by Elise C. Boddie, Professor of Law, Henry Rutgers University Professor, Robert L. Carter Scholar
Buck v. Davis, which was argued in the Court earlier this week, raises a troubling question: will a person who was sentenced to death, after his trial counsel introduced evidence that his race makes him more likely to be violent, be procedurally barred from raising an ineffective assistance of counsel claim that challenges the constitutionality of that death sentence? This question is highly technical, but crucially important. At a time when the country is increasingly attentive to grievous racial bias in our criminal justice system, Buck poses a very grave threat to the public’s confidence in the fairness and integrity of the judicial process. [Disclosure: My former employer, the NAACP Legal Defense & Educational Fund, Inc., represents Mr. Buck.]
The facts of Buck alone are deeply disturbing, but the case also raises larger questions about our broader system of justice in matters of race. That this case had to wind its way all the way to the Supreme Court for the possibility of relief, now for the second time, shows how doctrinal and procedural complexities in capital litigation undermine racial justice. It also reveals how differently race is regarded in the criminal justice system when compared to standards of judicial review in civil constitutional litigation. The cavalier treatment of race by the state and lower federal courts in Mr. Buck’s case is wildly inconsistent with the Supreme Court’s interpretation of equal protection doctrine, which treats any governmental use of race as presumptively unconstitutional, regardless of motive or context. Indeed, in Fisher v. University of Texas, the Court twice heard a challenge to a university’s race-conscious admissions policy, even though race had no demonstrable impact on the university’s decision to deny admission to the white plaintiff. There is a tragic irony in the lopsidedness of this judicial scrutiny, where even the faintest consideration of race triggers close review if it threatens to disadvantage a white plaintiff, but the overtly discriminatory use of race—in a way that may have led a black man to be sentenced to death—is buried by courts in procedural technicalities.
The case has a lengthy and complicated history, but the core facts are as follows: Mr. Buck was convicted of capital murder. During sentencing, his court-appointed counsel introduced expert testimony, exploited later by the prosecution on cross-examination, that Mr. Buck was more likely to commit criminal acts of violence in the future because he is black. Let me repeat that: Mr. Buck’s own attorney inserted evidence into the sentencing proceedings that Mr. Buck’s race was a legitimate factor for assessing his proclivity for future violence. Texas juries are required to find “future dangerousness” unanimously and beyond a reasonable doubt before a defendant can be sentenced to death. There is good reason to believe that this expert testimony —which perpetuates deeply rooted racial stereotypes that black people are predisposed to violence—could have persuaded at least one Texas juror that the death sentence was justified for Mr. Buck. If the Court agrees, it could clear the path for Mr. Buck to challenge the constitutionality of that sentence. (He is not challenging his conviction.)
The procedural problem is that Mr. Buck’s state post-conviction counsel failed to raise, during the initial post-conviction proceeding, the trial counsel’s fairly obvious constitutional error. The question in the case is whether the state habeas counsel’s apparent incompetence, which compounded the trial counsel’s apparent incompetence, will effectively preclude federal judicial review of Mr. Buck’s ineffective assistance of counsel claim. A federal district court concluded that it did. Mr. Buck sought to reopen that judgment in light of an intervening Supreme Court decision, Trevino v. Thaler, which provides that such a procedural default by state habeas counsel under Texas state law does not prohibit a federal habeas court from hearing a “substantial claim of ineffective assistance at trial.” In other words, someone who has been sentenced to death should not be penalized on procedural grounds by the serial ineptitude of his lawyers. The district court refused to reopen the judgment and the fifth circuit court of appeals affirmed its decision.
The state has acknowledged that racial considerations in capital sentencing are “emotionally charged” and threaten the fairness and the integrity of the judicial process. It also does not defend the conduct of Mr. Buck’s trial counsel. Indeed, in six other capital cases involving the same expert used by Mr. Buck’s attorney, the state of Texas confessed error, announcing that it would not oppose federal habeas claims for relief based on this expert’s racially-biased testimony. The state, however, opposes relief in Mr. Buck’s case because the expert was his own witness and because Mr. Buck has not demonstrated that race made a difference to the jury’s determination of future dangerousness.
The notion that race may not have influenced the jury’s sentencing decision is inconsistent with what the state of Texas itself has acknowledged about the emotionally fraught nature of racial considerations in capital proceedings. It also defies the record of extensive racial discrimination in the criminal justice system in Houston where Mr. Buck was sentenced. Thus, we are left with the very distressing possibility that a state could execute a man because he is black.
We cannot miss this extraordinary injustice at the heart of Buck. That the case has had to proceed this far and for this long, for relief is an indictment of the judicial process. Given what we now know about how multiple courts handled race in Mr. Buck’s case, we must wonder what other injustices lurk beneath our system of criminal justice.