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.