Amicus Briefs Filed in Support of Duane Buck at Supreme Court
On Thursday, August 4, 2016, five amicus briefs were filed with the U.S. Supreme Court in support of Petitioner Duane Buck in Buck v. Davis, an extraordinary Texas death penalty case about racial bias and ineffective assistance of counsel.
A group of former prosecutors, the National Black Law Students Association, the Constitutional Accountability Center, the Lawyers’ Committee for Civil Rights Under Law and the National and Texas Associations of Criminal Defense Lawyers each filed briefs. The friend-of-the-court briefs powerfully address several issues, including the longstanding, false and pervasive stereotype of Black people as dangerous and the need for legal relief given the extraordinary circumstances of the case, the obligations of prosecutors, and the outlier behavior of the federal appellate court in the case. Oral argument in Buck v. Davis is scheduled for October 5, 2016.
Mr. Buck was sentenced to death after his own trial counsel knowingly introduced “expert” testimony from “expert” psychologist, Dr. Walter Quijano, that Mr. Buck was more likely to commit violent crimes in the future because he is Black. Under Texas law—which requires a unanimous jury finding of future dangerousness for a death sentence to be imposed—this was tantamount to saying that Mr. Buck’s race meant he was more deserving of a death sentence.
In its brief, the National Black Law Students Association, (NBLSA), the largest student-run organization in the United States, details the devastating history of the “Black equals dangerousness” stereotype, from slavery to the present day and how its persistence evidences the fact that “even in our own enlightened modern times, vast segments of society hold the belief that Blacks and Whites occupy different moral universes.” (p. 3) The NBLSA argues that these racially biased beliefs contribute to unjust outcomes in the criminal justice system, including greater rates of charging, higher rates of conviction, and longer and harsher sentences for Black people. The brief concludes:
“Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice.” (p. 30)
The brief of the Lawyers’ Committee for Civil Rights Under Law argues that the stereotype of the violent Black criminal “so permeates the American psyche” (p. 2) that this stereotype, “…particularly when triggered by racially-tinged suggestions, can have a dramatic impact on decision making, including jurors’ views when making death penalty determinations”. (p. 14) The brief states:
“Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf.” (p. 30)
The Constitutional Accountability Center’s brief argues that the “enduring racial stereotype” used in the case “exerts a unique power” which constitutes precisely the kind of “extraordinary circumstance” which require court review of the merits of Mr. Buck’s claim. (p. 2)
In their brief, former prosecutors, including Tim Cole (District Attorney, 97th District of Texas, 1993-2006), Mark Earley (Attorney General of Virginia, 1998-2001), Timothy Lewis (Judge, United States Court of Appeals for the Third Circuit, 1992-1999), Mark White (Governor of Texas, 1983-1987 and Attorney General of Texas, 1979-1983) and Linda S. Hood Geffin (Assistant District Attorney, Harris County, Texas, 1990 – 2000 and Second chair prosecutor in State v. Buck), raise the issue of the special obligation of prosecutors to seek justice and highlight how Texas failed to keep its promise to admit error due to the racial testimony in Mr. Buck’s case, stating:
“To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony.” (p. 14)
The National and Texas Associations of Criminal Defense Lawyers (NACDL and TCDLA) submitted a brief arguing that the United States Court of Appeals for the Fifth Circuit routinely and wrongly denies certificates of appealability (COAs), as it did in Mr. Buck’s case. Noting that the Fifth Circuit’s approach has been criticized over the years by “[n]umerous jurists,” the brief highlights how the Circuit’s unduly restrictive practices in considering death penalty appeals has ignored “repeated guidance” by the Supreme Court. (p.3)
Amicus briefs in Support of Petitioner in Buck v. Davis can be accessed here:
- Brief of Former Prosecutors
- Brief for the National Black Law Students Association
- Brief of the Constitutional Accountability Center
- Brief of the Lawyers’ Committee for Civil Rights Under Law
- Brief of the National Association of Criminal Defense Lawyers and Texas Criminal Defense Lawyers Association
Mr. Buck’s Brief For Petitioner
Mr. Buck is asking the U.S. Supreme Court to review the federal courts’ refusal to consider his claim that his trial counsel was constitutionally ineffective for knowingly introducing the race-as-dangerousness testimony. Mr. Buck is ultimately seeking a new, fair, color-blind sentencing hearing.
Mr. Buck’s brief lists 11 “extraordinary circumstances” that demonstrate why the Fifth Circuit Court of Appeals erred when it refused to consider Mr. Buck’s appeal. These extraordinary circumstances include:
- “Mr. Buck’s trial attorney knowingly presented expert testimony to the sentencing jury that Mr. Buck’s race made him more likely to be a future danger”; (p. 18)
- “Mr. Buck’s state habeas counsel did not challenge trial counsel’s introduction of this false and offensive testimony—or Texas’s reliance on it—in Mr. Buck’s initial state habeas application”; (p. 19)
- “The Texas Attorney General conceded constitutional error in Mr. Buck’s case and promised to ensure that he received a new sentencing, but reneged on that promise after deciding that the introduction of the offensive testimony was trial counsel’s fault; (p. 19)
- “Mr. Buck’s case is the only one in which Texas has broken its promise to waive procedural defenses and concede error, leaving Mr. Buck as the only individual in Texas facing execution without having been afforded a fair and unbiased sentencing hearing”; and, (p. 20)
- “Martinez and Trevino now allow for federal court review of ‘substantial,’ defaulted claims of trial counsel ineffectiveness.” (p. 20)
Background on Mr. Buck’s Trial and Ineffective Counsel
Duane Buck was condemned to death in 1997 after his own trial attorneys introduced testimony and a report from a psychologist, Dr. Walter Quijano, stating that Mr. Buck was more likely to be dangerous in the future because he is Black. Under Texas law, a death sentence can only be imposed if the prosecutor proves a probability of future dangerousness to the jury unanimously and beyond a reasonable doubt. In Mr. Buck’s case, the issue of future dangerousness was the “central disputed issue” in the sentencing hearing. (p. 5)
Shockingly, it was Mr. Buck’s own trial counsel that presented Dr. Quijano’s race-as-dangerousness opinion to the jury. And, his lawyers did not object when the prosecution exploited this race-as-dangerousness testimony on cross-examination: “You have determined that…the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” “Yes,” answered Dr. Quijano. During closing arguments, the prosecutor then urged jurors to listen to Dr. Quijano, who “had a lot of experience in the Texas Department of Corrections, who told you that there was a probability that [Mr. Buck] would commit future acts of violence.” (pp. 7-8)
Finally, the defense presented Dr. Quijano’s report—over the prosecution’s objection—into evidence. That report reiterated Dr. Quijano’s opinion: “Race. Black. Increased Probability” of future dangerousness. During their lengthy deliberations, jurors sent out several notes requesting further information, including one asking to see the mental health reports, including Dr. Quijano’s.
After Mr. Buck was sentenced to death, his court-appointed state post-conviction counsel never challenged his trial counsel’s conduct. In fact, Mr. Buck’s counsel failed to raise the racial bias issue until two years after the state of Texas had already admitted error and promised to correct it. (p. 13) But by then it was too late. Because of this succession of severely deficient lawyers, Mr. Buck’s current counsel argue that his Sixth Amendment right to the effective assistance of counsel at trial was violated and that he is entitled to a new, fair, color-blind sentencing trial.
The Supreme Court Has the Power to Ensure the Racial Discrimination Infecting Mr. Buck’s Death Sentence is Properly Reviewed and Addressed
In 2012 and 2013, the U.S. Supreme Court held, in Martinez v. Ryan and Trevino v. Thaler, that prisoner claims that are waived or “procedurally defaulted” by deficient lawyering—like those in Mr. Buck’s case—can be heard in federal court. Prior to these rulings, the federal courts refused to review Mr. Buck’s ineffective assistance of counsel claim because it was procedurally defaulted. And, in 2011, the U.S. Supreme Court denied certiorari review of Mr. Buck’s challenge to the prosecutor’s reliance on Dr. Quijano’s testimony. Justice Alito, joined by Justices Scalia and Breyer issued a statement, accompanying a denial of certiorari, explaining that the “responsibility for the introduction of ‘bizarre and objectionable’ expert testimony linking Mr. Buck’s race to an increased likelihood of future dangerousness ‘lay squarely with the defense.’” (p. 16)
After the Supreme Court announced Martinez and Trevino, Mr. Buck filed a motion to reopen the prior federal court decision denying his ineffective assistance of counsel claim. Although the U.S. District Court for the Southern District of Texas found that Mr. Buck’s trial counsel “recklessly exposed his client to the risks of racial prejudice and introduced testimony that was contrary to his client’s interests,” it nonetheless concluded that Mr. Buck’s case was not “extraordinary” enough to warrant reopening the judgment. It also denied Mr. Buck a Certificate of Appealability or “COA,” which would have allowed Mr. Buck to appeal the decision to the Fifth Circuit Court of Appeals. The Brief for Petitioner argues that “[u]nder any standard of review, the lower courts’ denial of Mr. Buck’s Rule 60(b) motion was erroneous” (p. 23), and that Mr. Buck was entitled to a COA because he was only required to prove that his claims were “at least debatable among reasonable jurists” and he certainly met that burden. (p. 24)
Mr. Buck’s case is an extraordinary instance of racial bias. Because the Supreme Court has now lifted the procedural barriers that previously stood in his way, the Supreme Court must ensure that Mr. Buck receives a new, fair sentencing hearing free of racial bias. State and federal judges who previously reviewed Mr. Buck’s case have recognized its fundamental unfairness, but were barred by procedural rules from correcting the injustice. However, as the brief explains, “as Texas itself previously recognized, this is the rare case in which the nature of the trial error…renders finality an insufficient ground upon which to justify reliance on procedural default.” (p. 52)
Texas Confessed Constitutional Error in Mr. Buck’s Case and in Six Other Cases where Race was Considered in Capital Sentencing Hearings
In 2000, the U.S. Supreme Court remanded Saldaño v. State, which had also been tainted by the racially biased testimony of Dr. Quijano, to a lower court for review. In response to Mr. Saldaño’s petition for writ of certiorari, Texas acknowledged that the “infusion of race as a factor for the jury to weigh in making its determination violated [Mr. Saldaño’s] constitutional right to be sentenced without regard to the color of his skin.” (p. 10) Texas also stated that “[d]iscrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice,” and that “the use of race in Saldano’s sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process.” (p. 10)
Then-Texas Attorney General (now U.S. Senator) John Cornyn issued a press release announcing that his office had done “a thorough audit of cases” (p. 11) and identified seven cases, including Mr. Buck’s, where — because of Dr. Quijano’s testimony — new, fair capital sentencing hearings were required. Texas promised to admit error in each of these cases. The State kept its promise, ensuring new sentencing hearings for all the identified defendants, in every case — except Mr. Buck’s.
Texas has never offered a valid explanation for its failure to keep its promise to Mr. Buck. Texas prosecutors have stated that notwithstanding their promise, Mr. Buck’s case is different from the other six because Dr. Quijano was a defense witness in Mr. Buck’s case. However, Dr. Quijano was also a defense witness in two of the other cases (Carl Henry Blue and John Alba), and Texas kept its promise, conceded constitutional error and allowed new, fair sentencing trials for both of those defendants.
The Special Risks of Racial Prejudice In Criminal Trials
For over a century, the U.S. courts have recognized that racial bias, when introduced at a criminal trial, is improper and deeply prejudicial. One example provided in the brief is that the Texas Court of Criminal Appeals found reversible error in a case when a prosecutor asked a single question tending to inflame race bias against the defendant, despite the fact that the question was objected to and never answered. (p. 37) As the brief notes, it is “well-settled that appeals to racial prejudice deprive the accused of his right to a fair trial decided by an impartial jury.” (p. 33)
Mr. Buck’s attorney exposed him to “a special risk of harm” (p. 28) by introducing and validating racial prejudice in his case. As the brief notes, “Race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability. Although it cannot be considered as an aggravating factor at capital sentencing, Dr. Quijano’s opinion urged jurors to do just that.” (p. 28)
There is Widespread Support Across the Political Spectrum for a New, Fair Sentencing Hearing for Mr. Buck
One of Mr. Buck’s trial prosecutors, the surviving victim, a former Texas Governor and more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, and past ABA presidents support a fair sentencing hearing for Mr. Buck. Former Harris County Assistant District Attorney Linda Geffin, has urged the State to agree to a new sentencing hearing, stating that “No individual should be executed without being afforded a fair trial, untainted by considerations of race.” The surviving victim, Phyllis Taylor, has forgiven Mr. Buck and does not want to see him executed.
In sharp contrast to Dr. Quijano’s testimony about future dangerousness, Mr. Buck has been a model prisoner on death row with no disciplinary infractions in over twenty years.
A video about Mr. Buck’s case, “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case,” can be accessed here: