Argument preview: Justices to consider role of racial bias in death penalty case
on Sep 28, 2016 at 12:05 pm
Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.
A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.
A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.
Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death.
The procedural history of Buck’s case is, to put it mildly, complicated. After his conviction and death sentence were affirmed on appeal, Buck (now represented by a new lawyer) filed a motion for post-conviction relief in the Texas courts. However, the motion did not challenge the decision by Buck’s trial counsel to introduce Quijano’s opinion that, because of his race, Buck was more likely to be dangerous in the future.
A year after the post-conviction motion was filed, Texas filed a brief in the U.S. Supreme Court in which it conceded that similar statements by Quijano in another capital case violated the defendant’s “constitutional right to be sentenced without regard to the color of his skin,” and that the references to race in the defendant’s sentencing “seriously undermined the fairness, integrity, or public reputation of the judicial process.” In a press release in June 2000, the Texas attorney general announced that his office had identified six other cases – including Buck’s – in which Quijano had testified about future dangerousness based on race. The attorney general also indicated that the state would not object if the inmates in those cases “seek to overturn the death sentences based on” Quijano’s testimony.
After his efforts to obtain post-conviction relief were unsuccessful, Buck sought relief in federal court, arguing that the introduction of Quijano’s opinion violated his constitutional right to have not only a lawyer, but an effective one. Texas countered that the federal courts could not review such a claim, because Buck’s post-conviction attorney had failed to raise it in a timely fashion at the state level. Buck’s motion proved fruitless, as were his subsequent appeals.
In 2014, Buck went back to federal court, seeking to reopen the district court’s ruling as to whether his trial counsel’s poor performance violated Buck’s constitutional right to an effective attorney. He relied on Federal Rule of Civil Procedure 60(b)(6), which allows a district court to “relieve a party or its legal representative from a final judgment” for “any reason . . . that justifies relief.” He noted that, in addition to his trial attorney’s decision to introduce Quijano’s opinion and the state’s concession that the use of Quijano’s opinion was unconstitutional, recent decisions by the U.S. Supreme Court allow federal courts, in some circumstances, to review “substantial” claims that a trial counsel was ineffective even if the claims were not raised in state post-conviction review.
The district court denied Buck’s motion. It concluded that Buck’s case did not present the kind of “extraordinary circumstances” required for relief under Rule 60(b)(6). In particular, although the district court agreed that the performance of Buck’s trial lawyers fell short of what the Constitution requires, it nonetheless held that his counsel’s introduction of Quijano’s opinion ultimately had only a minimal effect on the jury’s decision to sentence Buck to death.
The district court also denied Buck’s application for a certificate of appealability – a threshold requirement for appealing a final decision by a federal post-conviction court. The U.S. Court of Appeals for the 5th Circuit turned down Buck’s application as well. It noted that, although the Texas attorney general in his earlier press release may have indicated that his office would not object if inmates sought to overturn death sentences based on the introduction of Quijano’s testimony, the state’s subsequent opposition to Buck’s efforts to gain relief rendered the case “odd and factually unusual, but not even debatably extraordinary.” Buck then went to the Supreme Court, which agreed to review his case in June of this year.
There are several points of contention in the Supreme Court. The first is the merits of Buck’s argument that his trial counsel violated his constitutional right to an effective attorney when he introduced Quijano’s opinion.
Buck emphasizes that Quijano’s “testimony was so directly contrary to Mr. Buck’s interests, no competent defense attorney would have introduced it.” And the introduction of that evidence, he contends, likely “tipped the balance in the prosecution’s favor”: Although the key question before the jury was whether Buck was likely to be dangerous in the future, prosecutors failed to provide any evidence that Buck “had been violent outside the context of romantic relationships with two women, and the jurors learned that he had adjusted well to prison.” Moreover, he notes, the jury apparently “struggled to determine the appropriate sentence” for Buck, which suggests that, if Quijano’s testimony had not been admitted, at least one juror – all that would be necessary – might have voted against a death sentence.
The state concedes both that “race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability” and that the introduction of Quijano’s opinion “was at least debatably deficient performance” by Buck’s trial lawyers. But, the state contends, Buck had failed to show that the jury might have reached a different decision if the opinion had not been introduced, because there was plenty of evidence that Buck was likely to be dangerous in the future. The state further downplays the significance of Quijano’s opinion that Buck was statistically more likely to be dangerous in the future because he is black, asserting that it “played only a limited role at trial,” particularly when the psychologist’s “ultimate conclusion” was that Buck “would likely not be a future danger.”
The other issues before the Court are more technical, but no less important: whether Buck’s case presents the kind of extraordinary circumstances that would justify relief under Rule 60(b)(6) and whether the lower courts made a mistake when they rejected his application for a certificate of appealability.
Buck stresses that his circumstances are indeed extraordinary: He is under a death sentence “whose legitimacy is undermined by expert testimony that Mr. Buck is more deserving of a death sentence under Texas law because he is Black”; he has had ineffective attorneys throughout his legal proceedings; and Texas failed “to keep its promise to concede error in” his case. “It is hard,” Buck concludes, “to conceive of a set of circumstances more likely to produce an unjust outcome.”
And, Buck adds, he can easily meet the standard for a certificate of appealability, which requires him to show that the district court’s ruling was “debatable amongst jurists of reason.” In particular, he points out that two other federal appellate courts have ruled that the Supreme Court’s recent rulings allowing prisoners to raise ineffective-assistance-of-counsel claims that were not presented in state proceedings can be “a relevant factor” in determining whether relief is appropriate under Rule 60(b)(6). He also suggests that the denial of his application for a certificate of appealability reflects an overly parsimonious approach by the 5th Circuit to certificates of appealability more generally: Other courts of appeals, he observes, have granted the certificates at far higher rates in death penalty cases.
Texas retorts that Buck’s case hardly presents the kind of extraordinary circumstances required to reopen the district court’s ruling against him. Even if the Supreme Court’s recent rulings on ineffective-assistance claims that were not raised in state proceedings do apply retroactively to cases like Buck’s, it argues, those decisions do not – without more – constitute extraordinary circumstances. And it distinguishes Buck’s case from the other ones in which Quijano had testified that a defendant who is black is statistically more likely to be violent in the future, noting that Buck’s own lawyer had presented Quijano’s testimony during his direct examination of the psychologist. Moreover, it adds, any “supposed ‘promise’” by the state to refrain from raising technical objections to challenges based on Quijano’s testimony was made only in statements to the press and did not create any legal obligations on the part of the state.
The state defends the lower courts’ decision to deny Buck a certificate of appealability. Even if it is debatable whether the jury might have reached a different decision if Quijano’s opinion had not been introduced, Buck would still have to show that the district court’s ruling that his case did not present extraordinary circumstances was “utterly lacking” – a very high bar indeed, and one that Buck cannot meet. The 5th Circuit, the state argues, gave Buck ample opportunity to make his case for a certificate of appealability, and it thoroughly considered and addressed his arguments in its order denying the certificate. The state also pushes back against Buck’s broader suggestion that the 5th Circuit’s approach to certificates of appealability is overly restrictive or inconsistent with the Supreme Court’s cases. Given the Supreme Court’s admonition that “it is not appropriate to grant a COA in every” death penalty case, the state counters, “it is quite questionable whether a zero-percent” rate for denying certificates of appealability in capital cases (as the U.S. Court of Appeals for the 4th Circuit has) “is more consistent with this Court’s precedents than the Fifth Circuit’s practice of denying some capital COA applications after extensive process.”
In many of the court’s recent death penalty cases, the justices have been deeply divided. Two justices – Stephen Breyer and Ruth Bader Ginsburg – have even suggested that the court should consider whether the death penalty is constitutional at all. That question is not before the court in Buck’s case, but next week’s oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.