Significant Decisions Report for February 24, 2017


United States Supreme Court

Buck v. Davis (Death Penalty, Texas)

Duane Buck was convicted of capital murder in Texas. During the punishment phase, Buck’s attorney presented the testimony of one Dr. Walter Quijano, who submitted an expert report that indicated Buck was of “increased probability” of reoffense due to his race. The prosecution picked up on this, used it, and argued the point in final arguments.

This case mirrors Saldano v. Texas, 530 U.S. 1212 (1999), where the Supreme Court vacated a conviction in which Dr. Quijano testified that due to Saldano’s Latin American ethnicity he was at a higher risk of reoffense. The Texas Attorney General’s Office identified six (6) in which Quijano testified similarly, and in every case but Buck’s, the AG confessed error and agreed to resentence those individuals.

Chief Justice Roberts delivered the opinion of the Court, in which he was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Interestingly, Buck’s ineffective assistance of counsel claim has never been decided on its merits before this week, because of arcane procedural default rules. However, two important decisions (Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. ___ (2013)) have changed significantly the procedural default landscape. The District Court denied the motion to reopen the case, the Fifth Circuit declined to grant a certificate of appealability (COA), and the case has thus reached the United States Supreme Court.

Cutting through a lot of the legal analysis reserved for procedural default, the question for the reviewing court in whether to grant a COA is not whether the petitioner would have prevailed on the merits in the district court, but rather whether the district court’s decision was “debatable.” The dissenters argue that a “non-debatable” decision is, a fortiori, meritless. The majority takes a different view: a prisoner who fails to make an ultimate showing that his claim meritorious does not thereby show that his claim was non-debatable. The Fifth Circuit, in Buck’s case, decided first whether the claim was meritorious. Chief Justice Roberts wrote that this “placed too have a burden on the prisoner at the COA stage.” (Slip op. at 14, emphasis in original).

Ineffective assistance of counsel claims are always judged by the Strickland v. Washington two-prong standard: (1) did the attorney’s representation fall so far short of the minimum standard of professional competence that no reasonably competent defense attorney would have engaged in such actions; and (2) did the attorney’s deficient representation cause actual prejudice to the defendant? In a single paragraph, Chief Justice Roberts lays out that “[n]o competent defense attorney would introduce [evidence that black people have an increased probability of future dangerousness] about his own client.” I have to agree with the Chief Justice.

The second prong can be rebutted in death penalty cases in only one way – absent the deficient representation, would the defendant still have been sentenced to die? Chief Justice Roberts says:

Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race. This effect was heightened due to the source of the testimony. Dr. Quijano took the stand as a medical expert bearing the court’s imprimatur. The jury learned at the outside of his testimony that he held a doctorate in clinical psychology, had conducted evaluations in some 70 capital murder cases, and had been appointed by the trial judge (at public expense) to evaluate Buck.

(Slip op. at page 19). Powerful phraseology by the Chief Justice, but it strikes at the very heart of what is essentially a subjective, fact-based inquiry. Too often courts are willing to excuse the inexcusable under standards like “harmless error” or “lack of prejudice” by pointing to the fact that there was other, probative evidence of Buck’s future dangerousness that the jury could have utilized to decide the case. When conducting a review such as this, the reviewing court is given no special insight as to what did, or did not, influence the jury. We may never know if Mr. Buck’s jury did or did not find Dr. Quijano’s testimony significant. But the nature of the evidence itself was such that a majority of the highest court in the nation found that it must be deemed unfairly prejudicial. Where the Fifth Circuit called Quijano’s blatantly racist statements “de minimis,” Chief Justice Roberts appropriately noted that “[s]ome toxins can be deadly in small doses” (slip op. at pages 19-20).

To reopen his case, Buck had to file a motion under Federal Rule of Civil Procedure 60(b), seeking to collaterally attack his conviction. He filed it under Rule 60(b)(6), the “catch-all” provision. Relief under this provision requires a demonstration of “extraordinary circumstances.” The district court denied relief under the theory that Quijano’s damaging testimony was de minimis. The Fifth Circuit remarked that Buck’s claim was “unremarkable as far as [ineffective assistance] claims go.”

Chief Justice Roberts spared little care for the feelings of the drafters of these rulings. He writes: “But our holding on prejudice makes clear that Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system:

Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. As petitioner correctly puts it, “[i]t stretches credulity to characterize Mr. Buck’s [ineffective assistance of counsel] claim as run-of-the-mill.”

(Slip op. at pages 21-22). As a practice note for my appellate-minded brothers and sisters, saying that a lower court’s decision “stretches credulity” is often a good way to find yourself on the outs with reviewing court judges, who, it must be remarked, are still judges, and rarely wish to be maligned in your next brief as similarly stretching credulity. On the other hand, in the appropriate context, it gets you quoted in the majority opinion by the Chief Justice, so as with all rules, follow it until it is time to break it.

Chief Justice Roberts noted that, in the other five “Quijano cases” (my term, not the Court’s), the State confessed error, and sought to distinguish Buck’s case because Quijano was sponsored by defense counsel. The Supreme Court disagreed, holding that it did not rightly care how race came to be a factor in sentencing, it was flatly prohibiting the use of race as a factor in the criminal justice system, something the State paid lip service to in its rationale for confessing error in Saldano.

Under the application of the new standard from Martinez and Trevino, then, ineffective assistance of habeas counsel provides a basis for relief if Buck’s case were to be reopened under Rule 60(b). The case is therefore remanded to the District Court to consider whether Buck received ineffective assistance of counsel (although, given that the Supreme Court has decided that he did, it seems a foregone conclusion that Mr. Buck will receive, at long last, an appropriate sentencing hearing). The State of Texas could do itself a lot of PR favors by simply agreeing to a resentencing hearing. If they have the true weight of the evidence, as they seem to think they do, then Buck will be resentenced to death and the State can sleep easier knowing due process was afforded to him. If Buck is not sentenced to die, but must remain in prison for the rest of his natural life, then we can all breathe easier that Texas is not going to kill a man because of his race.

Whatever one’s thoughts on the propriety of capital punishment (and it is a varied and nuanced issue, with compelling arguments from all sides), I think we can all agree that an additional sentencing hearing is a small price to pay to preserve due process.

Unless, that is, you are Justices Thomas and Alito, who argued that the majority “bulldozes procedural obstacles and misapplies settled law” to justify its “desired outcome.” The cynic in me wishes to remind Justices Thomas and Alito that this is very nearly what happens in every case, that our vaunted principles of reliance on stare decises are but a thin gloss over the reality that outcome-based reasoning drives most human decision-making, let alone legal decision-making, but such questions of philosophy aside, let us investigate the reasoning of Justices Thomas and Alito to see if perhaps the majority has misjudged the dissenters.

I confess that I am unpersuaded by Justice Thomas’s dissent, particularly Part A. Much hay is being made about the proper procedural steps to follow in determining whether the claims is (1) debatable and (2) meritorious. The certificate of appealability should be granted if the claim is debatable; that is, if reasonable jurists may find it worthy of argument. The ultimate disposition should come down to the merits.

The majority is correct in that a merits determination to decide whether something is debatable puts the cart before the horse. There are claims which are debatable that, in the ultimate analysis, are found wanting for merit. Justice Thomas plays a bit loose with “not meritorious” and “meritless” in his analysis. The Fifth Circuit should not, as a matter of procedure, determine that something is meritless to see if it is debatable. Per force, a meritless claim is not debatable, but there may be other reasons why something is not “debatable” that do not rely on a merits decision.

The inverse is not true, however. A debatable claim may be meritorious, not meritorious, or meritless. The majority first decides that the claim is debatable, and then proceeds to discuss the merits. That the Court found it meritorious does not change their earlier decision that the claim was debatable.

Justices Thomas and Alito would similarly decide the case against Buck – they found the State’s argument about Buck’s future dangerousness, irrespective of the admittedly-inappropriate testimony about race to be sufficient.

Which is why everyone’s carping about procedure seems to me to be much ado about nothing. Ultimately, both sides of the issue really want to address the merits. Six justices of the United States Supreme Court, including the Chief, find Buck’s claims meritorious, for the reasons stated above. Two justices do not. At issue is nothing more or less than Buck’s life. Even if the State does not persuade the jury on resentencing, Buck can do no better than life in prison. Society is not in any more danger from Buck. Buck’s future dangerousness has ceased to be the most important issue in this case. The only issue left is whether Quijano’s testimony (and, I might add, the State’s reliance upon it) was de minimis. Justices Thomas and Alito obviously believe it is. The justices in the majority think otherwise. End of story. To attempt to hide that fundamental disagreement behind baroque rules of procedure and deference to lower courts is what often confuses laypeople as they view cases like Buck’s case.

It is remarkable, however, how many times procedural default is used to wash judicial hands of the injustice of a wrongful conviction in the sense of preserving the abstract notion of the inviolability of law, when those same judicial hands often find loopholes and bends in the law to which their own pet causes can slip through. What I am suggesting is that, as law is a human activity, conducted by human judges, human frailties of reason (such as bias, prejudice, intellectual blindness, and so forth) will continue to mar our jurisprudence. This is an unavoidable condition of being human; we are not perfect, and thus nor may our systems be perfect. The existence of rules such as Rule 60(b)(6) are an attempt to acknowledge that no rule-based system can ever be complete (that is, able to decide all problems that arise under the rules) and consistent (that is, without contradiction). The mathematician Kurt Gödel described this with regard to mathematical systems, and I have seen little reason it cannot apply to any axiomatic system, including jurisprudence. Sometimes, when procedure is a barrier to justice, a little bulldozing is necessary. We ought not discount our sense of the moral, of what is right, to preserve an abstract system that we tolerate only insofar as it is a useful heuristic in resolving difficult disputes. Justice Thomas’s indignation that the process, and the actors in that process, are not being respected strikes me as an abdication of a Supreme Court Justice’s inherent authority as the last repose of American jurisprudence to sometimes do what is right, even if it does some violence to that jurisprudence. After all, a case that is limited to its facts may cause some consternation to appellate practitioners trying to come up with creative new arguments. A sentence of death carried out for pernicious reasoning ends a life that ought not have been ended. Balanced on the greater scale, I would rather spend two pages explaining a case limited to its facts than wonder if my state executed a man because of the color of his skin.

Court of Criminal Appeals

Alas, constant readers, we are bereft of instruction and guidance from our high criminal court this week. We at the Significant Decisions Report hope that the judges had a lovely President’s Day weekend, and that they return with more opinions next week.

First Court of Appeals

In Mendez v. State, No. 01-15-00187-CR, the First Court of Appeals considered charge error that failed to instruct the jury that affirmative defenses apply equally to the charged offense and any lesser-included offenses. The State conceded error in that the application paragraph applied self-defense only to murder, and not involuntary manslaughter. However, because Mendez’s trial counsel did not object to this error, it has to be reviewed for “egregious” rather than some harm.

This is a dangerous position to be in, especially considering that the defendant was convicted only of the lesser-included offense. Earlier in the opinion, the Court disposed of a legal sufficiency challenge regarding self-defense. In most cases, one would expect that, if there was legally sufficient evidence to permit the jury to reject self-defense, that a defendant could not show egregious harm in a charge that failed to properly instruct on the application of self-defense. The Court of Appeals, however, did find that the error vitally affected Mendez’s defensive theory, and remanded the case for a new trial.

Fourth Court of Appeals

In Gabriel v. State, No. 04-15-00759-CR, an unpublished opinion, the San Antonio Court of Appeals clarified rulings on probable cause and the fruit of the poisonous tree.

In that case, a young woman was the victim of a sexual assault and robbery as she waited for her gym to open. She was able to describe her assailant to the police and provide details about the robbery, and DNA samples were collected. The police searched in the direction the assailant ran, but were unable to locate him.

Months later, San Antonio PD officers were responding to an unrelated burglary call at an apartment complex. As Officer Torres patrolled the parking lot, he noticed the door of an SUV ajar, which he found odd. When he turned around, the door was closed and he saw feet sticking out from under the vehicle next to the SUV. Finding this even odder, he got out to investigate, whereupon he chanced to smell the odor of the burnin’ diggity dank, that old fiend marijuana. Gabriel admitted to smoking pot in his car. Officer Ruiz arrived to assist in the investigation, and found a backpack in the bed of the truck. Gabriel, who was sans shirt, asked for a shirt from the backpack, which Ruiz provided. Ruiz also searched the backpack, and found two black ski masks, clothing, and a loaded gun. Realizing that Gabriel matched the description of the gym rapist, lived near the gym where the rape happened, and had paraphernalia consistent with what the victim described, Gabriel was arrested and transported to the hospital for DNA collection. He was “not excluded” from being a contributor to the DNA found on the victim.

On appeal, Gabriel challenged both his arrest for lack of probable cause and the search of the backpack. The probable cause challenge turned on whether the odor of burning marijuana was enough to arrest (NB: it is almost always enough to detain, but not to arrest without more). However, the fact that Gabriel chose to dive under a nearby truck in an attempt to hide from officers failed to persuade the Court of Appeals that Torres lacked “other evidence” that would justify the arrest of Gabriel, not the least of which Gabriel’s explanation for his behavior was that he was smoking marijuana.

The more interesting issue is the search and seizure of the backpack. To refresh our memory, Torres is patrolling the parking lot in the early morning hours, sees a door of a vehicle open, turns around to investigate more, and sees the door closed. Feet are sticking out from under a nearby car. Torres gets out, orders Gabriel to stand up, and Gabriel tells Torres, “hey man, I was just out here to check on my car and blaze it.” Torres approached the Gabriel’s SUV, opened the door, and smoke came out. Gabriel is arrested and handcuffed, and the officers then began to search the area for narcotics. In the bed of the truck under which Gabriel had been hiding, officers found a backpack, which was searched, revealing: a .40 caliber handgun, clothing, ski masks, and gloves. Also in the backpack were a time card belonging to Gabriel, marijuana, and paraphernalia.

The trial court considered this a valid search incident to arrest. Relying on Arizona v. Gant, Gabriel suggested that because he was arrested, the backpack was no longer within arms’ reach. However, and this is crucial, Gant is restricted to the search of the passenger compartment of a vehicle. The fact is, when Gabriel was first “seized” by Torres, the backpack was inside the bed of the truck under which Gabriel was hiding, meaning it was within arm’s reach (see State v. Stander, 264 S.W.3d 360, 364 (Tex. App.—Eastland 2008, pet. ref’d)).

I would have liked to see discussion of whether there were any other legitimate bases for the search. The State suggested that Gabriel might have lacked standing to contest a search of the backpack because he abandoned it during his flight under the truck. I think this is a weak rationale, but were I the State in this action, I would have suggested that Gabriel forfeited a claim to contest the search of the backpack when he permitted Officer Ruiz to retrieve a shirt from inside the backpack and provide it to Gabriel.

Eighth Court of Appeals

In Leon v. State, No. 08-15-00365-CR, the Eighth Court of Appeals considered a State’s appeal of an order suppressing statements made by the defendant. Police stopped the vehicle in which Leon was traveling for a traffic violation, found everyone in the car to be nervous, and detained Leon. They placed him, without handcuffs, in the back of the police car, and set the driver and the other passenger down on the curb. A search of the car found cocaine, and when the officers asked Leon whose coke it was, Leon, admitted that it was his. After this conversation, officers read Leon his Miranda rights and placed him under formal arrest.

Leon filed a motion to suppress. The visiting judge initially denied it, but upon reconsideration, the district court judge granted it in part, suppressing the statements but not the brick of cocaine.

The Court of Appeals agreed with Leon that he was in custody when he was placed in the back of the car (without any ability to open the doors) for a lengthy period of time. The restriction in his movement, which was apparently for no purpose at all (at least not one testified to by the officer), caused his investigatory detention to become “custody” for purposes of interrogation, meaning Leon needed to be read his rights prior to any questioning. Order granting the motion to suppress affirmed.

Ninth Court of Appeals

In State v. Kolander, Nos. 09-16-00294-Cr and 09-16-00295-CR, and State v. Smith, Nos. 09-16-00296-CR and 09-16-00297-CR (companion cases) the Ninth Court of Appeals considered a rare State’s appeal of the grant of a motion to quash the indictments. Kolander and Smith, peace officers, were each indicted for tampering with physical evidence and tampering with a governmental record by including false statements in the PC affidavit.

The complained-of defect was that the indictments did not specify what false statement was used. The special prosecutor responded that this was not a necessary part of the indictments. The Court of Appeals disagreed, holding that the failure to include the allegedly false statements was a defect as to form and that the State must replead its case.

I have tried to peer into the entrails of these cases and augur some sense of what value they may have for motion practice for defense attorneys. But because they are unpublished memorandum opinions, they are of little precedential value. I happen to agree with the special prosecutor that “tracking the language” of Texas Penal Code § 37.09 and § 37.10 does not seem to require the State to plead the alleged basis for the falsity of the document in question. The statutes simply require that the defendant have “knowledge of its falsity” at the time that it is presented. Not that the Texas jurisprudence on charging instruments is “clear” by any stretch of the imagination, but it is a settled principle that the State need not plead “evidentiary” facts within its indictment. See Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988).

Similar indictments were upheld by the Court of Criminal Appeals (albeit not regarding the same type of challenge) in Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009). The elements of tampering with a governmental record as set forth in Fox v. State, 418 S.W.3d 365 (Tex. App.—Texarkana 2013, no pet.) do not include the alleged false statement made.

Which leads us to a discussion of Cook v. State, 824 S.W.2d 334 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) and Shaw v. State, No. 01-96-00015-CR, 1997 WL 269567 (Tex. App.—Houston [1st Dist.] May 22, 1997, no pet.) (not designated for publication). The Ninth Court of Appeals relied on Cook for the proposition that an indictment which fails to include the particular false statement at issue is defective. However, as discussed by Shaw, the charges in Cook were somewhat unique – 17 indictments, all identical in form, that contained 33 counts of tampering with governmental records. In that case, the First Court of Appeals said, “yeah, sure, you need something to distinguish 33 counts of tampering.”

But in Shaw, it was apparent from the date of the included document and the date alleged in the indictment what the “false statement” was. Shaw, 1997 WL 269567 at *2. The State did make this argument in its appellate brief, along with the statement that it was falsity by omission that it intended to prove at trial (see Appellant’s Brief, page 19). However, it appears that the Ninth Court of Appeals was not persuaded by this, which leads me to my current quandary.

As a criminal defense attorney, I do not object, philosophically, to greater specificity in charging instruments. As a legal scholar, however, I understand (and agree with) the rationale that evidentiary facts do not need to be included in an affidavit. The State bears the burden of proof; they must find and prove something about the PC affidavit was false. Requiring them to specify at the outset what that is makes that particular false statement an essential element, which would then NOT prevent a second prosecution of my client if I got him acquitted on the first charge. By keeping the pleading requirements more general, if the State cannot prove in a single trial that anything about the document was false, then I have secured an acquittal and jeopardy bars a retrial. If my client assures me that everything in the document is correct to the best of his knowledge and recollection, then I need no specific proof that everything in there is true. The burden rests upon the State to prove something is false, and in this case, the State has a tall order of proving that Kolander or Smith knowingly omitted pertinent information. By forcing the State to include what pertinent information it believes omitted, Kolander and Smith may be able to better prepare their defense, but only to the indictments as given. Because there could be LOTS of information that the State might say was relevant and omitted, there are potentially other charges the State can bring that were not plead within this indictment and would not be jeopardy-barred.

This is a tough nut to crack, particularly because we have a colleague of the defense bar acting as prosecutor and agents of the State acting as defendants. It is a total role reversal from the usual order of things, with a similarly defense-friendly opinion where I would have thought the tenor of the law was against the defendants and in favor of the State.

“You Have A Call…”

**Editor’s Note: “War Stories” is a new feature where experienced lawyers walk us through some of their most memorable cases. If you have a case you would like to submit to War Stories, please email Allison at** “You have a call.  It’s Sister Helen Prejean,” said my assistant. Without thinking, I replied, “From the […]

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Significant Decisions Report for February 17, 2017

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