The applicable test further requires a defendant to demonstrate prejudice—”a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” It is reasonably probable that without Dr. Quijano’s testimony on race and violence, at least one juror would have harbored a reasonable doubt on the question of his future dangerousness. This issue required the jury to make a predictive judgment inevitably entailing a degree of speculation. But Buck’s race was not subject to speculation, and according to Dr. Quijano, that immutable characteristic carried with it an increased probability of future violence. Dr. Quijano’s testimony appealed to a powerful racial stereotype and might well have been valued by jurors as the opinion of a medical expert bearing the court’s imprimatur. For these reasons, the District Court’s conclusion that any mention of race during the penalty phase was de minimis is rejected. So is the State’s argument that the petitioner was not prejudiced by Dr. Quijano’s testimony because it was introduced by his own counsel, rather than the prosecution. Jurors understand that prosecutors seek convictions and may reasonably be expected to evaluate the government’s evidence in light of its motivations. When damaging evidence is introduced by a defendant’s own lawyer, it is in the nature of an admission against interest, more likely to be taken at face value.
The District Court’s denial of Buck’s Rule 60(b)(6) motion was an abuse of discretion. Relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Determining whether such circumstances are present may include consideration of a wide range of factors, including “the risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” The District Court’s denial of Buck’s motion rested largely on its determination that race played only a de minimis role in his sentencing. But there is a reasonable probability that he was sentenced to death in part because of his race. This is a disturbing departure from the basic premise that our criminal law punishes people for what they do, not who they are. That it concerned race amplifies the problem. Relying on race to impose a criminal sanction “poisons public confidence” in the judicial process, a concern that supports Rule 60(b)(6) relief. The extraordinary nature of this case is confirmed by the remarkable steps the State itself took in response to Dr. Quijano’s testimony in other cases. Although the State attempts to justify its decision to treat the petitioner differently from the other five defendants identified in the Attorney General’s public statement, its explanations for distinguishing his case have nothing to do with the Attorney General’s stated reasons for confessing error in that case.
The Government’s argument regarding the retroactive application of a new rule of law has been waived. The State failed to advance it in District Court, before the Fifth Circuit, or in its brief in opposition to Buck’s petition for certiorari.
It is amazing that a procedural error made by the State on appeal, i.e. an error that has nothing to do with the merits of the case, is what ended up sparing Buck’s life. While many states permit the death penalty, relatively few actually impose it. Texas is a state with a reputation for imposing it more often than the vast majority. Ironically, the one black Justice on the Supreme Court, Clarence Thomas, authored the dissenting opinion in favor of putting Buck to death.
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