It was a good sign for Texas death row inmate Duane Buck. Several minutes into the oral argument of his attorney, Christina Swarns, Justice Samuel Alito – perhaps the justice least likely to be sympathetic to criminal defendants – observed that “what occurred at the penalty phase of” Buck’s trial “is indefensible.” Alito was referring to the decision by Buck’s trial lawyer to introduce testimony by a psychologist, Walter Quijano, that Buck was statistically more likely to be dangerous in the future because he is black. His lawyer’s use of that testimony, Buck argues, violated Buck’s constitutional right to an effective attorney.

In the end, Buck may still lose Alito’s vote – among other things, Alito expressed concern that a ruling for Buck would open the floodgates to claims, including by inmates who are not on death row, that they are entitled to reopen their cases because their lawyers were inadequate. But after an hour of oral arguments today, it appeared that Buck could still get the five votes he would need to prevail. The only real remaining question was on exactly what ground the court is likely to rule and what the scope of that ruling might be.

Much of the oral argument focused on the substance of Buck’s claim that the introduction of Quijano’s testimony violated Buck’s Sixth Amendment right to have an effective lawyer represent him. Alito suggested that the U.S. Court of Appeals for the 5th Circuit’s ruling against Buck could be defended on the ground that, even if his lawyer was constitutionally inadequate, Buck ultimately was not harmed by the introduction of the racially inflammatory testimony, because there was plenty of other evidence that Buck was likely to be dangerous in the future. Scott Keller, the solicitor general of Texas, agreed that this is particularly true because, despite the inflammatory parts of his testimony, Quijano’s ultimate conclusion was that Buck would not be dangerous in the future.

Christina A. Swarns for petitioner

Christina A. Swarns for petitioner (Art Lien)

Swarns pushed back, telling the justices that it was “impossible to unring the bell” after the racially inflammatory evidence was introduced, because it went to the key issue in the case. Without a finding that Buck was likely to be dangerous in the future, Swarns emphasized, the jury could not sentence him to death. And Texas, she noted, had not itself presented any evidence regarding Buck’s future dangerousness if he were sentenced to life in prison instead of death. Justice Sonia Sotomayor seemed sympathetic to this argument. Sotomayor pressed Keller, asking him skeptically whether he could really say that not even one juror – all that would have been required – could have been convinced to vote for life in prison if Quijano’s testimony hadn’t been introduced.

Another issue in the case was the press release issued by Texas in 2000, in which the state indicated that it would not object to efforts by inmates in six cases – including Buck’s – to overturn their death sentences based on Quijano’s testimony about future dangerousness based on race. When Keller began to recite the details of Buck’s crimes, Chief Justice John Roberts cut him off. Roberts suggested that the facts in the other cases in which Quijano’s testimony had been introduced, but in which the state had not opposed efforts to reopen the cases, were similarly heinous.

Keller explained that in the other cases, prosecutors – rather than defense attorneys – had introduced Quijano’s testimony. But several justices appeared unconvinced by the proposed distinction. Wouldn’t the same concerns be present regardless of who introduced the prejudicial testimony, Roberts asked. Justice Ruth Bader Ginsburg suggested that Buck’s case was made even stronger by the fact that Quijano’s testimony had been introduced by his own lawyer, rather than prosecutors, because it showed “how abysmal” the attorney was. Justice Elena Kagan echoed this sentiment later, telling Keller that Quijano’s testimony “seems more prejudicial when the defense attorney uses it.” If the testimony is introduced by the defendant himself, she observed, the jury is more likely to believe that “it must be true.”

Texas Solicitor General Scott A. Keller

Texas Solicitor General Scott A. Keller (Art Lien)

In fact, the justices seemed sufficiently sympathetic to Buck’s arguments on the merits that they appeared somewhat puzzled about what to do with another question presented by the case: whether the 5th Circuit should have at least granted Buck’s application for permission to appeal the district court ruling against him – known as a “certificate of appealability.” Buck had contended not only that the 5th Circuit should have given him a certificate of appealability, but also that the 5th Circuit imposes too stringent a standard generally when granting such certificates.

Roberts suggested that, if Buck’s case is so unique, the court might not have a reason to weigh in on the broader question of whether the 5th Circuit’s approach to certificates of appealability is the correct one. And Kagan noted that, in other recent cases, the court has ruled that an inmate was entitled to a certificate of appealability because he was right on the merits of his claims – which, she observed, would leave unresolved the question of the proper standard. Later on, however, Kagan suggested that Buck’s case is so extraordinary that it is the “best proof” that the 5th Circuit’s standard for certificates of appealability is not correct.

If the court does weigh in on the 5th Circuit’s approach to certificates of appealability more generally, the justices’ comments at the oral argument demonstrated some skepticism. Kagan remarked that, in death penalty cases, the 5th Circuit denied applications for certificates of appealability ten times more often than the 11th Circuit. That discrepancy, she posited, “does suggest that one of those circuits is doing something wrong.” And although the state had cited the 5th Circuit’s practice of thoroughly vetting applications for certificates of appealability – often requiring substantial briefing and even oral arguments – as a reason to endorse its approach, some justices suggested that the practice actually weighed against the state. Roberts indicated that, in his view, the purpose of certificates of appealability was simply to decide whether an appeal should go forward. Kagan similarly told Keller that the 5th Circuit was merely supposed to serve a gatekeeper function in deciding whether to issue the certificate of appealability; it was not supposed to be deciding the appeal on the merits.

A decision in the case is expected next year.

Posted in Buck v. Davis, Analysis, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument analysis: Justices appear inclined to rule in favor of Texas death row inmate in racial bias case, SCOTUSblog (Oct. 5, 2016, 3:09 PM), http://www.scotusblog.com/2016/10/argument-analysis-justices-appear-inclined-to-rule-in-favor-of-texas-death-row-inmate-in-racial-bias-case/