Tracking the latest developments in the fight for a fair America
As Hurricane Matthew approached Florida, Governor Rick Scott called for the evacuation of large swaths of the state’s eastern seaboard. Over a million people left their homes, and the storm tragically took nine lives in the state. Hurricane Matthew also disrupted an important event in the state: Florida’s voter registration deadline of October 11. Despite ordering over a million people to leave their homes, Governor Scott refused to extend the deadline.
Fortunately, his decision was not the final word on the issue. Read more
This term, the Supreme Court will address several questions regarding the extent to which the criminal justice system will tolerate racial prejudice. While the answer ought to be “very little” or “not at all,” the Court is confronting two cases where lower courts believed the scale tipped in favor of letting open race discrimination stand, at the expense of defendants’ right to a fair and impartial trial. Presented with these issues head on, the Supreme Court must now recalibrate that scale, and make good on its own centuries-old precedents requiring that race discrimination be “eradicated root and branch” from the criminal justice system.
Last week the Court heard argument in Buck v. Davis, a case in which Duane Buck was sentenced to death because his own counsel relied on an expert witness who testified that because Mr. Buck was African-American, he was more likely to commit future acts of violence. Read more
Yesterday, the Supreme Court heard oral argument in Buck v. Davis, a case that addresses whether the Fifth Circuit Court of Appeals improperly denied Duane Buck the right to appeal his death sentence. The Fifth Circuit denied Buck’s appeal, despite the egregiously poor representation Buck received from his attorney, who presented an “expert” who testified that Buck was more likely to be dangerous in the future because he is African-American.
Buck’s case began in 1996, when he was convicted for the murders of his ex-girlfriend and her friend. In preparing for trial, Buck’s court-appointed attorney (who had had twenty clients sentenced to death) hired a psychologist, Dr. Walter Quijano, to assess whether Buck was likely to commit criminal acts of violence in the future, one of the factors a Texas jury must answer unanimously before sentencing someone to death. Although Quijano informed defense counsel that he believed Buck was “more likely to be dangerous in the future because he is Black,” Buck’s attorney nonetheless moved ahead and presented Quijano at trial. Quijano testified that “the race factor, black, increases future dangerousness.” The jury that heard this evidence found that Buck was likely to be dangerous in the future and sentenced him to death. Buck challenged the sentence, and after nearly twenty years of litigation, the Fifth Circuit denied Buck’s request for a right to appeal (known as a “certificate of appealability” or “COA”) in 2015.
Here’s where we get into the weeds: in considering Buck’s application for a certificate of appealability, the Court considered Buck’s case under Federal Rule of Civil Procedure 60(b), which allows a party to seek relief from a judgment and have his case reopened under a limited set of circumstances. In order to receive relief under Rule 60(b)(6), the Supreme Court requires a petitioner to show “extraordinary circumstances” justifying the reopening of a final judgment. In assessing Buck’s case, the Fifth Circuit applied this standard but, instead of assessing Buck’s case holistically, assessed Buck’s case piece by piece, finding none of the individual facts Buck relied upon extraordinary. The Fifth Circuit then denied Buck’s application for a COA, finding that he failed to demonstrate “that jurists of reason would debate whether his case is exceptional under Rule 60(b)(6).”
At the hearing yesterday, Chief Justice Roberts questioned why, given the unique circumstances of this case, the Court would use it as a platform to make a general rule regarding the standard for certificates of appealability. Justice Alito seemed most skeptical of Buck’s claim and questioned whether, regardless of Quijano’s testimony, the case would have come out the same way, given other evidence of Buck’s future dangerousness. Buck’s new attorney pointed out that the expert testimony compounded, and purported to give scientific validity to, a reliance on racial stereotypes.
Justices Ginsburg, Kagan and Sotomayor all raised questions regarding the fact that Buck’s own counsel introduced the racially biased testimony, and whether that shows ineffectiveness of counsel. Although counsel for Texas attempted to argue that there is a key difference when the government introduces racial evidence and when defense injects racial bias, Kagan noted that it seems more prejudicial when one’s own counsel introduces racially biased evidence. As Kagan described, jurors expect such testimony from prosecutors whose sole goal is to secure a conviction, but if a defense expert says that the defendant’s race shows dangerousness, then a jury would be even more inclined to agree that such a statement is true. Kagan also noted that the Fifth Circuit is ten times more likely than the Eleventh Circuit (6 percent compared to 60 percent) to deny a certificate of appeal, suggesting that “one of those circuits is doing something wrong.”
Buck’s case raises important questions regarding how race-based evidence can impact both the conscious and unconscious minds of jurors and other decision makers, and about how race continues to infect the application of the death penalty. For more information about how the stereotyping of African Americans as criminal impacts not just Buck’s case but also our country’s criminal justice system at large, there is an informative amicus brief submitted by the Lawyers’ Committee for Civil Rights and Jones Day in support of Buck. The brief provides a summary of research on implicit bias and argues that unconscious stereotypes can be brought to the fore by exposure to racially-tinged triggers, a process known as “priming.” In addition, the brief argues that, because we are psychologically geared to give greater credence to authority figures, implicit biases and priming have a particularly profound impact when invoked by an expert witness. As a result, juries are likely to obey an expert’s suggestions rather than evaluate them dispassionately.
It is worth noting that none of the justices at the hearing questioned the “indefensible” nature of the testimony at Buck’s trial (indefensible being Justice Alito’s language). The procedural questions that remain have a direct and real impact that are, quite literally, a matter of life and death. If the justices overlook the impact of the race-based testimony and deny Buck’s appeal, justice will have failed and Duane Buck will be sentenced to death based on the color of his skin.
The Supreme Court stands at a crossroads. As the court prepares to hear its first cases of the 2016-2017 term next week, Senate Republicans’ unprecedented six-month blockade of Chief Judge Merrick Garland’s nomination has resulted in a state of dysfunction at our nation’s highest court. This upcoming term demonstrates both the incredible importance of the Court and how it has been dangerously hobbled by the lack of a ninth justice.
Last term, the shorthanded Supreme Court failed to decide a host of critical issues, sometimes punting the issue back to lower courts. The Court presumably deadlocked in Friedrichs v. California Teachers Association, which examined whether union dues were a form of compelled speech. Read more
Another day, another scandal at the big banks.
Since the financial crisis, banks like Barclays and UBS have been caught manipulating interest rates; J.P. Morgan has reluctantly handed over billions for its association with Bernie Madoff, illegal hiring practices, and lax oversight of its own traders among its other misdeeds; while Goldman Sachs has been fined billions for selling toxic subprime mortgages to investors. This past week the Consumer Financial Protection Bureau (CFPB) fined Wells Fargo $185 million for creating fake accounts and assigning them to unwitting customers. While this outrage shows the need for tighter regulation, it also exposes the urgent need to end the anti-consumer practice of forced arbitration in financial service agreements. If consumers cannot access the courts, scandals will be harder to uncover and victims will find it nearly impossible to achieve justice. Read more