New York Times

Justices Plumbing Semantics In Murder

November 5 , 2017

by Adam Liptak

A Supreme Court argument about making sure that death row inmates have adequate resources to challenge their sentences took a semantic turn on Monday, with the justices trying to make sense of the differences between two similar phrases.

On the one hand, a federal law says that death row inmates are entitled to money for investigators and experts if judges find it “reasonably necessary” for their defense. On the other hand, the federal appeals court in New Orleans, which oversees cases from Louisiana, Mississippi and Texas, says there must a “substantial need” for the money.

The appeals court denied funds to a Texas inmate, Carlos Manuel Ayestas. He challenged the denial, saying the court had set the bar too high.

But Justice Samuel A. Alito Jr. said the two phrases meant the same thing.

“What is the difference between ‘reasonably necessary’ and ‘substantial need’?” he asked. “I have been racking my brain trying to think of something that it is reasonably necessary for me to obtain but as to which I do not have the substantial need. And I can’t think of an example.”

Several of the court’s more liberal justices disagreed, saying that “reasonably necessary” connoted matters that a reasonable lawyer with finite resources would try to pursue. The caveat about “finite resources,” Justice Elena Kagan explained, was “just to make sure that, like a reasonable attorney for Bill Gates, would scour the earth and not care about it.”

Justice Alito responded that lawyers in capital cases might want to pursue many things. “A reasonable attorney with finite means might devote those finite means to an avenue of investigation that has very, very little chance of success because there is so much at stake,” he said. “So I don’t understand how that can be the test here, where the statutory language is ‘reasonably necessary.’”

Mr. Ayestas was convicted of murdering Santiaga Paneque, 67, after invading her home in Houston. There was little doubt about his guilt, but his trial lawyers may have had some hope of persuading the jury to spare his life.

“This is a horrendous murder,” Justice Ruth Bader Ginsburg said. “The only chance in the world that this defendant has is if he can put on a mitigation case and convince one juror he shouldn’t get the death penalty. There is nothing else.”

But Lee Kovarsky, a lawyer for Mr. Ayestas, said his trial lawyers had done almost nothing to develop a mitigation case notwithstanding indications that he had serious mental health problems. The defense presentation concerning mitigating factors at the sentencing phase “lasted two minutes,” Mr. Kovarsky said.

Justice Sonia Sotomayor asked Scott A. Keller, the solicitor general of Texas, whether Mr. Ayestas’s trial lawyers had done an adequate job. “How can you stand here and say that this kind of investigation meets any constitutional standard?” she asked.

Mr. Keller said the trial lawyers had done some work, notably by trying to contact Mr. Ayestas’s family in Honduras.

Justice Ginsburg said that was not enough. “There are many, many sources other than asking family members if you’re looking into mental health,” she said. “There’s school records. There’s criminal justice records.”

Justice Stephen G. Breyer said there was an easy way to dispose of the case, by instructing the appeals court, the United States Court of Appeals for the Fifth Circuit, to use the “reasonably necessary” standard, the phrase in the federal law.

“End of case,” Justice Breyer said. “This circuit, you are to follow the statute. And that’s it. Goodbye.”