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June 6, 2016

SCOTUS grants cert two notable Texas capital cases

Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:

They are both reasonably interesting.  Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.

In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.

UPDATE:  This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty.  Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.

June 6, 2016 at 09:55 AM | Permalink


"The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black."

That's not really an accurate portrayal of the case.

Posted by: federalist | Jun 6, 2016 11:46:36 AM

Never mind -- long stay question removed in corrected orders.

Posted by: Joe | Jun 6, 2016 11:46:50 AM

Doug, I'd be interested to know how an idiosyncratic case about race is really all that high-salience? Seems to me that there really can be no EPC issue with respect to the testimony elicited by defendant's counsel. Do you disagree? (Note: that has to be true, since the state really wasn't in a position to object.) And so how can the same subject being covered by the prosecution be problematic? Buck is really one of those cases where everyone seems to have lost their mind.

Posted by: federalist | Jun 6, 2016 12:31:20 PM

The question on Buck is how far does the Supreme Court go in discussing the issues. The case has four levels: 1) the denial of COA; 2) the denial of the Rule 60(b) motion; 3)ineffective assistance of state habeas counsel; and 4) ineffective assistance of state trial counsel.

The Supreme Court could stop at any of the levels -- most likely a combination of the first two. For example, it could find that whether Martinez authorizes a Rule 60(b) motion is debatable and thus a COA should be issued to decide that issue (or alternatively clearly hold one way or the other whether Martinez authorizes a Rule 60(b) motion). The last two issues are only reached if the Supreme Court decides that something like Martinez can authorize a Rule 60(b) motion and would most likely simply result in the Supreme Court remanding for a full evidentiary hearing on the claims.

On Moore, I could easily see a dismiss as improvidently granted. Regardless of the standard that the Texas court used, the state court opinion was clear that the court did not find Moore's evidence of significant mental illness credible (and the IQ tests were all over the map). Unless the Supreme Court wants to create a "constitutional" definition of mentally disabled, the legal dispute seems to involve rather minor differences in standards that do not make a difference in this (or most) cases.

Posted by: tmm | Jun 6, 2016 12:39:28 PM

Well, federalist, your own comment that "Buck is really one of those cases where everyone seems to have lost their mind" serves as the basis for me calling this a high-salience case. As we all know well, both the media and the criminal justice academy spends a lot of time thinking/talking/writing about race and spends a lot of time thinking/talking/writing about the death penalty. Put them together and.... = high-salience.

Posted by: Doug B. | Jun 6, 2016 2:36:53 PM

"Buck is really one of those cases where everyone seems to have lost their mind."

Yes, beginning with the crazy trial lawyer who put an expert on the stand who said that society would be better off if his own client were dead. You have a point that this is not precisely the prosecutor's problem. At the same time, it looks terrible for the justice system as a whole. The prosecutor didn't have to walk through the door the defense opened; a little self-restraint might have said everyone a great deal of aggravation.

Posted by: Daniel | Jun 6, 2016 5:44:05 PM

Thank God/G-d , favorite Deity , et al. ; that Hitler, Stalin, Tojo, Mussolini , et al., were not Black ‼

Posted by: Moi , the Nemo ♠ Me Impune ♂ in OR | Jun 6, 2016 5:59:32 PM

The guy has had his habeas and was denied. Years later, we are going to rip open a federal habeas judgment because why, a person who noted the disparities in crime commission on direct (but yet testified for the defense which leaves the "even he supports life" type argument) and where the prosecution recapped the testimony. If we live in a nation of laws, then how in the world is this ok? The isolated mention of race by Quijano on direct isn't IAC, and the prosecution's question on cross CANNOT be unconstitutional since the substance was elicited in the defense case. As for 60(b) and Martinez---habeas is done, and the rule is that they get one full federal habeas. Texas should execute in the face of the cert. grant and moot the case.

Posted by: federalist | Jun 7, 2016 9:44:44 AM

Rule 60 is a normal part of the federal rules of civil procedure that apply to all types of cases. Many states have similar exceptions that permit the re-opening of "final" judgments in limited circumstances. Even the federal habeas statutes permit, in some circumstances, a successive petition raising a claim denied on procedural grounds. So the fact that an inmate can file such a motion does not bother me. (When I did federal habeas, I saw plenty enough frivolous Rule 60 motions).

The reason for re-opening the judgment is not the "merits" of the underlying claim -- whether the rest of the record is sufficient to find no IAC without a hearing is one that nobody who has not read the entire trial transcript is really capable of saying. It is that the underlying claim was denied for a legally erroneous reason (that there was no exception to the procedural bar). Whether that is enough to re-open the case is the issue.

My personal hope is that the Supreme Court will decide (partially based on Teague analysis maybe) that changes in the law do not qualify as extraordinary circumstances for the purposes of Rule 60 and that any other extraordinary circumstance must post-date the judgment being re-opened. (Since the remainder of the extraordinary circumstances are essentially that this claim is really, really significant and counsel was really, really ineffective for putting on evidence that minorities are dangerous, I suspect that the Supreme Court will be focusing mostly on the "change in the law" issue than the other extraordinary circumstances.)

Posted by: tmm | Jun 7, 2016 10:49:45 AM

tmm, there are cases about the use of Rule 60 in the federal habeas context, given finality concerns in the habeas statute, it's strongly disfavored AND this guy already had a Rule 60 motion denied. AEDPA was supposed to prevent all of this.

and tmm, where do you get the impression that counsel was really really ineffective---did you read the transcript?

This is nothing more than the Supreme COurt, yet again, showing its utter lawlessness when it comes to capital punishment.

Posted by: federalist | Jun 7, 2016 4:01:06 PM

Not saying that counsel was really, really ineffective. Instead, I was attributing that to Buck. (Admittedly that was hyperbole oversimplifying Buck's claims. Buck's petition lists eleven circumstances. In summary, they are: 1) counsel introduced this evidence; 2) the evidence should have been excluded under Texas law; 3) the prosecutor used this evidence against Buck; 4) state habeas counsel did not raise this claim; 5) Texas initially conceded error, but rescinded that concession; 6) district court relied on procedural bar; 7) previously, Fifth Circuit found that trial counsel was responsible for introduction of evidence; 8) three Justices of Supreme Court opined that trial counsel was responsible for this error; 9) Three justices of Texas Court of Criminal Appeals noted that this claim never reviewed on merits; 10) Buck's case is the only one in which this witness testified in which Texas is contesting this issue; and 11) Martinez now allows review of these claims.)

AEDPA prevents new petitions. It does not prevent Rule 60 motions. Most Rule 60 motions do not state a meritorious claim. I do not think that Buck's Rule 60 motion states a meritorious claim. I do know that some district courts around the country do think that Rule 60 allows a court to reconsider a defaulted claim under Martinez -- basically Buck's circumstances 6 and 11. I hope that the Supreme Court uses this case to tell them that they are wrong in that use of Rule 60.

Posted by: tmm | Jun 8, 2016 10:57:23 AM

AEDPA was supposed to put a stop to this

Posted by: federalist | Jun 10, 2016 9:12:01 PM

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