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February 22, 2017

Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence

The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....

Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....

[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But 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 occupies in the record. Some toxins can be deadly in small doses.

Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:

Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.  But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here.  The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

February 22, 2017 at 10:28 AM | Permalink


The opinion is laughably bad. The citation of what Texas did in other cases is a joke. So what?

Basically, defense counsel sandbagged the state, and is now being rewarded for it. The Supreme Court is irresponsible.

Posted by: federalist | Feb 22, 2017 10:59:43 AM

If Thomas is correct as to the conclusion in search of law part [which tbh is how it works at times], unclear how limited it really is big picture.

What the Supreme Court basically says there is that there are certain times when what is deemed to be unjust warrants a flexible usage of normal procedures basically to promote equitable principles (I'm using that word non-technically). Roberts doesn't say this bluntly, but taking Thomas' comment as true, that is basically the message.

This is likely to occur at other times, including when a lower court judge rules and assumes a higher court will not overturn him or her for doing so.

Posted by: Joe | Feb 22, 2017 11:00:16 AM

The thing is, how is this unjust? This guy's lawyer, faced with an appalling triple murder, decided to make the "even this guy who thinks minorities are dangerous" thinks this guy isn't. That's strategy.

This is virtue-signaling enshrined in a bogus judgment.

Posted by: federalist | Feb 22, 2017 11:19:32 AM

One of those confused opinions that will muddy the waters. I thought the State had a good argument that all of the "extraordinary" Rule 60(b) factors existed before the original judgment, and, therefore, could not be grounds for a Rule 60(b) motion (leaving only the change in law as a reason for reopening the case). The majority opinion basically ignores that argument and does not rely on Martinez and Trevino to permit the reopening of this case. Since habeas is technically a civil case, does this ruling mean that, in a purely civil case (say a civil rights complaint or an employment discrimination case), a party can reopen the case just by showing that the original judgment was unjust at the time of its entry. Or is this case a sui generis circumstance like Bush v. Gore that is good for this one petitioner on this one day only.

Posted by: tmm | Feb 22, 2017 11:26:48 AM

I would note that SCOTUS has apparently an unwritten rule not to cite Bush v. Gore, but it has been cited in the lower courts repeatedly.

The argument is that "Some toxins can be deadly in small doses." Mixed with "even allegedly for beneficial reasons." But, others can say if that is right as applied.

Posted by: Joe | Feb 22, 2017 12:15:37 PM

Was prior conduct introduced? That is what makes people dangerous, not the melanin in their skins.

Posted by: David Behar | Feb 22, 2017 12:40:18 PM

Federalist, you write that the 6-2 opinion of the Court is "laughably bad." If only you were on the Court, you could make everything so much better. I'll keep knitting until you're there.

Posted by: Madam DeFarge | Feb 22, 2017 1:43:24 PM

I tend to be sympathetic to federalist point about virtue signaling. My bigger problem, however, is that we know that racial profiling is rampant in risk based sentencing schemes. So what's gonna happen is that in order to preserve the gloss of racial neutrality these schemes will simply find something that correlate to race and use that instead. This will lead the system to be worse off because racism will simply get buried.

Posted by: Daniel | Feb 22, 2017 1:49:18 PM


BTW, did you deliberately delete a post of mine in response to a prior article or did I simply fail to hit submit?

Posted by: Daniel | Feb 22, 2017 1:50:22 PM

Madam Defarge, you realize, by pointing to a scoreboard, you're engaging in the logical fallacy of appeal to authority.

Perhaps you could engage on the merits. Or is that too hard for you?

Posted by: federalist | Feb 22, 2017 2:08:10 PM

"Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution."

Wow. Wow. Wow. This is so badly misleading. Quijano's point was that although minorities have a higher rate of criminal offending, this particular minority would not. This is a disgrace.

Posted by: federalist | Feb 22, 2017 2:49:14 PM

Federalist, merely labeling trial counsel's decision as "strategic" does not immunize it from ineffetive assitance because such strategy must itself be reasonable. Cf. Wiggins v. Smith, 123 S.Ct. 2527, 2538, 539 U.S. 510, 528 (U.S.,2003)( "As a result, the court's subsequent deference to counsel's strategic decision not to present every conceivable mitigation defense,” despite the fact that counsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable."

Defense counsel's decision here to present the witness outrageously erroneous. Six justices agreed. You do not. So what?

Posted by: anon | Feb 23, 2017 11:29:00 AM

I didn't say that "strategy" was unreviewable---but the caselaw on strategy is decidedly against the Supreme Court's result here. In this case, the defense attorney got an expert who usually testifies for the state to say that the guy wasn't going to be dangerous. Seems to me that he was in the best position to gauge whether that was a good idea or not.

That this was tossed on habeas is even worse.

Posted by: federalist | Feb 23, 2017 2:06:18 PM

Federalist, so you are more persuaded by the dissent. I understand that. But the majority, in my view, had the better argument, and there's nothing outrageous about its reasoning.

Posted by: anon | Feb 23, 2017 2:12:51 PM

anon, saying "I like the reasoning better" isn't argument. The "Texas has no interest" is unadulterated BS and disingenuous. Even assuming arguendo that Texas' interest in finality can be "waived" for lack of a better term by its litigation positions in other cases (a dubious proposition), there is a clear difference between Buck and the other five cases, and the majority does not deal with that. Let's see you deal with it.

Remember too AEDPA was adopted so that where a capital defendant had his full habeas review, the state could execute the prisoner. The majority ignored that. Here was a case where a debatable strategy wasn't successful, and years later, with no doubt of guilt, we're going to have a do-over? Huh? How is that consistent with AEDPA's purpose.

And even on the merits, the Supreme Court's case is weak--the defense counsel got an expert used by the state to say that this guy shouldn't be executed. That's a strategic choice, and one which has a good deal of merit--black-letter IAC law says that the courts don't get to second-guess strategy that has an arguable rationale, and this is on habeas.

I get it--you like the result. But you have no means to argue this on the law. And yes, the majority's opinion is outrageous for the reasons I have stated.

Posted by: federalist | Feb 24, 2017 10:06:26 AM

Federalist, you write that "Remember too AEDPA was adopted so that where a defendant had his full habeas review, the state could execute the prisoner. " A trifle overstated.
The AEDPA does not rubber stamp state court decisions. Deference yes, but rubber stamp, no.

Posted by: Dave from Texas | Feb 25, 2017 12:20:54 AM

RE: Buck v. Davis, (No. 15 8049)(S. Ct. Feb. 22, 2017).

First, I want to express my thanks and I am truly grateful to the Supreme Court of the United States: ROBERTS, C. J., KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., who join the opinion, Buck v. Davis, No. 15-8049 (Feb. 22, 2017). Ii is my sincere hope that these types of opinions will continue to come.

I am disappointed to say, that in my opinion, the Fifth Circuit will pay scant attention, if any, to Buck v. Davis, (No. 15 8049)(S. Ct. Feb. 22, 2017).

In fact, in its March 5, 2017, decision ROLANDO RUIZ v. Lorie Davis, (No. 17-70006) the it is my opinion, that the Fifth Circuit appears to continue to defend its former position in Buck v. Davis, by mockingly stating in a manner disrespectful to the Supreme Court: "we are keenly aware of the admonitions of Buck v. Davis." while almost defiantly justifying its actions in RUIZ, while at the same time, almost gleefully denying Rolando Ruiz a COA.


This is my beef: it has become all too easy for a district court to deny relief. The judge will simply deny the COA knowing the the Court of Appeals will have a single judge deny the COA.

I believe that since 1984 the Congress has whittled away at the writ of habeas corpus and other forms of post-conviction relief, by imposing the current ridiculous standards a prisoner must overcome to have any chance at justice.

Without hesitation, I will boldly state that the prosecution and court can deprive any defendant of almost any of their Constitution rights. In their zeal to convict,imprison and unfairly deny deserved relief, case law and rules are invented and routinely changed. There are many exceptions to almost eliminate or condition the applicability of almost any Constitutional right, that can result in that be taken away at the whim and caprice of the prosecution and by the court.

Former Case law and rights that were reliable written in stone precedents are routinely ignored or explained away by prosecutors and courts who almost out of the thin air, invent reasons ("harmless error", overwhelming evidence", "plain sight", "waived" "failed to preserve", "failed to show", "not timely" and etc.). Also the appellate courts strictly maintain that the district court is the fact finder, but ignore the fact that the district court often selectively ignore grounds and often do not even address the facts it can't answer, while denying deserved relief.

I also believe that there is discrimination when blacks and Hispanics are charged by prosecutors and when sentenced by the Courts. One only needs to look at the disparity of ethnic groups prison populations to see this.

I do not claim that there are no minorities who commit heinous crimes, but so do whites. Also, there is absolutely no doubt in my mind, that poverty plays a substantial part in why a person becomes desperate and resorts to criminal activities as an attempt to claw his way out. It has become all too easy for the holier than thou and privileged to ignore these issues and self-righteously proclaim that these issues should not be considered.

Finally, with all of the rules and laws clearly favoring the prosecutors and courts already in place, I simply ask why not eliminate the COA nonsense.

Isn't the idea that saving even one innocent life or returning a person to his/her family at an earlier time, worth a plenary review.

Currently, this obscene COA and often amorphous procedure does not serve justice.

As requested by the owners of this website:

I am ineligible to become a licensed attorney. As such, I was fortunate to become a law clerk (over 20 years) for a Denver law firm. I have handled hundreds of federal and state prisoner cases in the 2nd, 5th, 8th, 9th, 10th, 11th, DC Circuit and in United States Supreme Court. I have also routinely dealt with the United States Bureau of Prisons, the United State Parole Commission and many State Prisons and facilities on inmates behalf.

I have also owned a licensed real estate company for several decades.

Posted by: John Hernandez | Apr 15, 2017 7:13:27 PM

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