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Briefs Come in for Controversial Case on Race and Death Penalty

Briefs are starting to trickle into the Supreme Court in the case of Buck v. Davis, a death penalty case that promises to be one of the more important decisions of the upcoming term. Duane Edward Buck, who is African American, was sentenced to death in 1997, after one of his defense's own experts claimed that Buck was more likely to reoffend because of his race.

Now, Buck's attorneys and several amici are arguing that he deserves to have his punishment reconsidered, given the extraordinary circumstances surrounding his sentencing.

Who's Side Are You On, Now?

Buck was sentenced to death in Texas for the 1995 murder of his ex-girlfriend. Under Texas's capital sentencing rules, for a death sentence to be imposed, a unanimous jury must find that a defendant is likely to commit violent crime in the future. At Buck's trial, his attorney called Walter Quijano, a psychologist, to testify on Buck's behalf.

Things didn't work out how you might expect. Quijano testified that Buck was more likely to be dangerous in the future because of his race. From the stand, Quijano explained that "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system." That statement alone might be relatively innocuous, but when prosecutors asked Quijano straight-out if Buck's race increased his future dangerousness, he responded with a simple "Yes." Buck's lawyers did not object.

You don't get too much closer to the dictionary definition of racism than Quijano's testimony. But what's more shocking is that Quijano said as much while testifying for the defense.

Certificate of Appealability and Extraordinary Circumstances

Buck is currently seeking to have his death sentence overturned, on the grounds that his counsel was ineffective for knowingly inducing Quijano's testimony on race and future dangerousness. But the exact question at hand is slightly narrower: the standard the Fifth Circuit employed when reviewing whether Buck was entitled to a Certificate of Appealability, which would allow his ineffective assistance of counsel claim to be reviewed.

In his most recent appeal, Buck had sought relief under Federal Rule of Civil Procedure 60(b)(6), given his ineffective counsel claims. That rule allows courts to offer relief from a final judgment in extraordinary circumstances. The Fifth noted that there was "little guidance as to what constitutes 'extraordinary circumstances,'" but found that Buck's case didn't meet that bar. He had not "made out even a minimal showing that his case is exceptional," according to the Fifth.

Buck's Supreme Court filings obviously disagree. In his petitioner's brief, filed at the end of July, Buck's attorneys detail 11 extraordinary circumstances, from the presentation of Quijano's testimony to the Texas attorney general's acknowledgment that such testimony ran afoul of the constitution.

But Buck's situation is not entirely unique, as five amicus briefs filed last Thursday flesh out. An amicus brief filed by the National Black Law Students Association, for example, details the history of stereotypes equating black skin with dangerousness, urging the Court to allow Buck to appeal his sentence, one corrupted by overt reliance on the defendant's race. In a separate amicus filing, former prosecutors criticized Texas's attorney general for reneging on a promise to review Buck's case, while a filing by defense attorneys argued that the Fifth routinely and unduly denies certificates of appealability.

Texas's reply is expected in the near future and Buck's case is to be argued in early October.

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