Earlier this week, in Peña-Rodriguez v. Colorado, the U.S. Supreme Court held that where a juror has injected racial prejudice into jury deliberations, the government may not constitutionally invoke a Colorado evidence rule—followed in federal courts and most other U.S. jurisdictions as well—to bar jurors from testifying about their deliberations in order to call their verdict into question. The Court struggled to explain how and why its holding regarding Peña-Rodriguez’s Sixth Amendment rights applies only to cases of racial bias and not to cases involving all sorts of other biases. The Court accordingly appears to have imported an equal protection standard into its Sixth Amendment jurisprudence.
If so, the Peña-Rodriguez decision was foreshadowed by another Supreme Court case, Buck v. Davis, which was decided last month. There the U.S. Supreme Court held, among other things, that a criminal defense attorney provided constitutionally ineffective assistance of counsel (“IAC”) under the Sixth Amendment when he introduced into evidence at the sentencing phase of a trial the testimony and report of an expert, a psychologist who explicitly regarded the defendant’s race (African American) as a predictor of future violence. The Court reasoned that this was ineffective assistance because the one prerequisite to sentencing a defendant convicted of capital murder to death is that the jury find him likely to commit acts of violence in the future. In this column, I will examine whether what the attorney did in Buck would have been considered ineffective assistance if the issue of race had not been involved.
The procedural background of Buck is quite complicated, so I will provide only a brief summary here. The defendant, petitioner in the Supreme Court, was convicted of capital murder and sentenced to death in Texas. In his first post-conviction state proceeding (i.e., the proceeding that follows an unsuccessful direct appeal), his attorney failed to argue ineffective assistance of counsel. In his second state post-conviction petition, his attorney did argue ineffective assistance (on the basis of the trial attorney’s introducing the “African Americans are dangerous” evidence at sentencing), but the petition was dismissed on the procedural ground that the argument had not been made in his first petition. He then brought a petition for federal habeas corpus, in which he again raised the issue of ineffective assistance of trial counsel. Because he had failed to raise the issue in his first state post-conviction proceeding, however, the district court held that the petition was procedurally barred.
Though the district court’s decision was correct at the time, the U.S. Supreme Court subsequently decided two cases, Martinez v. Ryan and Trevino v. Thaler, that together allow a petitioner to overcome the procedural bar of not having properly made an IAC argument in his state post-conviction petition if he can show that his attorney in the state post-conviction proceeding was constitutionally ineffective and that his claim had some merit (i.e., was a substantial claim). On the basis of these decisions, Buck petitioned under Federal Rule of Civil Procedure (“FRCP”) 60(b)(6) for the district court to reopen his federal habeas case and grant his petition. The district court denied his motion, finding that he had failed to show the “extraordinary circumstances” required for relief under FRCP 60(b)(6). He appealed to the Fifth Circuit, which refused to grant a certificate of appealability (COA), necessary to proceed with an appeal, also on the ground that he had failed to show “extraordinary circumstances” required under 60(b)(6).
The U.S. Supreme Court Cuts Through the Procedural Morass
The U.S. Supreme Court found, among other things, that the Court of Appeals erred in its COA analysis by considering the merits of Buck’s claims rather than limiting itself to the standard, under which a COA should be granted if the answer to the question posed by the case is reasonably debatable. If it is reasonably debatable, then an appeal on the merits should follow. The appeals court therefore should not have denied a COA, found the Supreme Court, because the question whether the district court properly disposed of the petitioner’s claim (that there were extraordinary circumstances) was subject to reasonable debate, which the Supreme Court also believed that it was.
So the Supreme Court, after faulting the lower courts for improperly erecting procedural barriers to the hearing of the merits of Buck’s case, reached the merits and held that Buck’s trial counsel was constitutionally ineffective for having introduced evidence that African Americans (such as the petitioner) are statistically likely to be dangerous in the future. (As the dissent points out, though, the Court did not specifically say that Buck’s first state post-conviction counsel was constitutionally ineffective for failing to claim that his trial counsel was constitutionally ineffective, so that issue remains to be resolved on remand.) Though the mention of race did not take up a large amount of time during the trial, the Supreme Court found that the toxin of this racial stereotype about black violence is highly potent even at low doses.
To be fair to Buck’s trial attorney, it is worth noting that the expert he called to testify for the sentencing hearing concluded in his report that the defendant, Duane Buck, was not likely to be dangerous in the future. Notwithstanding this conclusion, however, the expert did say—with the attorney’s prompting—that the defendant’s race made him statistically likely to be dangerous in the future. The report of the expert, in which he made a similar claim, also came into evidence at the close of his testimony.
What If It Wasn’t Race?
It is easy to agree with the Supreme Court majority’s statement that “[n]o competent defense attorney would introduce” evidence that his client’s race makes him more likely to be dangerous in the future, particularly “[g]iven that the jury had to make a finding of future dangerousness before it could impose a death sentence.” In Texas, if the government fails to convince the jury beyond a reasonable doubt and unanimously that a defendant convicted of capital murder is dangerous, then the jury cannot sentence him to death. Rather than forcing the government to prove dangerousness, however, (which it arguably did anyway, on the basis of the hideous facts of the murders committed), Buck’s defense attorney offered such evidence for the government, proving that Buck’s race made him more likely to be violent in the future, a factor that—even if unaccompanied by other dangerousness evidence—could have opened the door to a death sentence by the jury.
It did not help matters that this particular expert witness, psychologist Dr. Quijano, had testified similarly in six separate cases (including Buck’s), and the government had taken the highly unusual step of confessing error in the other five cases and agreeing to resentencing. In those cases, the government rather than the defense had introduced Dr. Quijano’s findings about race and dangerousness, and the government took the position that this made Buck’s case different. From the Supreme Court’s perspective, however, this made Buck’s case worse, because the jury would understand the prosecutor’s motives—and therefore perhaps take with a grain of salt its expert’s testimony—to make the defendant sound bad. Coming from the defense, however, an expert saying that someone of the defendant’s race was statistically likely to become violent in the future would have extra credibility because it would function as a kind of admission against interest.
Let us consider the evidence, however, without the taint of race. Plainly, race is important here because the idea that black men are violent plays into an existing stereotype that could therefore have driven the jury to fear the defendant in a way that was perhaps disproportionate to the proper impact of the evidence. Let us imagine that instead of identifying the statistical correlation between race and future violence, Dr. Quijano had instead first testified that it was his conclusion that Buck was unlikely to be violent in the future and then added (in testimony and in a written report entered into evidence) that Buck had an extremely high IQ of 160 and that people who have been violent in the past with that high an IQ are statistically likely to become violent again in the future.
Note the combination of helpful and harmful evidence. It is, of course, the defense’s job in a Texas capital sentencing proceeding to try to resist the claim that the defendant is dangerous, because dangerousness paves the way to a death sentence. To do that job, the defense will likely want to seek out an expert who will say that he has examined the defendant and found him unlikely to be violent in the future. In my hypothetical case (as in the real one), the defense found just such an expert (notwithstanding the shocking violence of the defendant’s murders), but the expert did not have exclusively good news for the defense. He thought the defendant was not dangerous, but he did view the defendant’s extremely high IQ as one factor pointing to a likelihood of future violence. Given his bottom line assessment—that, notwithstanding statistical factors to the contrary, the defendant was not dangerous—couldn’t an attorney conclude that he was better off with this evidence than without it? Mightn’t this be especially true if the alternative to presenting expert testimony is leaving the government to present the horrifying facts of the defendant’s crimes as pointing to future dangerousness?
The U.S. Supreme Court found that not only was Buck’s trial counsel ineffective, but the poor performance in this case likely prejudiced the outcome of the sentencing proceeding. Here I want to suggest that but for the fact that the factor in question (that allegedly correlated with dangerousness) was race, it would not even be clear that the attorney performed poorly. It certainly would not be obvious, as it was to the Chief Justice, that “[n]o competent defense attorney would introduce such evidence about his own client.”
Given the importance of race, if one accepts my argument, this case is best described as an amalgam of ineffective assistance of counsel and equal protection. It is because race is a suspect classification, because of its special and toxic role in our history and our ongoing struggles for equality, that drawing attention to a correlation between race and violence represents terrible lawyering on the part of Buck’s trial attorney and would almost certainly have had an impact on a jury’s thinking. Discussing the matter as purely an IAC question leaves out this significant feature and leaves the opinion vulnerable to the critique that says that putting on an expert witness who has both helpful and harmful testimony to offer does not obviously violate the defendant’s right to competent representation nor is it possible to say with any confidence that presenting such a mixed witness would necessarily prejudice the outcome of a sentencing proceeding.