Buck v. Davis – Race Should Never be a Factor in Sentencing

Buck v. Davis was decided by the U.S. Supreme Court today, holding that it was ineffective assistance of counsel for Duane Buck’s trial lawyer to introduce testimony from their own expert that Buck is more likely to commit crimes in the future because he is black.

Duane Buck wasn’t contesting his guilt in this appeal – only the fairness of the sentencing proceeding that resulted in his death sentence.  His case demonstrates the pervasiveness of prejudice in the court system and the difficulty of reforming a system that is made of participants and decision makers who have very different opinions about race.

At the sentencing phase of his trial, Buck’s lawyer called Dr. Quijano as a witness, who had concluded that Buck’s race was a factor that made him more likely to commit future crimes.  This fact was in Quijano’s report, which was also provided to the jury.  Buck’s lawyer knew that this was in the report, and even brought it out during direct examination of Quijano, who testified that race is a factor “known to predict future dangerousness.”  The prosecutor cross examined Quijano about it and then relied on Quijano’s testimony during his closing argument.  During deliberations, the jurors asked for the expert’s reports which had been admitted into evidence, and they ultimately returned a sentence of death.

When Buck filed for post conviction relief in the state court, his post conviction lawyer did not think it was an issue worth raising.  Later, the Texas Attorney General acknowledged that Quijano had provided similar testimony in other cases where the state had called Quijano as a witness and consented to resentencing hearings in those cases.  All except Buck’s case.  When Buck filed a second state habeas petition based on Quijano’s testimony, it was denied by the state court because the issue was not raised in the first petition.

The federal district court and the Fifth Circuit Court of Appeals later denied his federal habeas claim, finding that it was procedurally defaulted and that he had failed to show extraordinary circumstances justifying relief.  In finding that Buck had not shown extraordinary circumstances, the federal courts stated that “the introduction of any mention of race” during Buck’s trial was “de minimis.”  His lawyer’s actions at trial were not ineffective assistance according to the district court and the Fifth Circuit.

The U.S. Supreme Court disagreed.  They found that no reasonable defense attorney would have elicited this kind of testimony in a death penalty trial and that it had a greater impact on the jury because his own attorney had introduced it instead of the state.

. . . it was potent evidence. Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.”

The state had argued that the testimony was harmless because it was de minimis and was mentioned only on direct and cross exam of the one expert (it was also argued by the prosecutor in closing), but the U.S Supreme Court disagreed with this as well, pointing out that “some toxins can be deadly in small doses.”

. . . when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.

The expert had been appointed by the Court, appeared to have considerable credentials, and “bore the Court’s imprimatur” in his testimony.  As a society, we may not want to release or take a chance that we cannot put to death a defendant that has received the death penalty.  But cases like this one are an important part of effecting change – one case that makes it to the U.S. Supreme Court is usually the tip of the iceberg, and that one case can make a huge difference in how all future cases are handled.

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