Thursday, October 6, 2016

Argued today in the Supreme Court: Buck v Davis

We discussed this briefly in 2305 today. Its - another - due process / death penalty / racial discrimination / ineffective counsel case from Houston.

- Click here for info about the case from ScotusBlog.

The defense attorney admitted evidence from a psychologists that sent his client to death row. The psychologist argued that the defendant was likely to be dangerous in the future because he was African-American. That raises its own set of issues, but the case seems to primarily be about effective counsel, and whether

Here's the narrow issue presented to the court:
Whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.

For more: Justices to consider role of racial bias in death penalty case.


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.
The procedural history of Buck’s case is, to put it mildly, complicated. After his conviction and death sentence were affirmed on appeal, Buck (now represented by a new lawyer) filed a motion for post-conviction relief in the Texas courts. However, the motion did not challenge the decision by Buck’s trial counsel to introduce Quijano’s opinion that, because of his race, Buck was more likely to be dangerous in the future.
A year after the post-conviction motion was filed, Texas filed a brief in the U.S. Supreme Court in which it conceded that similar statements by Quijano in another capital case violated the defendant’s “constitutional right to be sentenced without regard to the color of his skin,” and that the references to race in the defendant’s sentencing “seriously undermined the fairness, integrity, or public reputation of the judicial process.” In a press release in June 2000, the Texas attorney general announced that his office had identified six other cases – including Buck’s – in which Quijano had testified about future dangerousness based on race. The attorney general also indicated that the state would not object if the inmates in those cases “seek to overturn the death sentences based on” Quijano’s testimony.

For even more:

- Texas lawyer who never won a capital murder case calls it quits defending 'the very worst' clients.
- Texas Ends Deal With Psychologist Over Race Testimony.

And what is a Certificate of Appealability anyway?

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