On October 30, 2017, the U.S. Supreme Court heard oral argument about the availability of funding for capital defense investigations in Ayestas v. Davis. The specific issue before the Court was whether 18 U.S.C. § 3599(f) allows courts to order funding for federal habeas counsel to investigate and develop ineffective-assistance-of-counsel claims not raised by state habeas counsel. The Court’s answer will affect the ability of death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial counsel.

In 1997, Carlos Ayestas was convicted and sentenced to death by a Texas state court for his alleged role in a 1995 robbery that culminated in a murder. In 2009, having exhausted direct appeal and state habeas procedures, Ayestas filed a federal habeas petition that raised several new arguments for relief from his sentence, including a claim regarding ineffective assistance of his counsel at trial. Ayestas moved the court for funding to investigate and develop this claim, describing his trial counsel’s limited mitigation investigation and their failure to consult with any mental health experts despite Ayestas’ known history of severe substance abuse. Ayestas argued that by failing to conduct a reasonable mitigation investigation, trial counsel violated his Sixth Amendment right to effective counsel. Section 3599(f) of the Criminal Justice Act provides that on “finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant . . . the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor.”

The law is unsettled regarding the availability of funding for resources for federal habeas counsel. In 2003, the Court ruled in Wiggins v. Smith (2003) that defense counsel’s failure to conduct reasonably necessary mitigation investigations in advance of sentencing proceedings in capital cases could raise a cognizable ineffectiveness-of-counsel claim. Later, in 2013, the Court ruled in Trevino v. Thaler (2013) that ineffective assistance of state post-conviction counsel could excuse a petitioner’s failure to raise an ineffective assistance claim before federal habeas proceedings.

The question of funding for habeas claims remains open, however. In Ayestas’ case, the Fifth Circuit held that, in order to show that funding for investigative resources was “reasonably necessary,” a petitioner challenging his sentence based on ineffective assistance of counsel has to make a “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” In other words, to obtain resources, federal habeas counsel would have to prove what mitigating facts trial counsel failed to uncover—without having any resources to do so. This seems to be an impossible burden to meet. Texas’ Response Brief argues that denial of funding is not reviewable because it is an “administrative function” and not an exercise of Article III judicial power. Seeming to ignore the Court’s ruling in Trevino, Texas asserts that the Antiterrorism and Effective Death Penalty Act’s prohibition on new evidence in federal habeas petitions necessarily bars funding for mitigation investigations at the habeas stage. Simply put, their claim is that mitigation investigations cannot be “reasonably necessary” at the federal habeas stage because any new evidence uncovered would not be admissible.

Funding for capital defense has long been a source of headache and contention. ABA Guidelines advise that defense attorneys “in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation.” (p. 981). The Guidelines further caution against “[f]lat fees, caps on compensation, and lump sum contracts” and suggest that salaries for capital defense attorneys should be “commensurate with the salary scale of the prosecutor’s office in the jurisdiction.” (p. 982).

Adequate compensation for counsel’s time is not the only concern; funding for experts and investigative resources is also crucial to effective representation. A 2010 Judicial Conference report (p. 44) makes it clear that defense funding makes a difference in the quality of representation, finding that “individuals whose defense cost less than $320,000 in combined attorney and expert assistance—the lowest one-third of federal capital trials—had a 44% chance of being sentenced to death at trial. Individuals whose total representation costs were above that amount—the remaining two-thirds of defendants—had a 19% chance of being sentenced to death.”

Despite the ABA’s advisory against lump sum contracts and compensation ceilings, they remain a fixture in many compensation schemes, causing some defense attorneys take on more cases than they can reasonably handle to try to make ends meet. Further, despite the statutory provision appearing to provide for funding for defense resources, defense attorneys frequently struggle to obtain funding for critical expert and investigative services. The capital defense bar is riddled with horror stories about funding battles, including a particularly egregious case (p. 781 n.24) where a defense attorney admitted in a habeas petition that he was forced to choose between paying rent or flying out of state to continue a mitigation investigation on behalf of his client. Earlier this month, a Utah defense attorney was fired for publicly criticizing Weber County’s failure to make defense funding available for capital cases.

Ayestas’ case will determine whether courts can make funding for expert and investigative resources available for ineffective assistance claims at the federal habeas stage. SCOTUSBlog’s Steve Vladeck anticipates that he is on his way to a narrow victory. In any event, the Court’s ruling will help define what counsel must demonstrate to show that expert or investigative services are “reasonably necessary.”