Justices Eschew Procedure for Race Questions in Death Penalty Case

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By Jessica DaSilva

Oct. 5 — U.S. Supreme Court justices skirted the procedural issue and jumped straight into the merits during oral argument Oct. 5 in a Texas death penalty case in which the sentence may have been based on racial bias ( Buck v. Davis, U.S., No. 15-8049, argued 10/5/16 ).

The justices directly confronted the issue of race in their questions, said Jeffrey Robinson, an attorney with Lewis Baach PLLC in Washington. Robinson extensively worked on civil rights and death penalty cases and formerly worked at the NAACP Legal Defense Fund, though not in connection with Buck.

“It was remarkable how much the court is in agreement that what happened to Duane Buck is unjust,” Robinson said. “There was recognition that what happened was wrong, what happened is a perversion of justice, and that it corrupts the system. You don’t normally see that in any court system.”

He explained most attorneys prepare to inform the court about racial issues and how they intersect with criminal procedure. Here, the justices “didn’t shy away from what the case was really about,” he said.

Robinson credits the briefings of both attorneys and the amicus briefs submitted by organizations that included the National Black Law Students Association, National Association of Criminal Defense Lawyers, and the Lawyers’ Committee for Civil Rights Under Law.

“You couldn’t take the blood out of [the issue] and have an antiseptic discussion of technical rules without a fundamental understanding of what was at stake,” Robinson said.


If the court rules in favor of Defendant Duane Buck, it would reopen the case regarding his ineffective assistance of counsel claim. It would not overturn his conviction.

During Duane Buck’s murder trial, his attorney introduced a written document from a psychology expert that stated Buck was more likely to be dangerous because he is black. The state elicited that testimony on cross-examination and reiterated the finding during its closing argument.

In a habeas claim, Buck sought a certificate of appealability to reopen a district court’s ruling and obtain review of his ineffective assistance claim. Both the district court and the U.S. Court of Appeals for the Fifth Circuit ruled that Buck failed to show “extraordinary circumstances” warranting relief.

Guiding Light

Justices asked Buck’s attorney, Christina Swarns, Director of Litigation for the NAACP Legal Defense Fund, guiding questions, which seemed to help clarify arguments.

Specifically, Justice Elena Kagan asked whether Buck’s case was evidence that the Fifth Circuit was improperly considering merits of cases asking for certificates of appealability.

“If they reached the wrong result in this case, it’s because they are just not understanding what the [certificate of appealability] inquiry is all about,” Kagan said.

Swarns agreed, restating the need for guidance from the court on how to properly assess certificates of appealability, an issue on which the circuit courts are currently split.

Chief Justice John G. Roberts Jr. repeatedly asked questions about the appropriate remedy or the solution that Swarns sought for Buck—whether she would prefer a narrow ruling to Buck’s circumstances or a broad rule about the Fifth Circuit’s assessment of certificates of appealability generally.

These questions suggest the court was likely positioning itself to potentially issue a narrower ruling, Robinson said.

“The court was pushing, saying, ‘You’re not asking us to rule completely on the merits, right?’” Robinson said.


Texas Solicitor General Scott A. Keller faced a hot bench that repeatedly asked him questions regarding Texas’s treatment of six other cases that were retried because the same doctor gave similar racial testimony.

Although the state originally identified Buck’s case as deserving of a retrial, it reversed course after a new attorney general took office—arguing that Buck was different from the others because the doctor served as an expert for the defense, rather than the state.

Keller noted other factors aside from race that supported a finding of future dangerousness, including the heinousness of the crime.

But Justice Sonia Sotomayor pointed out that other cases that received new trials involved facts that were just as heinous or worse.

Keller said those factors were all considered by the Fifth Circuit when it decided that Buck failed to meet the standard of extraordinary circumstances and that it is less prejudicial for a defense attorney to introduce this evidence than for the state to introduce it.

Kagan balked at the response, saying she believed it would be more prejudicial for a defense attorney to bring in such testimony.

“[W]hen your own—when the defendant’s own lawyer introduces this, the jury is going to say, ‘Well, it must be true—even the defendant’s lawyer thinks that this is true. So, you know, who am I to argue with that?'” Kagan said.


In response, Swarns seized on the point, saying it ultimately didn’t matter if the state or defense brought the witness to the stand.

“The prosecutor here absolutely capitalized on trial counsel’s error,” Swarns argued. “This prosecutor chose to go through the door that was opened by trial counsel and rely on [the expert’s] race-as-criminal-violence opinion.”

The Texas Attorney General declined to comment, according to an email from spokesperson Kayleigh Lovvorn.

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full transcript at http://src.bna.com/jdd.

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