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The U.S. Supreme Court will decide a case about publicly funded defense investigators and experts.

On October 30, 2017, the Court heard argument in Ayestas v. Davis, a case that concerns the “substantial need” standard the Fifth Circuit uses to determine whether people on death row are entitled to publicly funded investigators and experts in their habeas cases (the text of the underlying federal law only states that the services of investigators and experts must be “reasonably necessary”).Ayestas v. Davis, No. 16-6795 (oral argument heard October 30, 2017, decision still pending as of January 25, 2018); and Adam Liptak, “Supreme Court Delves into Semantics of English in a Capital Case,” New York Times, October 30, 2017.

After Carlos Manuel Ayestas was sentenced to death in 1997, he claimed ineffective assistance of counsel, alleging that his trial counsel had failed to conduct a reasonable investigation that would have revealed substantial mitigating factors.Brief for Petitioner, Ayestas v. Davis, No. 16-6795 (on writ of certiorari to the 5th Cir, June 2016), 3-4. When his habeas counsel attempted to initiate a mitigation investigation, the Fifth Circuit denied funding because Ayestas could not show that an investigation would have resulted in mitigation, and thus he did not have a “substantial need” for it.Brief for Petitioner, Ayestas v. Davis, No. 16-6795 (on writ of certiorari to the 5th Cir, June 2016), 3-4. According to at least one commentator, the Supreme Court appears poised to reverse that decision, which would require courts in that circuit to apply a plain reading of “reasonably necessary” more in line with the remainder of the federal circuits.Steve Vladeck, “Argument Analysis: Major Capital Habeas Case Appears Headed Toward Narrow Reversal,” SCOTUS Blog, October 30, 2017.