Race & Future Dangerousness: Part 3

In a 6-2 decision, the Supreme Court of the United States held that the Fifth Circuit exceeded the limited scope of the COA analysis. The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course.  At the first stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or could conclude the issues presented are adequate to deserve encouragement to proceed further.” Here, the Fifth Circuit phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting the petitioner for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue. The State points to the Fifth Circuit’s thorough consideration of the merits to defend that court’s approach, but this hurts rather than helps its case.

Buck demonstrated ineffective assistance of counsel. To satisfy the test, a defendant must first show that counsel performed deficiently.  Trial counsel knew that Dr. Quijano’s report reflected the view that race predisposed him to violent conduct and that the principal point of dispute during the penalty phase was future dangerousness. Counsel nevertheless called Dr. Quijano to the stand, specifically elicited testimony about the connection between race and violence, and put Dr. Quijano’s report into evidence. No competent defense attorney would introduce evidence that his client is liable to be a future danger because of his race.

But for counsel’s “specifically eliciting testimony about the connection between race and violence”, counsel’s decision would have likely been written off as a reasonable strategy. Otherwise, the expert’s testimony that Buck was “unlikely to present a future danger” would have been helpful to the defense. On the other hand, this writer believes from firsthand experience that jurors too often disregard testimony and jury instructions and convict (or acquit) based on their own subjective preferences.