Advocates will often persuade the United States Supreme Court to hear a case by asking it to resolve what are known as circuit splits—situations in which a court of appeals for one federal circuit has articulated an interpretation of the law that conflicts with that of another circuit.
In one high-profile Supreme Court case now awaiting decision, two Columbia Law School students helped a death-row inmate do that—but with a remarkable twist. The students played a major role documenting a circuit split that required them to go beyond the text of circuit court opinions to see how a legal standard is being applied in practice. Although the judges of the U.S. Court of Appeals for the Fifth Circuit were reciting the same legal standards as judges in other circuits, in practice they were reaching radically different results, the students helped to show.
The research, performed last year by Rachel M. Wagner ’17 and Andrew J. Simpson ’16, was conducted as part of their work in Columbia Law School’s year-long externship called Constitutional Rights Enforcement in Capital, Habeas, and Prison Cases. The students’ findings have now become potentially crucial data in a significant case known as Buck v. Davis, heard on Oct. 5, 2016, in which Duane Buck, an African-American prisoner, seeks resentencing on the grounds that overtly racist expert testimony was used against him at his capital sentencing hearing nearly 20 years ago.
In July 1995 Mr. Buck went to the home of his ex-girlfriend. There, he shot her to death, along with a man whom he believed she was dating.
He was convicted after trial in 1997. But at his sentencing hearing, his own defense attorney called as an expert a psychologist who gave what everyone now acknowledges was indefensible, racially biased testimony. The psychologist, Walter Quijano, testified that because Mr. Buck was black, he was more “likely to commit acts of violence in the future,” an aggravating factor that Texas juries must unanimously find to exist before they can sentence a defendant to death. The prosecutor then re-elicited the biased testimony on cross-examination. During its deliberations the jury asked for, and received, Quijano’s written report, which contained the same racially charged assertion.
Mr. Buck’s current attorneys are led by Christina Swarns at the NAACP Legal Defense & Educational Fund (LDF) and include Kathryn Kase and Kate Black at Texas Defender Service; Samuel Spital, a partner in Holland & Knight's New York Litigation Group, who co-teaches the Law School’s externship; Natasha Merle, a Fried Frank Fellow at LDF; and Raymond Audain, a senior counsel at LDF. Mr. Buck’s attorneys contend that he received ineffective assistance of counsel at trial, in violation of his Sixth Amendment rights, and that the state’s reiteration of the racially offensive testimony also violated his Fourteenth Amendment right to equal protection.
At first glance, Mr. Buck’s case might look like a slam-dunk. In fact, in June 2000, then-Texas attorney general John Cornyn pledged not to oppose resentencing in seven capital cases that had been tainted by Quijano’s racist testimony. Though six of those prisoners did, later, receive new sentencings, Mr. Buck did not because the state reneged on its pledge.
Mr. Buck’s obviously disturbing underlying claim has been stymied beneath a tangle of procedural waivers and defaults. When he brought his first habeas corpus challenge to his conviction in state court in 1999, his then attorney—in what his current counsel say was yet another instance of incompetent lawyering—failed to raise Quijano’s testimony as an issue, thereby waiving it under Texas law.
In 2004, Mr. Buck brought up Quijano’s testimony in a habeas corpus action filed in federal court in Houston. But, at that time, Mr. Buck’s prior counsel’s waiver of the issue in state court precluded the federal habeas court from considering it. That rule was relaxed by a subsequent Supreme Court, and Mr. Buck’s new attorneys have since attempted to reopen his federal habeas case. To do so, they must show that the case involves “extraordinary circumstances.”
In 2014, a Houston federal judge denied Mr. Buck relief, finding that he hadn’t met that burden. Though the judge acknowledged that Mr. Buck’s trial lawyer’s decision to call Quijano as an expert was constitutionally deficient, she concluded that the tainted testimony could have had only a “de minimis” (i.e., trivial) impact on the jurors. Mr. Buck’s attorneys contend that the district court’s “de minimis” conclusion is untenable based on a long line of precedent recognizing the prejudicial impact of appeals to racial bias, especially in capital cases involving predictions of future dangerousness.
At that point, however, yet another procedural hurdle arose to block Mr. Buck’s path. In a federal habeas case, a petitioner has no automatic right to appeal. Instead, to appeal he must first obtain a certificate of appealability (COA) from either the district judge who ruled against him or the appeals court. COAs are supposed to be granted, according to Supreme Court precedent, if the issue being raised is “debatable” by reasonable jurists.
In Mr. Buck’s case, both the trial judge and the Fifth Circuit denied the COA he needed.
“Sam [Spital] had a hunch,” recounts then-Columbia Law School student Simpson in an interview, “that the Fifth Circuit’s standard for granting COAs—the way it was being applied—was off.”
Under Spital’s supervision, and working with LDF attorney Natasha Merle, Wagner and Simpson then conducted research to compare the rate at which COAs were granted in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, to the rate in the neighboring Eleventh Circuit, which contains Alabama, Georgia, and Florida. Simpson explored the Fifth Circuit’s record over the past five years, while Wagner dug into the Eleventh Circuit’s.
“Sam was far more right than he knew,” says Simpson, who is now a litigation law clerk in the New York office of Ropes & Gray. Their completed work—whose accuracy has not been challenged in the Buck case—showed that in the Fifth Circuit COAs were denied 58.9 percent of the time (in 76 out of 129 capital habeas appeals) while in the Eleventh Circuit the denial rate was just 6.3 percent (seven times out of 111 cases).
“We were shocked,” recalls Wagner, who will work as a public defender in New Jersey next year. “At first I honestly thought we were doing it wrong, because the difference was so pronounced. I was excited, though disturbed. This had been going on for years and years.”
To further check their results, the students also tracked down the COA statistics for the Fourth Circuit (which includes South Carolina, North Carolina, Virginia, and Maryland). There, over the same period, COAs had never been denied in the 12 instances in which they’d been sought.
Mr. Buck’s attorneys highlighted these statistics in their briefs, suggesting that the Fifth Circuit’s standard for granting COAs was anomalous, and that its denial of one in Mr. Buck’s case was clearly erroneous.
At the October oral argument, many justices seemed troubled by various aspects of Mr. Buck’s case. Supreme Court Justice Elena Kagan voiced particular concern about the statistical disparity the law students had exposed between the Fifth and Eleventh Circuit practice in terms of granting COAs. “I mean, it does suggest one of these two circuits is doing something wrong,” she said. “
"Both these students did a fantastic job,” Spital said in an interview, about Simpson's and Wagner’s work. A law school externship or clinic “is ideally situated to work on research like this. It’s hard when litigating to devote the resources to do something like this yourself.”
A ruling in Buck v. Davis could be handed down at any time.
# # #
Posted December 17, 2016