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October 4, 2016
Racial issues in death sentencing (and insider trading and malicious prosecution) next up for SCOTUS oral argument
As I noted in this recent post, the Supreme Court is back in action with a new fall season chock full of cases involving criminal justice issues. Today's first official day of oral argument, as noted here, involved case on how to interpret the federal bank-fraud statute and on how to apply the Double Jeopardy Clause. And the SCOTUS action gets extra exciting for sentencing fans with the first big capital case of the season, Buck v. Davis, to be heard on Wednesday. Here are excerpts from Amy Howe's lengthy overview of the case at SCOTUSblog, "Argument preview: Justices to consider role of racial bias in death penalty case":
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....
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....
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 ... oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.
Though the Buck case is likely to garner the most media attention, there are other big legal and practical issues before Justices in two other criminal cases tomorrow. Again, SCOTUSblog provides helpful resources for these cases:
Argument preview: Justices to consider what constitutes a “personal benefit” in insider trading
Argument preview: Does the Fourth Amendment govern a “malicious prosecution” claim, and if so, how?
October 4, 2016 at 05:46 PM | Permalink
Comments
Reading the preview of Manning that case reads like a nightmare for the court.
Posted by: Soronel Haetir | Oct 5, 2016 4:17:47 AM
This Buck case is truly amazing. First of all, his first federal habeas is long-since done.
But more importantly, the defense counsel made a strategic decision to employ the argument that even this guy (Quijano) who thinks minorities are more likely to be dangerous thinks that Buck shouldn't get the DP. It just didn't work.
If the Supreme Court grants relief here, it will be utter lawlessness, and Texas will have been cheated out if its judgment. The rule of law will suffer.
Posted by: federalist | Oct 5, 2016 10:58:23 AM
Buck is a case that reflects everything that is wrong with the criminal justice system from all sides (which is why it is easy to argue over the proper resolution).
The expert in this case was statistically lazy. While it is possible to use statistics to show that certain demographic groups commit more crimes, those demographic categories are proxies for other factors. Nobody seriously believes that an African-American male who grew up in an affluent suburb and has an MBA from Wharton is a likely candidate to go on a violent crime spree. A willingness to do a little deeper statistical analysis would have isolated those factors. By failing to do so this expert introduced race into the case, and there is a possibility that the testimony that African-Americans are more dangerous than whites might have influenced the jury. (Whether that possibility rises to a reasonable probability of a different result is ultimately the question if any court ultimately has to reach the merits.) The mere appearance that race may have played a role is enough for this case to serve as another example of how race can influence the criminal justice system for those who believe that racial bias is a significant factor in the criminal justice system.
There is also the fact that Buck's attorney apparently has a terrible record in capital cases. While there might be other explanations for his record (e.g., he is the one that gets the tough cases), that record does give a degree of credibility to concerns about the method used in some states such as Texas to select capital defense attorneys and whether defendants are getting competent attorneys.
On the other side, Buck's case is an example of the "never ending" nature of collateral review. There is no question in this case that Buck is guilty of murder. There is also no question that Buck is eligible for the death penalty (i.e. that one of the state's statutory aggravators applies to this murder) and a solid case that he deserves the death penalty. Despite the mention of race, this defense expert ultimately testified that, on balance, the relevant statistical factors weighed against a finding that Buck was dangerous enough to deserve the death penalty (an element of the Texas death penalty statute). Buck could have raised this claim of IAC in state court in a timely fashion but did not. When he initially raised this claim in his federal petition, it was rejected as procedurally barred. Most of his argument for why the district court should have granted the motion to re-open his case consists of the facts as they were at the time of the initial judgment, and the sole "new" feature of his motion is the change in the law governing "good cause" to defeat the procedural bar. In short, for those who think that the courts are simply taking too long to resolve criminal cases and give defendant's chance after chance after chance to litigate the same issues, Buck's case is a good example -- taking over twenty-one years to reach this point.
One thing that I am interested in seeing from the arguments is the degree to which they focus on the procedural elements rather than the merits argument. Technically, Buck is challenging the denial of a COA on the denial of his Rule 60 motion. I can easily see the Supreme Court holding that the Fifth Circuit should give full briefing on the issue of whether the trial court should have granted the Rule 60 motion. Additionally, Rule 60 applies to civil cases as well as habeas petitions. I am interested to see if the questioning reveals that the Supreme Court is concerned about how Buck's interpretation of Rule 60 would apply to civil cases. I am not sure that the Supreme Court wants to allow civil litigants the ability to come back five or ten years after their case ends to argue that -- under more recent decisions -- the judgment in their case is wrong and that the underlying facts of their case are bad enough or weird enough to warrant getting the benefit of those new decisions.
Posted by: tmm | Oct 5, 2016 11:39:57 AM
tmm's overall analysis is appreciated but one thing that comes to mind is that any number of people are both "eligible" and somehow "deserving" of the death penalty, but some what seems like fairly arbitrary number of them actually get it. How to deal with that problem (for instance, some would simply give more people the death penalty) is the rub.
Posted by: Joe | Oct 5, 2016 12:13:59 PM
This isn't close. The decision to call Quijano was strategic and therefore virtually unchallengeable. And there's a very good reason for it--even this guy (who is predisposed to think that minorities are more likely to be dangerous) thinks Buck isn't a threat. That's a powerful argument in the face of a triple murderer. (Remember, the rule in IAC is that if the court can think of a good reason.)
But of course, the race issue is raised and somehow Buck is the victim of racism here, and that hangs like a pall over the case. But it absolutely should not because he is not the victim of it. The strategy was a ploy to get him off--it failed.
By the by, this case as it stands now points up the absolute idiocy of Sotomayor's earlier opinion in this case.
This is nonsense: "tmm's overall analysis is appreciated but one thing that comes to mind is that any number of people are both "eligible" and somehow "deserving" of the death penalty, but some what seems like fairly arbitrary number of them actually get it. How to deal with that problem (for instance, some would simply give more people the death penalty) is the rub."
Oh really? In a regime where one juror can veto death, where courts tie up death cases forever based on bogus nonsense etc. etc. you are going to get situations where there is inconsistent application--that's not "arbitrary" in the perjorative sense of the word. It is using the system's procedural liberality against it. And so, there is no f-ing "rub".
Posted by: federalist | Oct 5, 2016 1:30:51 PM
My comment addressed the broad issue of those who are not given the death penalty, including those some here might think SHOULD have been ["arbitrary" works various ways], and how some select few are chosen. I advisedly did not try to debate a specific case.
Lots of things are balanced there and you aren't going to have a perfect system. Any system, especially the compromise that is a result of our political system, will have ways to game it in certain cases, in all directions. Experts on all sides debate how to do things here, agreeing on some basics. It's complicated. Nothing special here, but the level of invective on both sides at times makes it useful to say it.
Posted by: Joe | Oct 5, 2016 2:29:07 PM
"arbitrary" has a specific connotation in legal parlance (and the DP is a legal issue)--that connotation isn't "invective," but it's pretty close. The inconsistent results on who gets the big jab isn't attributable to arbitrariness in the legal sense. So take your sophistry and stick it.
And I didn't debate you on the Buck case--I challenged you on the general idea that the DP is arbitrary. So I don't know why you said: "I advisedly did not try to debate a specific case."
Posted by: federalist | Oct 5, 2016 3:38:51 PM
For strategy to defeat a claim that counsel was incompetent, it must be reasonable. The district court's order in denying the Rule 60(b) motion conceded that had a case on the competence prong. (It noted that Buck had two experts on the future dangerousness issue and thought that counsel should have gone with the expert that did not have a racial component to the analysis). The district court however found that the IAC claim was not meritorious on the prejudice prong and that Buck did not demonstrate extraordinary circumstances permitting the setting aside of the original judgment.
My own opinion, fwiw, is that competence normally requires a hearing to resolve, but that prejudice from an act taken or from the failure to object can often be determined from the record without a hearing (since you are merely subtracting evidence from the record). At the present stage, the Supreme Court has multiple options in Buck involving some combination of addressing the entitlement to the COA (either on the merits or on the Rule 60 motion), whether Buck has a valid Rule 60 claim, whether Buck is entitled to a new sentencing trial on the current record, and whether Buck is entitled to an evidentiary hearing in the district court on his IAC claim. It is not hard to see a very narrow opinion stating that the Supreme Court has not conclusively addressed the Rule 60 issue and that, therefore, Buck is entitled to a COA on the Rule 60 to a broad opinion that addresses the merits of the Rule 60 motion and the underlying IAC claim (either conclusively resolving it or sending it back for an evidentiary hearing).
Posted by: tmm | Oct 5, 2016 4:17:46 PM
@federalist writes, "The strategy was a ploy to get him off--it failed." Yes but that begs the question as to whether an effective attorney would have used that ploy to begin with. There is an argument to be made that these types of racist ploys should be off the table ab inito, regardless of whether they are made by the defense or the prosecution.
Posted by: Daniel | Oct 5, 2016 4:34:32 PM
Daniel,
If it's done by the defense (whatever it is) and it is determined that the defense met Strickland I would argue that it simply does not matter, no matter how egregious it might appear.
And I would also very much accept the forfeiture argument here, there is adequate and independent state law grounds for rejecting the claim (he did not raise the claim during his original state collateral attack). Relief denied.
Posted by: Soronel Haetir | Oct 5, 2016 4:55:22 PM
Soronel, that was the original reason for the denial back in 2006. The problem is Martinez and Trevino allowing a claim that post-conviction counsel was ineffective for not raising the claim in state court. The real issue that apparently was glossed past in the argument is whether Martinez and Trevino allow the defendant to re-open the case to show good cause to excuse the forfeiture.
Posted by: tmm | Oct 5, 2016 5:02:11 PM
@Soronel
In my view you are thinking about this case too narrowly. It is important not only that justice be done but also that justice appear to be done. Legal technicalities aside, once one allows racist arguments into the courtroom--by either side--then there is an appearance that justice was not done. So I think it is immaterial WHO introduced the racism. Racism should never be introduced and to do so is per se IAC.
FWIW I don't disagree with you RE: strickland or forfeiture...I simply think they are trumped by the need to rid the judiciary of even the appearance of racism.
Posted by: Daniel | Oct 5, 2016 6:44:52 PM
tmm, there is specific caselaw which says that strategic decisions are virtually unchallengeable and that if there is a good reason to support the decision, then it wasn't IAC.
The choice to put up Quijano can easily be justified as an "even he doesn't think that Buck should be executed" just like an argument that "even so and so, a Republican, hates Akin".
Texas should not be jerked around like this. It has a habeas judgment. That the Supreme Court has stayed the execution is a disgrace.
Posted by: federalist | Oct 5, 2016 7:39:49 PM
Plus, there is also the isolated lapse part of IAC caselaw, which this likely is.
Posted by: federalist | Oct 5, 2016 7:47:53 PM
Federalist, the case law uses the term reasonable in connection with strategy. In any case, the District Court found that the strategy was not reasonable and Texas did not challenge that finding at the Supreme Court. I am rather disappointed in the argument by counsel for Texas in not being able to address why it makes a difference to the court's analysis that the improper evidence came from defense counsel (requiring the harder to meet Strickland test for prejudice -- defense showing reasonable probability of different result) as opposed to the State (only requiring the easier to meet Chapman test for prejudice -- state must show that it is harmless beyond a reasonable doubt).
Posted by: tmm | Oct 6, 2016 10:43:14 AM
Texas' decision not to argue it could be political and not legal--the bottom line is, as you know, winning litigants can hold onto their judgments any way they want.
Under any traditional understanding of Strickland and its progeny, this is not even an issue--of course, "death is different" and Strickland in the death context has become a warrant to fly-speck. "Hey, even this guy thinks he shouldn't die" is a powerful argument, and one that well could have worked.
The reason, tmm, is that the fact that the State elicited the same testimony in the defendant's case in chief is no basis for a constitutional violation on the part of the State. No rule of law says that the state, without objection mind you, is barred from a quick recap of what the defendant presented. Ever hear of "sandbagging"? Of course, if this clown gets a new DP hearing, this would be a doozy in terms of sandbagging.
Posted by: federalist | Oct 6, 2016 11:29:21 AM
Missing the point federalist. My point is that the issue in this case is Strickland and the justices were asking why the State was confessing error in the cases in which it introduced the evidence but not confessing error in this case, suggesting that the judgment is even more tainted when the bad evidence comes from the defense. While parties are free to defend judgments in any way they want, I see the way that Texas handled this oral argument as likely to lead to an opinion that makes Strickland prejudice more like Chapman prejudice.
Posted by: tmm | Oct 6, 2016 5:12:48 PM
Sorry tmm, the "confess error" issue is absolute BS. First of all, there's no law that says that Texas has to treat different litigants differently. Second, and more importantly, the cases are different, as in Buck's case, the defense introduced the evidence and that wasn't the case in the other cases where Texas confessed error.
Posted by: federalist | Oct 6, 2016 8:07:07 PM
cannot treat different litigants differently
Posted by: federalist | Oct 6, 2016 8:07:38 PM
You're still missing the point federalist. You may think the issue is bs, but a lot of justices were concerned about why it was reversible error when the State introduced the bad evidence but not when defense counsel introduced the evidence. In particular, some of the questions were suggesting that it is more prejudicial when the bad evidence comes from the defense. Yet Texas never mentioned the different standards of review for trial court error and ineffective assistance of counsel to explain why this case is different from those other cases.
Posted by: tmm | Oct 6, 2016 9:19:19 PM
Important sidenote.
There were 5 or 6 additional cases, whereby Texas admitted error, based upon the race based (not racist) testimony.
All of those cases had re sentencing hearings and all of them were sent back to death row.
In other words, there is no evidence that the race based (not racist) testimony was determinative in the sentencing phase, in the prior trials.
In the Buck case, the jurors were very aware that Buck was at reduced risk of future danger, based upon the defense experts' testimony.
NOTE:
Buck attempted 4 capital murders, not 2-3, and was successful in murdering 2.
Posted by: Dudley Sharp | Oct 7, 2016 9:36:25 AM
tmm--it's not reversible error when the defense brings it in because the defense has an absolute right to call the state's expert in other cases and make the "see, even this guy who is pre-disposed to find my client dangerous b/c of race thinks this guy isn't dangerous"--getting a prosecution guy to do that is pretty powerful.
In other words, it's improper for the State to say this guy is dangerous and rely (in part) on some "expert" who thinks that minorities are more dangerous. It's not improper for a defense counsel, as part of his argument that this guy is NOT DANGEROUS, to say that even this guy who testifies for the State and who is predisposed to think this guy would be dangerous IS NOT DANGEROUS. If you (and the Justices) cannot see that glaring difference, I don't know what to say, other than (a) either you're unintelligent, (b) you are an ideologue blinded by the bugaboo of race, or (c) you're just disputacious.
This really isn't hard. And no, tmm, I am not missing the point--you're pointing to optics without digging in--I am digging in, and quite bluntly, smoking you on the merits.
I cannot account for Texas' litigation strategy. There is no way that a Rule 60(b) motion is appropriate here.
Posted by: federalist | Oct 7, 2016 2:00:16 PM
"In other words, there is no evidence that the race based (not racist) testimony was determinative in the sentencing phase, in the prior trials."
The fact that when something is tried again without something deemed inappropriate and the same result occurs is not the same thing as there being "no evidence" that the thing removed was determinative. Might be that there is not ENOUGH evidence. Also, the second time around simply is not the same as the first time. So, it's just hard to know.
Also, as Daniel notes, even if there was "no evidence," there is a case for relief here: "There is an argument to be made that these types of racist ploys should be off the table ab inito, regardless of whether they are made by the defense or the prosecution." There is pushback on "racist" but think there is a good case for that word. And, "race based" doesn't really change his concern. See Texas' own actions there; don't think they were admitting being "racist" necessarily in those other cases.
Some "harmless error" analysis with use of race here is dubious -- it very well can be seen as one of the few cases where that concept is inappropriate. Use of race is illegitimate ways have various problems, including overall appearance of injustice, and is not limited to raw results as well.
Posted by: Joe | Oct 7, 2016 2:41:28 PM
"Buck attempted 4 capital murders, not 2-3, and was successful in murdering 2."
http://tdcj.state.tx.us/death_row/dr_info/buckduane.jpg
Not clear who the fourth is, granting the third for sake of argument. There was a "young daughter" at the scene. Is it being assumed that -- given the chance -- he would have killed her?
"In the Buck case, the jurors were very aware that Buck was at reduced risk of future danger, based upon the defense experts' testimony."
All it would take is for the race evidence deemed illegitimate to affect one juror. And, again, since we aren't just doing a complete mirror do-over (including with the exact same jurors with the exact same thought processes), it's hard to know what would have happened in that specific case even if a later sentencing decision again goes against him.
Posted by: Joe | Oct 7, 2016 2:57:22 PM
ETA: "affect" should be "be the deciding factor" or whatever the exact test is
Posted by: Joe | Oct 7, 2016 2:59:43 PM
"Also, as Daniel notes, even if there was "no evidence," there is a case for relief here: "There is an argument to be made that these types of racist ploys should be off the table ab inito, regardless of whether they are made by the defense or the prosecution." There is pushback on "racist" but think there is a good case for that word. And, "race based" doesn't really change his concern. See Texas' own actions there; don't think they were admitting being "racist" necessarily in those other cases."
Um, no:
First of all, the defense has the right to have Quijano provide expert testimony--the fact that a state expert thinks that the defendant is not dangerous is powerful evidence, and the race-based nature of his conclusion made it more powerful in Buck's case--are we really going to take away defendants' autonomy here?
Second of all, we have a federal system and AEDPA. Hard to justify a "well, we don't like this, so we're reversing" decision.
Third of all, this is such a sandbag.
Some "harmless error" analysis with use of race here is dubious -- it very well can be seen as one of the few cases where that concept is inappropriate. Use of race is illegitimate ways have various problems, including overall appearance of injustice, and is not limited to raw results as well.
Posted by: federalist | Oct 7, 2016 3:12:13 PM
I forgot to note---"harmless error"? Um, where was the objection?
Posted by: federalist | Oct 7, 2016 3:14:05 PM
So, let me get this right; defense counsel could have called in the local klavern grand wizard to testify as an expert that blacks were more prone to violence; except for this guy--and that would have been acceptable "strategy" under the first Strickland prong? Asking for a friend. Thanks, I'll hang up and listen.
Posted by: MarK M. | Oct 9, 2016 4:33:02 AM
Mark, have you always been a "say anything" type of ideologue, or did you spend years honing your craft?
1) You'll note of course that Quijano generally testified for the state--pretty powerful that he chose to testify for the defendant. That's not the KKK.
2) You'll note that this case has been dragging on for far too long.
3) The testimony was the result of a strategic decision--which is, putatively anyway, virtually unchallengeable.
Answer my points moron. Oh you can't--so you make lame arguments.
Doug, how pathetic is Mark?
Posted by: federalist | Oct 10, 2016 10:05:45 AM
