, in which Carlos Manuel Ayestas asked the courts for funds to hire a specialist he believes should have been employed by his original attorneys. Federal law permits that funding when a court finds that it’s “reasonably necessary” for the representation of the defendant. In 2016, the 5th Circuit found that those like Ayestas must show a “substantial need”—a standard he says is virtually impossible to meet without the funding needed to develop the case.

The ABA’s amicus brief supports that argument, calling the appeals court’s rule “restrictive and circular.”

“The ‘substantial need’ rule effectively requires counsel to establish a viable claim on the merits before the Circuit will authorize the funding needed to investigate the merits,” the amicus brief says.

Ayestas is arguing his original counsel was ineffective, and effective assistance requires attorneys to “conduct an independent and adequate investigation of the facts,” the brief notes. That’s supported by the ABA’s Death Penalty Guidelines and Criminal Justice Standards. In fact, the brief says, an ineffective assistance claim is particularly likely to need some extra investigation, since the record from prior court proceedings is unlikely to contain the required information if the prior attorney was ineffective. And the ABA Death Penalty Representation Project has found that when assistance was ineffective, it’s often due to failure to fund investigators or experts.

That’s a problem, the brief says, because the 5th Circuit’s ruling sets up a Catch-22 for defendants like Ayestas: He can’t get the funding he needs to hire an investigator without showing a court the facts that the investigator would be hired to uncover. This is a higher standard than the federal statute at issue, which requires that the funds be “reasonably necessary” for the defense, the brief says. Effectively, it closes the door to criminal defendants, functioning as a preliminary ruling on the merits.

“Such an outcome threatens more than attorneys’ ability to act consistent with professional standards,” the brief says. “It threatens also the integrity, fairness, and reliability of the habeas process, of capital sentences, and ultimately of our criminal justice system.”




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