The now-nine justices of the U.S. Supreme Court will hear arguments Monday morning in the Texas death penalty case of a Fort Worth man who killed a 5-year-old and her grandmother during a children’s birthday party.
The issue before the court in the case of 30-year-old death row inmate Erick Davila focuses on a legal distinction between ineffective lawyering in the trial court and during state appeals. The high court’s newest justice, Neil Gorsuch, previously ruled against an argument similar to Davila’s when he sat on the 10th U.S. Circuit Court of Appeals.
Seth Kretzer, the lawyer who will argue on behalf of Davila in front of the court Monday, told The Texas Tribune it might be difficult to obtain Gorsuch’s vote in the case, but if the new, seemingly very vocal justice has questions, “I’ll be happy to answer each and every one of them,” he said.
The Texas Attorney General’s Office did not respond to an interview request on Davila’s case.
Davila landed on death row eight years ago after the April 2008 murders. He drove to the house of a rival gang member, Jerry Stevenson, and opened fire on the porch before speeding off, according to court filings. Davila didn’t hit Stevenson, however; instead, he fatally shot the man’s mother and daughter, Annette Stevenson and 5-year-old Queshawn, who were outside during another girl’s birthday party.
For a jury to have found Davila guilty of capital murder in this case, they needed to have determined that he intended to kill multiple people. Davila’s main defense in trial was that he only intended to kill Jerry Stevenson. Tarrant County prosecutors countered that argument by pointing to Davila's confession to police: “I was trying to get the guys on the porch, and I was trying to get [Jerry Stevenson].”
As jurors deliberated, they focused on the intent issue, asking the judge if they should decide if Davila intended to kill his two victims or if he intended to kill someone and in the process fatally shot two others.
In his answer, the judge sent the definitions again and instructed jurors that Davila would be responsible for a crime if the only difference between what happened and what he wanted was that a different person was hurt — without affirming to them that Davila must have intended to kill more than one person.
“The judge responded with a misleading instruction, which permitted the jury to convict Davila based only on the intent to kill Jerry Stevenson,” Kretzer wrote in Davila’s brief to the high court.
Davila’s lawyer during his trial objected that the judge should not add that instruction at that time, but he was overruled. It was the right move by the lawyer but one that hurt Davila in the long run, Kretzer claimed.
This instruction wasn’t brought up during Davila’s automatic, direct appeal concerning the trial record. And his lawyer in his state habeas appeal — which focuses on facts outside of the trial record — never claimed his direct appellate lawyer was wrong to not bring it up.
Two big mistakes, according to Kretzer.
Death penalty cases can also be appealed in the federal courts system, but it is generally ruled that issues that could be raised at the state level can’t be reviewed federally until they go through state courts. So, when a federal lawyer tried to raise the claim that Davila’s direct appellate lawyer was ineffective for not faulting the judge’s instruction, federal courts said they couldn’t rule on that because it could have been brought up during the state habeas appeal.
There is an exception to this rule, created in the Supreme Court decision Martinez v. Ryan, which says that if state habeas lawyers fail to raise the issue of ineffective trial counsel, the federal courts can still hear it to ensure that the defendants are guaranteed their Sixth Amendment right to a fair trial.
What Kretzer will argue before the high court Monday is that Martinez should be interpreted to include issues of ineffective appellate counsel as well. Kretzer said that if trial counsel had not objected to the judge’s instruction, the federal courts could rule on the merits of the case based on the Martinez exception.
“A defendant should not be worse off because appellate counsel – rather than trial counsel – rendered the ineffective assistance,” Davila’s brief states.
Texas Solicitor General Scott Keller will argue against opening up the Martinez exception, and 30 other state attorneys general filed a brief in support of Texas in the case. The list includes all states with the death penalty except five, and five states without.
“The right to appellate counsel, while surely important, is not foundational and cannot justify the same treatment as the right to trial counsel,” Keller wrote in the state’s brief.
The Supreme Court got involved in this case because federal appellate courts have interpreted the Martinez exception differently. Almost all federal appeals courts have taken it to only include ineffective trial counsel claims (including Gorsuch’s court in 2012), but the 9th U.S. Circuit Court of Appeals — which mostly covers the west coast — ruled trial and appellate lawyers should be treated the same.
Even if the Supreme Court wanted to open the Martinez exception to include appellate attorneys, Texas said previous rulings against Davila should still be upheld, according to the state’s filing. Though a lower federal court did rule it couldn’t procedurally hear the case, it still rejected the case for the alternative reason of lacking merit.
“[Davila’s] ineffective assistance of counsel claim is based on his appellate counsel’s decision not to raise an unpreserved challenge to a correct jury instruction where [he] confessed to the facts constituting capital murder. No reasonable jurist would find any merit in [the] claim,” the state brief said.
Davila countered in a reply brief that the lower court wrongly ruled on the merits in his case, and Kretzer told the Tribune that he didn’t think the court would “sidestep” the issue at hand.
“The idea that this appellate representation is a second-tier right ... I don’t think that’s likely to hold up very well in basically the highest appellate court in the world,” Kretzer said.
If the high court rules in Davila's favor, the case would be sent back for federal courts to review his ineffective counsel claim. A decision in the case is expected before the end of June, when the court’s term ends.
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