Duane Edward Buck’s lawyers were a disaster.
After Buck was convicted of murder, his own attorneys retained a now-discredited psychologist who testified that Mr. Buck is more likely to be a danger to society in the future because he is black. This testimony then went unchallenged at a later, crucial state court proceeding even though Buck was then represented by a new lawyer. The only new claim that lawyer raised at this proceeding was “based on a non-existent provision of the penal code.”
Now, nearly two decades after his conviction, no court has considered whether the racist testimony elicited at Buck’s trial caused him to be sentenced to death. Moreover, thanks to errors committed by his previous lawyers and an array of laws and legal doctrines that often elevate the finality of convictions ahead of the need to ensure that innocents are not punished and that the death penalty is not doled out unnecessarily, it is far from clear that any court will examine the impact of this racist testimony before Mr. Buck is put to death.
The specific legal issue in Buck v. Stephens is complex enough to make a lawyer’s brain bleed. Specifically, Mr. Buck is seeking permission to seek a determination of whether “extraordinary circumstances” exist that would permit a lower court to determine whether the racist testimony elicited by his own counsel prejudiced the outcome of his sentencing proceeding. If he somehow succeeds in navigating this maze, he wins a new sentencing hearing — which could very well determine that he should be re-sentenced to death.
It’s a giant procedural mess. And it’s a mess that Texas, at one point, appeared willing to set aside. In 2000, then-Texas Attorney General John Cornyn (now a U.S. Senator) determined that Dr. Walter Quijano, the psychologist who testified in Buck’s case, had a record of appearing in capital sentencing proceedings and offering racist testimony. In Buck’s case, Quijano testified that African-Americans and Hispanics are especially likely to be dangerous as they are “over represented in the Criminal Justice System.”
This is not simply a case of ineffective assistance of counsel, this is a case of ineffective assistance of counsel aggravated by even more ineffective assistance of counsel.
Cornyn’s office found six additional cases where Dr. Quijano offered similar testimony, and it announced that it “will not object” if the inmates sentenced to die in these cases “seek to overturn the death sentences based on Mr. Quijano’s testimony.” As Cornyn’s office admitted in a brief filed in one of these cases “infusion of race as a factor for the jury to weigh in making its determination violated [a defendant’s] constitutional right to be sentenced without regard to the color of his skin.”
Nevertheless, when Buck sought relief from his death sentence four years later in federal court, the state did not keep its promise. Texas now claims that Buck’s case differs from the other six cases specifically because Dr. Quijano’s racist conclusions were placed before the jury by Buck’s own counsel. As Justice Samuel Alito argued in a 2011 opinion explaining why he did not believe that the Supreme Court should have heard a previous iteration of Buck’s case, “only in Buck’s case did defense counsel elicit the race-related testimony on direct examination. Thus, this is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.”
That may very well be true, but it is an odd conclusion for a judge charged with interpreting a Constitution that not only forbids race discrimination in sentencing, but that also forbids sentencing someone to die without adequate assistance of counsel. Buck argues that he is the victim to two overlapping constitutional violations — he did not receive adequate assistance of counsel and, for that very reason, his own lawyer introduced unconstitutional evidence against him. Justice Alito, by contrast, appears to claim that the first of these two constitutional violations excuses the second.
In fairness, the real reason why Buck has previously been unable to assert his claim that he received ineffective legal assistance is a bit more complicated. For this is not simply a case of ineffective assistance of counsel, this is a case of ineffective assistance of counsel aggravated by even more ineffective assistance of counsel.
In 1999, some time after Buck received a death sentence, a new lawyer was appointed to represent the inmate in state habeas proceedings — a round of proceedings Texas state law permits for individuals seeking to challenge a death sentence. That lawyer, according to the petition now pending before the Supreme Court, “had a history of deficient representation of death-sentenced prisoners,” including one case where he “threw his client ‘under the bus’ by filing an initial state habeas application that was ‘only four pages long and merely state[d] factual and legal conclusions.’”
While Buck’s original lawyers’ sin was a sin of commission — that is, they were the ones who introduced Dr. Quijano’s racist testimony — the new lawyer’s sin was a sin of omission. The new lawyer did not challenge the original legal team’s decision to present Quijano’s testimony to the jury. That failure to assert what may be Buck’s strongest legal claim at a relatively early stage in this litigation had devastating consequences once Buck’s case reached federal court. As a federal district judge explained, Buck’s claim that his original lawyers screwed up was “procedurally defaulted” because his new lawyer failed to raise this claim soon enough. Thus Buck risks losing the ability to assert this claim forever.
Then, in 2013, Buck finally got a piece of good news. In a pair of cases, Martinez v. Ryan and Trevino v. Thaler, the Supreme Court held that there should be a “narrow exception” to the previously existing rule that “an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Thanks to these decisions, Buck now has a shot at overcoming the two rounds of ineffective legal representation he received over a decade ago.
To be sure, the path ahead for him will not be easy. Buck still must navigate a maze of procedural obstacles, and his only chances of finding the end of this maze depends on legal doctrines that use phrases like “narrow exception” and “extraordinary circumstances.” Buck’s path to relief from his death sentence is riddled with obstacles that very few litigants manage to surmount.
Which brings us to the final irony in Mr. Buck’s case. At the earliest stages of the many rounds of litigation concerning his sentence, Buck faced none of these nearly insurmountable procedural obstacles. And yet he appears to have received two rounds of unconstitutionally ineffective legal assistance.
Now, however, when Buck is hemmed in by almost immovable legal barriers, he is backed by a simply staggering array of legal talent. The team of attorneys representing Buck in the Supreme Court includes six lawyers from the NAACP Legal Defense Fund, the historic civil rights organization founded by future Justice Thurgood Marshall. It also includes a partner in a large law firm who previously clerked for a Supreme Court justice. That’s enough legal firepower to level a mountain.
This is not an uncommon practice in capital cases, where high-octane lawyers frequently take over cases that present issues worthy of Supreme Court review years after a death row inmate received far-from-outstanding representation.
Excellent attorneys — and certainly, the kind of extraordinary attorneys who now represent Mr. Buck — are a sparse resource. It’s not realistic to expect lawyers of the caliber of his current legal team to represent every criminal defendant who faces a death sentence. Nevertheless, there is something profoundly misguided about a system that assigns such defendants’ lawyers who aren’t even minimally adequate when those defendants need good lawyers the most.
Mr. Buck’s case, in other words, is a tale of racism compounded by double standards, poor legal representation, and a system that often says that it is more important to have certainty in death sentencing than it is for courts to reach the proper result. And now that he finally has more-than-adequate representation, Buck could very well learn that the cavalry arrived too late.