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Argument analysis: Buck v. Davis

If you want to know why the law's screwed up, read the first pages of the oral argument the Supreme Court held on Wednesday in Buck v. Davis.  

Buck was tried for capital murder in Texas in 1996.  His guilt was a foregone conclusion, and so it boiled down to a question of whether he should be killed.  In Texas, in order to impose a death sentence, the jury is required to find that a defendant is likely to commit future crimes of violence.  Usually, psychological testimony is presented on this score, and it was here, in the form of Dr. Walter Quijano.  Dr. Quijano testified at trial that Buck's "being black" was a "statistical factor" that "increased the probability" that Buck would indeed commit future crimes of violence.

Dr. Quijano gave the same testimony in six other cases, and Texas subsequently agreed that it wouldn't oppose vacating the sentences of those cases.  It ultimately reneged in Buck's case, because there was one significant difference between them:  in his case, it was Buck's own court-appointed lawyer, Jerry Guerinot, who call Quijano as a witness and elicited the testimony about race.  (This was not atypical of the quality of Guerinot's work in capital cases; as this article points out, Buck is only one of twenty of Guerinot's clients who have been sentenced to death.)

So, what does the Court spend the first few minutes talking about in oral argument?  The standards the 5th District uses in granting certificates of appealability.

If you're sitting there with a WTF expression, let me explain.  Buck's case got into Federal court on a habeas corpus petition.  What used to be called "The Great Writ" is now the "Tiny, Puny Writ," mostly courtesy of the Anti-Terrorism and Effective Death Penalty Act Congress passed in 1996.  The AEDPA imposed all kinds of restrictions on granting habeas petitions:  there are time limits (one year from the last state court decision), the argument has to have been fully presented in the state court as a Federal constitutional issue, the Federal court had to defer to all of the state court's factual findings, and couldn't overturn the state court decision unless it was contrary to a US Supreme Court decision.  There were some other procedural hurdles:  if the appellate lawyer screwed up something in the state courts, like Buck's did in not presenting the issue Buck eventually raised in habeas, too bad, so sad, the failure could act as a procedural bar to Federal relief.

That's been changed a little bit by some recent Supreme Court decisions, and that's what Buck hung his hat on when he appealed from the denial of his petition by the district court.  Appeal?  Hold on!  You don't get an automatic appeal as of right in a habeas case.  Either the judge or the court of appeals has to grant a certificate allowing you to appeal.  That was essentially the legal proposition that Buck was forced to go to the Supreme Court on:  whether the 5th Circuit should have granted the certificate. 

The standards for that vary from circuit to circuit.  Kagan pointed out that the 5th denied certificates in death penalty cases ten times more often than the 11th Circuit.  And although the state argued that the 5th Circuit took its responsibilities in this regard seriously, often requiring briefing and even oral arguments on granting the certificate, Roberts and Kagan pointed out that this actually undercut the state's position; as Kagan put it, the court in the certificate process is performing a gate-keeping function, it's not supposed to be deciding the merits of the cases.

The standard for granting the certificate is whether reasonable jurists could disagree on the merits.  That would seem to have been met by the fact that three state court judges and two on the 5th Circuit have agreed with Buck's position. 

Speaking about the merits - finally - things look fairly good for Buck.  Even Alito acknowledged that what happened at trial was "indefensible."  The Texas attorney tried to wriggle out of the fact that the state had reneged on its promise to vacate Buck's conviction, along with the other cases where Quijano had testified, by emphasizing that it was Buck's own lawyer who had introduced the evidence.  Roberts, Ginsburg, and Kagan all found this distinction insignificant, the latter two observing that the jury might well have given the testimony more credibility since it was offered by the defense. 

There are still some hurdles for Buck.  Despite the racial aspect, Quijano had ultimately testified that Buck would not be dangerous in the future, and the state contended that there was plenty of evidence that Buck would be, rendering the racial issue harmless. 

But there's another thing here that the argument didn't touch on:  why is testimony about "future dangerousness" even a factor?  I've commented before that the courts base their decisions without regard to empirical evidence.  They will routinely reject claims regarding improper admission of prejudicial evidence because the judge gave a curative instruction which the jury is "presumed" to have followed, a presumption that even a Supreme Court justice acknowledged "all practicing lawyers know to be an unmitigated fiction."

"Future dangerousness" is another such fiction.  The American Psychiatric Association has rejected the use of such evidence, finding it scientifically unsound.  Back in 1983, in Barefoot v. Estelle, the Supreme Court grudgingly permitted such testimony, even though studies had shown it was wrong two-thirds of the time, essentially deciding it was better than nothing.

So we're sentencing people to death on the basis of testimony that the court found in Barefoot wasn't "entirely unreliable."

One more thing:  in the twenty years he's spent in prison since his conviction, Buck hasn't had even a minor disciplinary infraction.

*   *   *   *   *

A spotty posting schedule over the next two weeks.  I'm going to Phoenix next week, in a desperate effort to avoid thinking about the 2,500 pages of transcripts I have to wade through when I get back.  No posts next week, a couple the week after that, and then we'll resume our regular schedule.  Whatever that is.

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