The now-nine Supreme Court justices will hear arguments Monday in the death penalty case of a Texas man who killed a 5-year-old and her grandmother during a children’s birthday party, the Texas Tribune reports. The issue in the case of Erick Davila, 30, focuses on a legal distinction between ineffective lawyering in the trial court and during state appeals. New Justice Neil Gorsuch ruled against an argument similar to Davila’s when he sat on the 10th U.S. Circuit Court of Appeals.
Davila landed on death row eight years ago after the 2008 murders. He drove to the house of a rival gang member, Jerry Stevenson, and opened fire on the porch before speeding off. For a jury to have found Davila guilty of capital murder, they needed to have determined that he intended to kill multiple people. Davila’s main defense in trial was that he intended to kill only Stevenson. Davila’s lawyer, Seth Kretzer, argues that the judge used a misleading jury instruction and that lawyers in two appeals didn’t raise that issue. He says the death penalty should be voided because of ineffective appellate counsel. Texas’ top lawyer, Scott Keller, backed by 30 other state attorneys general, maintains that, “The right to appellate counsel, while surely important, is not foundational and cannot justify the same treatment as the right to trial counsel.”