Supreme Court to Hear Argument About Legal Assistance for Poor Defendants in Capital Cases


On Monday, the Supreme Court will hear argument in Davila v. Davis about the failure to provide adequate counsel to Erick Davila after he was sentenced to death in Texas.

Davila was convicted of capital murder after the trial judge gave the jury an incorrect instruction. If this error had been raised on appeal, Davila would have gotten a new trial, but his appellate lawyer did not raise it, and his postconviction lawyer did not point out the appellate lawyer’s mistake. When his new lawyer finally raised the issue in federal court, it was denied because it had not been raised in state court.

Because the right to effective assistance of counsel is “a bedrock principle in our justice system,” the Supreme Court has held that claims about ineffective counsel can be addressed in federal court if the postconviction lawyer fails to raise them in state court. That rule has been applied to claims of ineffective assistance of trial counsel. The question in Davila’s case is whether it also applies to ineffectiveness of appellate counsel.

The State of Texas is arguing that the right to counsel on appeal is not entitled to the same constitutional protections as the right to counsel at trial, but an amicus brief filed in support of Davila by the National Association of Criminal Defense Lawyers and the ACLU emphasizes the importance of effective appellate counsel to vindicating criminal defendants’ constitutional rights. In Alabama, where there is no statewide public defender program and, in some counties, defendants have been sentenced to death after trials where they were represented by a lawyer who did not meet even the minimum requirement of five years of criminal defense experience, EJI lawyers have won relief for well over a hundred death-sentenced clients on appeal.

The failure to provide adequate assistance to capital defendants and people who are sentenced to death is a defining feature of the American death penalty, especially in Alabama. Also on Monday, the Supreme Court will hear argument in McWilliams v. Dunn, which involves an Alabama defendant whose defense at the sentencing phase of trial focused on his severe mental health disorders that resulted from multiple head injuries. McWilliams’s defense requested a mental health expert to help them prepare and present this evidence at his sentencing hearing, but the trial judge instead appointed an expert who reported his findings to the court and the prosecution. The Supreme Court will address whether McWilliams had a constitutional right to a defense expert who was independent of the prosecution.

The first two men scheduled to be executed during Arkansas’s unprecedented spate of executions requested a stay of execution to wait on the decision in McWilliams. Lawyers for Don Davis and Bruce Ward argued that both men were unconstitutionally denied access to an independent mental health expert. There is evidence that Don Davis is intellectually disabled and Bruce Ward has a long history of mental illness. The Arkansas Supreme Court stayed the executions on Monday, and the United States Supreme Court refused the state’s request to overturn the stay.