Published on: Thursday, February 23, 2017
Supreme Court Condemns the Use of Race-Based Testimony in Sentencing        



Yesterday, the Supreme Court issued an important opinion in Buck v. Davis (No. 15-8049). The case involved a Texas jury deciding whether to sentence the Petitioner to death, with a key question being whether he was likely to be violent in the future. The Petitioner's attorney presented the testimony of a psychologist, who stated that Petitioner's race - he is black - made him statistically more likely to commit violent acts. The jury concluded that Petitioner should be executed for his crimes. Six justices of the Court, with the Chief Justice writing for the Court, described the prospect that Petitioner "may have been sentenced to death in part because of his race" as a "disturbing departure from a basic premise of our criminal justice system."

The factual and procedural history are developed in the opinion. The three main issues the Court addressed were whether the Fifth Circuit properly denied a COA, whether the Petitioner demonstrated ineffective assistance of counsel, and whether the district court's denial of a Rule 60(b) motion was an abuse of discretion.

As to the COA, the Fifth Circuit reached the conclusion whether jurists of reason could disagree with the district court's resolution of the constitutional claim by essentially deciding the case on its merits. Specifically, the Fifth Circuit stated that because Petitioner "has not shown extraordinary circumstances that would permit relief under Federal Rule of Civil Procedure 60(b), we deny the application for a COA." The Supreme Court disagreed with the Fifth Circuit's analysis, holding that the question for the Fifth Circuit was not whether the Petitioner had shown extraordinary circumstances - which was a determination the panel should not have reached; rather, the Fifth Circuit should have limited its examination at the COA stage to only an inquiry whether the district court's decision was debatable.

As to the question of whether Petitioner's counsel was ineffective for presenting the testimony of the psychologist who stated that Petitioner's race made him statistically more likely to commit violent acts, the Supreme Court agreed with the district court's determination that counsel's performance fell outside the bounds of competent representation. The Supreme Court, however, disagreed with the district court's conclusion that the introduction of any mention of race during the penalty phase was de minimis. Although there were only two references of race during the psychologist's testimony, the Supreme Court recognized that some "toxins can be deadly in small doses." As such, the Court held that the psychologist's testimony on Petitioner's sentence could not be dismissed as de minimis - thus, Petitioner demonstrated that his counsel was ineffective under Strickland.

Finally, as to the district court's denial of the Rule 60(b) motion, the Supreme Court held that because Petitioner may have been sentenced to death in part because of his race and due to his own counsel injecting the issue at sentencing, this is the type of extraordinary circumstance that would permit relief under Rule 60(b).

For an analysis of the opinion, see this SCOTUSblog post.

Christina Swarns, Director of Litigation, NAACP Legal Defense Fund, argued this case in the Supreme Court. Ms. Swarns is scheduled to be the keynote speaker at three upcoming conference/seminars sponsored by the Defender Service's Office Training Division: (1) Race in the Federal Criminal Court in Baltimore, April 6-8, 2017; and (2) Winning Strategies Seminar and (3) Fundamentals Seminar, both in Houston, June 8-10, 2017. Please register for these conferences/seminars to hear Ms. Swarns discuss the background of this case and the importance of effective advocacy and the tools necessary to effectively and strategically represent clients such as the Petitioner in Buck v. Davis.