"In an amicus brief filed Monday, the ABA urged the U.S. Supreme Court to reaffirm that counsel representing habeas petitioners should be able to investigate new evidence without first proving that the evidence will provide relief to their clients.

“Counsel is obliged to conduct adequate investigations at each stage of the case, and the evidence that will emerge is never foreordained,” according to the ABA’s amicus brief. “The facts discovered through a reasonable investigation will inform counsel’s ascertainment of available claims, but they may also establish the procedural viability of a claim, particularly in federal habeas proceedings in which no sufficient investigation has been performed by prior counsel (who may also be unavailable or uncooperative).”

The ABA filed the amicus brief in Shoop v. Twyford, a case involving a death row inmate who requested transport to a hospital for a neurological examination that could support claims that his trial counsel was ineffective.

An ABA press release is here.

Raymond Twyford was convicted of murdering his stepdaughter’s rapist and sentenced to death in 1993. Ten years later, while imprisoned at the Chillicothe Correctional Institution, a state-run medium security prison in Ohio, he filed a habeas petition in federal court asserting that his attorney failed to investigate and document evidence of his severe neurological impairment.

According to Twyford’s brief, he was physically abused and raped as a child and young adult. At age 13, he shot himself in the head, destroying his right eye and lodging more than 20 bullet fragments in his brain.

Twyford was evaluated by Dr. Douglas Scharre, a neurologist at the Ohio State University Wexner Medical Center who recommended that he undergo additional testing. The district court granted Twyford’s request, and in August 2021, the 6th U.S. Circuit Court of Appeals at Cincinnati affirmed.

The 6th Circuit cited the All Writs Act, which says courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

“A district court has the authority under the All Writs Act to order the state to transport a habeas petitioner for medical imaging in aid of its habeas jurisdiction,” the appeals court said. “Such transport orders do not conflict with habeas statutes or the common law and are consistent with congressional intent to provide for counsel for capital defendants.”


This article was originally posted in the ABA Journal.

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