From the 2017 News Archive
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Professor Lee Kovarsky Argues Before the Supreme Court

Professor Lee Kovarsky was in Washington, D.C. on October 30th to argue before the Supreme Court. Kovarsky is representing Carlos Ayestas, an inmate on Texas’s death row, in the case Ayestas v. Davis.

The question presented in Ayestas v. Davis is whether courts in the Fifth Circuit use the appropriate standard when determining whether to fund experts and investigators for indigent defendants facing the death penalty. Specifically, Ayestas argues that his trial counsel failed to perform an investigation into life history and mental health evidence that might cause a jury to refuse a death sentence—in violation of the Sixth Amendment. When Mr. Ayestas went to federal court to enforce his Sixth Amendment right, he needed an investigator to show what trial counsel would have found, had it undertaken the professionally appropriate investigation. The lower federal courts denied his request for that investigator on the ground that they anticipated that the investigator would find nothing that proved a constitutional violation. Through Professor Kovarsky, Mr. Ayestas argued that the Fifth Circuit standard—which conditioned funding of an investigator on evidence of what the investigator would find—was inconsistent with the relevant statute.

Professor Kovarsky explained, “The central purpose of the statute in question is to promote parity in representation as between those capable of paying for it and those who aren’t. If you conclude that every private attorney in their right mind would undertake the requested investigation, the answer to the question in this case should be straightforward. When federal habeas counsel got this case, he looked at the file and saw that trial counsel did almost nothing to ensure that, if he were convicted, he didn’t get the death penalty. In America, you are supposed to be capitally sentenced because you are sufficiently culpable, not because you had a bad lawyer.”

“No one is better suited to explain to the Court why indigent defendants need the funding that Congress itself recognized to prove ineffective assistance of counsel in capital cases,” praised Professor Danielle Citron, Morton & Sophia Macht Professor of Law at the University of Maryland Francis King Carey School of Law. “Lee has that perfect blend of deep expertise, passion, and uncanny ability to break down difficult concepts and explain their importance.”

This is far from Professor Kovarsky’s first time representing an inmate on death row since joining Maryland Carey Law. Kovarsky also made headlines when he represented Marvin Wilson, an inmate with an IQ of 61 on Texas’s death row, in his failed 2012 appeal to the Supreme Court. The Texas Court for Criminal Appeals identified the character “Lennie,” from John Steinbeck’s novel “Of Mice and Men,” as an example in determining whether an individual was mentally fit to be executed. This drew a swift rebuke from the author’s son Thomas who said, “I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way.” Professor Kovarsky also represented Rolando Ruiz, who was executed on March 7 of this year; just before Mr. Ruiz was executed, Justice Breyer published an opinion calling for courts to consider practices whereby death row inmates are housed in solitary confinement for decades before their executions.

Professor Kovarsky is the author of Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation (with Brandon Garrett) and teaches a seminar on capital punishment.

Coverage of Oral Arguments: Washington Post, New York Times


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500 W. Baltimore Street, Baltimore, MD 21201-1786 PHONE: (410) 706-7214 FAX: (410) 706-4045 / TDD: (410) 706-7714

Admissions: PHONE: (410) 706-3492 FAX: (410) 706-1793

Copyright © 2017, University of Maryland Francis King Carey School of Law. All Rights Reserved