On, Monday, June 6, 2016, the U.S. Supreme Court (“SCOTUS,” for short) decided that it would review the case of Buck v. Stephens—a case involving Duane Buck, a Texas man who was sentenced to death after his own lawyer inexplicably introduced an expert who testified that he would pose a future danger to society if only sentenced to life imprisonment (and the fact that he was black only increased that likelihood). SCOTUS will be deciding if the U.S. Court of Appeals for the Fifth Circuit put too great a barrier in front of Buck raising the issue of whether his trial lawyer was constitutionally ineffective for offering the expert’s testimony in the first place.
Way back in 1995, after being found guilty of capital murder for the deaths of his ex-girlfriend and her friend, Texas presented evidence tending to show that there was a likelihood that Buck would pose a future danger to society if only sentenced to life imprisonment. In response, Buck’s trial lawyer bizarrely offered the testimony of Dr. Quijano, a criminal psychologist, who essentially said that there was indeed a likelihood that Buck would pose a future danger to society if only sentenced to life imprisonment—and the fact that he was black increased that likelihood. The prosecutor reiterated Quijano’s race-charged testimony on cross-examination, and the jury later sentenced Buck to death.
Fast-forward to 2011, and (ignoring a lot of complicated procedural history) Buck’s case was before SCOTUS—only back then it was called Buck v. Thaler, and the case focused on whether Texas impermissibly emphasized Quijano’s race-charged testimony on cross-examination. In denying Buck’s request to review the case at that time, five Justices (Scalia, Breyer, Alito, Sotomayor, and Kagan) felt that Quijano’s race-charged testimony was a problem, but three of those five (Scalia, Breyer, and Alito) said that the blame rested with Buck’s trial lawyer for calling Quijano as a witness in the first place—not on Texas’s noting of what Quijano said on cross-examination. Back then, two Justices (Sotomayor and Kagan) would have granted review.
Fast-forward more to now, and (ignoring even more complicated procedural history) the case—renamed Buck v. Stephens (because of an unrelated change of directors at the Texas Department of Criminal Justice)—is headed back to SCOTUS. Only this time, the issue is whether Buck’s trial lawyer was constitutionally ineffective for offering Quijano’s race-charged testimony in the first place. A federal court has already found that while Buck’s lawyer was ineffective, he was not constitutionally ineffective to the degree that Buck should get a new sentencing hearing. The U.S. Court of Appeals for the Fifth Circuit affirmed, reasoning that Buck’s case is not sufficiently “extraordinary” to justify the adding of the ineffective assistance of counsel claim to his case.
In the end, based on the parties’ briefs—and based on the brief of the amici judges in support of the petition—it is unclear how this case will turn out. This case is really (technically speaking) about the Fifth Circuit’s refusal to issue what’s called a Certificate of Appealability (“COA,” for short) to Buck. Since the case is not about the merits of Buck’s claim for something called Rule 60(b)(6) relief based on ineffective assistance of counsel per se, SCOTUS could simply rule in a way that settles a current circuit split regarding the proper standard governing the issuance of COAs after a case call Martinez. Such a ruling would then require the Fifth Circuit to determine whether Buck is entitled to the issuance of a COA under that settled standard. However, regardless of outcome, Buck’s case is just another example of the dramatic effect that race has on death penalty cases. For instance, statistics show that “murderers of white victims receive a death sentence 4.3 times more frequently than murderers of black victims.” Source: http://www.capitalpunishmentincontext.org/issues/race. Further, “22% of black defendants who kill white victims are sentenced to death; 8% of white defendants who kill white victims are sentenced to death; 1% of black defendants who kill black victims are sentenced to death; and 3% of white defendants who kill black victims are sentenced to death.” Id. While this case may not end racial and ethnic discrimination when it comes to the death penalty, it may be a way for the Court to address the racial discrimination and bad lawyering that impacted a specific case. Only time will tell how SCOTUS will decide. We expect a decision sometime after October of this year.