U.S. Supreme Court Hears Argument in Buck v. Davis, Texas Case Dealing With Racist Testimony

The U.S. Supreme Court heard oral argu­ment on October 5 in Buck v. Davis, a Texas case in which Duane Buck was sen­tenced to death after his own lawyer pre­sent­ed expert tes­ti­mo­ny from a psy­chol­o­gist who called Buck more like­ly to com­mit acts of vio­lence in the future because he is Black. 

While Cecilia Marshall, wid­ow of Thurgood Marshall, and Buck’s step­sis­ter, Phyllis Taylor — a sur­vivor of the shoot­ing — observed from the audi­ence, Buck’s coun­sel told the Court that the jury had sen­tenced Buck to death penal­ty based upon ​“a false and per­ni­cious group-based stereo­type” that equat­ed being Black with being dan­ger­ous. Each of the sev­en jus­tices who spoke dur­ing the hear­ing sharply crit­i­cized tri­al coun­sel’s con­duct, with Justice Samuel Alito say­ing ​“what occurred at the penal­ty phase of this tri­al is indefensible.” 

Six oth­er defen­dants whose cas­es had been taint­ed by sim­i­lar­ly biased tes­ti­mo­ny by the same psy­chol­o­gist have already received new sen­tenc­ing hear­ings, but Buck has not. Texas argued that Buck’s case is unique because his defense attor­ney, not pros­e­cu­tors, invit­ed the biased tes­ti­mo­ny. Buck’s attor­neys pre­vi­ous­ly sought review of his case on the grounds that his lawyer was inef­fec­tive, but the U.S. Court of Appeals for the Fifth Circuit denied Buck a ​“Certificate of Appealability” (COA), which allows a defen­dan­t’s claims to be heard on the mer­its by an appeals court. 

During argu­ment, the Justices raised con­cerns about the dis­parate rates at which Circuit Courts grant COAs. The Fifth Circuit denies them in about 60% of cas­es, while the Eleventh and Fourth Circuits deny them in only 6% and 0% of cas­es, respec­tive­ly, mean­ing that defen­dants in the Fifth Circuit receive less review of their claims than those in the Eleventh or Fourth. 

Justice Elena Kagan said, “[I would assume] you think this is such an extra­or­di­nary case, and that the 5^th Circuit got this so wrong, that it’s the best proof that there is that the court is approach­ing the COA inquiry in the wrong way.” Justice Stephen Breyer agreed, say­ing, ​“It seems to me it proves the arbi­trari­ness of what’s going on.” (Pictured: Buck’s lead coun­sel, NAACP Legal Defense Fund Litigation Director Christina Swarns, being inter­viewed on the steps of the Court.)