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SCOTUS Hears Appeal From Black Man On Death Row

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U.S. Supreme Court justices appeared to side with a black Texas man who was sentenced to death after an expert witness called by his own lawyer told jurors his race made him more likely to act the criminal again.

Duane Buck was convicted of the murder of his girlfriend, Debra Gardner, and a man he believed she was having an affair with. Buck killed them in front of Gardner’s children, before turning the gun on his own stepsister. She would survive the point-blank blast to her chest. He was dragged from the scene by police, laughing, and insisted, “The bitch deserved what she got.”

One might not recognize the Duane Buck of 2016, a committed Christian who ministers to fellow inmates and young people, the man prison guards call a model inmate. Though none, most especially himself, dispute his guilt; the chain of events which brought him to death row are troubling.

At trial, Buck’s lawyer Jerry Guerinot, a capital defense lawyer perhaps not worthy of the name, elicited testimony from a psychologist named Walter Quijano, who told jurors that Buck was statistically more likely to commit crimes again because he was black. Future dangerousness is a key element of a death penalty sentence.

“We are all at risk when our justice system allows prosecutors and juries to exercise lethal discretion based on race,” said Sherrilyn Ifill, director counsel for the NAACP Legal Defense & Educational Fund, which represents Duane Buck. “Duane Buck’s case is as much about his own unlawful death sentence as it is about the ability of Harris County’s criminal justice system to produce outcomes free from the taint of racial discrimination.”

As Amy Howe of SCOTUSblog explains, the post-conviction issues surrounding his case are complicated. His conviction and death sentence were confirmed on appeal in the Texas courts. In his motions for post-conviction relief, his appeals lawyer did not raise the issue of racist testimony introduced by the trial lawyer. When his state appeals were exhausted, he turned to the federal courts, this time with new legal counsel who argued that his trial lawyer’s introduction of prejudicial testimony constituted ineffective assistance of counsel. The federal appeals courts rejected this argument, as it had not first been raised in a timely manner in the Texas courts.

Subsequent ventures met a similar end. He sought relief in federal court under Federal Rule of Civil Procedure 60(b)(6), which allows a court to grant relief from final judgement in an “extraordinary circumstance.” Buck and his lawyers hoped an ineffective lawyer dealing in prejudicial testimony, compounded by a second ineffective appellate lawyer, would solicit relief under the rule. In addition, his lawyers argued that new Supreme Court decisions permitted appeals courts to review claims of ineffective assistance not raised in the state post-conviction review. The district court and the 5th U.S. Circuit Court of Appeals rejected this argument. (RELATED: Justice Breyer Throws Shade At Kim K During Oral Arguments)

In addition, both courts denied his application for a Certificate of Appealability (COA), which allows the applicant to continue his appeal after a final ruling by a post-conviction court.

Though the indisputable racial bias permeating the case loomed large over the proceedings, (Christina Swarns, Buck’s lawyer from the NAACP, opened the argument condemning “a false and pernicious group-based stereotype”), there were several issues before the Court. Is Buck’s case an “extraordinary circumstance” deserving relief under rule 60(b)(6)? Did the lower courts err in rejecting his petition for a COA? Need they rule on the merits of the case?

The question of what exactly the Court should do with this case recurred throughout the argument. In the early going, Chief Justice John Roberts observed the following:

…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?  

Justice Elena Kagan expressed concern that the circuit courts fundamentally misunderstand rules concerning COAs, which could prompt the Court to announce general rules about COAs. She said:

Mr. Keller, you know, some of the statistics that petitioner have pointed us to — in capital cases, a COA is denied in 60 percent of Fifth Circuit cases as compared to percent of Eleventh Circuit cases, two roughly similar circuits where COA’s are denied in capital cases ten times more in the Fifth Circuit. I mean, it does suggest one of these two 11 circuits is doing something wrong. 

Justice Stephen Breyer, the Court’s clarion anti-death penalty voice, said the facts of Buck’s case “proves the arbitrariness of what’s going on out there.”

Still, there was no doubt as to the justice’s outrage concerning Buck’s trial lawyer. “Doesn’t it show how abysmal his counsel was?” Justice Ruth Bader Ginsburg asked. “What occurred at the penalty phase of this trial is indefensible,” added Justice Samuel Alito.

That skepticism corroborates a pre-argument observation made by Harvard Law School lecturer Ian Samuel, who noted on his First Mondays podcast that the courts are generally sympathetic to petitioners in his position.

“If you have a legitimate claim of ineffective assistance of counsel in a death penalty case, especially at the penalty phase, then there is no procedural obstacle on this earth that the Court is going to regard as sufficient to stop you from bringing that forward,” he said.

Outside in the Court’s sparkling plaza after oral argument, Buck’s stepsister Phyllis Taylor, whom he shot in front of his girlfriend’s children, told reporters she supports his appeal and hopes his death penalty conviction is vacated.

“I would pray for a conversion to life,” she said.

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