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  • Kaitlin Bigger

Update: Supreme Court Overturns Death Sentence in Buck v. Davis, Finding Ineffective Assistance of C

Updated: Oct 24, 2023

On February 22, 2017, Chief Justice John Roberts of the United States Supreme Court issued an opinion vacating and remanding Buck v. Davis. Duane Buck, an African American, was sentenced to death by a Texas jury in 1997 after his defense attorney introduced an expert witness at trial who testified that Buck would be a future danger to society because of his race. In order to sentence a defendant to death in Texas, during the sentencing phase of a capital trial, the jury must unanimously find that there is a probability that the defendant will commit criminal acts of violence in the future that pose a threat to society. The Supreme Court heard oral arguments in the case on October 5, 2016, during which Buck’s attorney, Christina Swarns, argued that because Buck’s trial counsel was so ineffective by allowing jurors to hear racially provocative testimony that was in direct reference to the critical issue of future dangerousness, Buck’s death sentence must be vacated. In the alternative, Texas Solicitor General Scott Keller argued that the testimony was insufficient to overcome the other evidence of Buck’s future dangerousness and, therefore, counsel’s conduct did not prejudice the outcome of Buck’s trial.

The Sixth Amendment to the U.S. Constitution requires, among other things, that a criminal defendant receive assistance of counsel for his defense. The right to appointed counsel was first recognized in capital cases in Powell v. Alabama. However, the Court only found the appointment of counsel necessary when an indigent capital defendant was incapable of adequately defending himself due to ignorance, illiteracy, or incompetence. Six years later, the Court abandoned the approach outlined in Powell and found that federal courts have to appoint counsel to any criminal defendant in the case Johnson v. Zerbst. It was not until Gideon v. Wainwright that the Court applied the right to counsel to any criminal case involving a prosecutor.

While the Sixth Amendment does not enumerate the right to effective counsel, the Supreme Court in McMann v. Richardson found that defendants must receive adequate counsel for the Sixth Amendment to serve its purpose of guaranteeing a fair trial. How to demonstrate that a defendant received ineffective assistance, however, continued to be of significant debate until the landmark case of Strickland v. Washington established the test for answering that question. The test has two prongs, each of which must be satisfied in order for a defendant’s conviction or death sentence to be reversed. First, the defendant must demonstrate that his counsel’s performance was deficient. The Court found that counsel’s performance should be evaluated by asking whether counsel’s assistance was reasonable under the surrounding circumstances. After meeting that requirement, the defendant must then show that his counsel’s performance was so deficient, it prejudiced the defendant’s right to a fair trial.

After applying the Strickland test to the facts of Mr. Buck’s case, the Court ultimately agreed with Ms. Swarns and found that Buck’s death sentence was prejudiced by ineffective assistance of counsel and racial discrimination. The Court found that an adequate defense attorney would never introduce evidence that the defendant’s skin color should be a factor as to whether or not he was deserving of execution. Thus, Buck demonstrated that his counsel performed deficiently and satisfied the first prong of the Strickland test. The second prong of the Strickland test requires that a defendant show that his counsel’s ineffective assistance prejudiced the outcome of the proceeding. The Court also concluded that Buck satisfied the second prong by showing that Buck’s trial attorney offered “offending evidence” that the jury was likely to take at face value because it was introduced by the defendant’s own counsel. Since Buck satisfied each prong of the Strickland test, the Court concluded that the Fifth Circuit Court of Appeals erred in denying Buck’s Certificate for Appealability.

While the decision represents a hard-fought victory for Buck, it also illustrates the persistence that ineffective assistance of counsel has on the criminal justice system. Buck pursued numerous appeals over a twenty year period before the Supreme Court finally agreed that the performance of Buck’s trial counsel, and their decision to introduce testimony that linked Buck’s race with his potential dangerousness, unfairly prejudiced the disposition of his trial. This case highlights the need for adequate and effective defense representation at the very start of a capital trial to ensure fair and equal justice when a life is at stake. The Supreme Court itself has recognized through numerous decisions that the death penalty is different in kind from any other type of punishment because of its finality. Thus, it is incredibly important that safeguards against human error, including protections against inadequate counsel, be in place in capital trials when the penalty sought or imposed is irrevocable.

Ensuring that persons facing the death penalty or incarceration receive the highest quality representation possible should be the goal of every state bar and judiciary in the country. To achieve that goal, each state should require that defense lawyers adhere to the Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”) promulgated by the American Bar Association first in 1989 and revised in 2003. The guidelines thoroughly outline essential duties that adequate defense counsel should perform during the guilt and penalty phases of a capital trial all the way through the clemency process. In Strickland, the Supreme Court recognized the value of the ABA Standards of Criminal Justice, guidelines similar to those promulgated in 1989 and 2003. However, while acknowledging that the standards represent prevailing norms that are useful in deciding what reasonable defense representation entails, the Court failed to require that defense counsel strictly follow the guidelines.

Nearly three decades after Strickland was handed down, each court continues to review claims of ineffective assistance under its own standard for reasonableness, leading to extraordinary cases like that of Duane Buck remaining uncured for twenty years. Emily Olson-Gault, Director of the American Bar Association’s Death Penalty Representation Project, noted that in order for a plan aimed at improving the quality of defense counsel to be successful, it must be uniformly applied. If every state required defense counsel to follow the ABA Guidelines, defendants would have a greater chance of identifying on appeal exactly where or how defense counsel failed to provide effective assistance of counsel, meeting the “high bar” that the first prong of the Strickland test imposes. Not all claims have merit, but lessening the burden on defendants would help ensure that a single instance of racial bias does not continue to plague a capital trial beyond the first appeal. In Buck’s case, ABA Guideline 10.7 may have been beneficial to his claim for ineffective assistance of counsel, as the commentary to the Guideline requires investigation into evidence of legal issues such as racial discrimination in the imposition of the death penalty. Without requiring adherence to the ABA Guidelines, there will likely be many more capital defendants, like Buck, who will have to continue to seek relief from an unfair trial long after their first night on death row.


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