Buck v. Davis

PETITIONER: Duane Edward Buck
RESPONDENT: Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division
LOCATION: U.S. Court of Appeals for the Fifth Circuit

DOCKET NO.: 15-8049
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: US ()
GRANTED: Jun 06, 2016
ARGUED: Oct 05, 2016

ADVOCATES:
Scott A. Keller - for respondent
Christina A. Swarns - for petitioner

Facts of the case

In July 1995, Duane Edward Buck was arrested for the murder of his ex-girlfriend, Debra Gardner, and her friend Kenneth Butler. Buck was convicted of capital murder for both of the deaths. During the penalty phase of trial, the prosecution presented evidence of Buck’s future dangerousness based on his criminal history, his conduct, and his demeanor before and after arrest. The defense presented the testimony of a clinical psychologist to evaluate the risk of future dangerousness. That expert stated that he considered demographic factors, including race, in his analysis and that, statistically, minorities are overrepresented in the criminal justice system. On cross-examination, the prosecution clarified that the expert’s opinion was that the race factor “black” increased the likelihood of future dangerousness. The jury found that there was sufficient evidence of Buck’s future dangerousness without any sufficient mitigating factors to justify a life sentence, so the jury sentenced Buck to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence.

Buck filed various claims for state and federal habeas relief that were denied, until the U.S. Supreme Court decided Trevino v. Thaler, which held that Texas’ procedural scheme made it almost impossible to raise ineffective assistance of counsel claims on direct appeal, and therefore that a procedural default on such a claim could be excused. While some of these claims were pending, the state attorney general admitted in a different case that the state should not have called an expert witness to testify about future dangerousness of a defendant based on race and named Buck’s case as one affected by similar testimony. Buck again sought federal habeas relief based on ineffective assistance of counsel because his counsel knowingly called an expert witness who testified that race was a factor in determining future dangerousness. The district court dismissed the claim because Buck failed to show that the outcome of his trial was prejudiced. The U.S. Court of Appeals for the Fifth Circuit similarly denied Buck’s request for a Certificate of Appealability by holding that Buck did not show sufficient extraordinary circumstances to justify relief from the lower court’s judgment.

Question

Did the U.S. Court of Appeals for the Fifth Circuit impose an unduly burdensome standard on the review of a claim that counsel was ineffective by knowingly calling an expert witness who testified that race was a factor in evaluating future dangerousness?

Media for Buck v. Davis

Audio Transcription for Oral Argument - October 05, 2016 in Buck v. Davis

John G. Roberts, Jr.:

We'll hear argument next today in Case 15-8049, Buck v. Davis. Ms. Swarns.

Christina A. Swarns:

Mr. Chief Justice, and may it please the Court: Duane Buck was condemned to death after his own court appointed trial attorneys knowingly introduced an expert opinion that he was more likely to commit criminal acts of violence in the future because he is black.

This evidence encouraged the sentencing jury to make its critical future dangerousness decision which was a prerequisite for a death sentence and the central disputed issue at sentencing based not on the individual facts and circumstances of Mr. Buck's crime or his life history, but instead based on a false and pernicious group-based stereotype.

Ruth Bader Ginsburg:

Didn't that expert say, I don't think he's a future -- I don't think he's going to be a future danger?

Christina A. Swarns:

On cross-examination Dr. Quijano testified that he did believe that Mr. Buck was likely to commit future crimes of violence.

He said that -- at the prosecutor's questioning that Mr. Buck was on the low end of the continuum, but that he could not say that Mr. Buck was not likely to commit criminal acts of violence.

But Mr. Buck was, unquestionable --

Ruth Bader Ginsburg:

But more likely than not that he wouldn't.

Christina A. Swarns:

Yes.

He was on the low end of the spectrum in terms of the risk of violence. But here this expert's evidence not only prejudiced Mr. Buck at sentencing, it also put the very integrity of the courts in jeopardy.

For that reason, Texas acknowledged that its ordinary interest and finality does not apply.

It publicly declared that it would waive its procedural defenses and allow new sentencing hearings in six capital cases, including Mr. Buck's, that involved the same expert's race as criminal violence opinion.

Texas conceded error in five cases and then reversed course in Mr. Buck's case alone. As a result, Mr. Buck is the only Texas prisoner to face execution pursuant to a death sentence that Texas itself has acknowledged is compromised by racial bias that undermines confidence in the criminal justice system.

John G. Roberts, Jr.:

There's a tension in your -- your briefing over what you're really arguing for.

In the question presented, you focus on the Fifth Circuit standard for a COA in saying they're imposing an improper and unduly burdensome.

But most of the briefing, and as you sort of begun today, is really focused on the underlying merits of the case.

And you sort of have to make a choice, don't you, because if we didn't focus on the merits and rule in your favor, we don't get to say too much about the threshold for Certificate of Appealability.

Well, if we focus on the Certificate of Appealability, all we're saying on the merits is there's a substantial showing.

So what do you want us to do, on the merits or on the Certificate of Appealability?

Christina A. Swarns:

Well, in order to determine whether Mr. Buck was expired -- was entitled to a Certificate of Appealability, this Court and the Fifth Circuit was required to determine whether or not the district court decision with respect to both the constitutional question and the procedural question would be debatable among jurors.

John G. Roberts, Jr.:

Right.

Right.

So is that what you want us to say, that because the merits are debatable, he should have gotten a Certificate of Appealability? Or do you want us to say, well, he should have won, and so he obviously should have gotten a Certificate of Appealability?

Christina A. Swarns:

We believe that the district court's decision is wrong, and, therefore, Mr. Buck was entitled to a Certificate of Appealability.

John G. Roberts, Jr.:

Okay.

So on the merits -- on the merits then, you just want us to say, oh, reasonable jurists could disagree about whether or not he was unconstitutionally sentenced?

Christina A. Swarns:

Or that the -- that the reasonable jurists would conclude that the district court's decision that Mr. Buck was not prejudiced was incorrect, and, therefore, Mr. Buck was -- was entitled to a Certificate of Appealability.

Elena Kagan:

But, for example, last year in a case called Welch, the question came up on the Certificate of Appealability, and we just said, well, of course he should have gotten a Certificate of Appealability because he's right.

And similarly, we did the same thing, oddly enough, in one of the cases here. We did the same thing in Trevino.

Yes, he should have gotten a Certificate of Appealability because he has the merits on his side.