October 6, 2016
Buck v. Davis
In case you missed it, the Supreme Court of the United States a.k.a SCOTUS kicked off their new term. You probably did miss it, because according to a 2012 telephone poll of 1,000 Americans conducted by Findlaw.com, 67% could not name a single United States Supreme Court Justice. The most well-known member of the court was Chief Justice John Roberts, the survey showed. He was named by 20% of respondents. Steven Breyer was only named by 3% of respondents, checking in as the least recognizable Justice. In close competition with Justice Breyer was Elena Kagan at 4% and Samuel Alito at 5%. Lapping the field of the basket of the unpopulars is Anthony Kennedy at 10%. Even the justices who are get more attention are barely recognizable. The, now deceased, Antonin Scalia was at 16%, as was Clarence Thomas. Ruth Bader Ginsburg (“Notorious RBG”) and Sonia Sotomayor were at named only 13% of the time. So with the Ryder Cup, Football starting, checking Amazon for Halloween costumes for dogs, and general sock sorting, you might have missed the kickoff to the new term. Maybe they should get Pitbull to headline it next time.
One of the cases they heard on this new docket was called Buck v. Davis. Mr. Buck committed double murder against his girlfriend and her supposed boyfriend. This is not an innocence case like some people believe should be the case for Adnan Syed. Mr. Buck was guilty. It was during the death penalty portion of the case that is being appealed. Mr. Buck was represented by Jerry Guerinot. Guerinot represented almost three dozen people facing the death penalty and won exactly zero of them. Twenty were sentenced to die. The New York Times’ Adam Liptak wrote, “a good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.”
During the sentencing phase of Buck’s trial, the phase where the death penalty was on the table, Guerinot and his co-counsel introduced testimony from Dr. Walter Quijano, a psychologist with a history of questionable testimony in capital cases. At Mr. Buck’s trial, Quijano testified that African Americans and Hispanics are especially likely to be dangerous as they are “over-represented in the Criminal Justice System.” Buck is African American. Quijano’s testimony was important because Texas law requires the prosecution to show that a capital defendant is likely to be dangerous in the future before that defendant may be sentenced to die. “This information was presented in an expert report. It was elicited during Dr. Quijano’s testimony. It was referred to by the prosecutor that directed the jury to pay attention to that testimony,” Sherrilyn Ifill, the NAACP Legal Defense Fund’s president and director of counsel, said during a press briefing last week.
Under the Supreme Court’s decision in Strickland v. Washington, a criminal defendant receives unconstitutionally ineffective assistance of counsel when their lawyers’ incompetence prejudices the outcome of the trial. This prejudice does not need to be shown with certainty. Rather, a defendant who received ineffective assistance should prevail when there is a “probability sufficient to undermine confidence in the outcome” of the trial that attorney incompetence impacted the trial’s result.
In Mr. Buck’s case, his Supreme Court legal team explains, “it took two days for jurors to reach a decision about the special issues” in the case, one of which was whether Buck was likely to be dangerous in the future. Over the course of this time, they sent a note to the judge asking “can we talk about parole with a life imprisonment?” and another requesting the very same psychological report where Quijano said that Buck’s race “meant an ‘Increased probability’ of future dangerousness.” It is clear from the jury’s questions that the relied on the report to get to their verdict. It is also clear the jury was conflicted on whether or not to give him the death penalty.
So here are the takeaways from the case. If the SCOTUS decides Mr. Buck received unconstitutionally bad lawyering he will not be allowed to be free. His case will be remanded to the Texas court for another sentencing hearing. This time without Dr. Quijano and his pie chart. Second, without casting aspersions on Mr. Guerinot’s representation, it is probably good practice to object to an expert who testifies that a person is likely to commit more crimes because of their race. It is even a better idea to not call that expert as a defense witness to try to save your client’s life. It is sort of like calling an expert poodle witness in a sentencing hearing for a dog at large conviction whose testimony would be guys named “Chad” are more likely to own poodles. Therefore your client, who also happens to be named Chad is more likely to let Mr. Sparkles get loose again. Third, the SCOTUS only has eight judges. This should not be a problem in this case because the tea leaf readers predict this case will be reversed and remanded. However, if the justices form a 4-4 tie then the decision will become a plurality and the decision of last reviewing court will stand. Nine judges gives a majority with 5 to 4 decisions.
Remember back in 2000 when the SCOTUS decided the presidential election with a 5 to 4 decision. Imagine a scenario where the margin is razor thin again and the SCOTUS reviews the case only to have the decision by deadlocked at 4 to 4. The only fair thing to do under that scenario is to make Pitbull president.
