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February 22, 2017

Buck's notable dis of state finality interests in "flawed" capital sentence

Though there are a number of interesting procedural and substantive elements to the Supreme Court's ruling today in Buck v. Davis reversing a Texas death sentence (basics here), I am especially intrigued by the short shrift given by the Chief Justice's majority opinion to the state's claimed interest in finality.  (Regular readers know I can get fixated on finality and have written at length about why I think convictions and sentences ought to be treated differently for finality purposes.)  Here is all that Chief Justice Roberts writing for the Court had to say about finality (with my emphasis added):

In opposition, the State reminds us of the importance of preserving the finality of judgments.  Brief for Respondent 34.  But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U.S., at 529.  And in this case, the State’s interest in finality deserves little weight.  When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis.  In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.

In his dissent, Justice Thomas says the majority opinion "belittles Texas’ claimed interest in finality," and I think that is a fair characterization of the passage above.  I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way.  Though I do not expect this Buck dis of state finality interests to significantly impact finality jurisprudence, I do expect to cite this Buck the next time I need to respond to any claims that flawed sentences must be preserved in the name of finality.

February 22, 2017 at 04:53 PM | Permalink

Comments

"I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way."

Wouldn't the finality issue as touched on by Roberts be narrowed only to cases in which a state actor "recognized that the infusion of race into proceedings similar to Saldano's warranted confession of error"? Robert's reference seems to be to a press release by the Office of the Texas Attorney General from 6/9/2000 that was included in the joint appendix. In that press release the AG states "[a]s I explained in a filing before the United States Supreme Court on May 3, it is inappropriate to allow race to be considered as a factor in our criminal justice system. ... The people of Texas want and deserve a system that affords the same fairness to everyone."

Roberts' specifically writes that the Court is doing "no more than acknowledged[ing] what Texas itself recognized 17 years ago." That caveat seems crucial to understanding the exception to finality in this case and Thomas does not once mention why the AG's statements should not be applied to this case. Instead, he speaks of the importance of finality in broad strokes. If he wants to convince the reader (or at least me) that Roberts is wrong then he should explain why the AG's statements should be construed as subordinate to the broader principles of the importance of finality.

Sometimes I wonder if the clerks who right dissenting opinions are even reading the same materials as the clerks that wrote the majority opinion. I get it, cases usually have thousands of pages of material in the docket and reading each page is likely not possible. But it often seems like the majority and dissent are speaking right past each other based on different documents having been read. Roberts' clerk could have given a little jab back to Thomas' by pointing out the latter's misrepresentation of the issue in this case.

Posted by: Sean | Feb 22, 2017 6:18:28 PM

The so-called "Justice" Thomas never met a black man that he could stomach.

Posted by: anon | Feb 22, 2017 7:46:06 PM

I have a different problem with what Roberts wrote. To me there is a 1A problem here. Roberts justified his opinion (morally, if not legally) based upon unsworn, out of court statements by an Executive branch official. I find that chilling. We saw the same thing from the 9th in the Trump deportation order.

Perhaps we need a speech and debate clause for the executive branch. But if everything a government official ever says can come back to haunt them in court that is bad for our democracy. I'm not much for formalism but political grandstanding has always be recognized as political grandstanding by the courts and legally null, if that has changed we are in a world of hurt.

Posted by: Daniel | Feb 22, 2017 8:06:46 PM

I have a different problem with what Roberts wrote. To me there is a 1A problem here. Roberts justified his opinion (morally, if not legally) based upon unsworn, out of court statements by an Executive branch official. I find that chilling. We saw the same thing from the 9th in the Trump deportation order.

Perhaps we need a speech and debate clause for the executive branch. But if everything a government official ever says can come back to haunt them in court that is bad for our democracy. I'm not much for formalism but political grandstanding has always be recognized as political grandstanding by the courts and legally null, if that has changed we are in a world of hurt.

Posted by: Daniel | Feb 22, 2017 8:06:47 PM

"Roberts justified his opinion (morally, if not legally) based upon unsworn, out of court statements by an Executive branch official."

Really? The opinion, e.g., noted: "The extraordinary nature of this case is confirmed by what the State itself did in response to Dr. Quijano’s
testimony. When the case of Victor Hugo Saldano came before this Court, Texas confessed error and consented to resentencing." He then quotes the state's petition of cert. THEN, he cites a public statement by the AG saying it "reflected this sentiment." Then, "consistent" with that statement, Roberts notes the State confessed error in five of six cases. etc.

A single statement is not the basis of anything all by itself here. This is also how statements by Trump were used in the other litigation. It was used along with other things to determining the meaning of the executive order. As a lawyer noted in another blog, this is common practice when determining things in discrimination law generally. It is not a rank violation of the First Amendment to use certain statements to find proof of discrimination.

Posted by: Joe | Feb 22, 2017 9:06:37 PM

Joe. Please, tell the class the fraction of your income that comes from government.

Posted by: David Behar | Feb 22, 2017 10:31:55 PM

It is now the standard of due professional care of defense lawyers, in death penalty cases, to be inadequate, to elicit testimony that is adverse, preferably containing a racial remark.

The Supreme Court is keeping up its business plan of endless hearings to sustain the death penalty appellate bar.

Did Buck kill 2 people or not? The rent seeking gibberish by the lawyers on the Court and in this Comments section is unbearable. The Supreme Court should be impeached for this rent seeking lawyer thieving decision, as if they had stolen government property. Impeach the dissenters, as accomplices, for failing to protest loudly enough, and for failing to report their accomplices for their crimes against the tax payer.

Posted by: David Behar | Feb 22, 2017 10:39:15 PM

Mr. Behar, take your pills, pleae.

Posted by: anon | Feb 23, 2017 12:59:00 AM

This is probably the most disturbing part of the opinion---it is breathtaking in its disingenuousness, and disingenuousness has NO place in a legal opinion. Roberts and the rest of the majority should be thoroughly ashamed of itself.

The first problem with the statement is that it presupposes that a state's interest in finality is somehow tied to its litigation position in other cases. That's not the law, and Roberts' shot is the rankest form of ipse dixit.

Second issue---the State has an interest in the finality of a judgment with respect to a convicted triple-murderer with no doubt about guilt where the case has gone through so many levels of review.

Third issue--Roberts ignores the stark difference between the cases where Texas confessed error and this one. In this case, the defendant called the expert witness. And it's difficult to see how the death sentence was "bas[ed] on the expert's testimony since the expert testified that Buck would not be a danger. Texas does have an interest in the finality of case where the defendant's counsel made a strategic decision to employ a state's expert to testify for the defense. So query to all you sports fans---could Texas legitimately punish the lawyer for malpractice for this decision?

Texas should execute Buck in the face of this nonsense.

Posted by: federalist | Feb 23, 2017 7:20:04 AM

Anon. Put that KGB manual you found in the trash back in the trash. Calling dissenters insane is a defunct tactic.

The idea of any lawyer questioning the sanity of anyone is ridiculous. You believe in supernatural powers, mind reading, future forecasting, and that standards of conduct should be based on the personality of a fictitious character. You are riddled with hundreds of constructive doctrines (a lawyer phrase meaning, just made up by an asshole because he has the power to).

You are also so indoctrinated into these sicko doctrines, you forgot the meaning of the word, reason, in Medieval Scholasticism, and why the word, reasonable, is the central word of the common law. You learned about it in 10th Grade and in freshman Western Civ 101. It was just erased from your memory as you became a mental cripple to pass 1L. You still do not know it. If I told you again, your delusional system would force you to deny it. So, I am not telling you again.

That makes the lawyer profession the stupidest group of people in our country. It is stupider and has less sense than students in Life Skills Class. Those students, learning to tie shoes, and to use spoons to eat, in class, would represent a major mental upgrade if placed on the Supreme Court.

Posted by: David Behar | Feb 23, 2017 8:42:25 AM

Mr. Behar, all of your ranting and raving does not excuse your failure to take the blue pill on Thursdays.

Posted by: anon | Feb 23, 2017 8:59:58 AM

Anon. You forgot to wear your Pussy Hat.

Posted by: David Behar | Feb 23, 2017 9:07:24 AM

Federalist, even the district court agreed with Buck that his attorney should not have allowed Quijano to testify. He and six justices of the Supreme Court agree that that “No competent defense attorney“would introduce such evidence about his own client.” So, all your puffing and ranting aside, what's your beef. I appreciate that were you on the Court, you would have voted differently, but, fortunately for the defendant, you are not.

Next, the 6 justices rejected the district court’s conclusion that the choice to have Quijano testify likely did not make a difference. The Court reasoned that “When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death,the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupied in the record.” “Some toxins,” the court pointed out, “can be deadly in small doses.” Thus, reasoned the evidence could have dissuaded even one juror from voting for life. So what's the beef? You disagree. Fine. But I see nothing horrendous about this opinion. What is horrendous is that so-called Justice Thomas has such hatred for member of his own race.

Posted by: anon | Feb 23, 2017 9:11:56 AM

anon, the relevant legal standard is that: (a) strategic decisions are virtually unchallengeable and (b) there is no IAC if a strategic decision can be justified--here, in the face of a brutal criminal spree (the majority's characterization of this crime as one of passion is, as the dissent pointed out, BS), the defendant's lawyer got a State expert to testify that this guy should not be executed--this could be looked at as a coup.

What's going on here is a bunch of virtue-signaling utterly divorced from the law. It's sickening.

The "state's interest in finality" analysis is terrible; the decision is wrong on the merits and this is an abuse of the writ of habeas corpus.

Posted by: federalist | Feb 23, 2017 9:52:23 AM

"I am also inclined to turn this belittling into a broader and enduring 'Buck finality principle': a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously 'flawed' in some significant way."

Doug, how was the sentence "obviously flawed"? Defense counsel chose to introduce Quijano, and that seems to be the result of a strategic decision to call a state expert to testify for the defense. (Remember too, this case is on habeas.)

Doesn't the disingenuousness of equating situations where Quijano testified for the state with when he testified for the defense bother you? It should.

Posted by: federalist | Feb 23, 2017 11:09:38 AM

Anon. The above is lawyer gibberish, a type of fraud and theft. If there is no question about his factual guilt, he should be executed. Using loopholes to coddle criminals is a scam to generate lawyer employment, for endless hearings to milk the tax payer. It is stealing from the government. The entire Court should be impeached for defrauding the government.

Posted by: David Behar | Feb 23, 2017 11:47:00 AM

The so-called "Justice" Thomas never met a black man that he could stomach.

Posted by: anon | Feb 22, 2017 7:46:06 PM

This is mean spirited, hurtful, highly offensive, racist, hate speech. There is no place for such racism in the lawyer profession. Anon, a licensed lawyer, needs to apologize in a sincere manner.

Posted by: David Behar | Feb 23, 2017 9:47:09 PM

Professor,

Just like Supremacy Clause in the past, this blog would be so much better if you banned David Behar. His comments add nothing of substance and persuade others to bypass coming here.

Posted by: saysme | Feb 24, 2017 2:03:30 PM

Sayme: I do not generally ban or censor comments in this space, though I have asked SC/Behar to try to limit the number and nature of his comments to try to keep them on-point and to avoid making threads toxic to others. I am hopeful that such a warning will be sufficient.

federalist: you are justified in believing that whether Quijano testified for the state or for the defense could provide a basis for distinguishing between Buck's case and others. But a majority of SCOTUS concluded, obviously, that Quijano's racial comments were too toxic to justify making such a distinction, and that this testimony made the death sentence inherently flawed regardless of who introduced the toxin.

In other words, federalist, what you call "virtue-signaling" to me is just another example of race being a unique consideration and concern in the operation of our criminal justice systems.

Posted by: Doug B. | Feb 24, 2017 2:37:32 PM

Prof. B. My Comments are toxic because the facts they contain are nasty. For example, you have never posted this fact. The more overlawyered a jurisdiction is, the higher the crime rate. The lawyer/population ratio may be second only to alcohol consumption as a powerful cause of crime, much more powerful than blood lead levels.

The vector of this effect is sentencing law and policy, and its effect on solely incapacitation.

Posted by: David Behar | Feb 25, 2017 11:34:25 AM

@Doug B, "I do not generally ban or censor comments in this space"

So then why are you censoring my posts? Yesterday I had two posts that disappeared after the blog showed them as posted...

Posted by: Daniel | Feb 25, 2017 12:49:37 PM

I am absolutely not censoring you posts, Daniel, and there must have been a computer glitch on your posting. Please try again, and know I have not in any way sought to preclude your postings.

Posted by: Doug B | Feb 25, 2017 5:00:25 PM

@Doug...

Ok. It is very strange because the comments show as posted but then go poof...but then that one I just made seems to "stick". I will investigate further on my end.

Posted by: Daniel | Feb 25, 2017 5:06:02 PM

All tribunals have close to an infinite number of flaws. Each may lead to a new hearing, and endless lawyer employment. The idea of flaw is itself a crimnal enterprise of rent seeking. Rent seeking is a crime because taxes are collected by force, and no value is returned. It is an euphemism for armed robbery.

The racial statement is true, and verified by Crime Victimization Survey data over the past 50 years. That was not a flaw. The rate is 5 times that of whites. The defendant showed himself to fit that pattern, by his convicted behavior.

Did Buck kill 2 people? If he did not, the verdict was flawed. If someone can show he did with certainty, there is no flaw, except in the denier world of the rent seeking lawyer.

Because taking tax money and delivering nothing of value is already a crime, the Justices should be impeached for their decision.

Posted by: David Behar | Feb 26, 2017 10:53:22 AM

Doug, your response doesn't really address the issues I have raised. The distinction between Buck's case matters because the Court blithely states that Texas has conceded that Texas doesn't have an interest in finality in the Buck case due to its litigation position in the others. But the other cases were different, so how is the Court's position defensible? Pointing to the toxic nature of the evidence doesn't say anything about Texas' finality interest. The Court's invocation of Texas' concession is based on its litigation position in the other five cases.

How do you not see this?

Posted by: federalist | Feb 27, 2017 10:31:39 AM

It really is amazing--the Supreme Court makes a stunning leap that should be obvious, and the esteemed professor cannot see it for what it is.

Posted by: federalist | Feb 28, 2017 9:11:33 AM

federalist, sorry not to respond sooner, just saw your comment, and your very comments here highlights why I think what SCOTUS did in this case is quite significant for finality jurisprudence. You are right that a distinction might be made for finality purposes based on the process that led to a flawed outcome. Indeed, that seems to be the basis for Texas deciding to treat the cases differently.

But the Supreme Court essentially asserts that this distinction embraced by Texas ought not be embraced by federal finality jurisprudence. SCOTUS is saying to Texas, essentially, that once you concede for finality purposes that a sentence with this "toxin" is flawed and should be undone, we will not give weight to your claim we should uphold a similar flawed outcome just because the process that produced it was different.

This approach is "defensible" by stressing process/substance distinctions --- e.g., once you concede, Texas, that a substantive outcome is "so flawed" because of a particular "toxin," we will not give any finality weight to your claim that such a flawed substantive outcome should be preserved when you defend it only based on the claim that it was achieved through a different process. You may not agree with this way of looking at matters, federalist, and it arguably a significant shift in how finality interests should be considered. Ergo this post to highlight the move, which you criticize but which had the support of six Justices here.

Does this explanation make sense? I am not trying to convince you to embrace this logic, but rather just seeking to make sure you fully appreciate it and its potential import.

Posted by: Doug B. | Feb 28, 2017 10:46:22 AM

Doug, to be blunt, your response is nonsensical and misses the point. First of all, the idea that a litigation position in a criminal case has anything to do with a litigation position in another (and different) criminal case is ipse dixit. But putting that issue aside, the issue is Texas' purported concession. It's one thing for the Court to say, "We think Texas' interest in finality is worth less than other considerations"--quite another to say that Texas has conceded that it has no finality interest. That is just nonsense because Texas has not made that concession.

As for the presence of the "toxin"--there's a hell of a lot of difference between the state arguing, this guy "deserves" to die because he is a minority, and the defense introducing a guy who believes that generally (although that's an overly tendentious characterization), but thinks this particular minority doesn't. The Court doesn't deal with that at all, and it's a serious weakness.

The upshot is that the Court is being disingenuous here. First, Texas didn't concede squat, and second, the "toxin" was a lot worse in the five other cases.

This is unadulterated bullshit. This is a garden variety IAC claim (which is weak, given what I've posited), and clearly there are finality interests attached to final habeas judgments in which a valid IAC claim may have been made or which was erroneously decided.

Posted by: federalist | Feb 28, 2017 11:18:09 AM

federalist, to be blunt, you are the one who seems to be missing the point because you are so unhappy with the result. The Chief is not asserting that Texas made a conclusive concession that it has no finality interest here. After all, the very start of the quoted passage notes that "the State reminds us of the importance of preserving the finality of judgments." The Chief thus is not saying, as you posit, "that Texas has conceded that it has no finality interest."

Rather, what the Chief says is that, in this context, "the State’s interest in finality deserves little weight" --- in part because Texas has previously been willing to blow up old capital convictions when infected with this "Quijano toxin." Your persistent point is that the PROCEDURE that introduced the Quijano toxin "was a lot worse" in the other cases where Texas was willing to blow up a capital conviction. That is a reasonable view, but the Buck majority seemingly thought the Quijano toxin too great to be concerned here with just how that toxin procedurally got into the result.

I get you think the procedures here matter most and should lead to Texas being able to keep this one capital sentence in place. And I get that you believe the "Court is being disingenuous here" when it suggests that the state's prior willingness to confess error in other cases can/should be held against it here. But that goes to the very point of this post: in this (unique race/capital) context, the SCOTUS majority holds that the substantive flaw in the sentence is so great that the procedures leading to the flaw are inconsequential and adds no weight to the state's finality interests.

Again, I get that you do not like the result, in part because you give lots of weight to finality and to procedures. But in this case, six Justices obviously did not much care about finality and procedures.

Posted by: Doug B. | Feb 28, 2017 5:23:36 PM

"In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago."

Doug, that quote shows conclusively that the majority thinks that Texas has already recognized that it doesn't have a finality interest.

Posted by: federalist | Feb 28, 2017 5:36:24 PM

the "does not demand" language is nuanced, federalist, and Texas has recognized that, notwithstanding five final capital convictions, it ought to blow up these convictions because of the Quijano toxin.

Again, you do not like the result because you think the procedural distinction should carry the day; SCOTUS decided the substantive problem trumped and it used Texas's own work concerning this substantive problem to justify this trump card. I get that you think this is a smarmy move, but the Chief is known for doing what he want, no?

Posted by: Doug B. | Feb 28, 2017 6:38:11 PM

Doug, Roberts can't have it both ways--if "nuanced" gives him cover, then the nuances matter, and in this case, the specific rights allegedly violated matter.

In the five cases, Texas violated EPC/DPC by introducing the evidence. In the Buck case, the violation was IAC. That difference matters when it comes to finality, especially since the argument to the jury was different.

The bottom line is that he wrote that Texas "acknowledged" that finality wasn't so important. That's bullshit, and you give away the game when you say that he does what he wants. Well, Doug, that's not supposed to be his role.

Posted by: federalist | Mar 2, 2017 10:21:23 AM

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